He was discussing the mode which that Constitution provided for the

election of the Chief Executive of the new nation. The mode was that

the _American_ citizens, in each state, should elect a temporary

convention of delegates to deliberate upon and cast the votes of

Americans in that state for some American as President. We sense, at

once, the striking similarity between the temporary body, thus to

be chosen for _that_ purpose, and the temporary body or convention

also to be chosen to pass upon the _other_ single question, a “Yes”

or “No” to some particular proposed new grant of government power to

interfere with individual freedom. The danger to individual liberty

would necessarily be much less in having a permanent government body,

the legislature, cast the vote of the Americans in its state _for

an Executive_, than in having the same permanent government body or

legislature say the “Yes” or “No” of the Americans in that state _to a

new grant of government power_ to interfere with the individual liberty

of all Americans. Therefore, if we find Hamilton dwelling upon the

danger of state legislatures casting American votes for the American

Executive, we can be quite certain that neither Madison nor Hamilton

nor their colleagues _mentioned_ the existing ability of legislatures

to make _federal_ Articles (when these men worded and made their Fifth

Article) in order that their words might be twisted away from any

possible English meaning and say that the citizens of America appointed

these state governments, not a member of which is chosen by the

citizens of America, to be their omnipotent attorney in fact for every

purpose in the world, forever.

This is what Hamilton had to say on the danger to liberty, if permanent

state legislative governments, instead of special American delegates

chosen for that purpose, should even elect the American President:

“The mode of appointment of the Chief Magistrate of the United States

is almost the only part of the system, of any consequence, which has

escaped without severe censure, or which has received the slightest

mark of approbation from its opponents.”

(Incidentally we recall that the mode of procedure, which is the Fifth

Article, never received one word of censure from any opponent on any

ground, except that it left _to government_ the ability to reassemble

the “conventions” of the people. It was claimed that, even if the

people found the First Article power oppressive to their individual

freedom, government would never reassemble their “conventions” for the

purpose of permitting them to withdraw any of those grants.)

Hamilton proceeded as follows: “It was desirable that the sense of the

people should operate in the choice of the person to whom so important

a trust was to be confided.”

(We average Americans remember that the trust of making or refusing new

power to interfere with individual freedom would always be infinitely

more important.)

“This end will be answered by committing the right of making it,

not to any preestablished body, but to men chosen by the people for

the special purpose, and at the particular conjuncture.... A small

number of persons, selected by their fellow citizens from the general

mass, will be most likely to possess the information and discernment

requisite to such complicated investigations. It was also peculiarly

desirable to afford as little opportunity as possible to tumult and

disorder.... The precautions which have been so happily concerted in

the system under consideration, promise an effectual security against

this mischief.... And, as the electors,” like the conventions for

granting or refusing national power, “chosen in each State, are to

assemble and vote in the State in which they are chosen, this detached

and divided situation will expose them much less to heats and ferments,

which might be communicated from them to the people, than if they were

all to be convened at one time, in one place.”

(We recall Marshall’s echo of this in his later statement, speaking of

the Fifth and Seventh Article “conventions,” “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.”)

Hamilton went on: “Nothing was more to be desired than that every

practicable obstacle should be opposed to cabal, intrigue, and

corruption. These most deadly adversaries of republican government

might naturally have been expected to make their approaches from more

than one quarter.... But the convention have guarded against all

danger of this sort, with the most provident and judicious attention.

They have not made the appointment of the President [or any grant

of new power to interfere with individual freedom] to depend on any

preexisting bodies of men, who might be tampered with beforehand

to prostitute their votes; but they have referred it, in the first

instance to an immediate act of the people of America, to be exerted

in the choice of persons for the temporary and sole purpose of making

the appointment,” or a proposed grant of new power to interfere with

individual liberty.... “Thus without corrupting the body of the people,

the immediate agents in the election [or the grant] will at least enter

upon the task free from any sinister bias. Their transient existence,

and their detached situation, already taken notice of, afford a

satisfactory prospect of their continuing so, to the conclusion of it.

The business of corruption, when it is to embrace so considerable a

number of men, requires time as well as means. Nor would it be found

easy suddenly to embark them, dispersed as they would be over thirteen

States [now forty-eight States] in any combinations founded upon

motives, which though they could not properly be denominated corrupt,

might yet be of a nature to mislead them from their duty.” (_Fed._ No.

68.)

If Hamilton had been alive to watch the supposed legislative making

of the Eighteenth Amendment, he would have seen the manner of that

supposed making justify everything he said about the danger of letting

permanent government bodies have anything to do with individual

liberty, except the proper duty of each legislature to make laws for

its own citizens on matters committed to that legislature by those

citizens. And, from what we have just quoted, the “constitutional”

lawyers of 1920 certainly should have known that, when Hamilton

was alive, he and his associates, by their _mention_ of those

“legislatures” in the Fifth Article, never subjected themselves and

their posterity, ourselves, to an omnipotent ability to do what those

governments might will with our individual rights, “in all matters

whatsoever.”

It has been our custom, as average American citizens, to rely upon

our leaders to know and urge, at the proper time and place, our

protection under our American Constitution. We have seen the danger

of such reliance in the record of our Congress of 1917. As many of

our leaders are most renowned lawyers, the danger of that reliance is

emphasized, if the briefs of those leaders and lawyers in 1920 disclose

that they did not and do not know all these legal facts which are so

clear and also so essential to our protection as American citizens.

That we may ascertain whether these briefs do disclose this ignorance

and do emphasize the danger of such reliance, we must later examine

the briefs themselves. But, that we may come to such an examination,

properly prepared, it is necessary that we should know the nature of

the litigations before the Court and what were the arguments against

validity upon which the Court was asked to pass. In no other way, can

we acquire our own knowledge that the Supreme Court has yet to hear

and consider the real challenge to the supposed new Article in which

governments attempt to exercise ungranted power and to grant new power

to interfere with the individual freedom of the American citizen. As we

well know, that one real challenge is that the new Article was not made

by those who alone _can_ make it, that it was not made as it _can_ be

CONSTITUTIONALLY made, by the makers _of that kind of Article_ named

in the Fifth Article, the “conventions” of the Seventh _and the Fifth_

Articles, the “We, the people” of the Preamble and “the people” of the

Tenth Amendment.

CHAPTER XXIII

THE CHALLENGES THAT FAILED

The validity of the Eighteenth Amendment (seven litigations being heard

together) was argued on March 8, 1920, and for several days thereafter.

As we are not concerned with the meaning of the second section of the

Amendment or with the validity of the Volstead Act (passed by Congress

under the grant of said section) except as the validity of the Act

depends upon the validity of the Amendment, we shall make no mention of

either.

The Court announced its decision, in all the litigations, on June 7,

1920. Somewhat to the amazement of the country, but (in our humble

opinion even at the time) very wisely, the Court refused to write any

opinion whatever. Nothing could more certainly settle that the Court

determined no question except the specific questions presented by those

who challenged validity. That we may be certain that the Court neither

heard nor considered nor passed upon the real and the invincible

challenge to the existence of the supposed new _national_ Article, we

will let the Court, in its own words, state exactly just what were the

four propositions, advanced against validity, and state the simple

fact that it negatived each of those four propositions. Thus, in an

impressive manner, we shall acquire our own knowledge that the fifth

conclusion, which later we shall state, is but the conclusion of fact

that nothing, in the four propositions negatived, impairs the validity

of the supposed Article.

Mr. Justice Van Devanter announced the conclusions of the Court.

Power to amend the Constitution was _reserved_ by Article V, which

reads:...

(As we have been in the conventions which made it, we know it.)

The text of the Eighteenth Amendment, proposed by Congress in 1917 and

proclaimed as ratified in 1919, 40 Stat. 1050, 1941, is as follows:...

(The text of the first two sections is quoted on page 465 herein.)

We are here concerned with seven cases involving the validity of that

Amendment and of certain general features of the National Prohibition

Law, known as the Volstead Act, c. 83, 41 _Stat._ 305, which was

adopted to enforce the Amendment. The relief sought in each case is an

injunction against the execution of that act.... The cases have been

elaborately argued at the bar and in printed briefs; and the arguments

have been attentively considered, with the result that we reach and

announce the following conclusions _on the questions involved_:

1. The adoption by both houses of Congress, each by a two thirds vote,

of a joint resolution proposing an amendment to the Constitution

sufficiently shows that the proposal was deemed necessary by all

who voted for it. An express declaration that they regarded it as

necessary is not essential. None of the resolutions whereby prior

amendments were proposed contained such a declaration.

2. The two thirds vote in each house which is required in proposing

an amendment is a vote of two thirds of the members present--assuming

the presence of a quorum--and not a vote of two thirds of the entire

membership, present and absent. Missouri Pacific Ry. Co. v. Kansas,

248 _U. S._ 276.

3. The referendum provisions of state constitutions and statutes

cannot be applied, consistently with the Constitution of the United

States, in the ratification or rejection of amendments to it. Hawke v.

Smith, ante, 221.

4. The prohibition of the manufacture, sale, transportation,

importation and exportation of intoxicating liquors for beverage

purposes, as embodied in the Eighteenth Amendment, is within the

power to amend _reserved_ by Article V of the Constitution. (National

Prohibition Cases, 253, _U. S._ 350, 384.)

We are not interested in the first two propositions which the Court

negatived. They were that the Congress resolution should have _said_

that two thirds of Congress deemed it necessary to propose the

Amendment and that the proposals should have been made by two thirds of

the entire membership of the House instead of two thirds of a quorum in

each House. These are trifling and unimportant matters when over one

hundred million Americans seek to learn when they ceased to be citizens

of America and became absolute “subjects” of governments in America.

The third proposition negatived has naught to do with ourselves, the

citizens _of America_. It deals only with the rights of some _state_

citizens _as such_, where their _state_ constitution has a referendum

provision. For our protection against usurpation by any government

of our own reserved rights or powers, we look to our own _American_

Constitution. We have lived through its making with the Americans who

made it to secure individual liberty of themselves and their posterity,

ourselves, the citizens of America.

The clear statement of simple fact, expressed in the Court’s fourth

conclusion, tells us something, which, with Madison, we have known

since he wrote and suggested his Fifth Article, at Philadelphia, on

September 10, 1787. Our stay in the “conventions,” which made the

Fifth Article, has taught us that the Americans in them, even Henry

and the opponents of the Constitution, were fully aware of the fact

that the Fifth Article provided the CONSTITUTIONAL mode in which the

“conventions” could thereafter exercise the existing omnipotence of

the citizens of America themselves to make any kind of an Article of

government. The same stay fixed firmly in our minds that every one in

them knew that the Fifth Article is not a grant of any ability from

themselves to themselves, from the “conventions” named in the Seventh

Article to the same “conventions” named in the Fifth Article, all being

the “conventions” of the American citizens assembled to exercise their

own omnipotence.

