Citizen or subject?

AUTHOR’S NOTE

Quotations from the Constitution of the United States are from the “Literal Print,” Government Printing Office, Washington, D. C., 1920.

The abbreviation “Ell. Deb.” refers to Elliot’s Debates, 2nd Edition, 5 vols., J. B. Lippincott & Co., Philadelphia, 1866.

The “Federalist” is quoted from the Lodge Edition, G. P. Putnam’s Sons, New York, 1894.

Wherever italics or capitals are used in a quotation and not directly stated to be those of the original author, they are the italics and capitals of the present writer.

Where the present writer interpolates his own words in a quotation, they are included in square brackets.

PREFACE

Many Americans are interested in the Eighteenth Amendment. Millions are interested in the American citizen.

It seems not to be known that the existence of one flatly denies the existence of the other. This is not theory. It is plain statement of a very simple fact. If there is an American citizen, the Amendment never entered the Constitution. On the contrary, if the Amendment is in the Constitution, there never has been an America or an American citizen.

Throughout this book the nation of free men is called “America.” This is done to distinguish the nation from the federation of states already existing and known as the United States, when the whole American people created the nation and continued the federation as a subordinate part of one system of government. The federation of states was proposed in 1777 and had complete existence in 1781. The nation of men was created in 1788.

On January 14, 1922, there was opened at Williamsburg, Virginia, the Marshall-Wythe School of Government and Citizenship. Judge Alton B. Parker, former Chief Justice of the New York Court of Appeals and a former candidate for President, delivered the opening address on “American Constitutional Government.” His eloquent address has since been made a public document and printed in the Congressional Record. In it, he warned us of the danger to America from those who do not understand our form of government and are coming here to destroy it.

“As people of this class have been coming to us in large numbers from nearly every quarter of the globe, we must take up the task of so educating all classes of our vast population, as that they shall fully understand the importance of maintaining, in its integrity, our constitutional plan of government. They should be taught in the first instance, why it was that the people, in the formative period of our government, were bound to have, and did at last secure, a government which the people could control despite their legislatures, whether representing the states or the federal government.”

The existence of the Eighteenth Amendment is based on the sheer assumption that we have not a government of that kind. By all who have discussed the Amendment, whether for or against it, one false assumption has been made. From that false assumption of all, the advocates of the Amendment have drawn their conclusion. On the conclusion is based the existence of the Amendment. The conclusion itself is the direct negation of the simplest and most important fact in America. Moreover, the conclusion itself means that the Americans, twelve years after they “did at last secure” the kind of government they “were bound to have” and of which Judge Parker spoke, voluntarily created a “government” of the opposite kind and made themselves its absolute “subjects.”

And the conclusion is correct, if the premise, which is the false assumption of all, be true.

Of course, the assumption is absolutely untrue. But no one has seen its simple and patent untruth. Wherefore, the first step in our education is for us to acquire knowledge of the plain fact that it is untrue. Because our leaders do not know the fact, we must go to other teachers.

By the common false assumption, the early Americans—who “did at last secure” the kind of government they “were bound to have”—are now charged with having committed the most monumental blunder in all history, a blunder which destroyed their entire achievement.

Rest assured! They did not commit that blunder. They themselves make that clear herein. In so doing, they teach us what, with Judge Parker, we agree that we all must know, if America and the American citizen are to remain. They are the best teachers in the world. They know what they teach because they did it. They do not weary or perplex us with theories or principles. Their teaching is the telling of simple facts. Best of all, they tell us in their own simple words, while they are talking to one another and engaged in the very accomplishment of the facts they teach.

It is a mere incident of their teaching that they settle the plain fact that the supposed Eighteenth Amendment is not in the Constitution.

It is our own candid belief that very few Americans will be found to prefer the existence of the Amendment to the existence of America itself. The early Americans make amazingly clear that there is no America and no American citizen if the Amendment is in the Constitution.

The nation of men, which we call America, and the subordinate federation of states, which we call the United States, are bound together in one dual system. They have a common name, “The United States of America.” They have a common Constitution, with national Articles for the men and federal Articles for the states. They have a common government, national for the men and federal for the states.

This is exactly the America of which Judge Parker spoke. We want to keep it. The early Americans, who made it, will enable us to keep it, if we listen to their teaching of the simple facts which they accomplished. Such a result would be some credit to the supposed Eighteenth Amendment. Even those most opposed to it would be compelled to acknowledge that its brief imaginary existence awoke us all to our first real concept of what America, the nation of free men, really is.

Francis X. Hennessy.

342 Madison Avenue,
New York City.
March 17th, 1923.

CONTENTS

CHAPTER I SUBJECTS BECOME CITIZENS

The average American of this generation does not understand what it means to be a citizen of America. He does not know the relation of such a citizen to all governments in America. He does not know the relations of those governments to one another. If this ignorance should continue, the citizen of America would disappear. The American would become again a subject, as he was when the year 1776 opened.

The supposed Eighteenth Amendment is not in the Constitution unless the American already is a subject.

It is vital to every individual interest of the average American that he should know these things which he does not know. Happily for him, his ignorance is not as that of the public leaders of his generation. Their concept of the American and his relation to governments in America is one which contradicts the most definitely settled and clearly stated American law. On the other hand, the average American merely has a mind which is a blank page in these matters. As a result, it is the greatest danger to his individual interest that their concept largely guides his attitude in public affairs of the utmost moment to him.

The Americans of an earlier generation, who created the American nation of men and all governments in America, accurately knew the status of the American citizen and his relation to all governments. Their accurate knowledge was an insistent thing which guided their every act as a people in the period between 1775 and 1790, in which latter year the last of the Americans became citizens of America. Their knowledge came to them from their own personal experience in those fifteen years. They were a people, born subjects of government, who died citizens of a great nation and whose every government, in America, was their servant. This great miracle they themselves had wrought in the fifteen years between 1775 and 1790. Their greatest achievement, as the discerning mind has always realized, is what they did in the last four of those momentous years. They brought to its doing their valuable experience and training of the previous eleven years. That is why they succeeded, so far as human effort can secure human liberty by means of written constitutions of government, in securing to themselves and their posterity the utmost measure of protected enjoyment of human life and happiness. That we, their posterity, may keep their legacy intact and transmit it to the generations to come, it is necessary that we, the average Americans, should share somewhat with them their amazingly accurate knowledge of the simple but vital facts which enabled them to create a nation and, by its American Constitution, to secure to themselves, its citizens, protected enjoyment of life, liberty and happiness.

When they were actually engaged in this work of creation, it was truthfully said of them that “The American people are better acquainted with the science of government than any other people in the world.” For over a hundred years the history of America attested the truth of that statement. As they were a simple people, their knowledge of the science of government was derived from their accurate understanding of a few simple facts. It is a certainty that we can keep their legacy by learning those same facts. Let us quickly learn them. The accurate knowledge of them may best be acquired by briefly living again, with those simple Americans of an earlier generation, through their days from 1775 to 1790.

The individual Americans of that generation were all born subjects of the British government. We do not understand the meaning of that statement until we accurately grasp the vital distinction between a “subject” of a government and a “citizen” of a nation.

It is hardly necessary to point out, but it is amazingly important to remember, that a “subject,” as well as a “citizen,” is first of all a human being, created by an omnipotent Creator and endowed with human rights. All would be well with the world, if each human being always accurately knew the difference between right and wrong and if his accurate knowledge invariably controlled his exercise of his human freedom of will. In that case, no human government would be needed to prescribe and to enforce rules of personal conduct for the individual. As such is not the case, human government must exist. Its sole reason for existence, therefore, is that it may prescribe and enforce rules for those whom it can compel to obey its commands and that it may thus secure the utmost measure of protected enjoyment of human rights for those human beings whose government it is.

Time does not permit and necessity does not require that we dwell upon the various types of government which have existed or which have been created supposedly to meet this human need. It is sufficient to grasp the simple and important fact that government ability to say what men may or may not do, in any matter which is exercise of human freedom, is the very essence of government. Where a government has no ability of that kind, except what the men of its nation grant to it, where those men limit and determine the extent of that ability in their government, the men themselves are citizens. Where a government claims or exercises any ability of that kind, and has not received the grant of it directly from the men of the nation, where a government claims or exercises any ability of that kind, without any grant of it, or by grant from government to government, the men of that nation are subjects.

In the year 1775, under the British law, the Parliament at Westminster claimed the unqualified right to determine in what matters and to what extent laws should be made which would interfere with individual freedom. From such decision of the legislative part of the British Government there was no appeal save by force or revolution. For this reason, that every human being under that Government must submit to any interference with individual freedom commanded by that Legislature, all British human beings were “subjects.” And, as all Americans were then under that British Government, all Americans were then “subjects.” Such was their legal status under the so-called British Constitution. Curiously enough, however, until a comparatively short time prior to 1775, such had not been the actual status of the Americans. In this sharp contrast between their legal and their actual status, there will be found both the cause of their Revolution and the source of their great and accurate knowledge of the sound principles of republican government which they later made the fundamental law of America.

From the day their ancestors had first been British colonists in America their legal status had been that of subjects of the British Government. But, so long as they remained merely a few widely scattered sets of human beings in a new world, struggling to get a bare existence from day to day, they offered no temptation to the omnipotent British Government to oppress them, its subjects. They still had to show the signs of acquiring that community wealth which has always been the temptation of government to unjust exaction from the human beings it governs. For that reason, their legal government concerned itself very little about them or their welfare. It thus became their necessity to govern themselves for all the purposes for which they locally needed government as security to their individual welfare.

Only thirteen years after the first permanent English settlement in Virginia, “Sir George Yeardley, then the Governor of the colony, in 1619 called a general assembly, composed of representatives from the various plantations in the colony, and permitted them to assume and exercise the high functions of legislation. Thus was formed and established the first representative legislature that ever sat in America. And this example of a domestic parliament, to regulate all the internal concerns of the country, was never lost sight of, but was ever afterwards cherished [until 1917] throughout America, as the dearest birthright of freemen.” (1 Ell. Deb. 22.)

“On the 11th of November, 1620, those humble but fearless adventurers, the Plymouth colonists, before their landing, drew up and signed an original compact, in which, after acknowledging themselves subjects of the crown of England, they proceed to declare: ‘Having undertaken, for the glory of God, and the advancement of the Christian faith, and the honor of our king and country, a voyage to plant the first colony in the northern parts of Virginia, we do, by these presents, solemnly and mutually, in the presence of God and of one another, covenant and combine ourselves together into a civil body politic, for our better ordering and preservation, and furtherance of the ends aforesaid. And by virtue hereof do enact, constitute, and frame, such just and equal laws, ordinances, acts, constitutions, and officers, from time to time, as shall be thought most meet and convenient for the general good of the colony; unto which we promise all due submission and obedience.’ This is the whole of the compact, and it was signed by forty-one persons.

“It is, in its very essence, a pure democracy; and, in pursuance of it, the colonists proceeded soon afterwards to organize the colonial government, under the name of the Colony of New Plymouth, to appoint a Governor and other officers and to enact laws. The Governor was chosen annually by the freemen, and had at first one assistant to aid him in the discharge of his trust. Four others were soon afterwards added, and finally the number was increased to seven. The supreme legislative power resided in, and was exercised by, the whole body of the male inhabitants, every freeman, who was a member of the church, being admitted to vote in all public affairs. The number of settlements having increased, and being at a considerable distance from each other, a house of representatives was established in 1639, the members of which, as well as all other officers, were annually chosen.” (1 Ell. Deb. 25.)

These are two examples typical of the way in which the English colonists, for the first hundred years, largely governed themselves by legislators chosen from among themselves. In this manner, while legally “subjects” of their European government, these Americans were actually “citizens” of their respective communities, actually governed in their individual lives and liberties by governments which derived all their powers of government from these “citizens.” In this manner, through the best teacher in the world, personal experience, they learned the vital difference between the relation of “subject” and “citizen” to governments. Later, the echo of that education was heard from Lincoln when he pleaded that government of the people, by the people and for them should not perish from the earth.

As early as 1754 these Americans began to feel the first real burden of their legal status as “subjects.” Their community wealth was beginning to attract the attention of the world. As a result, the legal Government awoke to the fact of their existence and of its own omnipotent ability to levy upon that wealth. The Americans, for more than a century educated in actual self-government, quickly showed the result of that education to the accurate knowledge that no government can have any just power except by the consent or grant of those to be governed by the exercise of such power. As far back as 1754, deputies of the various American colonies, where human beings had educated themselves to be free men, assembled at Albany in an endeavor to propose some compromise by which the American people would be enabled to preserve their human freedom against unjust interference by the Westminster Legislature. We are all familiar with the failure of that endeavor. We are all familiar with the successive steps of the continuing struggle between “subjects,” educated to be “citizens,” and an omnipotent government, unshaken in its purpose to make their actual status the same as their legal one.

When the year 1776 dawned, these Americans were still “subjects” under the law of the British Empire. They were, however, “subjects” in open rebellion against their government, justifying their rebellion on the basic American legal principle that every just power, even of a lawful government, must be derived from the consent or grant of the human beings themselves who are to be governed. On the memorable day in July of that year, despairing of any success in getting the British Government to recognize that basic principle, and asserting, for the first time in history, that they themselves were collectively the possessors of the supreme human will in and for America, they enacted the immortal Statute which we know as the Declaration of Independence.

In this Statute, the American people clearly stated and definitely settled for all time the basic legal principle on which rests the validity of every constitutional article or statute law, which either directly interferes or vests ability in governments to interfere with an American in the exercise of his human freedom. There is nothing vague or ambiguous in their statement. The legal principle, so clearly stated and so definitely settled, is that no government in America can have any just power of direct interference with individual freedom unless such power be derived by direct grant from the Americans to be governed by the exercise of that power.

That Statute has never been repealed. The Americans of that generation, throughout all the momentous political battles of the next thirteen years, when they were making and unmaking nations and creating a federation of nations, and later subordinating it to a union of human beings, never failed to obey that Statute and to act in strict conformity to its basic American principle.

From the moment when that Statute was enacted by the supreme will in America, every American ceased forever to be a “subject” of any government or governments in the world. It was not until 1917 that any government or governments dared to act as if the American were still a “subject.”

In that summer of 1776, as the Americans were engaged with their former Government in a bitter and protracted war, they had little time or thought to give, as one people, to the constitution of a government best designed to secure to themselves the utmost possible measure of protected enjoyment of individual human freedom. In their rebellion, they had delegated the management of their common interests to a committee of deputies from each former colony, which committee was called the Congress. By the declared supreme will of the whole American people, the Americans in each former colony now constituted an independent nation, whose human members were now the “citizens” of that nation. Under the declared basic American legal principle, it was imperative that any government should get its every valid power from its own citizens. Knowing this, the Congress, almost immediately after the Declaration of July, made the formal suggestion to the citizens in each nation that they constitute a government for themselves and that they grant to such government ability to interfere with their own human freedom in such matters and to such extent as they deemed wise. The manner in which the citizens of each nation acted upon this suggestion should have stamped itself so irrevocably upon the mind of America as never to have been forgotten by any later generation of Americans. The citizens of those nations were of the “people who were better acquainted with the science of government than any other people in the world.” In each nation they were creating the very essence of security for a free people, namely, a government with limited ability to interfere with individual freedom, in some matters, so as to secure the greatest possible protected enjoyment of human liberty. They knew, as only human beings could know who were then offering their very lives to uphold the basic law of America, that such ability could never be validly given to any government by government itself, acting in any manner, but only by direct action and grant of those later to be governed by the exercise of that ability. What method did those citizens, so thoroughly educated in the basic principles of republican government, employ to secure the direct action of the human beings themselves in giving that ability of that kind to their respective governments? They acted upon the suggestion from the Congress of 1776, as Marshall later expressed it from the Bench of the Supreme Court, “in the only manner in which they can act safely, effectively and wisely on such a subject, by assembling in convention” in their respective states. Long before Marshall voiced judicial approval of this American method of direct action by the people themselves, in matters in which only the people themselves can validly act at all, Madison, in the famous Virginia convention of 1788, paid his tribute to these conventions of the people in each of the thirteen nations. This was the tribute of Madison: “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. 616.)

Later herein there will be occasion to speak at greater length of this American method of direct action by the people themselves, through the deliberative conventions of deputies chosen by the people and from the people for that one purpose, giving to governments a limited ability to interfere with individual freedom. At this point, it is sufficient to say that, since 1789 and until 1917, no government in America ever claimed to have acquired ability of that kind except through the action of such a convention or conventions or through the direct voting of its citizens themselves for or against the grant of such ability.

If we again turn our minds upon those later days of 1776, we find that the Americans, through the direct action of the people in each independent nation, had become respectively citizens of what we now know as their respective states, each of which was then a free nation. Those thirteen nations were then allied in war. There did not yet exist even that political entity, later created and known as a federation of those nations. At that time and until quite some years after the Revolution had ended, there was no such thing as a “citizen” of America, because the America we know, the organized human membership society which is the American nation, did not yet exist. At that time and until the American nation did actually exist, as a political entity, there was no government in the world and no collection of governments in the world, which, on any subject or to any extent, could interfere generally with the individual freedom of Americans, as Americans. In each of the thirteen American nations, the citizens of that nation had vested their own government with some ability of that kind.

At this point, it is well to digress for a moment in order that we may well understand that in none of these thirteen nations did its citizens vest in its government an unlimited ability to interfere with individual freedom. All the citizens of those respective nations were then battling with a mighty Government which claimed such unlimited ability over all of them, as subjects, and they were battling to establish forever in America the basic doctrine that no government of free men could ever have unlimited ability of that kind. In each of the thirteen nations, its citizens vested its government with ability of that kind only to a limited extent. They did this in strict conformity to republican principles.

For the many who do not know, it is well to state clearly the distinction between a pure democracy and a republic. In both, the human beings constitute the nation or the state and are its citizens. In both, the citizens themselves limit the matters and the extent in which they shall be governed at all in restraint of their individual freedom. In both, therefore, it is accurate and truthful to state that the people govern themselves. The actual difference lies in one fact. In a democracy the people themselves assemble and themselves enact each specific rule of conduct or law interfering with individual freedom. In a republic, it is always possible that the citizens may assemble, as in a pure democracy, and enact any specific rule of conduct or law. But, in a republic, its citizens generally prefer to act, in such matters, through attorneys in fact or representatives, chosen by themselves for the special purpose of exercising a wise discretion in making such laws. In a true republic, however, where the citizens are to remain free men, they secure to themselves absolute control of their representative lawmakers through two most effective means. In the first place, they ordain that their attorneys in fact for the purpose of law-making, generally called their legislators, shall be selected by themselves from time to time, at comparatively short intervals. This precaution enables the people, through new attorneys in fact, quickly to repeal a law of which they do not approve. In the second place, the people, in constituting their government, limit the law-making ability of these temporary attorneys in fact or legislators. This is the most important fact in a free republic. Later herein there will be explained the marvelous and effective manner in which this particular security for human freedom was later achieved by the citizens of the Republic which we know as America, when they constituted their government. At present, there is to be mentioned the general method which the citizens of each of those thirteen nations, in 1776, employed to achieve this particular security.

In each nation the citizens constituted a legislature to be their only attorney in fact for the purpose of making valid laws. In this legislative department they did not vest enumerated powers to interfere with individual freedom. But in it they did vest whatever ability of that kind, under the American doctrine of human liberty, they thought a government of free men or citizens ought to have. They did not, however, grant unlimited ability to make laws interfering with individual freedom. When constituting their government they named many matters in which no laws could be made, such as laws abridging the right of free speech, laws suspending the privilege of habeas corpus, etc. Outside these named matters, they granted law-making ability of that kind to whatever extent American principles of human liberty determined a government ought to have. The extent of that ability, so to be determined, they left to the legislature to ascertain in the first instance. But to the judicial department they gave the right finally to ascertain and decide whether, in any particular law, the legislative department had exceeded its granted ability.

In living again the education days of the Americans, who later created and constituted the republican nation which is America, we have come now to the close of the eventful year 1776. We find ourselves, at that time, viewing this status of the American human being and his relation to all governments.

With his fellow Americans, he has declared that they are not the subjects of any government or governments in the world. With his fellow Americans, on many battlefields, he is fighting their former Government, which still claims that they are its subjects. If he is a Virginian, he and his fellow Virginians, with the consent of their fellow Americans, have constituted themselves a free and independent nation of human beings and have given to their law-making attorney in fact, the legislature of Virginia, some ability to make laws in restraint of the individual freedom of Virginians, in such matter and to such extent, as the citizens of Virginia have deemed wise. In each of the other twelve nations the situation is the same. In no nation, in America, has any government servant and attorney in fact of the people any ability whatever to interfere with human freedom in any matter or to any extent, except such ability of that kind as has been given to that government by direct grant from its citizens. Nowhere, in America, has any government any power whatever, in any matter or to any extent, to make a valid command restraining the human freedom of the individual American as an American. All Americans are fighting throughout America with the armies of the only government in the world which claims such ability. All Americans everywhere are determined to win that war and keep it the basic law of America that no government ever shall have ability of that kind unless the whole American people, by direct grant from themselves, shall give it to a general American government. There is yet no republic of America. There are yet no citizens of America. There are only citizens of thirteen respective nations, which nations are allied in an existing war. The affairs of the allied nations are being directed by a committee of delegates from the different nations, called the Congress. The first Committee or Congress of that kind, known in history as the First Continental Congress, had met at Philadelphia from September 5 to October 26, 1774, and “recommended peaceful concerted action against British taxation and coercion.” The second Committee, known as the Second Continental Congress, had assembled, also at Philadelphia, on May 10, 1775, and had assumed direction of the war.

CHAPTER II THE STATE GOVERNMENTS FORM A UNION OF STATES

We have now lived with the American of an earlier generation through the days in which he ceased to be a subject of any government, and in which he established forever in America the basic law that no government can exercise or possess any ability to interfere with his individual freedom except by direct grant from its citizens. We have seen him, in each of the former colonies, create a nation, become one of its citizens and, with his fellow citizens of that nation, give to its government some ability of that kind.

When we recall it to be the tribute of history that these Americans were better acquainted with the science of government than any other people in the world, it is well to reflect for a moment upon the significant exhibition of that knowledge during the days through which we have just lived with them.

When the suggestion came from Philadelphia, in the summer of 1776, that the Americans in each former colony constitute a government for their own nation and give to it a limited ability to govern themselves in restraint of their individual freedom, it is recorded history that Americans generally knew that a gift of that kind to government could never be validly made by governments. It “was felt and acknowledged by all” that only its own citizens ever could grant ability of that kind to any government.

As the people of New England had been the most thoroughly trained in the actual experience of self government, we naturally find them acting upon and clearly stating the American legal principle that legislatures never can give ability of that kind to government. The records of Concord, Massachusetts, for October 21, 1776, show how clearly this was understood by the Americans of that generation. After the Philadelphia suggestion had been made, the Massachusetts legislature framed a constitution and sent it to the Massachusetts townships for approval. On that October 21, 1776, the people of Concord refused to act upon it. Their reason was that government ability to interfere with human freedom could never come from legislatures but must always come directly from the citizens themselves. Let the Americans of Concord, in their own words, impart some of their knowledge to the Americans of this generation.

“Resolved secondly, that the supreme Legislative, either in their proper capacity or in joint committee, are by no means a body proper to form and establish a Constitution or form of government for reasons following, viz.: First, because we conceive that Constitution in its proper idea intends a system of principles established to secure the subject in the possession of and enjoyment of their Rights and Privileges against any encroachment of the Governing Part. Secondly, because the same body that forms a Constitution have of consequence a power to alter it. Thirdly, because a Constitution alterable by the Supreme Legislative is no security at all to the subject against the encroachment of the Governing Part on any or on all their Rights and Privileges.”

(See Constitutional Review, April, 1918, p. 97.)

The people of Concord or New England were not alone in this knowledge. On this we have the later testimony of Marshall from the Bench of the Supreme Court. Speaking of that day, a few years after 1776, when the whole American people created their nation and gave enumerated powers of that kind to its government, he said:

Fixing this knowledge of that day firmly in our mind, let us go on with the remarkable Americans of that generation through the next period in which the relation of government to government and of nation to nation was changed, but in which the status of the citizen of each nation and his relation to all governments remained exactly what he and his fellow citizens of that nation had made it.

On November 15, 1777, there came from the Congress at Philadelphia another suggestion, this time a proposal to the thirteen nations that they, already allied in an existing war, should form a permanent union or federation of nations. With that proposal went a drafted set of constitutional Articles, having for their purpose the establishment of a government (to be called a Congress) for the proposed federation, some of which Articles would give to that government ability to govern the members of the union, the thirteen nations. The proposal and the constitutional Articles were sent, for ratification or rejection, to the legislature of each nation as its proper attorney in fact in creating a federal union of nations and in giving federal ability to govern, which federal ability never directly interferes with individual freedom.

Let us reflect upon the accurate knowledge of the science of government again shown by the Americans of that generation in that proposal. Only a few short months earlier there had come, from the same men at Philadelphia, the proposal that national government be established in each nation. These men at Philadelphia had been subjects of the British Government until July, 1776. All government ability to interfere with human freedom, then as now, under British law, had its source in a legislature, the Westminster Parliament. And yet these men at Philadelphia, in the summer of 1776, had accurately known that, under basic American law, such government ability could only have one valid source, direct action by the citizens themselves assembled in conventions. Acting on this knowledge in the summer of 1776, the suggestion that government in each state be given national power to govern, namely, ability directly to interfere with individual freedom, had come as a suggestion to the citizens of each nation for their own direct action. That suggestion had been followed, and thus had been exercised, for the first time since Americans ceased to be subjects, the inherent and inalienable and always existing ability of the citizens of a free nation to make any kind of constitutional Articles of government, including the national kind which give government any power to interfere with individual freedom.