And so, coming from the only “conventions” of that kind yet held,

we grasp at once the absolute accuracy of the statement in the

fourth conclusion of the Court in 1920. The _mention_ of the same

“conventions” in the Fifth Article, a mention made by the “conventions”

of the Seventh Article, is the sound basis for our knowledge that, as

the Tenth Amendment expressly declares, those “conventions” of the

Seventh expressly _reserved_ to themselves (the same “conventions”

named in the Fifth, “the people” of America in the Tenth Amendment)

their own exclusive ability to make _national_ Articles, like the

First Article and the Eighteenth Amendment. For which reason, we

know the truth of the Court statement in its fourth conclusion, that

the power to make the Eighteenth Amendment “is within the power

to amend _reserved_ by Article V.” The _exclusive_ ability of the

“conventions” of 1787 and 1788--to make the Article which is that new

Amendment--is something known to all who were in those “conventions.”

That the ability--to make Articles like the First Article and the new

Amendment--_remained_ exclusively in such “conventions” of the American

citizens, because such Articles are _national_ and either directly

interfere with or are the basis for direct interference with individual

freedom of the American citizen, was also known to every one in those

“conventions.” That is why the Americans in those early “conventions”

insisted that the Tenth Amendment expressly declare that such exclusive

ability _was_ reserved to them, “the people” of that Amendment, and why

the same “conventions” mentioned themselves, the “conventions,” in the

Fifth Article and provided therein the CONSTITUTIONAL mode of procedure

in which that exclusive ability could thereafter be exercised by those

who had it, the “conventions” of the American citizens.

Even though this knowledge, which we bring straight from the

“conventions” which made the Fifth Article, be not shared at all by

the lawyers of 1920, we are aware that it is also the knowledge of the

Supreme Court. That is why Marshall long ago pointed out that, when

individual welfare required that government should be granted some

_national_ powers or powers to interfere with individual freedom, “the

necessity of deriving such powers from the people themselves was felt

and acknowledged by all.” That is why in 1907 the Supreme Court again

declared “the powers the people have given to the General Government

are named in the Constitution, and all not there named, ... are

reserved _to the people_ and can be exercised only _by them_, or upon

further grant _from them_.” As the First Section of the new Amendment

is the exercise and the Second Section is the grant of one of those

reserved powers, and as the Fifth Article provides the CONSTITUTIONAL

mode of procedure in which it can be exercised or granted by those,

who alone have it, “the people” of the Tenth Amendment and the

“conventions” of the Fifth Article, it is very natural to read in

the same Supreme Court, in the National Prohibition Cases, that the

ability to make the Eighteenth Amendment “is within the power to amend

_reserved_ by Article V.”

When the Supreme Court of Marshall’s day knew that state “legislatures”

could not make Articles like the First Article and the Eighteenth

Amendment, when the Supreme Court of 1907 still knew that only the

“people” or “conventions” could make Articles _of that kind_, when

the Supreme Court of our own day knows that the Fifth Article deals

only with “_reserved_” power, we Americans feel that we are to remain

free men and citizens. We have come from the “conventions” with our

own accurate knowledge that the power to make the new Amendment or any

other Article like the First Article “is within the power to amend

RESERVED by Article V.” But, for the very reason that our knowledge

is accurate, we know that the power to make _such_ Articles was _not_

reserved to the state legislatures, who did not have it, but _was_

reserved to the “conventions,” who did have it and who were exercising

it (in making the First Article) at the very moment when they made the

Fifth Article.

We have examined the four conclusions of the Supreme Court which deal

with any argument _presented_ against the existence of the Eighteenth

Amendment. Those conclusions negative every such argument that was

presented. But, because every brief assumed and asserted that the

amending power “_reserved_” in the Fifth Article had been “_granted_”

therein, the four conclusions make clear that the Court has yet to hear

and pass upon the challenge which reads the Eighteenth Amendment out of

our Constitution. When that challenge is presented by American lawyers,

who know what American basic law is and how American citizens are

constitutionally protected against usurpation of power by governments

in America, there can be no doubt of the decision of the Supreme Court.

In _that_ decision, there will be no conclusion denying the most

important legal fact in America, namely, that _governments_ cannot

exercise ungranted power or create new government power to interfere

with the individual freedom of the American citizen. In _that_

decision, there will be again the simple statement of the undoubted

fact that the ability to make the Eighteenth Amendment “is within the

power to amend _reserved_ by Article V.” But, in _that_ decision, there

will be _added_ the plain statement of the Tenth Amendment that such

ability was _not reserved_ to the state legislatures who never had it,

but _was_ reserved to the “conventions,” who always had it and still

have it. And, comparing that future decision (which is certain to come

from the Supreme Court) with the decision, which merely negatived the

four unsound challenges which _were_ made to the Eighteenth Amendment,

we know that the first five conclusions of the latter decision--all

the conclusions that have aught to do with the existence and validity

of the Eighteenth Amendment--merely hold that the existence of the new

Amendment is not affected by any of these challenges which _were_ made.

With exceeding wisdom in our humble opinion, the Court carefully

refrains from passing upon or determining any question except the

exact challenges which _were_ presented. That is why no opinion was

written. When any general statement (seeming to bear upon questions

not presented or submitted) might come back to perplex and annoy the

Court in future litigation where protected liberty of the American

citizen was the challenge to the government-made new Article, common

sense and sound reason and the experience of generations dictated that

no general statement should be made. And, as there was but one way to

avoid a single general statement, no opinion was written. This method

of deciding those particular litigations, with their four unsound

challenges, would leave the decision itself without even an apparent

influence upon a litigation in which some _real_ challenge might be

presented.

And so we find the Court merely stating “that we reach and announce the

following conclusions _on the questions involved_.” Nothing could make

more clear that no conclusion is reached or announced on any question

not presented by those who urged invalidity.

The first four conclusions reached and announced are conclusions of

law against the opposite legal conclusions urged by those opponents.

The fifth conclusion is a conclusion of fact that validity of the

Amendment is not affected by any of the four propositions advanced by

the opponents of the Amendment. In other words, the first five numbered

conclusions, all that deal with validity of the Amendment, can be

expressed in our own words, viz: “Although the proposing Resolution

did not _state_ that Congress deemed the proposal necessary, although

only two thirds of a quorum in each House (and not two thirds of the

membership of each House) made the proposal, although the citizens

of each referendum state have not acted as part of their respective

state legislatures, and although it is urged that the Fifth Article

_reserved_ abilities do not include ability to make an Amendment like

the Eighteenth, we decide that none of _these_ things affect the

validity of the new Article.”

And, when we make this accurate statement of what was decided in those

National Prohibition Cases, we average Americans, fresh from our

education with the Americans who found themselves “subjects” and made

themselves and their posterity free men, have some startling facts

brought home to us.

Undoubtedly thousands of lawyers had worked, for more than a year, in

the preparation of the arguments that were made and the briefs that

were filed. When these amazingly important litigations were reached,

the arguments lasted for several days. On the exhaustive briefs filed

against validity, there appear twenty-two lawyers, many of them among

the leaders of the American Bar. On the briefs to support state

government omnipotence over the citizens of America, “in all matters

whatsoever,” thirty-five lawyers, headed by a former member of the

Supreme Court, appear.

We know, with a knowledge that brooks no denial, because it is a

knowledge brought from our experience with those who made themselves

free men and established the Constitution to secure that result to

themselves and to us, that the new Article is not in the Constitution

unless at some time prior to 1917, the free men of America, all the

individual citizens of America, became the “subjects” of _some_ state

governments.

It is clear, therefore, that the existence of the Eighteenth Amendment

has always depended upon the correct answer to the question whether the

American is “Citizen or Subject?”

If we are subjects, the new Article _may_ be in the Constitution not

made by us but made by governments.

If we still are citizens, as once undoubtedly we were, the new Article

_cannot_ be in _our_ Constitution, because we have not made the new

Article, assembled in our “conventions.”

Where men are citizens, _governments_ cannot exercise ungranted power

or create new power to interfere with individual liberty.

In a nation of free men, established by former “subjects” with a

dominant purpose that no American should ever be the “subject” of

any governments, it is amazing that one government should propose

that _governments_ constitute, and it is amazing that forty-six

_governments_ should attempt to constitute, new government of men--new

government power to interfere with individual human freedom.

But most amazing of all, in a nation with the history of America, is

the fact that, when audacious government had so proposed and audacious

governments had so attempted, the prolonged arguments and voluminous

briefs of fifty-seven leading members of the American Bar never

once knew or stated the simple fact which made the proposal and the

attempt a legal and constitutional absurdity. The fact itself, the

one most important legal fact in America, was once known and “felt

and acknowledged by all” Americans. Yet, not once in any brief in the

National Prohibition Cases, was it either known or urged that the

“conventions” of the Fifth Article are the “conventions” of the Seventh

Article and that both are the whole American “people” of the Preamble

and the Tenth Amendment and that, therefore, the Constitution expressly

_reserves_ to the “conventions” _of the Fifth Article_, the citizens

of America, their existing and exclusive ability to create new

government power to interfere with their own individual human liberty.

_Why_ none of these briefs did make this challenge became known to us

when Rice of Rhode Island, with the silence of his colleagues marking

their approval, answered the Court that the new Article could not be

_constitutionally_ made. _Why_ they did not make the challenge will be

emphasized when we read the leading brief against the new Amendment.

Over fifty times it will admit and state that the Fifth Article _is_

a “_grant_” of power to _state_ legislatures from _American_ citizens

and claim the “_granted_” power is a limited power and does not include

ability to make an Amendment like the Eighteenth because such Amendment

takes away the reserved power _of a state or political entity_. Then,

to emphasize what it does not know about the “conventions” of the Fifth

Article and the reserved powers of the citizens of America, this brief

will go on to tell us that there is no _constitutional_ mode in which

can be made an Article which takes more power away from any state;

that such an Article may only be made, outside any _constitutional_

mode, by having the people themselves rescind “the social compact”

which is their American Constitution and having them make “such new

compact as they please”; but that such new compact, such new Article

of that kind, cannot “be validly and legally made to come to pass

against the objection and protest of _any_ state.” All this clearly

explains _why_ none of the briefers were able to answer correctly

the question asked by the Court. How could they tell the Court in

_what_ way the Eighteenth Amendment could be _constitutionally_ made,

when all of them “knew” that there was no _constitutional_ mode

in which the “conventions” of the American citizens could make it,

and when they “knew” that it could not be made, even outside the

Constitution, without the consent of the citizens of _every_ state? The

most important words in the Fifth Article, “in conventions in three

fourths thereof,” did not mean to these briefers what they meant to

the Americans who made the Fifth Article or to Madison and Hamilton

who wrote the Fifth Article and suggested it at Philadelphia. In

the word “conventions,” they did not recognize the Seventh Article

“conventions” of the American citizens describing themselves by exactly

the same word, “conventions,” in the Fifth Article. In the words “in

three fourths thereof” after the word “conventions,” they did not

recognize the great security to human freedom which we have learned

with the Americans who wrote and who made the Fifth Article. They did

not recognize how the American people, by these words, made it _their_

constitutional command that they themselves, again assembled in their

conventions, by a “Yes” from three fourths of their “conventions” _and

without_ the consent of the Americans in the other “conventions,” might

withdraw any power granted in the First Article and might add any new

power to its enumerated grants, whenever _they_ deemed such withdrawal

or such addition would better secure and protect American individual

liberty.

_That_ not one of the briefers _did_ make _our_ challenge is our

certain knowledge when we read the four challenges they did make and

which are negatived in the first four conclusions of the Court.

The first two relate to the manner of the _proposal_ that governments

create government of men in America. Who cares _how_ one government

makes a silly _proposal_? The one important thing is that no

governments shall attempt _to act upon_ a proposal which denies the

most important legal fact in America, that _governments_ cannot

constitute new government ability to interfere with individual liberty.

The fourth challenge that was made is the absurd challenge that the

Fifth Article does not _mention_ a CONSTITUTIONAL mode of procedure in

which the citizens of America may again _directly_ grant to _their_

government new power to interfere with their own individual liberty

and in which--far more important to the “conventions” which named

themselves (the “conventions”) in their Fifth Article--the American

citizens can directly take back any part of the granted power of the

First Article which they find oppressive to their individual liberty.

This challenge neither knows nor makes any distinction between the

state “legislatures” and the “conventions” of the American citizens or

the mention of either in the Fifth Article. It is a challenge which has

not the knowledge we bring from the first “conventions,” the knowledge

that “legislatures” are mentioned on account of their existing ability

to make _federal_ or declaratory Articles and that “conventions” are

mentioned on account of their exclusive ability to make Articles _of

any kind_. It is a challenge which assumes and asserts and is based

wholly upon the absurd assumption that the Fifth Article is a “grant”

of power to make Articles. On this absurd assumption of this patently

absurd “grant,” this fourth challenge, frankly stated in our own words,

is as follows: “In the Fifth Article, the ‘conventions’ grant to the

two grantees--the grantors and the state legislatures--an _identical_

ability to make new Articles. We admit that, if the ‘conventions’

of the Fifth Article could constitutionally make the Eighteenth

Amendment, the state legislatures can also constitutionally make it.

But our challenge is that the ‘grant,’ in the Fifth Article, is limited

in extent and that neither the ‘conventions’ nor the state legislatures

can constitutionally make the Eighteenth Amendment.”

To the “constitutional” lawyers who make this challenge, to all who

support such challenge, we commend many hours’ study of the statements

of Madison, who wrote the Fifth Article; of Hamilton, who supported its

introduction at Philadelphia; of Wilson, Pendleton, Henry, Iredell,

MacLaine, Jarvis, Lee, Mason, and the many others, with whom we have

sat in the “conventions” which made the Fifth Article. Particularly

do we commend a careful reading of the reasoning which led to the

decision at Philadelphia, in 1787, that the First Article, _because it

constituted government of men_, _must_ go to the “conventions” named

alike in the Seventh and the Fifth Articles and could not be validly

made by the state “legislatures” named in the Fifth Article. That

decision was based upon the unrepealed Statute of 1776, a statute well

understood in 1787, only eleven years after the Statute itself had been

enacted as the command of the whole American people. Finally, to those

who support this fourth challenge, we commend a thorough reading of the

law laid down by Marshall in the Supreme Court. If they thus educate

themselves as we have educated ourselves, they will be able to say with

Marshall: “To the formation of a league, such as was the Confederation,

the state sovereignties were certainly competent. But when, ‘in order

to form a more perfect Union,’ it was deemed necessary to change this

alliance into an effective government possessing great and sovereign

power and acting directly on the people, the necessity of referring it

to the people and of deriving its power directly from them, _was felt

and acknowledged by all_.”

And, if all shall complete their education with such men as Webster and

Lincoln, they will never again make the mistake of ignoring the vital

and important distinction in identity between “state legislatures”

and “conventions” of the American citizens, the distinction that the

former are never anything but governments and each the government

agent of the citizens _of one state_, while the “conventions” are the

citizens of America itself assembled in “conventions” to issue their

commands to themselves, to their government, to the states and to the

state governments. The completed education will enable these lawyers to

win future litigation against legislative governments who audaciously

attempt to usurp the exclusive and reserved powers of the “conventions”

of the American citizens.

In any of the three challenges negatived by the first, second and

fourth conclusions of the Supreme Court, we have failed to find any

suggestion of _our_ challenge, namely, that state “legislatures” have

audaciously attempted to usurp the exclusive powers reserved to the

“conventions” which are named in the Fifth Article.

And now we examine the only other challenge that _was_ made, a

challenge negatived by the third conclusion of the Supreme Court. No

challenge could more emphatically ignore the protected individual

liberty of the citizen of America. This challenge does not know

that American citizens have _no_ government save the government of

enumerated powers. This challenge frankly admits that the Fifth

Article is a grant to legislatures, each elected by the citizens _of

some particular state_, and that three fourths of those legislatures

have the omnipotence, which was denied to the British Parliament,

over every individual liberty of the American citizen. Like the other

challenges that _were_ made, like every brief for or against the

Eighteenth Amendment, this challenge knows not that the Constitution

is both a _federal_ and a _national_ Constitution and knows not that

the state “legislatures” never have and never can have aught to do with

the _national_ aspect of that Constitution. Based on this remarkable

ignorance, this is the challenge, frankly stated in our own words:

“The state legislatures _can_ make this Eighteenth Amendment. The state

governments _can_ do what they will, so long as they call their action

a constitutional Amendment, with every reserved right and power of the

citizens of America. But thirty-six state legislatures are necessary to

make anything called a constitutional Amendment. And our challenge is

that thirty-six legislatures have not made this particular Eighteenth

Amendment. In any state, where the referendum exists, the citizens

_of that state_ [we note that even now the citizens _of America_ are

not mentioned] are part of the state legislature. In some of these

referendum states, whose legislatures are included among your claimed

thirty-six ratifiers for the Eighteenth Amendment, the whole of the

state legislature has not yet ratified, because the citizens of the

state, who are part of its legislature, have not yet acted. For this

reason, that you ignore the rights of the citizens _of some states_,

our challenge is that the Eighteenth Amendment has not been ratified by

the legislative governments of thirty-six states.”

This particular challenge, like everything in these litigations and

in the whole history of the supposed new Amendment, brings into bold

relief the one monumental error at the bottom of every thought that the

new Amendment _is_ in the Constitution, at the bottom of the varied

absurdities which constantly appear in every brief, either for or

against validity.

Without a single exception, the fifty-seven lawyers on these briefs

base their every argument, no matter how those arguments may challenge

one another, on the ridiculous sheer assumption that the Fifth Article

is a great power of attorney to the state governments from the citizens

of America. All these fifty-seven lawyers ignore the undeniable

fact--mentioned continually in the “conventions” of the Seventh Article

which wrote their own name, “conventions,” into the Fifth Article--that

the Constitution is both _federal_ and _national_. This first mistake,

this ignoring of that fact, led all of them immediately into the

fatal error of wholly ignoring the vitally important fact that the

Fifth Article distinctly names those who already could make _federal_

Articles, the state governments, and those whose exclusive right it

always was and is to _make national_ Articles, the people assembled

in their “conventions.” Only because of these two mistakes, the next

step comes in the guise of the absurd concept that the Fifth Article

is a grant of _any_ power of attorney, from the citizens of America,

either to the “state legislatures” or the “conventions.” In this patent

absurdity, all fifty-seven lawyers concur. That each of them does not

see its patent absurdity is due entirely to the fact that not one of

them states the proposition, that the Fifth Article _is_ a grant, in

the frankest mode of stating it. That _frankest_ way is to state the

proposition in these words: “In the Fifth Article the citizens of

America, assembled in the ‘conventions’ of 1788, _granted_ to the

state legislatures _and_ to _themselves_, the citizens of America,

assembled in their ‘conventions,’ a quantum of power as attorneys in

fact of the citizens of America. We fifty-seven lawyers only differ

as to the _extent_ of the power which the citizens of America grant

to themselves and to the state governments. We, who _support_ the new

amendment, contend that the citizens of America grant to the state

governments and to the citizens of America _all_ the power of the

citizens of America. On the other hand, we, who _oppose_ validity,

contend that the citizens of America grant to the state governments and

to the citizens of America only _some_ of the unlimited power of the

citizens of America, the very power they were exercising when they made

the grant which is the Fifth Article.”

When the common proposition of all those lawyers, that the Fifth

Article “grants” power to those two grantees, _is_ stated in this frank

way, its patent absurdity is manifest. Every one of those lawyers knows

that a grantor never can or does grant to himself either _all_ or _part

of_ what he already has. Moreover, all those lawyers ought to know that

the Tenth Amendment expressly declares that the entire Constitution,

in which is the Fifth Article, grants no power of any kind except to

the American government at Washington. Alone and unaided, this simple

declaration makes it impossible that the Fifth Article grants any power

to the state governments. Thus, even without the certain knowledge we

bring from the conventions of 1788, the state governments disappear

from the scene as attorneys in fact for the citizens of America in any

matter. Each of those state governments is left with no power it did

not have before the Fifth Article was made. Not one of them even keeps

all of the power which it had before 1788. The citizens of America,

the “conventions” in which they assembled, commanded otherwise. “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_, [the “conventions” named in the Seventh _and the

Fifth_ Articles] _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.” So spoke

Marshall from the Supreme Court Bench, in 1819, after he had come from

one of those “conventions” in which he himself had stated: “It could

not be said that the states derived any powers from that system, [the

new Constitution then before the convention in Virginia] but retained

them, though not acknowledged in any part of it.” (3 _Ell. Deb._ 421.)