When, therefore, these same men at Philadelphia made their proposal of November, 1777, that other constitutional Articles of government be made in America, the proposed Articles of Union between nations, it might have been natural that this proposal also should have suggested ratification of these Articles by the people themselves. It would have seemed all the more natural, when we remember that one of the leaders at Philadelphia in that time was Jefferson, the historic champion of human individual freedom against all governments. But the Americans of that generation and their leaders were not as the leaders of our own time. They knew very accurately the difference between a national Article of government, which gave ability to interfere with human freedom, and a federal Article, which gave no ability of that kind but only ability to govern nations or states, as political entities. With this accurate knowledge of the vital distinction between a national and a federal Article, they naturally knew that either the people themselves or the legislative attorney in fact of the nation, which makes all agreements for the nation with other nations, may validly make a federal Article. Therefore, they sent the proposed Articles of Confederation between nations (not one of which gave national power to the proposed federal government) to the legislatures of the respective nations for ratification or rejection on behalf of the nations. As Marshall later summed up the knowledge which prompted that sending of those federal articles to the legislatures:

Each state legislature acted favorably upon the proposed articles and ratified them. By July 9, 1778, the legislatures of ten states had ratified. The legislatures of New Jersey and Delaware followed before the end of February, 1779. The legislature of Maryland did not ratify until March 1, 1781.

It is well for the average American of the present generation, at this point, to fix firmly in his mind that this legislative ratification of these federal Articles was the important exercise of an existing and recognized ability of state legislatures to make all constitutional articles of a federal nature, which never confer any government ability directly to interfere with human freedom. It is well for the same American also to fix firmly in his mind that it was the exercise of an ability to make constitutional articles entirely distinct from the other existing ability to make them, which had been exercised, in each nation, directly by the citizens themselves, in “conventions,” in the preceding year of 1776. In that year, there had been exercised the inherent and inalienable and always existing ability of citizens of a nation, assembled in conventions of deputies chosen for that express purpose, to make any kind of constitutional article, whether it confers federal or national power on government. In the years 1777 to 1781, there had been exercised the recognized and existing but limited ability of state legislatures to make federal articles, an ability clearly then known not to include the ability to confer upon government national power to interfere with individual freedom.

Living with those Americans through their great days, we have now reached the day in 1781 when they were all citizens of some nation but were not all citizens of the same nation. The great Republic, America, had not yet been born. The legal status of the American as an individual, and his relation to all governments was exactly the same as it had been since 1776. Each American was the citizen of some nation. His individual freedom could be directly interfered with only by some law of the legislature of that single nation under a valid grant, from him and his fellow citizens, of power to enact that law on that subject. Neither the legislature of any other nation in America, nor the legislatures of all other nations in America, nor the government of nations which those legislatures had created and endowed with federal powers, the Congress of the Federation, could singly or collectively issue a single command to him, interfering in any manner with his human freedom, or could give to any government or governments a power to issue such a command.

There were existing and recognized by all in America two distinct and different abilities—one limited and the other unlimited—to make constitutional articles. One was the limited ability of state legislatures. They could give federal power to a government, but they could not give any national power or power directly to interfere with human freedom. The other was the unlimited ability of the citizens of any nation. They could give any kind of power, federal or national, to their own government. Each ability, at a different time, had been evoked to exercise by a distinct proposal from the same Americans at Philadelphia, the Second Continental Congress, which had under its direction the conduct of the Revolutionary War.

Dormant for the time being, but existing over all other ability in America, was the supreme will of the collective people of America, who had not yet created their own great Republic or become its citizens or given to its government its enumerated powers to interfere with their individual freedom.

This was the legal status of the American, and his relation to all governments, and the relation of governments in America to one another, when the Treaty of Peace was concluded with England on September 3, 1783, and was later ratified by the Federal Congress on January 14, 1784.

CHAPTER III AMERICANS FIND THE NEED OF A SINGLE NATION

Living over the great days of our forefathers, we now approach the greatest of all. It comes four years after the end of the Revolution. Not satisfied with a mere union of their states, the whole American people, in 1787, proposed to form the great nation of men, America. On June 21, 1788, it is created by them. On March 4, 1789, its only government, now also the government of the continued union of states, begins to function.

Between May 29, 1787, and March 4, 1789, the whole American people did their greatest work for individual liberty. That was their greatest day. Most Americans of this generation know nothing about that period. Still more is it to be regretted that our leaders in public life, even our most renowned lawyers, do not understand what was achieved therein for human freedom. It is of vital importance to the average American that he always know and understand and realize that achievement. That he do so, it is not in the slightest degree essential that he be learned in the law. It is only necessary that he know and understand a few simple facts. The experience of five years since 1917 teaches one lesson. It is that Americans, who have not the conviction that they are great constitutional thinkers, far more quickly than those who have that conviction, can grasp the full meaning of the greatest event in American history.

The reason is plain. Back in the ages, there was a time when scientific men “knew” that the earth was flat. Because they “knew” it, the rest of men assumed that it was so. And, because they “knew” it, it was most difficult to convince them that their “knowledge” was false “knowledge.”

In a similar way, our statesmen and constitutional thinkers came to the year 1917 with the “knowledge” that legislatures in America, if enough of them combined, had exactly the omnipotence over the individual freedom of the American which had been denied to the British Parliament by the early Americans. Naturally, it is difficult for them to understand that their “knowledge” is false “knowledge.” For us who have no false knowledge to overcome, it is comparatively simple to grasp what those other plain Americans of 1787 and 1788 meant to accomplish and did accomplish. Why should it not be simple for us? With those other plain Americans, we have just been through their strenuous years which immediately preceded their greatest days of 1787 and 1788. They were a simple people as are we average Americans of this generation. From living with them through those earlier days, we have come to know their dominant purpose. They sought to secure to themselves and to their posterity the greatest measure of protected enjoyment of human life, liberty and happiness against interference from outside America and against usurpation of power by any governments in America. Certainly, it ought not to be difficult for us to grasp accurately and quickly what they meant to do and what they did do in their last and greatest achievement in the quest of that protected enjoyment of human freedom. But, with all our happy predisposition accurately to understand the meaning of the facts in 1787 and 1788, that understanding cannot come until we know the facts themselves. Let us, therefore, live through those years with those other plain Americans of whom we are the posterity. Only then can we understand their legacy of secured liberty to us and keep it against usurpation by those who do not understand.

So long as the former subjects continued their Revolution, it was only natural that Americans should not realize how inadequately a mere federation of states would serve really to secure the protected enjoyment of individual human freedom. But, as soon as that war had ended, discerning men began quickly to realize that fact. Jealousies between nations, jealousies in abeyance while those nations were fighting a common war for independence, quickly had their marked effect upon the relations of these nations to one another and upon the respect which they showed to the commands of the government of the federation of which all those nations were members. As a matter of fact, those commands, because the governing powers of that government were wholly federal, were tantamount to nothing but requisitions. Those requisitions were honored largely by ignoring them. There was no way of enforcing respect for them or compelling observance of them. The plan of a purely federal union of nations permitted no method of enforcement save that of war upon whatever nation or nations might refuse obedience to a requisition. Such a war would have been repugnant to the mind of every patriotic American.

This was only one of the many defects coming from the fact that Americans, in spirit one people or nation, had no political existence as one nation and had no general national government, with general powers over all Americans, to command respect at home and abroad for the individual freedom of the American.

There is neither time nor necessity for dwelling further upon the fact, quickly brought home to the American people after the close of their Revolution, that a purely federal government of the states was no adequate security for their own freedom. Let the words of one of themselves, apologizing for the inadequacy of that government, attest their quick recognition that it was inadequate. They are the words of Jay in The Federalist of 1787. This is what he said: “A strong sense of the value and blessings of union induced the people, at a very early period, to institute a federal government to preserve and perpetuate it. They formed it almost as soon as they had a political existence; nay, at a time when their habitations were in flames, when many of their citizens were bleeding, and when the progress of hostility and desolation left little room for those calm and mature inquiries and reflections which must ever precede the formation of a wise and well-balanced government for a free people. It is not to be wondered at, that a government instituted in times so inauspicious, should on experiment be found greatly deficient and inadequate to the purpose it was intended to answer.” (Fed., No. 2.)

CHAPTER IV THE BIRTH OF THE NATION

Living through those old days, immediately after the peace with England of 1783, we find that public and official recognition of a fatal defect in the federal form of union came from the inability of its federal government, which had no power over commerce, to establish a uniform regulation of trade among the thirteen American nations themselves and between them and foreign nations. Discerning men, such as Madison and Washington and others, already recognized other incurable defects in any form of union which was solely a union of nations and not a union of the American people themselves, in one nation, with a government which should have national, as well as federal, powers. Taking advantage of the general recognition that some central power over commerce was needed, the legislature of the nation of Virginia appointed James Madison, Edmund Randolph and others, as commissioners to meet similar commissioners to be appointed by the twelve other nations. The instructions to these commissioners were to examine into the trade situation and report to their respective nations as to how far a uniform system of commerce regulations was necessary. The meeting of these commissioners was at Annapolis in September, 1786. Only commissioners from the nations of Virginia, Delaware, Pennsylvania, New Jersey and New York attended. The other eight nations were not represented.

Madison and Hamilton were both present at Annapolis and figured largely in what was done there. It is an interesting and important fact that these two played a large part from its very inception in the peaceful Revolution which brought to an end the independent existence of thirteen nations—a Revolution which subordinated these nations, their respective national governments, and their federation to a new nation of the whole American People, and to the Constitution and the government of that new nation.

At every stage of that Revolution, these two men were among its foremost leaders. Recorded history has made it plain that Madison, more than any other man in America, participated in planning what was accomplished in that Revolution. He drafted the substance of most of the Articles in what later became the Constitution of the new nation. By the famous essays (nearly all of which were written by himself or Hamilton) in The Federalist, explaining and showing the necessity of each of those Articles, he contributed most effectively to their making by the people of America, assembled in their conventions. He actually drew, probably in conference with Hamilton, what we know as the Fifth Article, which will later herein be largely the subject of our exclusive interest.

The Annapolis commissioners made a written report of their recommendations. This report was sent to the respective legislatures of the five nations, which had commissioners at Annapolis. Copies were also sent to the Federal Congress and to the Executives of the other eight nations in the federation. The report explained that the commissioners had become convinced that there were many important defects in the federal system, in addition to its lack of any power over commerce. The report recommended that the thirteen nations appoint “commissioners, to meet at Philadelphia on the second Monday in May next, to take into consideration the situation of the United States; to devise such further provisions as shall seem to them necessary to render the constitution of the federal government adequate to the exigencies of the Union; and to report such an act for that purpose, to the United States in Congress assembled as, when agreed to by them, and afterwards confirmed by the legislature of every state, will effectually provide for the same.”

The Annapolis recommendation was acted upon by the legislatures of twelve nations. Each nation, except Rhode Island, appointed delegates to attend the Philadelphia Convention to begin in May, 1787. Madison himself, in his introduction to his report of the debates of the Philadelphia Convention, gives his own explanation of why Rhode Island did not send delegates. “Rhode Island was the only exception to a compliance with the recommendation from Annapolis, well known to have been swayed by an obdurate adherence to an advantage, which her position gave her, of taxing her neighbors through their consumption of imported supplies—an advantage which it was foreseen would be taken from her by a revisal of the Articles of Confederation.” This is mentioned herein merely to bring home to the minds of Americans of the present generation the reality of the fact, now so difficult to realize, that there were then actually in America thirteen independent nations, each having its powerful jealousies of the other nations and particularly of its own immediate neighbors. The actual reality of this fact is something which the reader should not forget. It is important to a correct understanding of much that is said later herein. It is often mentioned in the arguments that accompanied the making of our Constitution, that the nation of New Jersey was suffering from exactly the same trouble as the nation of Rhode Island was causing to its neighbors. Almost all imported supplies consumed by the citizens of New Jersey came through the ports of New York and Philadelphia and were taxed by the nations of New York and Pennsylvania.

Interesting though it would be, it is impossible herein to give in detail the remarkable story of the four months’ Convention at Philadelphia in 1787. It began on May 14 and its last day was September 17. It is recommended to every American, who desires any real knowledge of what his nation really is, that he read, in preference to any other story of that Convention, the actual report of its debates by Madison, which he himself states were “written out from my notes, aided by the freshness of my recollections.” It is possible only to refer briefly but accurately to those actual facts, in the history of those four months, which are pertinent to the object of this book.

At the very outset, it is well for us Americans to know and to remember the extraordinary nature of the recommendation which had come from Annapolis and of the very assembling of that Philadelphia Convention. The suggestion and the Convention were entirely outside any written law in America. Every one of the thirteen colonies was then an independent nation. These nations were united in a federation. Each nation had its own constitution. The federation had its federal constitution. In none of those constitutions was there any provision whatever under which any such convention as that of Philadelphia could be suggested or held. The federal Constitution provided the specific mode in which ability to amend any of its federal Articles could be exercised. Such provision neither suggested nor contemplated any such convention as that to be held at Philadelphia. For these reasons, Madison and Wilson of Pennsylvania and other leading delegates at that Convention stoutly insisted that the Philadelphia Convention had not exercised any power whatever in making a proposal.

“The fact is, they have exercised no power at all; and, in point of validity, this Constitution, proposed by them for the government of the United States, claims no more than a production of the same nature would claim, flowing from a private pen.” (Wilson, Pennsylvania State Convention in 1787, 2 Ell. Deb. 470.)

“It is therefore essential that such changes [in government] be instituted by some informal and unauthorized propositions, made by some patriotic and respectable citizen or number of citizens.” (Madison, Fed. No. 40.)