Yet every brief of those fifty-seven lawyers bases its every argument

on the sheer assumption, asserted by all, that the Fifth Article is a

“grant” to the state legislatures which makes them attorneys in fact

for the citizens of America. No brief can offer and no brief does

offer the slightest proof in support of the assumption. But no brief

_asks_ for proof of the assumption or challenges the assumption. On the

contrary, every brief makes the assumption and asserts it and on it

rests every argument.

Because of this monumental error, every brief _for_ the Amendment

insists that the state legislatures, as attorneys in fact for the

citizens of America with _every_ power of the citizens of America,

validly made the Eighteenth Amendment.

Because of this monumental error, every brief against the Amendment

asserts that the state legislatures are attorneys in fact for the

citizens of America but insists that the Fifth Article (the assumed

power of attorney in a Constitution which expressly declares that

_no_ power is given to the state legislatures) grants to the state

legislatures (as well as to the “grantors” themselves) only _limited_

ability on behalf of the principal, the citizens of America. On this

altogether unique argument, it is contended that the limited power

of attorney does not confer ability to make an Amendment like the

Eighteenth.

Because all briefs make the same monumental error, there is no

challenge on the ground that the state legislatures, not a member

of which is elected by the citizens of America, hold _no_ power of

attorney from the citizens of America to interfere in any way, in any

matter, with the individual freedom of the American citizens. Because

all briefs against the Amendment make the same monumental error,

the fourth challenge (which _was_ made and considered by the Court)

is based upon the heretical doctrine--the heresy being clear from

what we have heard in the “conventions” where we sat--that the Fifth

Article does not mention a CONSTITUTIONAL mode in which the citizens

of America, again assembled in their “conventions,” can take back from

their American government any enumerated power of the First Article

which they find oppressive to their individual rights and freedom.

And, perhaps most amazing and amusing fact of all, because all briefs

make the same monumental error, the briefs _for_ the Amendment make

no effort to support and the briefs _against_ the Amendment make no

attempt to challenge the clear paradox, on which the Eighteenth

Amendment depends for its existence, that there never has been a

citizen of America if it be true that the Fifth Article makes the state

governments the attorneys in fact _for_ the citizens of America with

_unlimited_ ability to interfere with the individual freedom of the

citizens of America. Where such unlimited ability _is_ in government,

men are not “citizens” but “subjects.”

But we ourselves come from the “conventions” where the Americans

knew that they entered as free men and left as citizens of America,

not as “subjects” of any governments. Therefore, we need no lawyer

to tell us--and no lawyer can deny our knowledge--that, if the state

governments are the attorneys in fact for the American citizens and

have ability either to interfere with or to grant power to interfere

with the individual liberty of the American citizens, or, if _any_

governments can interfere with that liberty on a matter not enumerated

in the First Article, there never were American citizens and the

early Americans entered their “conventions” free men but left those

“conventions” as “subjects” of an omnipotent government.

CHAPTER XXIV

GOVERNMENTS CLAIM AMERICANS AS SUBJECTS

“Is the government of Virginia a state government after this government

is adopted? I grant that it is a republican government, but for what

purposes? For such trivial _domestic_ considerations as render it

unworthy the name of a legislature.” (3 _Ell. Deb._ 171.) So thundered

Patrick Henry to the Americans assembled in convention in Virginia,

while these Americans still heard the echo of his charge that the

new Constitution made the state legislatures “weak, enervated and

defenseless governments.”

But these are the governments which all lawyers of 1920 “knew” had been

made the attorneys in fact for the citizens of America, possessors

of the supreme will in America. These are the governments to which

all advocates of the Eighteenth Amendment contend that the Americans,

in the “conventions” with Henry, gave the entire omnipotence of the

American people to be exercised by these governments, without any

constitutional restraint.

The real fact is, although all lawyers of 1920 failed to know the

fact, that these state governments were only named in the Fifth

Article, _because_ they already had an existing limited ability to

make _federal_ Articles, an ability _not_ granted by the citizens _of

America_ but possessed by each of those governments as attorney in

fact for the citizens _of its own state_. That it _was_ an ability not

granted by the citizens _of America_, must be apparent when we recall

that it was exercised by those governments in 1781--seven years before

there was such a thing as a citizen of America. That the lawyers of

1920 neither knew nor realized the importance of this fact, is apparent

when we recall that every brief of _those_ lawyers asserted that these

governments get their ability to make Articles by a “grant” in the

Fifth Article.

Our knowledge of the nature of _every_ challenge to the new Amendment,

and our knowledge that each challenge involved the assumption that

the Fifth Article _was_ a “_grant_” to these state governments, is a

knowledge which is certain from our study of the conclusions of the

Supreme Court which negatived each challenge.

The certainty is emphasized by our memory of the reply of Rice in that

Supreme Court, when, without one dissent from the challengers, he

stated his and their conviction that the “conventions” of 1788--the

challengers all forgetting that those “conventions” named _themselves_

in the Fifth Article--provided no CONSTITUTIONAL mode of procedure

in which their own exclusive power could be again exercised to make

Articles like the First Article and the Eighteenth Amendment.

Let us again emphasize our certainty by a few moments with the briefs

of the challengers.

Root was their leader. A distinguished public leader and considered by

many to be the leader of the American Bar, there was special reason why

_he_ should have known the ability of _government_ to _make_ national

Articles in a Constitution, _only_ when men are “subjects,” and the

inability of _governments_ to _make_ such Articles, when men are

“citizens.”

If his brief, or the brief of any challenger, had urged this real and

invincible challenge, we would have found the mention of that challenge

in the decision _and it would not have been a refutation of that

challenge_. That we may confirm our knowledge that the brief of Root,

_like the brief of every challenger_, did not make this challenge, the

challenge that the Fifth Article is _no “grant”_ but a _mention_ of

two existing abilities and a mode of CONSTITUTIONAL procedure for the

respective exercise of each, let us read the brief’s own statements of

the three challenges it does make. “The plaintiff contends that this

attempted amendment to the Constitution of the United States is invalid

(1) because it constitutes mere legislation, and is, therefore, not

authorized by Article V of the Constitution, (2) because it impairs

the reserved police or governmental powers of the several States and

their right to local self-government, and (3) because it has not been

ratified by three fourths of the several States since it has not been

submitted to the electorate of the States in which the initiative, or

the referendum, or both, prevail (assignment of errors Nos. 1-5). These

questions are discussed in points II, III, and IV, respectively. In

point I the prior amendments to the Constitution are considered with

reference to these contentions, and in point V the justiciability of

the contentions is maintained.”

Its first challenge is itself the admission that all CONSTITUTIONAL

ability to change our Constitution is ability “_granted_” in the Fifth

Article. Moreover, it is the flat denial of any CONSTITUTIONAL mode

of procedure in which the citizens of America, by a “Yes” from three

fourths of their assembled “conventions,” can enact the legislation

which is Section One of the supposed Eighteenth Amendment.

Its second challenge is wholly on behalf of the political entities,

which are the states. It not only makes no claim for the rights of

American citizens, but it denies any CONSTITUTIONAL ability in the

American citizens to interfere, by changing the American Constitution,

with what _the American citizens_ reserved to each state and _its

citizens_.

The third challenge again fails to assert any claim on behalf of the

rights of the _American_ citizens. It is the challenge negatived by the

third conclusion of the Supreme Court. It is the challenge that the

citizens _of the State_, in some of the states, are part of the state

legislature.

If we want further confirmation of our knowledge that this brief does

not make the real challenge, namely, that the Fifth Article is no grant

to the supposed grantors and the state governments, we find it in the

fact that the brief itself refers over fifty times to the Fifth Article

_as a “grant”_ of limited ability to make Articles.

If we need further confirmation, we find it in this fact. After the

Supreme Court had negatived every proposition in that brief, its

writers made application for a reargument. The application was based

on one ground as far as concerned the _validity_ of the Amendment.

That one ground was that the Court had written no opinion. From this

one fact, the claim was made that the Court could not have considered

the potency of the three challenges which had been urged in the brief.

Educated with the earlier Americans, we believe that each of these

three challenges, in its very statement, shows why it is unsound, and

that no opinion was needed to explain its refutation. But the nature of

the application shows the continued concept of the Fifth Article as a

“grant.”

If we look at the other briefs against validity, we will find all

arguments based on the same monumental error that the Fifth Article

_is_ a “_grant_” and that the state legislatures are therein named

the attorneys for the citizens of America, although the latter, _as

citizens of America_, never elect a single member in those legislatures

and the Tenth Amendment expressly declares that the Constitution gives

no power of any kind to the states or their legislatures. On the

impossible hypothesis of this monumental error are budded the most

extraordinary arguments.

In more than one brief, it is urged that, in the Fifth Article, the

whole people of America made a certain number of state legislatures

their own attorneys in fact to amend the _American_ Constitution.

But, urges the brief, the _American_ people have no power to change

the state constitutions, and “therefore, the grantees,” the state

legislatures, “cannot exceed the powers of their principal, the people

of the United States.” And, the brief goes on, as the people of America

cannot change a _state_ constitution, neither can the attorneys in fact

of that whole American people, the state legislatures, change it. The

ability of the people or citizens of America and of “_their_” attorneys

in fact, the state legislatures, is only competent to change the

Constitution of the citizens of America. But this Eighteenth Amendment

changes the Constitution of each state. Ergo, that change is clearly

beyond the power of the citizens of America and “_their_” attorneys in

fact, the state legislatures!

It will serve no useful purpose for us to dwell further upon the briefs

against validity. They all show the universal conviction that the Fifth

Article _is_ a “grant” and makes the state legislatures attorneys in

fact for ourselves, the citizens of America, who elect not a single

member in the state legislatures. Naturally, as this fundamental

error is the invincible conviction of all counsel against validity

before any brief is written, none of those briefs mentions such simple

facts as the fact decided by the Supreme Court in Barron v. City of

Baltimore, 7 _Pet._ 243. That decision, by John Marshall, decisively

settled the legal fact that the Fifth Article grants no power to the

state legislatures to make the Eighteenth Amendment. _And_, as it also

decisively settled that the Fifth Article _does not give_ the state

legislatures _any_ power whatever, it destroys the absurd concept

that the Fifth Article makes the state legislatures attorneys in

fact for those who made the Fifth Article, the citizens of America,

the “conventions” of the Fifth Article and the Seventh Article. But

lawyers, who start to write briefs with the certain (although false)

“knowledge” that the Fifth Article _does_ make the state legislatures

attorneys in fact for the citizens of America, neither know the meaning

of that decision nor state the decision and its meaning and its effect

upon the Eighteenth Amendment in the briefs which they write. The

decision is very clear. We have met it earlier in our education herein.

It will bear repetition right now, when we find fifty-seven lawyers all

“knowing” that the Fifth Article (despite the declaration of the Tenth

Amendment) does give power to the state governments and, by giving it,

makes these governments attorneys in fact for the citizens of America.

Barron claimed that a state statute was void because it came in

conflict with the restriction imposed by the Article which is the Fifth

Amendment to the American Constitution. If the restriction applied to

the state legislatures and their powers, the statute was clearly void.

Therefore, as Marshall pointed out, the Court had but one question

to solve, whether the American Constitution (in which is the Fifth

Article) granted _any_ power to the state governments. If it did, then

general restrictions in that Constitution, as they clearly applied

to all powers _granted_ in that Constitution, applied to the state

governments. On the contrary, if the Constitution granted _no_ power to

the state governments, general restrictions in the Constitution would

not apply to the state governments. For which reason, the decision of

the case itself was to depend on one thing alone, whether there _was_

any power granted in the entire Constitution to the state governments.

If there was not, the decision would be against Barron.

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.

It would have been impossible for Marshall to have stated more plainly

that the “instrument,” the Constitution (which contains the Fifth

Article), _grants no powers whatever to the state governments_. On

that fact, the fact being the simple answer to the question “of

great importance but not of much difficulty,” Marshall decided that

the general restrictions (applying only to powers _granted_ in the

Constitution) did not apply at all to the state governments, to whom

the Constitution granted no power whatever.

And so we Americans, trying to find the “when” and “how” (between, 1907

and 1917) we became subjects, cannot find the supposed answer anywhere

in the briefs against validity. All that we do find of interest to us,

in those briefs, is that the briefers, either with or without knowledge

of the fact, are meeting a claim that there never was an American

citizen and that the American people became “subjects” when they made

the Fifth Article on June 21st, 1788.

By reason of our education in the making of the Fifth Article, we

know the answer to the absurd claim. The answer is one that cannot

be denied unless there are facts which we have not learned in our

education. Therefore, we go quickly to the briefs of those who make the

claim, those who upheld the existence of the Eighteenth Amendment, to

ascertain what are the _new_ facts on which they base their claim that

there never was an American citizen and that the Fifth Article made the

American people “subjects.”

These opponents were led by Hughes. In this litigation, _he_ should not

have forgotten that there are limits to the powers of every government

in America. In the following January, he appeared in the same Court,

to prove that there is limit to the power of the _supreme_ legislature

in America, the Congress.

That Congress had passed a statute, known as the “Corrupt Practices

Act.” In it, certain practices, at federal primary and other elections,

were prohibited and made criminal offenses. His client had been

tried and convicted by a jury as guilty of one of these practices in

a primary election for the nomination to the Senate of America. On

the appeal to the Supreme Court, Hughes urged that, as our American

government _is_ a government of _enumerated_ powers, _incidentally

a fact which his claim for the state governments in the National

Prohibition Cases flatly denies_. Congress could not _validly_ pass the

statute, under which his client had been convicted, unless the power to

pass a statute in that particular matter was found in some enumerated

power in the Constitution. The Constitution clearly gave Congress

power to pass laws concerning “elections” for federal officers. But,

urged Hughes, the Americans of 1788, the “conventions” in the Fifth

and Seventh Articles, did not know anything about “primary” elections.

Therefore, urged Hughes, Congress has not the power to make the same

thing a penal offense at “primary” elections, which Congress can make

a penal offense at the regular elections. By a divided Court, this

argument, based on the claim of _limited_ power in the _supreme_

legislature to prohibit what a candidate for Senator may do, was

sustained and the conviction was reversed.

It is amazing, therefore, to turn to the Eighteenth Amendment brief

of the same briefer, a few months earlier, and to find him contending

for his clients therein, twenty-four governments of state citizens, an

absolute omnipotence to interfere with individual freedom of American

citizens on every subject. And it is startling to find, in this brief,

audacious denial of any right in the Supreme Court even to consider

whether these governments of state citizens have that omnipotence over

the American citizen.

In the case of the candidate for Senator, it was his concept and his

claim that the Supreme Court can decide that the _supreme legislature_

in America had not the power to make a certain command to candidates

for seats in the American Senate. This is the doctrine that the only

government of the American citizens is a government of enumerated

powers. In the Eighteenth Amendment litigation, the following is

his contention, that thirty-six governments of state citizens (the

_inferior_ legislatures in America) have unlimited power, without any

constitutional restraint, to make commands to the American citizens on

any matter whatsoever:

“We submit that the conception involved in the bill of complaint, that

an amendment duly submitted by Congress on the vote of two thirds of

each House, and duly ratified by the legislatures of three fourths

of the States, is still subject to judicial review, and may be held

for naught through judicial action by virtue of a process of implied

restrictions upon the amending power--restrictions which thus set up by

judicial decree would be unalterable by any constitutional process--is

a conception of the most extravagant character and opposed to the

fundamental principles of our government. No principle of judicial

action can possibly be invoked for sustaining such an authority. The

propriety and advisability of amendments, which are not prohibited by

the express exceptions in Article V, are necessarily confided to those

through whose action the amendments are to be made.”

We are quite accustomed to have men like Anderson maintain that

governments of state citizens have outlawed _for the citizens of

America_ a traffic which Madison hoped would take deep root everywhere

in America, a rightful traffic by human beings “so recognized by the

usages of the commercial world, the laws of Congress, and the decisions

of courts.” (Leisy v. Harden, 135 _U.S._ 100.)

When Americans were fighting on the battlefields of the Revolution for

human liberty, Walter Butler stirred up the House of the Six Nations to

make a home attack. It was natural, therefore, when Americans in 1918

were fighting on the battlefields of Europe for human liberty, that

Anderson and men of his type should stir up the Houses of thirty-six

nations to make a similar home attack. Americans will probably always

have Butlers and Andersons to stir up home attacks, when Americans are

away on the battlefields.

But it is a grave matter when one who has sat on the Bench of the

Supreme Court later contends that the Court has no ability even to

review an attempted effort of the legislatures of state citizens to

command the citizens of America on a matter not enumerated in the First

Article.

From the “conventions” of the early American citizens, we bring the

knowledge that it is the bounden duty of the Supreme Court to determine

that the governments of state citizens have no power whatever to

interfere with the individual freedom of American citizens in any

matter whatsoever. From those “conventions,” we bring the certain

knowledge that the main purpose of the establishment of the Supreme

Court, as one department of the only and limited government of American

citizens, was that the Supreme Court might protect every individual

liberty of the American citizen from usurpation of power by all

governments in America.

Any concept to the contrary is the most Tory doctrine ever stated

as American law since July 4, 1776. It is blind to the fact that,

by the Constitution, the whole American people, “in their aggregate

capacity,” created a new nation of men and set it above the existing

and continued federation of states; to the fact that the whole American

people made that Constitution one with _national_ Articles, relating

to the government of men, and with _federal_ Articles, relating to

the government of states; and to the fact that the whole American

people knew and settled that only “conventions” of themselves could

make _national_ Articles, although state legislatures, as attorneys in

fact for their respective states, could make _federal_ Articles; and

to the fact that the Tenth Amendment names two distinct reservees of

existing power, “the states respectively,” who are the members of the

subordinate federation, and “the people,” who are the members of the

supreme nation of men; and to the fact that the Fifth Article grants no

power whatever but mentions the “state legislatures,” who act for the

members of the federation, and the “conventions,” who alone can ever

act for the members of the supreme nation, when the latter are to make

a change in _their_ part of the Constitution, the _national_ part.

But we find the brief of Hughes, like the briefs of his associates,

actually challenging any right of review by the Supreme Court, when

the attorneys in fact for the states and state citizens, although

the states have nothing whatever to do with _that_ part of the dual

Constitution which relates _to the nation of men_, actually attempt to

change the quantum of power (to interfere with their own individual

freedom) granted by the nation of men to their only government. His

challenge even goes to the extreme of boldly asserting that the

“propriety and advisability of amendments,” even though they infringe

upon the individual freedom of the members of the nation of men, must

be finally determined by the governments of state citizens, which have

nothing to do with the nation of men which is America. His challenge

is that the Supreme Court is powerless to protect the liberty of the

American citizens if thirty-six governments of state citizens decide

to interfere with that liberty in matters not enumerated in the First

Article.

The challenge is exactly the challenge of Lord North to the Americans

in 1775. It is exactly the challenge which the British Parliament would

make, if we were still its “subjects.” As basic American law, it is

sheer nonsense.

When we remember the doctrine of this briefer, that there _is_ a limit

to the right of our _supreme_ legislature to prohibit what a candidate

for Senator may do, and compare it with this new Tory concept that

three fourths of the _inferior_ state governments can validly interfere

with every personal liberty of ourselves, we have one or two questions

to ask the briefer. Is it his thought that the supposed citizens of

America made their Constitution with the sole intent that the personal

rights of candidates for Senators should be secure and that the number

of Senators from each state should remain the same? Is it his thought

that the American citizens, from whose “conventions” we have just

come, having settled these amazingly important things about Senators,

then voluntarily granted omnipotence over every individual freedom

in America to a fractional part of the inferior state governments,

twenty-four of whom he represented in the litigation of 1920? Is it

his thought that the whole American people have two governments, one

the government of enumerated powers constituted in the First Article

and the other the government of unlimited power constituted in the

Fifth Article? Is it his thought that his inferior state governments,

although all members of all the state governments collectively could

not enact a statute interfering in the slightest degree with the

American citizen, can issue any command whatever to the American

citizen, and that the citizens of America must obey that command so

long as the state governments call it an Amendment of the American

Constitution?

It is our own certain knowledge that, when governments issue any

command to the citizens of America and the command interferes with

individual freedom, the maker of the command must show the grant of

power to make that particular command. It is the Alpha and Omega of

American law that no government has any just power to make any command

to the citizens of America, except in a matter on which those citizens

themselves have given that government the power to make that particular

command. It is in the primer of American constitutional law, that there

is no government _of the citizens of America_, except the government at

Washington, and that it has no power to command the American citizen,

interfering with his individual freedom, _except_ in the matters named

in the First Article. It is admitted by all, even by the writer of

that brief and his colleagues, that the power to make the command which

is the First Section of the Eighteenth Amendment, is not enumerated in

that First Article. When, therefore, this counsel for twenty-four of

the governments which made that command tells us that, after his client

governments (at the suggestion of our government which could not make

the command) have passed upon the propriety and advisability of the

command, we cannot have the Supreme Court even consider the ability of

his client governments to make the command, our indignation is mingled

with our mirth.