But there was a development even more remarkable on the second day of this unauthorized Convention.

The Convention was presided over by Washington. Among the other delegates were Hamilton of New York, Madison and Randolph and Mason of Virginia, Franklin and Wilson and Robert Morris and Gouverneur Morris of Pennsylvania, and the two Pinckneys of South Carolina. Madison himself, speaking of the delegates in his Introduction to his report of the Debates, says that they were selected in each state “from the most experienced and highest standing citizens.” The reader will not forget that each of these men came under a commission from the independent government of a sovereign and independent nation, twelve such independent governments and nations being represented in that Convention. In the face of this important fact, it is amazing to realize the startling proposition offered for consideration, on May 30, 1787. On that day, the Convention having gone into a Committee of the Whole, Randolph, commissioned delegate from the independent government and nation of Virginia, moved, on the suggestion of Gouverneur Morris, commissioned delegate from another independent government and nation, that the assembled delegates consider the three following resolutions:

“1. That a union of the states merely federal will not accomplish the objects proposed by the Articles of Confederation—namely, common defense, security of liberty, and general welfare.

“2. That no treaty or treaties among the whole or part of the states, as individual sovereignties, would be sufficient.

“3. That a national government ought to be established, consisting of a supreme legislative, executive, and judiciary.” (5 Ell. Deb. 132.)

If we wish to realize the sensational nature of those resolutions, let us assume for a moment a similar convention of delegates assembled in the City of New York. Let us assume that the delegates have been commissioned respectively by the governments of America, Great Britain, Ireland, Canada, Australia, New Zealand, France, Belgium and other nations. Let us assume that the ostensible and proclaimed purpose of the convention, stated in the commissions of the delegates, is that it frame a set of federal Articles for a league or federation of the independent nations represented and report the drafted Articles to the respective governments for ratification or rejection. Let us then assume that, on the second day of the convention, Lloyd George, on the suggestion of Charles E. Hughes, calmly proposes that the convention, as a Committee of the Whole, consider three resolutions, exactly similar to those proposed by Randolph on May 30, 1787. Imagine the amazement of the world when it found that the resolutions were to the effect that the convention should draft and propose a constitution of government which would create an entirely new nation out of the human beings in all the assembled nations, and create a new national government for the new nation, and destroy forever the independence and sovereignty of each represented nation and its government and subordinate them to the new national and supreme government.

This was exactly the nature of the startling resolutions of Randolph. Moreover, before that one day closed, the Committee of the Whole actually did resolve “that a national government ought to be established consisting of a supreme legislative, executive and judiciary.” The vote was six to one. Massachusetts, Pennsylvania, Delaware, North Carolina, Virginia and South Carolina voted “aye.” From that day on, the Convention continued to prepare a proposal involving the destruction of the complete independence of the existing nations and of the governments which respectively commissioned the delegates to the Convention. From that day on, the Convention concerned itself entirely with the drafting of constitutional Articles which would create a new nation, America, the members thereof to be all the American people, and would constitute a national government for them, and give to it national powers over them, and make it supreme, in its own sphere, over all the existing nations and governments.

It is interesting and instructive to know that all this startling purpose, later completely achieved by appeal to the existing ability of the possessors of the supreme will in America, the people, assembled in their conventions, had not been the conception of a moment.

We find Madison, by many credited with the most logical mind of his remarkable generation, carefully planning, long before the meeting of the Convention, a quite detailed conception of the startling proposal of Randolph. In a letter from Madison to Randolph, dated April 8, 1787 (5 Ell. Deb. 107), he speaks of “the business of May next,” and of the fact “that some leading propositions at least would be expected from Virginia,” and says, “I will just hint the ideas that have occurred, leaving explanations for our interview.” When we remember the remarkable manner, entirely novel in the history of political science, in which our Constitution creates a new nation and its supreme national government and yet keeps alive the former independent nations and their federation, the next sentence of that letter is of absorbing interest. It reads, “I think, with you, that it will be well to retain as much as possible of the old Confederation, though I doubt whether it may not be best to work the valuable articles into the new system, instead of engrafting the latter on the former.” When we read the detailed story of the Philadelphia Convention and study its product, our Constitution, there worded and later made by the people, we realize that Madison’s idea, expressed in the quoted sentence, was accurately carried out largely through his own efforts.

Turning now to a later paragraph in that same April letter, we marvel at the foresight, the logical mind and the effective ability of the writer in later securing almost the exact execution of his idea by the entire people of a continent, even though that idea was the destruction of the independence of their respective nations and of their existing respective governments. That paragraph reads: “I hold it for a fundamental point, that an individual independence of the states is utterly irreconcilable with the idea of an aggregate sovereignty. I think, at the same time, that a consolidation of the states into one simple republic is not less unattainable than it would be inexpedient. Let it be tried, then, whether any middle ground can be taken, which will at once support a due supremacy of the national authority, and leave in force the local authorities so far as they can be subordinately useful.”

This remarkable letter then goes on, paragraph by paragraph, to suggest that, in the new Articles, the principle of representation be changed, so as not to be the same for every state; the new government be given “positive and complete” national power “in all cases where uniform measures are necessary”; the new government keep all the federal powers already granted; the judicial department of the new government be nationally supreme; the legislative department be divided into two branches; the new government have an executive department; there be an Article guaranteeing each state against internal as well as external dangers. In other words, the letter reads like a synopsis of the principal provisions of our present Constitution, although the letter was written over a month before the Philadelphia Convention began to draft that Constitution.

One paragraph in that remarkable letter is very important as the first of many similar statements, with the reasons therefor, made by Madison in the Philadelphia Convention, in the Virginia convention which ratified the Constitution and in The Federalist which urged its ratification. Madison was writing his letter within a few short years after the American people had made their famous Statute of 1776. He knew its basic law that every ability in government to interfere with individual freedom must be derived directly by grant from those to be governed. He knew that governments could give to government federal power to prescribe rules of conduct for nations. He also knew that governments could not give to government any power to prescribe rules of personal conduct which interfered with the exercise of individual human freedom. In other words, he knew the existing and limited ability of legislatures to make federal Articles and that such limited legislative ability was not and never could be, in America, competent to make national Articles. He also knew the existing ability of Americans themselves, assembled in their conventions, to make any kind of constitutional Article, whether it were federal or national. He knew that the limited ability had been exercised in making the federal Articles of the existing federation and that the unlimited ability had been exercised, in each existing nation, in making its national Articles.

With this accurate knowledge always present in his mind and repeatedly finding expression by him in the ensuing two years, it is natural that we find in his remarkable letter of 1787, after his summary of what Articles the new Constitution ought to contain and nearly every one of which it does contain, the following significant statement: “To give the new system its proper energy, it will be desirable to have it ratified by the authority of the people, and not merely by that of the legislatures.” From such a logical American, it is expected that we should find accurate echo again and again of this deference to basic American law in such later expressions as his statement in The Federalist, Number 37, “The genius of republican liberty seems to demand ... that all power should be derived from the people.”

Having thus grown well aware of the tremendous part played by Madison in shaping the substance of the Constitution of government under which we Americans live, let us return to the Philadelphia Convention in which he figured so prominently and which worded and proposed the Articles of that Constitution.

In the seven Articles, which were finally worded by that Convention, there are but three which concern themselves at all with the vesting of national power in government. They are the First, the Fifth and the Seventh.

The First Article purports to give, in relation to enumerated matters, all the national power which the Constitution purports anywhere to grant to its only donee of power to make laws interfering with human freedom, the national Legislature or Congress. Indeed, the opening words of that First Article explicitly state that, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Then the remaining sections of that Article go on to enumerate all the powers of that kind, the national powers, which are granted in the Constitution by the donors, the American people or citizens, assembled in their conventions.

If there be any doubt in the mind of any American that the First Article contains the enumeration of all national powers granted by the Constitution, the statements of the Supreme Court, voiced by Marshall, ought to dispel that doubt.

This “last” of the enumerated powers, as Marshall accurately terms it, is that granted in the last paragraph of Section 8 of the First Article.

It is because the First Article IS the constitution of government of the American citizen that his government has received its tribute as a government of enumerated powers. This fact is clearly explained in the Supreme Court in Kansas v. Colorado, 206 U. S. 46.

Indeed, we need no Marshall to make us fully understand that when human beings constitute a government, the one important thing which they do is to grant government power to interfere, within a limited discretion, with their own individual freedom by issuing commands in restraint of the exercise of that freedom. Anything else that the government is authorized to do is a mere incident of its existence as a government. The power to issue commands interfering with human freedom is the substance and essence of government. That is why all the national powers of any American government are included in whatever ability its legislature has to make valid commands of that kind. The letter which went from the Philadelphia Convention, with the proposed Constitution, accurately expresses this fact in the words, “Individuals entering into society must give up a share of liberty to preserve the rest.” (1 Ell. Deb. 17.) By surrender of some of their liberties is meant their grant of power to make commands or laws interfering with those surrendered liberties. Whenever government is constituted, “the people must cede to it some of their natural rights, in order to vest it with requisite powers.” (Jay, Fed. No. 2.)

We thus know for a certainty that the First Article of our Constitution is the only one which purports to vest in government any national powers.

The Second Article deals entirely with the executive department, the authority of the president and that department to enforce valid laws, the election of the president and vice-president, etc. The Third Article deals with the authority of the judicial department [including authority to declare what laws have been validly passed, etc.] and with the manner of the appointment of the members of that department, etc. The Fourth Article contains miscellaneous declaratory statements of certain things which the citizens of America make the fundamental law of America. The Sixth Article contains other declaratory statements of what is also made the fundamental law of America.

This leaves to be considered only the Fifth and the Seventh Articles. Like the First Article, they relate to the vesting of national power in our American national government; but, unlike the First Article, neither of them purports to grant any such power to any government. They deal with the manner of its grant by the only competent grantors of power of that kind, the “conventions” of the American people, called by that name, “conventions,” in the Fifth and Seventh Articles. As the Seventh Article was intended by those who worded it to accomplish its purpose simultaneously with and by reason of its ratification, and as its purpose was the main object of the Convention which framed all the Articles, we will consider it before the Fifth.

The Seventh is merely the explicit declaratory statement of those whose “expressed authority ... alone could give due validity to the Constitution,” the Americans themselves assembled in their conventions, that when the Americans, assembled in nine of those thirteen conventions, have answered “Yes” to the entire proposed Constitution, the American nation shall instantly exist, all Americans in those former nations where those nine conventions assembled shall instantly be the citizens of the new nation, and all the grants of national power, expressed in the First Article of that Constitution, shall have been validly made as the first important act of that collective citizenship.

We now consider for a moment the Fifth Article, the only remaining one which relates to grant of national power. That Fifth Article does not relate to grant of national power alone. It also relates to grant of federal power. It relates to the future grant of either of those vitally distinct kinds of power. It is further proof of the logical mind of the man who wrote that extraordinary letter of April, 1787, and who largely, in substance, planned the entire system of a constitution of government, both federal and national, which is embodied in our Constitution. Madison and his associates, in The Federalist and in the Philadelphia Convention and in the various ratifying conventions, repeatedly stated their knowledge that the proposed Constitution could not possibly be perfect. With the utmost frankness, they expressed the sane conviction that it would be contrary to all human experience, if it were found perfect in the working out of an entirely new and remarkable dual system of government of a free people by themselves, For this reason, the Fifth Article was worded so as to prescribe a constitutional mode of procedure in which the existing ability of the American citizens to make any kind of Article, whether national or federal, could thereafter be invoked to exercise and be exercised. It was also worded so as to provide a constitutional mode of procedure in which there could be likewise invoked to exercise and be exercised the existing limited ability of the state legislatures to make articles which were not national. As a matter of fact, it was only at the last moment, in the Convention, that Madison and Hamilton, remembering this limited ability of those legislatures, wrote into Article V any mention of it and its future constitutional exercise. As the story of the First, Fifth and Seventh Articles, at Philadelphia in 1787, will be more fully treated hereinafter, we leave them now to continue the brief story of the voluntary and direct action of the Americans themselves, by which they created the nation that is America, became its citizens and, as such, vested its only government with its enumerated national powers.

When the Philadelphia Convention, on September 17, 1787, had completed its voluntary task of wording the proposed Constitution of a nation and its supreme government of enumerated powers, the proposed Constitution was referred to the American people, for their own approval or rejection, assembled in their conventions.

In many respects, the Philadelphia ascertainment of the legal necessity that it must be referred to those people themselves and the Philadelphia decision to that effect, following that ascertainment, constitute the most important and authoritative legal reasoning and decision ever made in America since July 4, 1776. Both reasoning and decision were naturally based upon the fact that the First Article purports to give national powers to Congress to make laws, interfering with the individual freedom of the citizens of America. In the face of that decisive fact, it was impossible for the Americans at Philadelphia, who had worded that proposed Article with its grant of enumerated powers of that kind, to have made any other legal decision than a reference of such an Article to the American people themselves assembled in their conventions, as the only competent grantors of any national power.