Our indignation need not be explained. Our mirth comes when we think of

our needless fear that something might have happened between 1907 and

1917 by which we became “subjects” instead of the citizens we had been.

Throughout our education we have always known that, _if_ the Eighteenth

Amendment (a NATIONAL article made entirely by GOVERNMENTS) is in the

Constitution, we are “subjects.” We have known that no legislative

governments, before 1787 _and after_ 1776, could have made this general

command to the citizens of America, _because_, during those eleven

years, there was no citizen of America and there were no governments

in the world who could make any _general_ command to the American

people, interfering with their individual freedom on any subject. We

have known, with certainty, that, if the Americans in the “conventions”

(where we have sat) knew what they were doing and the Supreme Court,

for a century, has known what they did, there were no governments in

the world, up to the year 1907, who could make that command _to the

American citizens_. We have gone everywhere to find what happened,

between 1907 and 1917, to change the American citizens into “subjects”

of the governments for whom this counsel appears. Now, after the

fruitless search elsewhere, we are reading his brief to find out what

did happen between 1907 and 1917. His plain answer, as we have already

sensed, is--“NOTHING.”

Our mirth entirely dispels our indignation, when we sense his full

concept of the nature of that absurd Fifth Article “grant” to his

government clients. That we may not mistake his concept, the most Tory

concept ever stated as law in America since 1776, he explains it again

and again in his briefs. It is his concept that the absurd supposed

“grant” gives to his client governments, not one member of which is

ever elected by the citizens of America, unlimited and constitutionally

unrestrained power to interfere with the individual freedom of the

American citizen on every matter or, as the Declaration of ’76 put it,

in its complaint against the English King and _his_ legislature, to

legislate for us on all matters whatsoever.

And our mirth is not lessened when we read, in this brief, John

Marshall’s full statement of the making of the Constitution (with the

Fifth Article in it) and John Marshall’s clear decision that it was all

made by the citizens of America, the “conventions” of the Seventh and

the Fifth Articles.

No statement of facts could ever be written, which more absolutely

destroys the concept that the state governments have the omnipotence

denied to the English Parliament, than the quotation from John Marshall

which we read in this brief to support that concept.

Throughout the quotation, with which _we_ are all very familiar,

Marshall points out that there is a vital distinction, amazingly

important to individual freedom, between the ability of the

“conventions” (named by exactly the same name in the Fifth as well as

the Seventh Article) and the limited ability of the same “legislatures”

for which this counsel appeared in 1920. In the quotation Marshall

points out that, when the American citizens are to make a NATIONAL

Article, like the First Article and the Eighteenth Amendment, there

is but one way in which they can make it “safely, EFFECTIVELY and

wisely,” “by assembling in convention.” That all of us, including

that counsel of 1920, may not find any excuse for an assumption that

state governments can ever make Articles _of that kind_, Marshall

dwells at length upon the _inability_ of state governments or any

governments to make them or any Article like them. He tells us that,

when the _American_ people make Articles _of that kind_, in the only

way in which they can ever EFFECTIVELY make Articles _of that kind_,

by assembling in “conventions,” “_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.” “From these conventions the Constitution derives its

whole authority.” “It required not the affirmance, and could not be

negatived, by the state governments. The Constitution, when thus

adopted, was of complete obligation and bound the state sovereignties.”

Up to the last short sentence _we_ have just quoted from the decision

so familiar to us, Hughes quotes at length and without omission. Hughes

is in Court for those “state legislatures” and state sovereignties,

which Marshall’s decision finds to be legislatures and sovereignties

wholly inferior in ability to the “conventions” of the American

people, named in the Fifth and Seventh Articles by exactly the same

name--“conventions.” How does the great lawyer of 1920 find, in this

Marshall decision, support for the unique idea that these state,

governments are omnipotent over every right of the American citizens

who sit in those “conventions”? His remarkable claim is that the

state governments he represents have omnipotent ability to command

or interfere with anything in America, except one thing. It is his

claim that these governments have omnipotent ability to interfere with

the citizens of America, with the Constitution of America, with the

government of America, with anything in America, _except_ that they

cannot interfere with that one thing for which the Revolution was

fought, the Statute of ’76 enacted and the Constitution established.

In the view of Hughes, that one thing apparently is the right of every

state to have the same number of Senators. Our indignation is entirely

dispelled when we realize that he sincerely believes this nonsense. Our

mirth is merely increased when we find him quoting, at some length,

this decision of Marshall, evidently under the impression that the

decision supports the nonsense.

But, we wonder why, at the particular point which we have reached in

the Hughes quotation from Marshall, the former puts “stars” instead of

the next paragraph in the Marshall decision? Certainly, when the great

lawyer of 1920 has such faith in the omnipotence of his government

clients over us their “subjects,” it cannot be that there is anything

in the missing Marshall paragraph to disturb that faith! Yet, as we

read the missing paragraph, with which we are quite familiar, doubt

assails us. _Is_ the great lawyer of 1920 sincere or does he know that

the position of his clients in relation to the Eighteenth Amendment is

nonsense?

What is the missing Marshall paragraph with which we are so familiar?

Lo and behold! it is our constant companion throughout our education

in the days of the early Americans. It is the paragraph in which the

Supreme Court, by Marshall, points out why the Philadelphia Convention

of 1787 found themselves compelled to send their First Article,

with its grant of _national_ power like the grant in the Eighteenth

Amendment, to the “conventions,” named in the Seventh and the Fifth

Articles, _because_ the state governments, the clients of Hughes,

were known and recognized by everybody to be without ability to make

_national_ Articles. In other words, it is the paragraph in which

Marshall announces what we have learned so clearly ourselves, that

“to the formation of a league, such as was the Confederation [to the

making of _federal_ Articles] the state sovereignties were certainly

competent. But when ‘in order to form a more perfect Union,’ it was

deemed necessary to change this alliance into an effective government,

possessing great and sovereign powers and acting directly on the

people, the necessity of referring it to the people [the conventions of

the Fifth and the Seventh Articles] and of deriving its powers directly

from them was felt and acknowledged by all.”

We know this paragraph of Marshall’s, omitted from the Hughes brief, to

be the epitome of everything that we have heard in the “conventions”

which made the Fifth Article. We remember that even Henry, from the

very fact that the “conventions” of the American citizens _were_

assembled, knew that the _then_ proposed Articles did grant power to

interfere with human freedom. And we remember (because he knew the

inability of state governments ever to make such grants) that, on the

fact that “conventions” _were_ assembled, he based his charge that

the proposed Articles _were_ NATIONAL and not _federal_. We remember

that the Tenth Amendment declares that the entire Constitution,

including the Fifth Article, gave no power of any kind to those

state governments. And so we know, what Henry knew, that the state

governments did not _have_, and that _the Fifth Article did not give

them_, any ability to make NATIONAL Articles, like the First Article

and the Eighteenth Amendment.

For which reason, we cannot (looking at the matter purely from the

standpoint of lawyer’s attitude to his government clients) blame Hughes

for putting the stars in his quotation from Marshall.

Eager to remain free citizens, eager to have all governments recognize

that we are not “subjects,” we ourselves commend, to the writer of

that brief and to all who uphold the Eighteenth Amendment, the entire

decision of Marshall in M’Culloch v. Maryland. For instance, we commend

this clear statement of basic American law:

If any one proposition could command the universal assent of mankind

[except those _for_ the validity of the Eighteenth Amendment], we

might expect it would be this:--That the government of the Union,

though limited in its powers, is supreme within its sphere of action.

This would seem to result necessarily from its nature. It is the

government of all; _its powers are delegated by all_; it represents

all, and acts for all. Though any one state may be willing to control

its operations, _no state_ is willing to allow _others_ to control

them. The nation, on those subjects on which it can act, must

necessarily bind its component parts.

Among other things, this statement, itself but a repetition of

everything that we have learned by our experience with early Americans,

emphasizes the important fact that the nation, which is ourselves, has

but one government, the government “limited in its power.” Which fact

clearly demonstrates that the state governments, not being that one

government of “limited powers,” are not the attorneys in fact for the

citizens of _America_, in any matter whatsoever, and cannot command us,

as they attempt to do in the First Section, or grant power to command

us, as they attempt to do in the Second Section of the Eighteenth

Amendment.

Again this same decision of Marshall holds clearly: “In America, the

powers of sovereignty are divided between the governments of the Union

and those of the State.” The claimed ability of the Hughes government

clients, their claimed ability to _make_ the NATIONAL new Article in

our Constitution, rests entirely upon the absurd doctrine that, _above_

the two sovereignties which Marshall names, there is an omnipotent

legislative sovereignty, without any constitutional restraint, the

sovereignty of three fourths of the very state governments which

Marshall mentions.

In the same M’Culloch v. Maryland, Marshall pays a tribute to an

accurate knowledge, which we have acquired in our education with

the early Americans. It is the knowledge that everything in the

Constitution denies any ability in even all the states _as such_, or

in all the state governments, each of which is never anything but a

government of the citizens of _one_ state and _their_ attorney in fact

as _state_ citizens, to alter in any way the NATIONAL part of _our_

Constitution (which Constitution is both _national_ and _federal_)

because the NATIONAL part relates to direct interference with the

individual freedom of the _American_ citizens. This is his tribute to

the truth of the knowledge which we have acquired. He says that there

is “a principle which so entirely pervades the Constitution, is so

intermixed with the materials which compose it, so interwoven with its

web, so blended with its texture, as to be incapable of being separated

from it without rending it into shreds. This great principle is, that

the Constitution and the laws made in pursuance thereof are supreme;

that they control the Constitution and laws of the respective states

and cannot be controlled by them.”

And so we average Americans find naught but encouragement in the brief

of Hughes. From its quotations, from its every statement, we learn that

we have known all the facts, before we read it, and that we are free

citizens and not “subjects.” In that brief of the champion of champions

of the governments that “made” the new NATIONAL Article, we learn that

there are no new facts on which to base the claim that we, the whole

people of America, have another government besides the government

of enumerated powers, the claim that we are “subjects” and that our

new omnipotent Parliament wears the aspect of thirty-six inferior

governments, each elected by the citizens of a nation which is not

America.

In the brief of this champion, we find no pretense that there is

any support for this weird claim. On the contrary we find the whole

claim depending entirely upon the sheer assumption--asserted as if

to state it was to state an axiom--that the Fifth Article _is_ a

“grant,” wherein the “conventions” grant _to the grantors_ and to the

state governments ability to exercise omnipotence over the American

citizens, ability to interfere with their individual freedom, in any

matter whatsoever.