The Americans at Philadelphia were human beings of exactly the same type as all of us. They had their human ambitions and differences of opinion and jealousies. They were not supermen any more than we are. They were grappling with tremendous problems along an uncharted way in the comparatively new science of self government by a free people, sparsely settled along the extensive easterly coast of a continent and, at the time, citizens of thirteen distinct and independent nations. Their personal ambitions and differences of opinion and jealousies, for themselves and their respective nations, made the problem, which they set themselves to solve, one almost unparalleled in history. If they had wholly failed in their effort, as men with any other training and dominant purpose in life would certainly have failed, no just historian would ever have attributed such failure to any lack of intelligence or ability or patriotism on their part.

It was, however, their fortune and our own that their training and dominant purpose in life had been unique in history. Among them were men, who only eleven years earlier, at that same Philadelphia, in the name and on behalf of the American people, had enacted the Statute of 1776. As their presiding officer, in their effort of 1787, sat the man who had led the same American people in their successful effort, by the sacrifices of a Valley Forge and the battlefields of the Revolution, to make the declarations of that Statute the basic principle of American law. Prominent in the Convention was Hamilton, who had left college at seventeen to become a trusted lieutenant of the leader in that war which did make that Statute our basic law. Among the delegates were quite a few others who had played similar parts in that same war for that same purpose. Most of the delegates had played some part, entailing personal sacrifice and effort, in that same war and for that same purpose. With such an education in the school whose training men find it impossible to ignore, the school of actual life, it was mentally impossible that this body of men could either forget or ignore or disobey the basic American law, which then commanded them and still commands us, that no government in America can ever have or exercise any valid national power to interfere with human freedom except by direct grant from its citizens themselves. If the education of the leaders of the present generation had been the same, American history of the last five years could have been differently written in a later chapter herein.

Because the Convention was educated to know the Statute of ’76, the proposed grant of enumerated national powers in the First Article was necessarily referred to the only competent grantors, the American people themselves, assembled in their conventions.

Familiar as we are with the result of their effort to solve their great problem, a result told in the history of the ensuing one hundred and thirty-five years in America, it seems fitting here to have Madison describe the closing moment of that Philadelphia Convention, in his own words: “Whilst the last members were signing, Dr. Franklin, looking toward the president’s chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that painters had found it difficult to distinguish, in their art, a rising from a setting sun. ‘I have,’ said he, ‘often and often, in the course of the session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the president, without being able to tell whether it was rising or setting; but now, at length, I have the happiness to know that it is a rising, and not a setting sun.’” (5 Ell. Deb. 565.)

The story of the actual making of that Constitution by the people of America, assembled in their conventions, is a marvelous story. No American can fully grasp what an American really is unless he personally reads that story, not as told even by the most gifted writer, but as told by the recorded debates in the very conventions themselves of the very Americans who created the nation which is America, made themselves its citizens and, as its citizens, made the only valid grants of enumerated national power, the grants in the First Article. In a later chapter, somewhat of that story will be told, mostly in the very words of those who made those grants. At this point, we are concerned only to set out the hour and the moment when American human beings, as such, in their greatest Revolution, exercised their exclusive ability to give their one government some national power to interfere with individual freedom.

Each of them was already a citizen of one of the existing nations. It was, however, as American human beings, always collectively the possessors of the supreme will in America, and not as citizens of any nation, that they assembled in the conventions and, in the exercise of that supreme will, created a new and one American nation, by becoming its charter members and citizens. That was the first and immediate effect of the signing of that Constitution in the ninth convention of the American people, the convention in New Hampshire, on June 21, 1788. That is the actual day of the birth of the American nation as a political entity. It is the day on which the American citizen, member of the American nation, first existed. While it is true that there yet was no actual government of the new nation, it cannot be denied that legally, from that June 21, 1788, there did exist an American nation, as a political society of human beings, and that its members were the human beings in the former nations of Delaware, Pennsylvania, New Jersey, Georgia, Connecticut, Massachusetts, Maryland, South Carolina, and New Hampshire. The very moment the Americans in those nine former nations had signed that Constitution of government, they had constituted themselves a nation and had become its citizens.

Simultaneously therewith, as its citizens, they had made their grant of enumerated national powers to interfere with their own human freedom. Simultaneously therewith, they had destroyed forever the absolute independence of their nine nations; they had kept alive those nations, as partially independent political societies, each to serve certain purposes of its members who still remained citizens of that political society as well as citizens of the new nation; they had taken from the government of each of those nations much of its national power, had given to each such government no new power whatever, but had left with it much of its former national power over its own citizens; they had kept alive the federation of nations, now a federation of partially independent states; they had made their own new national government also the federal government of that continuing federation and their own national Constitution also the federal Constitution of that continued federation; they had subordinated all those nine states and the government of each and of the federation to their own supreme will, as the citizens of the new nation, expressed in its Constitution. This was the meaning of the second section of the Sixth Article in the document, which they had signed, which reads: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

The makers of the new nation are identified by the opening words of the document: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

It would be diverting, were it not somewhat pathetic, to hear that the Constitution was made by the states. From that quoted Preamble alone, volumes might be written to show the absurdity of such thought. It identifies the makers as “people” and not as political entities. It expressly says that its makers, “the people,” ordain it “in order to form a more perfect Union.” The states already had a perfect union of states. But the human beings or “people” of all America had no union of themselves. The only “people” in America, who had no union of themselves, identify themselves unmistakably when they say, “We the people of the United States, in Order to form a more perfect Union, etc.” They are the “people” or human beings of America, the whole people of America, the collective possessors of the supreme will which had enacted the Statute of ’76.

If this fact had been kept clearly in mind by our modern leaders and lawyers, the history of the supposed Eighteenth Amendment would never have been written. When the whole American people assembled in their conventions in their respective geographic states, they did not assemble therein as the citizens of their respective states. It is true that the Americans, who assembled in any particular convention, happened to be citizens of a particular state. But they were also part of the whole American people, whose act as a whole people had freed all the colonies and had permitted the Americans in each colony to constitute a nation for themselves. And, when the Americans in each convention assembled, it was to decide whether that part of the American people, which resided in that state, would agree with the American people residing in other states to become members and citizens of an entirely different society of men and grant to the government of the new society power to interfere with the individual rights of the members of the new society.

How could the “citizens” of an independent nation, in their capacity as such citizens, become “citizens” of an entirely different nation, with an entirely different human membership or citizenry? If the individual members of a large athletic club in the City of New York should assemble in its club house to determine whether they, as individual human beings, should join with the human members of a number of other athletic clubs and create a large golf club, with a large human membership, and become members of that large golf club, would any of them entertain the absurd thought that he was becoming a member of the golf club in his capacity as a member of his existing and smaller athletic club? This is exactly what happened when the American people as a whole assembled in their conventions and decided to become members or citizens of the new and larger political society of men, while still remaining members and citizens of their respective smaller societies of men.

The vital distinction between the citizen of America and the citizen of a state, although oftentimes one is the same human being, is probably known to many of the modern leaders and lawyers who have considered and argued about the supposed Eighteenth Amendment. But it has been wholly ignored in every argument for or against the existence of that Amendment. As a matter of fact, that vital distinction has always been so important a part of our American institutions that it has been the subject-matter of repeated decisions in the Supreme Court. It is a distinction amazingly important, in substance, to individual freedom in America. So true is this that one of the most important Amendments ever made to the federal part of our Constitution was primarily intended to require that every state must extend to the “privileges or immunities of citizens” of America the same respect and protection which the American Constitution had previously only required that each state must extend to the citizens of the other states.

When the conventions made the original constitution, Section 2 of Article IV commanded that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” After the Civil War had closed, it quickly was realized that this federal command of the Constitution did not protect the citizens of America in any state. And so this command was added to the federal part of the Constitution by the Fourteenth Amendment, namely, that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens” of America.

It would be idle to repeat here the famous Supreme Court decisions in which that Court has been obliged to dwell upon the important result accomplished by this vital change in the federal part of our Constitution. In such cases as the Slaughter House Cases, 16 Wall. 36, Paul v. Virginia, 8 Wall. 168, Re Kemmler, 136 U.S. 436, U.S. v. Cruikshank, 92 U.S. 542, Blake v. McClung, 172 U.S. 239, Maxwell v. Sow, 176 U.S. 581 and numerous other cases the important decisions have turned entirely upon the vital distinction between a citizen of America and a citizen of a particular state, even though the same man had the two capacities. Each decision turned upon the fact that the protection given to him in one capacity, by some constitutional provision, did not extend to him in the other capacity.

If all this had not been forgotten and ignored during the five years which began in 1917, the story of that five years would have been entirely different. Everyone would have known that the respective attorneys in fact for societies or states could not grant new power to interfere with the individual freedom of the members of an entirely different society, America.

There never was a day at Philadelphia in 1787 when the clear-minded Americans did not remember and realize this vital distinction between Americans, in their capacity as members of their respective existing societies, and Americans, in their capacity as members of the prospective society of the whole American people. There never was a day when they did not realize that the members of the proposed new and supreme society of men would never have but one attorney in fact for any purpose, the government at Washington, while the members of each small and inferior society would still have, as they already had, in their capacity as such members, their own attorney in fact, their own government.

One instance alone is sufficient to show how that Philadelphia Convention never forgot these important things. When the Committee of Detail, on August 6, 1787, reported to the Convention the first draft ever made of our Constitution, the Preamble read: “We, the people of the states of New Hampshire, Massachusetts, etc.” (enumerating all the states), “do ordain, declare, and establish, the following constitution for the government of ourselves and our posterity.” (5 Ell. Deb. 376.) But, so that future generations, like our own, should not ignore the fact that it was not the people of the respective states but the whole people of America who made the Constitution, before the proposal was made from Philadelphia, the Preamble, identifying the makers of the Constitution, was changed to read, “We, the people of the United States,”—the whole people of the new nation, America.

In the Virginia convention, Patrick Henry put the clear fact all in one pithy statement. He made that statement in one of his eloquent arguments against ratification of the Constitution. Many Americans today do not know that Patrick Henry was the most zealous opponent of the proposed Constitution. He was a citizen of the nation of Virginia. His human liberty as an individual could not be interfered with by any government or governments in the world except the Virginia government and only by it, under grant of national power to it from him and his fellow citizens of Virginia. That is exactly the status which he wished to retain for himself and which he insisted was the best security for individual freedom of all Americans in Virginia. “This is an American government, not a Virginia government!” he exclaimed. Nothing could more clearly express his knowledge, the common knowledge of all in that day, that he and his fellow Americans in that convention were being asked as Americans, not as citizens of Virginia, to constitute a new nation of the American people and a national government for that people.

That is why the Tenth Amendment, responsive to the demand of that Virginia convention and other similar conventions of the American people, names the citizens of the respective states as one class of reservees and the citizens of America as the great reservee and “most important factor” in the Tenth Amendment. This is the plain meaning of the language of that Tenth Amendment, to those who know what America is, where that language reads “to the states respectively, or to the people.” The word “respectively” is pointedly present after the word “states” and it is pointedly absent after the word “people.” Nothing could make more clear, to those who do not forget that the citizens of each state were the state itself, that the words “to the states respectively” mean to the respective peoples or citizens of each state and that the words “or to the people” mean to the people or citizens of America, in that capacity.

CHAPTER V THE CONSENT OF THE GOVERNED

We average Americans have now lived with those earlier Americans through the years in which they were educated to their making of the American nation, to their constitution of its only general government with national powers.

We have been with them in those early days when legally they were subjects, inasmuch as their British Legislature at London had unlimited ability, not delegated by them, to interfere with the individual human freedom of each of them and all of them. We have realized that, in those very early days, despite their legal status, those Americans were actually and in substance citizens of their own respective communities, inasmuch as the legislatures which actually did interfere with such freedom were the legislatures of their own choosing to which they themselves delegated such powers of interference.

We have been with them when their British Government began its attempt to exercise its omnipotent ability. We have seen the inevitable result, the American Revolution, by a people, educated through actual experience in self government, against the attempt of any government to exercise a national power not directly granted by its citizens. We have seen their invincible determination, in an eight year war of sacrifice, that no government in America shall ever have any national power except by direct grant from its citizens. We have seen them, in their Statute of ’76—never repealed—declare this principle to be the basic law of America.

We have been with them when the Americans in each former colony constituted for themselves a government and gave it limited ability to interfere with their individual freedom. Living with them at that time, we have realized how accurately they then grasped the vital fact that the granting of such national ability is the constitution of government and that no people ever are free or self-governing unless every grant of that kind is made directly by the citizens of the nation themselves.

We have realized that, in constituting their respective national governments, the citizens of each of those nations withheld from its government many possible national powers, such, for example, as those mentioned in the various Bills of Rights or Declarations of human liberty in the different written constitutions of those nations. We have realized—a vital legal fact never to be forgotten—how accurately those Americans and their governments knew that not all of those sovereign legislatures of those independent nations could, even together, exercise or grant a single one of those possible national powers reserved by the people to themselves. We have also realized—again a legal fact which should have sunk deep into our souls—that the very national powers, which the citizens of each of those nations had granted to its legislative government, were to be exercised only by that legislative government and could not be delegated by it to any other government or governments. “The powers delegated to the state sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty created by themselves.” (Marshall, M’Culloch v. Maryland, 4 Wheat. 316.)

We have lived with those Americans in those Revolutionary days when the legislative governments of their thirteen nations created “a distinct and independent sovereignty” to govern a federal union of those nations but not to govern, by the exercise of national powers, the human beings who were the American people. We have seen those legislative governments then aware of their existing ability, each as the representative or attorney in fact of its own nation for all federal purposes, to vest federal powers in a federal government. “To the formation of a league, such as was the Confederation, the state sovereignties were certainly competent.” (Marshall, M’Culloch v. Maryland, 4 Wheat. 316.) But those legislative governments knew that they could not delegate to any government even those limited national powers “delegated to the state sovereignties” by their respective citizens. “The powers delegated to the state sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty created by themselves.” (Marshall, supra.) As to the national powers not delegated but reserved by the people to themselves, the legislative governments of that day (as well as the American people) knew what the Supreme Court still knew in 1907 as to national powers similarly withheld from the later national government of America:

We have been with those Americans in the few short years in which they learned that the maximum of protected enjoyment of individual freedom could never be obtained through a general government possessing naught but federal powers, the only kind of power which any American government can ever obtain through grants made by governments or, in any way, except by direct grant from its citizens themselves.

We have been with those Americans through the greatest Revolution of all, when their leaders and the average Americans themselves, still determined to obtain that maximum protected enjoyment of individual human liberty and awake to the knowledge that it could not be obtained through a general government with naught but federal powers, rose again to the great occasion. We have been with them when, outside of all then existing constitutions and outside of all written American law except the Statute of ’76, those Americans, at the suggestion of their American leaders, made themselves the members of one great political society of human beings, the nation which is America. We have been with them when they gave the government of America, by direct grant from themselves, such enumerated national powers to command them, the citizens of America, as they—not the state governments—deemed wise and necessary to protect their human liberty against all oppressors, including all governments. We have been with them—and we have marveled—while they themselves actually made, by their own action, their amazingly effective distribution of all delegated powers to interfere with individual freedom.

We have seen that they gave to the new government, the only government of the citizens of America, naught but enumerated national powers, with the ability to make all laws necessary for the proper execution of those enumerated powers, and reserved to themselves alone—not to any government or governments in the world—all other possible national powers over the self-governing people, the citizens of America.

We have seen how they, the citizens of America, the possessors of the supreme will in America, then ended the complete independence of each of the thirteen nations but reserved to the citizens of each nation much of their former ability to exercise their own national powers of government over themselves, through their own delegation of such power to their only attorney in fact for such purpose, their own legislature.

We have seen those American citizens, while destroying the complete independence of those former nations, incorporate the former federation of states into their own system of a society or nation of all the human beings of America. We have seen them, in the constitution of their own national government, make it also the federal government of that federation and leave with it such federal powers as they themselves deemed wise. We know, therefore, as they knew in 1790 when their great distribution of power had become effective, that no legislature in America could exercise a national power not granted by its own citizens, and that no legislature or legislatures in America could give any national power to any government.

We average American citizens of this present generation must now feel qualified to understand the Constitution and its settled distribution of all national powers to interfere with individual freedom. If these Americans could use their knowledge intelligently to make that amazing Constitution to protect our human liberty and their own, it cannot be beyond us, now also taught by their experience, to understand the protection which that Constitution gave to them and gives to us against even the usurpation of our own governments. Only by that understanding may we hope to keep that legacy of protection. No longer, now that we have acquired that understanding, can we make the great mistake of believing that the public leaders or lawyers of this generation are qualified to teach us anything about that protection.

The experience of our leaders and lawyers has given them an entirely different education, in the science of government, than was the education of these earlier average Americans and their leaders, than is our own education in having lived over again the days in which all valid grants of national power in constitutions of American government were made by the people themselves because people and governments alike knew that such grants could never be made by governments. The experience of public leaders and lawyers in America, for the past thirty years, has been almost exclusively concerned with property and with law and Constitutions in relation to property.

In the Supreme Court, in the Slaughter House Cases, 16 Wall. 36 at page 116, Justice Bradley points out that the Declaration of Independence was the first political act of the American people in their independent sovereign capacity and that therein they laid the foundation of national existence on the basic principle that men are created with equal and inalienable rights to “life, liberty and the pursuit of happiness.” He then goes on to state that “Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property.” We thus realize that the education of the Americans, who made all our constitutions, trained them to make Articles of government which would secure protected enjoyment of these three human rights. And we have learned that to those Americans, life and liberty came before property in importance.

On the other hand, the leaders and lawyers of the present generation have been educated to think that property is the one important right which constitutions are made to protect. Wherefore it would be extraordinary if any of them knew that the American people constituted all their governments, and made their distribution of national powers among those governments and reserved to themselves many national powers, all for the main purpose of securing individual life and liberty, and then, the enjoyment of property. That these leaders and lawyers, so educated by experience, have not known these things or understood at all the constitutional Articles, an accurate understanding of whose meaning depends upon a knowledge which their education has withheld from them, the story of the last five years amply demonstrates. In its detail, that story and that demonstration will be later dwelt upon herein.

Fortunately, we average Americans of this generation have not received any wrong education in the relative importance of human life and liberty to property in the eyes of the American people who constituted all governments in America, and in the constitutions which those people made to secure all three human rights against even the usurpations of delegated power by the very governments which those constitutions created. Our wrong education in that respect has undoubtedly been attempted. The events of the last five years, however, while demonstrating the thoroughly wrong education of our leaders, have also shown that the average Americans still sense something extraordinary about governments exercising undelegated power over citizens of which they are not the governments and about governments claiming ability to give to themselves and to other governments undelegated national powers to interfere with individual human freedom. It has been entirely the result of the wrong education of our leaders and “constitutional” lawyers that we have not been told the legal fact that, and the constitutional reason why, these extraordinary performances on the part of governments in America have been just as void as they are extraordinary.

Now that we have turned from the unsound teaching of those wrongly educated leaders and lawyers and have educated ourselves by living with the earlier Americans through their making of all our constitutions of government, we are ready to approach, with clear and understanding minds, a brief consideration of the great Constitution proposed at Philadelphia and made by the citizens of America. Only by such brief but accurate consideration can we ever realize the distribution of delegated national powers between a supreme government—legislating for all American citizens—and lesser governments, each legislating only for its own citizens and without any power to legislate for American citizens. Only by such consideration can we realize the importance to us of the legal fact that the citizens of America, when making that distribution of granted national powers, reserved to themselves alone all other national powers to legislate for American citizens except those national powers granted and enumerated in Article I of our Constitution to the only national government of the citizens of America.

CHAPTER VI THE CONVENTIONS GIVE THE CONSENT

The proposal which came from Philadelphia in 1787 was absolutely without precedent in history. Simply stated it was that, outside of all written law save the Statute of ’76, the entire American people, who were not one nation or its citizens, should make themselves one nation and the supreme nation in America; that, simultaneously with the birth of this new nation, they should destroy the complete independence of each existing society or nation, in some one of which each American was a member or citizen, but keep alive each such society or former nation, subject to the supreme will of the citizens of the new nation; that they should keep alive the federation of those old nations also subject to the supreme will of the citizens of the new nation; that they should leave with each former nation (now to be a subordinate state) and to its citizens much of its own and their own national power to govern themselves on many matters without interference from any government or governments outside of that state; that they should leave with those continuing states and their governments their existing and limited ability to give federal power to government by making federal Articles in the Constitution of federal government; that they should, as the citizens of America, give to no state or states or their respective governments any new power of any kind, leaving to the citizens of each state to determine (within the limits fixed by the Constitution of the American citizens) how much power its own national government should have to interfere with the individual freedom of its own citizens; that—most unique and marvelous conception of all—these citizens of America, simultaneously with the birth of the new nation and in their capacity as its citizens, should grant to its government, the only government of those citizens of America, definite and enumerated national powers to interfere with their individual freedom; and that—probably the most important and the least remembered feature of the whole proposal—all other possible national powers over themselves, as citizens of America, should be reserved exclusively to themselves and be exercised or granted by them alone, “in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in Convention.” (Marshall, in the Supreme Court, M’Culloch v. Maryland, 4 Wheat. 316.)

We have not forgotten that these Americans, to whom that proposal was made, did act upon it in that only effective way, by assembling in their conventions.

In view of the startling fact that our leaders and “constitutional” lawyers have neither felt nor acknowledged the necessity that new national powers of that government, new powers to interfere directly with the individual freedom of its citizens, must be derived “directly” from those citizens, in the only effective way in which they can act, on such a subject, by assembling in their conventions, it is the duty of ourselves, the average American citizens of this generation, to insist that they learn this legal fact. When they shall have learned what all Americans once knew, the freedom of the American individual will be as secure as it was in 1790. No legislature, no matter whence comes a suggestion to the contrary, will dare to issue any command except to its own citizens, and only to them in matters on which those citizens have granted power to that legislature to command them.

That we may intelligently so insist, and that our insistence may be made in the proper place and at the proper time, let us briefly consider on what subjects, in the making of our Constitution, our predecessors, as American citizens, granted their enumerated national powers to our only government of all Americans. Like those predecessors, assembled in their conventions, we find all those enumerated powers in the First Article of the Constitution proposed from Philadelphia.

In substance they are the war power; the power of making treaties; the power of regulating commerce between ourselves and all people outside of America and between the citizens of the different states; the power of taxation; and all other incidental and supplementary powers necessary to make laws in the execution of these enumerated and granted powers.

Noticeably absent from these enumerated powers granted to the only general government of the citizens of America is that power, then existing and still in the national government of each nation or state, known (rather inaccurately) as the police power or the power to pass any law, in restraint of individual human freedom, reasonably designed, in the judgment of that particular legislature, to promote the general welfare of its own citizens. It seems hardly necessary, at this moment, to refer to the innumerable decisions of the Supreme Court that such power was not among those enumerated and granted to the American government by its citizens. It was solely because such power had definitely not been granted by them to it that the government of the American citizens made its famous proposal that a portion of such power, in relation to one subject, be granted to it in the supposed Eighteenth Amendment of our Constitution.

As a matter of fact, the police power of any government is really all its power to pass any laws which interfere with the exercise of individual freedom. In that respect, the American people made a marked distinction between the quantum of that kind of power which they granted to their one general national government and the quantum they left in the national government of the citizens of each state. The quantum they granted to their own government was definitely enumerated in the First Article. On the other hand, except for the limitations which they themselves imposed upon the respective governments of each state, they left the citizens of each state to determine what quantum the government of that state should have.

In other words, the police power of the American Congress is strictly limited to the enumerated powers of that kind granted by the citizens of America. And, although the fact does not seem to be generally known, it is because the First Article vests in the sole Legislature of the whole American people nothing but enumerated powers to interfere with the freedom of the individual American that our American government has received its universal tribute as a government of nothing but enumerated powers over a free people, who are its citizens.

Among the national powers, which are enumerated in the First Article, there is one which (whenever operative) approximates the extensive police power of a state government to interfere with the freedom of its citizens. That is the war power of the Government of America. As the purpose of the Constitution of the American Government is to protect the freedom of the American and as such freedom needs effective protection from foreign attack, the Americans of that earlier generation made the war power of their government almost as unlimited as that of a despotic government. All history and their own human experience had taught them that the war power, if it was to be effective for their protection, must be practically unlimited. If we grasp this extent of the American war power, we realize why our sole American government, without the grant of a new national power to it, could validly enact what we know as the War Time Prohibition Statute, although without such a new grant, it was powerless to enact what we know as the Volstead Act or National Prohibition for time of peace. It is because the citizens of each state, in their Constitution of their national government, had given to it a general (although specifically limited) ability to interfere with their own human freedom in most matters, that each state government could validly make prohibition laws for its own citizens. It is because the American citizens had not given to their government any such general ability to interfere with their freedom, that the American Government, for any time except that of war, could not validly enact National Prohibition for the American people without a new grant of a new national power directly from its own citizens. In the days of those earlier Americans, the legal necessity of deriving such power directly from the American citizens themselves was “felt and acknowledged by all.” In our day, among our leaders and our “constitutional” lawyers, there was none so humble as to know or honor this basic legal necessity.

The other enumerated national powers, which American citizens ever gave their national government, are few in number, although they vested a vast and necessary ability in that government to protect the freedom of its citizens and promote their happiness and welfare by laws in certain matters. For our present purpose, they need only be mentioned. They require no present explanation. They are the power to make all treaties with foreign nations or governments; the power to regulate commerce, except the commerce within any one particular state; and the power of taxation.

Having now some accurate conception of the limited and specific quantum of national power which American citizens consented to grant in those earlier days, it is pertinent to our inquiry, as to whether we (their posterity) have again become subjects, to dwell briefly upon the reluctance with which they made even those grants. In considering that attitude, it is essential always to keep in mind the status of the citizens of each state, at that time, and their relation to their own national government and the relation of each state to the federal government of all the states. Under the existing system of governments, the citizens of each state were subject to no valid interference whatever with their own individual freedom except by laws of a legislature, every member of which they themselves elected and to which they themselves granted every power of such interference which that legislature could validly exercise. To those free men in those free states, men educated in the knowledge of what is real republican self-government, these two facts meant the utmost security of their human rights. No government or governments in the world, except their own one state government could interfere at all directly with those rights, and they had given to, and they could take from, that government any power of that kind. As for the respective states and the relation of each to the federal government of all, each state had an equal voice in the giving to or taking from that government any federal power and each had an equal voice, in the federal legislature, in exercising each valid federal power. These existing facts, respectively of vast importance to the citizens of each state and to its government, influenced, more than any other facts, the framing of the new Articles, particularly the First Article, at Philadelphia and the opposition to those Articles in the conventions in which the people of America assembled.