In his brief, Hughes emphatically asserts the truth that “the people

never become a legislature.” Yet, the basis of his whole argument is

that what “the people” of the Tenth Amendment expressly reserved to

themselves may be given away by the “legislatures” of the states,

although the “states” are an entirely different reservee in the Tenth

Amendment. He does not know, what all knew when the Fifth Article

was made, that the “conventions,” who made it and who are named in

it, meant “the people” themselves. He does not know the tribute of

Madison, in the Virginia convention which ratified the Fifth Article,

to the American “conventions” in which the people themselves directly

constituted new government of men; “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 a form of government, and

selecting such of their citizens as possessed their confidence, to

determine upon and give effect to it.” (3 _Ell. Deb._ p. 616.)

Hughes does not know, as Story did, that the drafter and the makers

of the Fifth Article put into it the lessons of their own experience

in the making of _national_ Articles, by the “conventions” of 1776,

and in the making of _federal_ Articles by the state “legislatures”

between 1777 and 1781. “It is wise, therefore, in every government, and

especially in a Republic, to provide means for altering and improving

the fabric of government as time and experience or the new phases of

human affairs may render proper to promote the happiness and safety of

the people. The great principle to be sought is to make the changes

practicable, but not too easy; to secure due deliberation and caution;

_and to follow experience_, rather than to open a way for experiment

suggested by mere speculation or theory.” (2 Story on the Constitution,

Sec. 1827.)

For all of which reasons, Hughes and his associates, although they

might be certain that the people never became the legislature, were

not aware that, to the Americans who made the Fifth Article, its

“conventions” _were_ “the people” of the Tenth Amendment.

Naturally, we are not surprised to find a briefer who ignores this

fact, possibly the legal fact in America most important to individual

liberty, also indulging in the monumental error of the thought

that these “conventions,” in their Fifth Article, made a grant, to

_themselves_ and to his clients, of equal omnipotence over themselves,

the citizens of America. We recognize that, if the Article was such a

grant to his clients, the grant would have been the greatest grant ever

made in the history of mankind. We recognize that it would have been a

grant by three million free men, four years after the war by which they

had become free men, surrendering to governments absolute control of

every individual liberty and making themselves absolute “subjects.”

We know that Hughes _did_ maintain that the one government created by

or given any power in the Constitution, in which is the Fifth Article,

had not power to forbid a candidate for Senator to do what he did. It

is interesting and instructive to know that the same lawyer holds,

as an axiom which needs no proof, that the same Constitution gave

unlimited ability to his client governments to interfere with every

individual liberty of the Americans who are not candidates for a

Senatorship.

We have the word of the man who wrote the language of that Fifth

Article that it is merely “a mode of procedure” in which may be

exercised either the existing unlimited ability of ourselves in

“conventions” or the limited ability of the state governments to

make _federal_ Articles. _We_ recognize, no one who reads it could

recognize otherwise, that the Fifth Article, outside of two exceptions

to CONSTITUTIONAL exercise of existing abilities to make Articles,

contains nothing but procedural provisions. This knowledge we brought

to the reading of the Hughes brief, after we had acquired the certainty

in our education with the Americans who made the Fifth Article. Then

we read this brief of the champion of champions for the validity of

the supposed new Article and found therein the sheer assumption, as an

axiom which needed no proof, that the Fifth Article, with nothing but

its procedural provisions, was a grant of omnipotence to his government

clients over ourselves!

Imagine, therefore, our amazement _and our amusement_, in the same

brief, to find this clear echo of the statement of Madison and of our

own knowledge, this accurate and complete statement of exactly what the

Fifth Article contains: “Article V, _apart from procedural provisions_,

contains two limitations of the power to amend, as follows: ‘Provided

that no Amendment which may be made prior, etc.’”

If, “_apart from procedural provisions_,” the Article has nothing but

“two limitations” of existing abilities to make Articles, where does

he or anyone find in it the greatest “grant” known to the history of

mankind?

When this briefer made his argument for his client who had been a

candidate for Senator, he had no attack to make upon the _procedure_

in which Congress had passed the Corrupt Practices Act. When he went

to ascertain whether Congress had the power to make that command,

about “elections,” he did not look for the power in any “procedural

provisions,” which prescribe _how_ Congress should exercise its ability

to make commands.

If this briefer or any lawyer were asked, on behalf of a client,

to accept a bill of sale from an _alleged_ attorney in fact of the

owner of a cow, he would not seek, in any procedural provisions which

prescribed _how_ an attorney in fact can execute an instrument for his

principal, to find the authority of the alleged attorney to sell the

cow.

Why then, in an Article with naught but procedural provisions and two

limitations on power to make Articles, do he and all his associates

seek to find, _and assert that they do find_, grant of authority to the

inferior governments of state citizens to give away every liberty which

the citizens of America hold most dear?

CHAPTER XXV

CITIZEN OR “EIGHTEENTH AMENDMENT”?

It is our invincible knowledge that the Fifth Article is not a power

of attorney to any one to act for us, the citizens of America, in

regard to any individual right which the _American_ citizen has. In our

capacity as American citizens and in “conventions” of the very kind

named in that Fifth Article, we gave the only power of attorney, which

we have ever given to any government to act for us in making commands

to interfere with any of our individual rights. That power of attorney

is the First Article. We made it in the same “conventions.” In it, we

gave to our Congress our only power of attorney _of that kind_. In

it, with futile effort to keep modern “constitutional thinkers” from

monumental error, we said, at the very beginning of the one Article

which is our only power of attorney, that to our Congress alone the

Constitution gives any powers to make commands that interfere with our

individual rights. “All legislative powers herein granted shall be

vested in a Congress, etc.” (Art. I, Section I. _U.S. Cons._)

In those same “conventions” (named in the Fifth Article) we insisted,

again in futile effort to keep modern “constitutional thinkers” from

monumental error, that there be written the exact declaratory statement

that the entire Constitution gave no power (to act for us, the

citizens of America, in any matter) to any donee except our new general

government, the government of the First Article enumerated powers. And,

in those “conventions,” we insisted that there be written into that

Constitution the accurate declaratory statement that all powers to act

for us in any matter, except the powers _of that kind_ we gave to that

one limited general government, we retained exclusively to ourselves,

the citizens of America, that they might be exercised only _by

ourselves_ or upon further grant _from ourselves_. Those two important

declaratory statements were written into that Constitution in the shape

of the Tenth Amendment.

That we ourselves might have a CONSTITUTIONAL mode of procedure

in which _constitutionally_ we could make that future exercise or

further grant of those powers which we reserved to ourselves, we named

ourselves--the “conventions” of the kind in which we sat--in the Fifth

Article and provided therein the CONSTITUTIONAL mode in which we

_could_ again do exactly what we were then doing in the same kind of

“conventions.” It was impossible for us in those conventions, “being

a people better acquainted with the science of government than any

other people in the world,” to anticipate that modern “constitutional

thinkers” should make the ludicrous mistake of inferring, from that

mention, that we--the “conventions”--granted to ourselves--the

“conventions”--all or some of the very power we were then exercising

in those “conventions.” Nor did we anticipate, inasmuch as _we_ (in

those “conventions”) never forgot that this new Constitution was

to be _federal_ as well as _national_, that modern “constitutional

thinkers” would make another monumental error in assuming that a

similar _mention_ of the existing ability of state legislatures (the

ability to make _federal_ or declaratory Articles) was a _grant_ to

those governments of our own power to make _national_ ones. Even if we

had possessed (in those “conventions”) the vision to see the future

that was 1920, we would have felt that the Statute of ’76, the opening

words of the First Article and the explicit declarations of the Tenth

Amendment made any such error impossible for modern “constitutional

thinkers.”

Yet, one or more of such errors are the basis of every argument in

every brief of the fifty-seven lawyers of 1920.

They are the basis of the Root briefs and the other briefs _against_,

as they are the basis of the Hughes briefs and the other briefs _for_,

the validity of the supposed new Amendment. Not a single one of the

briefs fails to _assume_, without the slightest foundation, that the

state governments, not a member of which is elected by the citizens of

America, _are_ attorneys in fact for the citizens of America. Wherever

one brief differs from another in this respect, it is only in urging

some difference in the extent of the power of attorney made to those

governments by the citizens of America in the Fifth Article.

For which reason, we, who have come from the days of those early

Americans, strong in the knowledge that we are citizens and not

“subjects,” are now satisfied that none of these modern “constitutional

thinkers” can disturb our certain knowledge. It is a matter of no

concern to us that some of them, because they did not have our

knowledge, failed to win their litigations for their clients. It

is, however, a matter of great concern to us that supporters of the

Eighteenth Amendment should be found maintaining, as if it was an

axiom needing no proof, that we are “subjects” of the governments they

represented.

We need spend very little further time in the briefs of those who so

maintain. We have no patience with their Tory concept of the relation

of men to governments. We KNOW that Tory concept never has been

American law since the Statute of ’76. But it would not be proper to

leave their briefs without one glance at some of their heresies, which

are flatly contradicted by everything we have learned in our education.

As a matter of fact, not one of these heresies can stand accurate and

simple statement without exposing its own absurdity.

Some of us are familiar with the book known as “The Comic Blackstone.”

We have thought of it often as we read the briefs of those _for_

validity of the new Amendment--the government constitution of

government power to interfere with the individual freedom of American

citizens. There is, however, a vital difference between the book

and those briefs. The book was a conscious effort to be humorous.

Unconscious humor has never failed to surpass conscious and intended

humor.

We recall our search to know “when” and “how,” between 1907 and

1917, we became subjects. We remember the first glance at the briefs

of 1920. We remember the tribute of one to the simple truth 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.” We wonder why the author of this tribute did not challenge

the monumental error of the concept that the Fifth Article (when it

mentions the “conventions” of the American citizens, the greatest

principal in America, and also mentions the state governments, each as

the attorney in fact of another and distinct principal, the citizens

of its own state) is a grant from the great principal to itself and

these mentioned attorneys in fact of others. But we now know why the

author of the tribute made no such challenge. He is Hughes, who rests

his entire argument _on_ the monumental error. We remember, as we

glance at the briefs, that another one challenged the doctrine on which

Sheppard proposed that the Eighteenth Amendment be sent to governments

of state citizens, that such governments might interfere with the

freedom of _American_ citizens. We remember the Sheppard doctrine

as the Calhoun heresy that the states, political entities, made the

Constitution which _we_, the citizens of America, actually made in

our “conventions.” We remember how refreshed we were to find, in our

first glance at the briefs, this statement: “The Constitution is not

a compact between states. It proceeds directly from the people. As

was stated by Mr. Chief Justice Marshall in M’Culloch v. Maryland, 4

_Wheat._ 316, &c.” We remember our thought, when we had just come from

those “conventions,” to find this statement in that brief. We remember

how we anticipated this briefer telling the Court why the states

or _their_ governments, who could not make the First Article, were

incompetent to make the only other supposed grant of power to interfere

with our liberty, the Eighteenth Amendment. Now that we have finished

with the briefs of 1920, we recognize how absurd was our expectation.