The First Article, as we know it, starts with the explicit statement that all national powers, which are granted by Americans in that Constitution, are granted to the only American legislature, Congress. It then provides how the members of each of the two bodies in that legislature shall be elected. It then enumerates the granted powers, confining them to specific subjects of interference with the human freedom of the American citizen. It then, for the particular security of that human freedom, imposes specific restraints upon that legislature even in the exercise of its granted national powers. Finally, it prohibits the further exercise of specific powers by any state government.

No American, who reads the debates of the Philadelphia Convention of 1787, can fail to realize that the grant of any national power,—power to interfere with human freedom—is the constitution of government. The First Article was the subject of almost all the discussion of those four months at Philadelphia. Seemingly invincible differences of desire and opinion, as to who should elect and the proportion (for citizens of the new nation and for states of the continuing federation) in which there should be elected the members of the legislature which was to exercise the granted national powers, almost ended the effort of that Convention. This was in the early part of July. For exhausting days patriotic men had struggled to reconcile the conflict of desire and opinion in that respect. One element, mainly from the larger states, insisted that the members (from each state) of both branches of the new legislature should be proportioned to the number of Americans in that state. The other element, mainly from the smaller states, insisted that the Americans in each state should have an equal representation in each branch of the new legislature. Each element was further divided as to who should choose the members of that legislature. Some held that the people should choose every member. Others held that the state legislatures should choose every member. Still others held that each state should, by its legislature, choose the members of one branch, so that those members might speak for that state, and that the American people themselves, divided into districts, should choose the members of the other branch, so that those members might speak for the general citizens of America.

Mason of Virginia, later one of the great opponents of the adoption of all the Articles, insisted that election by the people was “the only security for the rights of the people.” (5 Ell. Deb. 223.)

Madison “considered an election of one branch, at least of the legislature by the people immediately, as a clear principle of free government.” (5 Ell. Deb. 161.)

Wilson of Pennsylvania “wished for vigor in the government, but he wished that vigorous authority to flow immediately from the legitimate source of all authority.” (5 Ell. Deb. 160.) Later he said, “If we are to establish a national government, that government ought to flow from the people at large. If one branch of it should be chosen by the legislatures, and the other by the people, the two branches will rest on different foundations, and dissensions will naturally arise between them.” (5 Ell. Deb. 167.)

Dickenson of Delaware “considered it essential that one branch of the legislature should be drawn immediately from the people, and expedient that the other should be chosen by the legislatures of the states.” (5 Ell. Deb. 163.)

Gerry of Massachusetts, consistent Tory in his mental attitude toward the relation of government to people, insisted that “the commercial and moneyed interest would be more secure in the hands of the state legislatures than of the people at large. The former have more sense of character, and will be restrained by that from injustice.” (5 Ell. Deb. 169.)

On June 25, Wilson, at some length, opposed the election of senators by the state legislatures. He stated that: “He was opposed to an election by state legislatures. In explaining his reasons, it was necessary to observe the two-fold relation in which the people would stand—first, as citizens of the general government; and, secondly, as citizens of their particular state. The general government was meant for them in the first capacity; the state governments in the second. Both governments were derived from the people; both meant for the people; both therefore ought to be regulated on the same principles.... The general government is not an assemblage of states, but of individuals, for certain political purposes. It is not meant for the states, but for the individuals composing them; the individuals, therefore, not the states, ought to be represented in it.” (5 Ell. Deb. 239.)

There came a day, early in that memorable July, when all hope of continuing the Convention was almost abandoned, by reason of the difference of desire and opinion on this one subject. Let us average Americans of this generation remember that this one subject was merely the decision whether the people were to choose all the members of the legislature which was to exercise granted national powers to interfere with the human freedom of the citizens of America. Happily for all of us, there were many patriotic as well as able leaders at Philadelphia. From their patriotism and ability they evolved the compromise, on that question, which is expressed in their First Article. When it came from Philadelphia, it provided that each state should have equal representation in the Senate, senators to be chosen by the state legislatures, and that the House of Representatives should consist of members chosen directly by the citizens of America, in districts proportioned to the number of those citizens in it.

No one has read the recorded debates of the Convention which proposed and the conventions which adopted our Constitution without learning that the Americans in those conventions knew that the grant of enumerated national powers in the First Article WAS the constitution of the American government of men. In and out of the Philadelphia Convention, the greatest and most persistent attack upon its proposal was the insistent claim that it had acted wholly without authority in proposing an Article which purported to grant any such national power to interfere with the human freedom of all Americans. Since July 4, 1776, no legislature or legislatures in the world had possessed any national powers over all Americans. The Americans in each existing nation elected every member of the one legislature which had any such power over them. It was felt and stated at Philadelphia, it was felt and urged and insisted upon, sometimes with decency and reason, sometimes with bitterness and rancor and hatred, between the closing day at Philadelphia and the assembling of various Americans in each state, that the Americans in each state would be unwilling to give any such national power over themselves to any legislature whose members were not all elected by the people in that state. In all the conventions which adopted the Constitution, the one great object of attack was the grant even of enumerated powers of a national kind to a legislature whose members would not all be chosen by the Americans in the state in which the convention was held. The record of the Virginia convention fills one entire volume of Elliot’s Debates. Almost one-half of the pages of that volume are claimed by the eloquent attacks of Patrick Henry upon those grants of enumerated powers in that First Article. The basis of all his argument was the fact that this grant of national power in the First Article would make him and all his fellow Virginians, for the first time since the Declaration of Independence, citizens of a nation—not Virginia—who must obey the laws of a legislature only some of whose members Virginians would elect.

“Suppose,” he says, “the people of Virginia should wish to alter” this new government which governs them. “Can a majority of them do it? No; because they are connected with other men, or, in other words, consolidated with other states. When the people of Virginia, at a future day, shall wish to alter their government, though they should be unanimous in this desire, yet they may be prevented therefrom by a despicable minority at the extremity of the United States. The founders of your own Constitution made your government changeable: but the power of changing it is gone from you. Whither is it gone? It is placed in the same hands that hold the rights of twelve other states; and those who hold those rights have right and power to keep them. It is not the particular government of Virginia: one of the leading features of that government is, that a majority can alter it, when necessary for the public good. This government is not a Virginian, but an American government.” (3 Ell. Deb. 55.)

How forceful and effective was this objection, we average Americans of this generation may well realize when we know that the Constitution was ratified in Virginia by the scant majority of ten votes. In New York and Massachusetts and other states, the adoption was secured by similar small majorities. In North Carolina, the first convention refused to adopt at all.

Furthermore, it is recorded history that, in Massachusetts, in Virginia, in New York, and elsewhere, the vote of the people would have been against the adoption of the Constitution, if a promise had not been made to them by the advocates of the Constitution. It was the historic promise that Congress, under the mode of procedure prescribed in Article V, would propose new declaratory Articles, suggested by the various conventions and specifically securing certain reserved rights and powers of all Americans from all ability of government to interfere therewith. This historic promise was fulfilled, when the first Congress of the new nation proposed the suggested declaratory Articles and ten of them were adopted. These are the Articles now known as the first ten Amendments. It has been settled beyond dispute, in the Supreme Court, that every one of the declarations in these ten Articles was already in the Constitution when it was originally adopted by the citizens of America.

The most important declaration in those amazingly important ten declarations, which secured the adoption of our Constitution, is the plain statement that every national power to interfere with the human freedom of Americans, not granted in Article I, was reserved to the American people themselves in their capacity as the citizens of America. That is the explicit statement of what we know as the Tenth Amendment. In itself, that statement was but the plain and accurate echo of what was stated by the American people (who made the enumerated grants of such powers in Article I) in the conventions where they made those grants. Their statement was nowhere more accurately expressed, in that respect, than in the resolution of the Virginia Convention, which ratified the Constitution. That resolution began, “Whereas the powers granted under the proposed constitution are the gift of the PEOPLE, and every power NOT GRANTED thereby remains with THEM, and at THEIR will, etc.” (3 Ell. Deb. 653.)

After the same statement had been expressly made (with authoritative effect as part of the original Constitution) in that Article which we know as the Tenth Amendment, it was again and again echoed, in the plainest language, from the Bench of the Supreme Court.

As far back as 1795, in the case of Vanhorne’s Lessee vs. Dorrance, 2 Dall. 304, Justice Patterson stated that the Constitution of England is at the mercy of Parliament, but “in America, the case is widely different.”... A Constitution “is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the legislature, and can be revoked or altered only by the authority that made it. The life-giving principle and the death-dealing stroke must proceed from the same hand.... The Constitution fixes limits to the exercise of legislative authority, and prescribes the orbit within which it must move.... Whatever may be the case in other countries, yet in this there can be no doubt, that every act of the legislature, repugnant to the Constitution, is absolutely void.”

To us average Americans, who have lived with those earlier Americans through the days in which they constituted their nation and distributed all granted national powers between governments in America and reserved all other general American national powers exclusively to themselves, the Virginia Resolution, the Tenth Amendment, and the quoted language of the Circuit Court are in strict conformity with the education we have received.

What, however, are we to think of the Tory education of so many of our leaders and “constitutional” lawyers, who have calmly accepted and acted upon the amazing assumption that state governments in America can exercise and can grant to other governments any or all general national powers to interfere with the human freedom of American citizens, including even the national powers expressly reserved by those citizens to themselves in the Tenth Amendment?

If they adopt their familiar mental attitude that all these statements were made more than a hundred years ago and have no meaning or weight now, we refer them to the Supreme Court, in 1907, when it stated:

For ourselves, we average Americans turn now to examine in detail how clearly the Americans at Philadelphia in 1787 did know and obey the basic law of America that all national powers to interfere with individual freedom are the powers of the people themselves and can be exercised only by them or upon direct grant from them. We find their knowledge, in that respect, evidenced by an examination of the reasoning by which they reached the correct legal conclusion that their proposed grants of general national powers, in their First Article, could only be made by the citizens of America themselves, assembled in their “conventions”—that grants of such powers could not be made even by all the legislatures of the then independent states.

CHAPTER VII PEOPLE OR GOVERNMENT?—CONVENTIONS OR LEGISLATURES?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CHAPTER VIII PHILADELPHIA ANSWERS “CONVENTIONS, NOT LEGISLATURES”

We recall how clearly the Americans at Philadelphia, in 1787, knew that any grant of national power to interfere with the freedom of individuals was the constitution of government. We recall the bitter conflict of opinion, threatening the destruction of the assembly, over the manner of choosing the members of the legislature to exercise whatever powers of that kind the citizens of America might grant. We recall the great opposition to the proposal of a grant of any power of that kind and to the particular proposal of each of the enumerated powers of that kind, all embodied in the First Article.

We have thus come to know with certainty that the minds of the Americans at Philadelphia, during those strenuous four months, were concentrated mainly upon a proposal to grant some national power to interfere with the human freedom of all Americans. In other words, we have their knowledge that their proposed First Article, by reason of its grants of such power, would constitute a new nation and government of men, if those grants were validly made by those competent to make such grants.

Under which circumstances, we realize that it became necessary for them to make a great legal decision, in the construction of basic American law, and, before making that decision, which was compelled to be the result of judgment and not of will, accurately to ascertain one important legal fact. Indeed, their decision was to be the actual conclusion reached in the effort to ascertain that legal fact. This was the single question to which they must find the right answer: “Under our basic American law, can legislatures ever give to government any power to interfere with the human freedom of men, or must every government in America obtain its only valid powers of that kind by direct grant from its own citizens?”

It is easy for us to state that they should have known that the answer to that question was expressly and authoritatively given in the Statute of ’76. It was there plainly enacted that every just power of any government must be derived from the direct grant of those to be governed by its exercise. Yet our own leaders for the last five years have not even asked the question, much less known the right answer.

At Philadelphia, in 1787, they did know it. They had no doubt whatever about it. We shall see that quickly in our brief review of the record they made at Philadelphia in ascertaining and deciding, as a legal necessity, to whom their First Article and its enumerated grants of national power must be sent and, when we boast of how quickly we knew the answer, we should admit that we did not know it until after we had lived again with them through their experience of the preceding ten or twelve years which had educated them, as it has just educated us, to that knowledge. Furthermore, many of us average Americans will be unable to explain, until later herein, why, during the last five years, our own leaders have not known the right answer. The Statute of ’76 has not been wholly unknown to them. The record of the Philadelphia Convention and the ratifying conventions has not been entirely a closed book to them. The important and authentic statements of Webster and other leaders of past generations have been read by many of them. If they did not understand and know the correct answer, as we now realize they have not known, let us not withhold from the Americans at Philadelphia our just tribute of gratitude that they did accurately know, when it was amazingly important to us that they should know.

When those Americans came to answer that question, there were facts which might have misled them as other similar facts of lesser importance have undoubtedly misled our leaders.