The statement that the states, which are mere political entities, did

not make the Constitution, the quotation from Marshall, supporting this

truth and showing that the states did not make it because the states

and their governments cannot make _national_ Articles, are both from

the brief of this same Hughes, the champion of his government clients

and their claimed ability to make _national_ Articles.

We find some considerable amusement in comparing the speech of

Sheppard, proposer of the Eighteenth Amendment, and the brief of

Hughes, champion of the Eighteenth Amendment. If government was to

carry through a successful revolution against free men and acquire

the omnipotence denied to the British Parliament, it would have been

well for the proposers of the Revolution and the champions of it to

have agreed at least upon one fact, whether the states, political

entities, or the citizens of _America_, in _their_ “conventions,” made

the Constitution--which was to secure the American citizen against all

usurpation of power by governments.

But, once we sense the certainty that this revolution of government

against free citizens _cannot_ be successful, once we realize the

certain decision of the Supreme Court when the real challenge is made

to the disguised revolution, we can forget the attempted tragedy of

human liberty. Then we shall know that the entire story of the last

five years is an inexhaustible mine of humor. And, among the briefs of

those who championed this revolution of government against human being,

we shall find no mean rival (in unconscious humor) to any other part of

that story.

We recall, at our first introduction to all the briefs, the epitome

of all the knowledge we had just brought from the early conventions:

“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.” We recall how pleased we

were to know that the Court must hear another champion of individual

liberty, who also must have come from the “conventions” in which we had

sat. We recall how, in his brief, this truthful tribute to the Statute

of ’76 was immediately followed by the quotation from that Statute,

which includes these words: “That to secure these Rights, [the Rights

of men granted by their Creator] 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 in such form, as to _them_ shall seem most likely

to effect _their_ Safety and Happiness.”

In our eager anticipation to hear his argument and see his brief, how

were we, fresh from the “conventions” in which sat some of the men

who had written that Statute eleven years earlier, to know that the

briefer understood their language to read as follows: “That to secure

these rights of human beings, granted by their Creator, governments are

instituted among men, deriving their just powers from the consent of

_the state governments_. That whenever any Form of Government becomes

destructive of these ends, it is the right of _the state governments_

to alter or abolish it, and to institute new government, laying its

foundation on such principles and organizing its powers in such form as

to _the state governments_ shall seem most likely to effect the welfare

of those who control the state governments.”

That this _is_ the meaning of that Statute to this briefer, we may

realize when we know that the tribute to the Statute and the quotation

from the Statute are in the brief of Wheeler, counsel for the political

organization which managed the new revolution of government against

people and dictated the proposal that governments should constitute

new government of men in America. Now we grasp why this briefer said

that, in the fact that the Declaration of Independence could “never

be amended, revoked or withdrawn,” the Statute of ’76 “ranks with the

Magna Charta.” To this briefer, the Statute of ’76, like the Great

Charter of old, is the ruler government dispensing privileges to its

subjects, the people. That is why this briefer, with his Tory concept

of the relation of government to human beings, does not know that the

Statute of ’76 _is_ the revocation of the principle on which Magna

Charta rested, the doctrine that the government is the State and the

people are its assets.

This briefer, _like all his associates_, does not know the great change

which the American people made in the picture of American government.

We are all familiar with the picture, “His Master’s Voice.” When

those Americans were born, from whose “conventions” we have come, the

listener in that picture was “the people” of the Preamble and the

Tenth Amendment in our Constitution. The voice of the master was the

voice of government. When those Americans died, _they_ had changed

the picture. The listener had become the governments in America, the

voice of the master had become “the people” of America, its citizens.

The new painting of the picture was on July 4, 1776. That the listener

might never deface the truth of the new picture, the Constitution of

1787 was proposed at Philadelphia and later made by the master in the

picture. The proposal of Wheeler and his associates and the action of

governments on that proposal are the unlawful attempt to change the

picture back to what it had been before the Statute of ’76.

If time permitted, our sense of humor would keep us long with the

briefs of Wheeler and his associates. It was their thought that

the doctrine of Christ could be made a better Christianity by a

substitution of the prohibition of Mohammed for the temperance of

Christ. This natural modesty on their part made certain that we would

find, in the Wheeler brief, this tribute to the good _intentions_ of

the Americans of those early “conventions,” accompanied by an humble

tribute to the much greater wisdom of the briefers. “The people, under

this form of government may, of course, do unwise things. This is the

alleged danger of a republican or democratic form of government. If the

electorates are not intelligent, moral and patriotic, our government

will fail. Our forefathers took that chance in choosing a form of

government that was controlled entirely by the people. History proves

that they builded more wisely than they knew. The people have kept

step with advancing civilization under the same construction of our

Constitution. This last advance in the prohibition of the beverage

liquor traffic, which is one of the greatest evils that ever cursed

humanity, is additional evidence of the wisdom of our forebears. It is

generally recognized as the greatest piece of constructive legislation

that was ever adopted by a self-governing people.” The finest passage

in the “Comic Blackstone” does not approach this in its excellence as

unconscious humor.

Educated with “our forefathers” who “took that chance in choosing a

form of government that was controlled entirely _by the people_,” we

call the attention of Wheeler to one of his many mistakes by rewriting

his next sentence, as he should have written it: “History proves that

they builded more wisely than Wheeler or his associates knew or are

able to understand.”

Our forefathers knew that, wherever men are citizens, neither state

governments nor any governments are “the people” or can surrender

rights of “the people” or can constitute new governments of “the

people” interfering with their individual freedom and, therefore,

when those “conventions” of old did choose and establish a form of

government “that was controlled entirely by the people,” they were

not stupid enough to think that the American government would be

_that kind_ of a government if it could be controlled entirely by

legislatures, which never are the people. It is rather ridiculous to

find Hughes, associate champion of Wheeler for the new Amendment,

contending that the people never are the legislature, while Wheeler

contends that a government is controlled entirely by the people when it

is controlled entirely by legislatures. But, it is to be expected, when

men work in association on a common _unsound_ basis, that one champion

should frequently contradict another as to fact, and that even the same

champion should often contradict himself as to fact.

And so we find the Wheeler brief stating that the new Amendment, made

entirely by governments without any authority from the people about

whom he prates, “is generally recognized as the greatest piece of

constructive _legislation_ that was ever adopted by a self-governing

people”; and we turn over the pages of the brief and we find the

remarkable proposition that these state legislatures, when making

the Eighteenth Amendment, were not _legislating_, but were “a body

of representatives sitting in a conventional capacity.” Of course,

we now learn, by this latter statement, that the greatest piece of

“constructive legislation” the world ever knew was not legislation

at all. But we also learn a more important thing. It would have been

of great advantage to the British Parliament in 1765, if it had only

known the Wheeler concept of our American security for human freedom.

Think how remarkable it would have been to have passed a Stamp Act

which would have been universally respected and obeyed by the American

people of that time! All the British Parliament should have done was

to announce: “This is not passed by us as a legislature. In issuing

this command to the American people, we are a ‘body of representatives

sitting in a conventional capacity.’” Having exactly the same attitude

mentally as Lord North in 1775, this Wheeler would have been a better

Minister for the English King. He would have been able to keep for him

the American “subjects” of the British Legislature.

“Article V itself shows that the representative or convention idea was

in the minds of the framers of the Constitution. If the legislatures

of two thirds of the states should apply to Congress, then Congress

would be obliged to call a convention for proposing Amendments to the

Constitution. Then, also, when it came to the matter of ratification,

this question could be considered by conventions in the various states.

A review of the proceedings of the constitutional convention, as well

as a study of the political and governmental bodies at the time at

which the provision providing for amending the federal Constitution

was adopted, revealed the fact that these men thought in terms of

conventions ... _and that the clear intent of the framers was to ratify

proposed amendments by bodies sitting in the capacity of conventions_.

The Court will not find any able exponent of the theories of government

of that time, however, _who even asserted that the people could be

considered as a portion of the legislature_. This can be shown most

clearly by an examination of the proceedings of the constitutional

convention, as reported by Mr. Madison and particularly by examining

the various proposals advanced in that convention for the ratification

of the Constitution.”

We recognize immediately, in this extract from the briefs of 1920,

our own exact knowledge brought from those “conventions.” And, when

this briefer challenges the existence of the Eighteenth Amendment on

the ground that the people who made it showed “in Article V itself”

that “the convention idea was in the minds of the framers” and “when

it came to the matter of ratification,” a “Yes” or “No” was to be

considered by “conventions” in the various states, we are amazed to

find no upholder of the Eighteenth Amendment replying to this attack

upon its validity. The challenge to validity again and again touches on

the monumental error of the Tory concept behind all claim to validity.

The challenge puts its finger at once upon the absurd assumption,

on which the Eighteenth Amendment wholly depends for existence, the

assumption that the Americans we have just left ever considered the

“people” as the “legislature” or the “legislature” as the “people.” The

challenge emphasizes the fact we all know, that the “conventions” knew

that “conventions” _were_ the “people” and that “legislatures” never

were the “people.” But we are mistaken in believing that this clear

challenge was not met by some “constitutional thinker” in his effort to

uphold the new supposed NATIONAL Article, made by the governments or

“legislatures” which the old “conventions” so well knew were not the

“people.” In the brief of one champion of the new NATIONAL Article, we

find this clear reply to the challenge. And we notice how the reply

is not mere assertion. No one can deny the tremendous “support,” in

history and in decision and in the Fifth Article itself, for the full

reply that the Fifth Article states definitely that “the only agency

which is authorized to ratify the Amendment is the state legislatures!”

We have only one comment to make on the challenge itself and the

destructive reply to it, that the state legislatures are the “only

agent” authorized by the Fifth Article to amend our NATIONAL

Constitution. It is an interesting comment. Both the challenge and

the reply are from the brief of Wheeler, counsel for the political

organization which directed that governments make this new national

government of men.