In 1776, from that same Philadelphia had gone a suggestion that a constitution of government, with Articles granting power to government, be made in each former colony. In 1787, there had gone from that same Philadelphia a proposal that a constitution of a general government for America be made, with Articles granting power to that government. The proposal of 1776 had suggested that the proposed Articles be made by the people themselves, assembled in conventions. The proposal of 1777 had suggested that the proposed Articles be made by the legislative governments of the states. Both proposals, even as to the makers of the respective Articles, had been acted upon. All the Articles, although some had been made by the people themselves and others by legislatures, had been generally recognized as valid law. Some of the men at Philadelphia in 1787 had been members of the proposing Second Continental Congress, when the respective proposals of 1776 and 1777 had gone from Philadelphia. When, in 1787, they were called upon to find and state, as their legal decision, the correct answer to their important question, it was necessary for them to ascertain, as between state “legislatures” and the people themselves, in “conventions,” which could validly make the Articles which had been worded and were about to be proposed. It would not, therefore, have been beyond the pale of our own experience if the earlier proposals had misled them and they had made the wrong answer to the question which confronted them. Furthermore, as we have already noted, although we can little realize the influence of such a fact upon men seeking the correct legal answer to an important question, their whole proposal was a new adventure for men on an uncharted sea of self-government. Under all of which circumstances, let us again pay them their deserved tribute that they went unerringly to the only correct answer.

We know that the essence of that answer is expressed in the Seventh Article proposed from Philadelphia. Only one answer was possible to Americans of that generation. They had been “subjects” and had become “citizens.” They knew the vital distinctions between the two relations to government.

But, when a general government of America was to be given any national power to interfere with the individual freedom of its citizens, as in the First Article of 1787 and in the Eighteenth Amendment of 1917,

Marshall was one of the Americans who had been at Valley Forge in 1778, and at other places whose sacrifices made it the basic law of America that all power over American citizens must be derived by direct grant from themselves. Later, he was prominent in the Virginia convention where all Americans in Virginia knew and acted upon this basic law. These facts qualified him to testify, from the Bench of the Supreme Court, that all Americans then knew and acknowledged the binding command of that basic law.

Under such circumstances, it was impossible that the Americans at Philadelphia should not have known and obeyed that law in the drafting of their proposed Seventh and Fifth Articles. Both of these Articles, the Seventh wholly, and the Fifth partly, deal with the then future grant of national power over the people and its only legal gift by direct grant from the people themselves, assembled in their “conventions.” Both Articles name the people of America, by the one word “conventions.”

That Philadelphia should not have strayed from the legal road clearly marked by the Statute of ’76 was certain when we recall how large a part Madison played at Philadelphia, and particularly how he personally worded and introduced, in the closing hours at Philadelphia, what we know as its Fifth Article. As to his personal knowledge of this basic law, we recall his letter of April, 1787, where he said, “To give the new system its proper energy, it will be desirable to have it ratified by the authority of the people, and not merely by that of the legislatures.” And we recall his later words, when urging Americans to adopt the Constitution with its Fifth and Seventh Articles, he said of the Seventh, “This Article speaks for itself. The express authority of the people alone could give due validity to the Constitution,” to its grants of power over the people in its First Article. (Fed. No. 43.)

That we may fix firmly in our own minds the knowledge which all Americans then had, which our leaders never acquired or have entirely forgotten, let us briefly review what the earlier Americans did at Philadelphia in obedience to that knowledge of basic American law.

On May 28, Randolph of Virginia “opened the main business” of the Convention. He proposed fifteen resolutions embodying the suggestion of what should be in the different Articles. Resolution Number 15 was that such Articles should be submitted to “conventions,” “to be expressly chosen by the people, to consider and decide thereon.” (5 Ell. Deb. 128.)

The first short debate on this Resolution took place on June 5. In it Madison stated that he “thought this provision essential. The Articles of Confederation themselves were defective in this respect, resting, in many of the states, on the legislative sanction only.” The resolution was then postponed for further consideration. On June 12, “The question was taken on the 15th Resolution, to wit, referring the new system to the people of the United States for ratification. It passed in the affirmative.” (5 Ell. Deb. 183.) This was all in the Committee of the Whole.

On June 13, that Committee made their full report, in which the Randolph Resolution Number 15 was embodied in words as Resolution Number 19 of the report. On June 16, while the Convention was again sitting as a Committee of the Whole, the great struggle was on between the conflicting opinions as to how and in what proportion should be elected the future legislators who were to exercise the granted powers over Americans. On that day, the discussion centered on the relative merits of the Randolph national proposals and a set of federal Articles amending the existing Federal Constitution. In supporting Randolph, Wilson of Pennsylvania stated that “he did not fear that the people would not follow us into a national government; and it will be a further recommendation of Mr. Randolph’s plan that it is to be submitted to them, and not to the legislatures, for ratification.” (5 Ell. Deb. 196.)

On July 23, Resolution Number 19 came up for action. Remembering how insistent many of the delegates were that the general government should be kept a purely federal one, it is not surprising to find Oliver Ellsworth of Connecticut opening the short debate with a motion that the Constitution “be referred to the legislatures of the states for ratification.” But it will also be remembered that the powers to be granted in the new Articles had not yet been settled. The nationalists in the Convention, intent on having some national Articles, knew that the proposed ratification must be by the people themselves, “felt and acknowledged by all” to be the only competent grantors of national powers.

Colonel Mason of Virginia “considered a reference of the plan to the authority of the people as one of the most important and essential of the resolutions. The legislatures have no power to ratify it. They are the mere creatures of the state constitutions, and cannot be greater than their creators.... Whither, then, must we resort? To the people, with whom all power remains that has not been given up in the constitutions derived from them. It was of great moment that this doctrine should be cherished, as the basis of free government.” (5 Ell. Deb. 352.)

Rufus King of Massachusetts, influenced undoubtedly by the error of thinking that the Convention meant to act within the Articles of Confederation, was inclined to agree with Ellsworth “that the legislatures had a competent authority, the acquiescence of the people of America in the Confederation being equivalent to a formal ratification by the people.... At the same time, he preferred a reference to the authority of the people, expressly delegated to conventions, as the most certain means of obviating all disputes and doubts concerning the legitimacy of the new Constitution.” (5 Ell. Deb. 355.)

Madison “thought it clear that the legislatures were incompetent to the proposed changes. These changes would make essential inroads on the state constitutions; and it would be a novel and dangerous doctrine, that a legislature could change the constitution under which it held its existence.” (5 Ell. Deb. 355.)

Ellsworth’s motion to send to the state legislative governments, and not to the people themselves, assembled in “conventions,” was lost by a vote of seven to three. Resolution Number 19, that the new Articles must be sent to the people themselves was adopted by a vote of nine to one, Ellsworth and King both voting for it. (5 Ell. Deb. 356.)

This impressive discussion, now continued for over a month of 1787, with its display of accurate knowledge of the distinction between sending Articles to legislatures and “referring” them to the people, makes quite amusing what we shall hear later in 1917. It will come from the counsel of the political organization which dictated that governments should make the supposed Eighteenth Amendment. After he kindly tells us that history has proven that these Americans of 1787 “builded more wisely than they knew,” meaning “than he knew,” he shall later impart to us the remarkable information that “the framers in the Constitutional Convention knew very little, if anything, about referendums.”

The Resolutions, which had now become twenty-three in number, on July 26, were referred to the Committee of Detail to prepare Articles in conformity therewith. On August 6, that Committee made its report of twenty-three worded Articles. In Article XXII was embodied the requirement that the Constitution should be submitted “to a convention chosen in each state, under the recommendation of its legislature, in order to receive the ratification of such convention.” This provision, the Philadelphia answer and always the only legal answer to the question as to who can validly grant power to interfere with individual freedom, was later seen not properly to belong in the Constitution itself. For which reason, it was taken out of the Constitution and embodied in a separate Resolution which went with the Constitution from Philadelphia.

In Article XXI, the first draft of our Article VII, it was provided: “The ratification of the conventions of —— states shall be sufficient for organizing this Constitution.” (5 Ell. Deb. 381.)

The month of August was passed in the great debates on the proposed grants of national power and the other proposed Articles. When the Convention was drawing to a close on August 30, Articles XXI and XXII were reached.

Gouverneur Morris of Pennsylvania “moved to strike out of Article XXI the words, ‘conventions of the,’ after ‘ratification,’ leaving the states to pursue their own modes of ratification.” Rufus King “thought that striking out ‘conventions,’ as the requisite mode, was equivalent to giving up the business altogether.” Madison pointed out that, “The people were, in fact, the fountain of all power.” The motion of Morris was beaten. An attempt was made to fill the blank in Article XXI with the word “thirteen.” “All the states were ‘No’ except Maryland.” The blank was then filled by the word “nine” the vote being eight to three. The two articles were then passed, the vote thereon being ten to one. (5 Ell. Deb. 499-502.)

On September 10, the beginning of the last business week of the Convention, Gerry of Massachusetts moved to reconsider these two Articles. The short discussion was not in connection with any matter in which we are now interested. His motion was lost. The entire set of worded Articles was then referred to a committee for revising the style and arrangement of the Articles agreed upon. (5 Ell. Deb. 535.)

On Wednesday, September 12, that Committee reported our Constitution, with its seven Articles, as we know them except for some slight changes made during the discussions of the last three or four days of the Convention. In these seven Articles, the language of the earlier Article XXII did not appear. As it really was the statement of the correct legal conclusion of the Convention that its proposed Articles, because they would grant power to interfere with individual freedom, must necessarily be made by the people themselves, its proper place was outside the Constitution itself and in a special Resolution of the same nature as every Congress resolution proposing an amendment to that Constitution. That was the view of the Committee and, on Thursday, September 13, the Committee reported such special Resolutions, in the very words of the former Article XXII. “The proceedings on these Resolutions are not given by Mr. Madison, nor in the Journal of the Federal Convention. In the Journal of Congress, September 28, 1787, Volume 4, p. 781, they are stated to have been presented to that body, as having passed in the Convention on September 17 immediately after the signing of the Constitution.” (5 Ell. Deb. 602.)

This is the Resolution:

“Resolved, That the preceding Constitution be laid before the United States in Congress assembled; and that it is the opinion of this Convention, that it should afterwards be submitted to a convention of delegates chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification; and that each convention, assenting to and ratifying the same, should give notice thereof to the United States in Congress assembled.

“Resolved, That it is the opinion of this Convention, that, as soon as the conventions of nine states shall have ratified this Constitution, the United States in Congress assembled should fix a day, etc.” (5 Ell. Deb. 541.)

This Resolution is the most authoritative statement of the legal conclusion reached by these leaders of a people then “better acquainted with the science of government than any other people in the world.” The conclusion itself was compelled by accurate knowledge that the government of “citizens” can validly obtain only from the citizens themselves, by their direct grant, any power to interfere with their individual freedom. The expression of that knowledge, in the Resolution, is, in many respects, one of the most important recorded legal decisions ever made in America. We average Americans, educated with those Americans at Philadelphia through their experience of the years between 1775 and 1787, cannot misunderstand the meaning and importance of that decision. Instructed by our review of their actions and their reasoning at Philadelphia in reaching that conclusion and making that legal decision, we know, with an accurate certainty, that it was their declaration to the world and to us that no proposal from Philadelphia suggested that Americans again resume the relation of “subjects” to any government or governments.

Our minds impressed with this accurate knowledge that such was not their purpose, we now prepare to complete our education as American citizens, not subjects, by reading the Philadelphia story and language of their Fifth Article, their only other Article which even partly concerned the future grant of new government power to interfere with individual American freedom. By reason of our education, we will then come to the reading of the language of this Article, as the Americans read it and understood it when they made it in their “conventions” that followed the proposing convention of Philadelphia.

Being educated “citizens” and not “subjects,” we ourselves will no longer, as our leaders have done for five years, mistake the only correct and legal answer to the indignant outburst of Madison, who wrote this Fifth Article at Philadelphia. “Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the governments of the individual states, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape—that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form?” (Fed. No. 45.)

The American answer, from the people of America assembled in the conventions that ratified that Fifth Article, was a clear and emphatic “No.” The Tory answer of the last five years, from our leaders and our governments, has been an insistent “Yes.”

No one, however, with any considerable degree of truthfulness, can assert that there has come from the American people themselves, during the last five years, any very audible “Yes.” To whatever extent individual opinions may differ as to the wisdom or legality of the new constitution of government of men, made entirely by governments, no unbiased observer has failed to note one striking fact. By a very extensive number of Americans otherwise law-abiding, Americans in all classes of society, the new government edict, the government command to “subjects,” has been greeted with a respect and obedience strikingly similar to the respect and obedience with which an earlier generation of Americans received the Stamp Act and the other government edicts between 1765 and 1776.

When the Americans of that earlier generation were denounced by the government which had issued those edicts to its “subjects,” one of the latter, five years before Americans ceased to be “subjects” of that government, stated: “Is it a time for us to sleep when our free government is essentially changed, and a new one is forming upon a quite different system—a government without the least dependence upon the people?”

It may be but a coincidence that, while our American government was announcing its recognition of the wide-spread American disrespect for the new government edict, it is only a few days since throughout America there resounded many eulogies of the Samuel Adams, who made that statement in the Boston Gazette of October 7, 1771. In those eulogies, there was paid to him the tribute that he largely helped to bring about the amazing result of American desire for individual freedom which culminated in the assembling of the Americans in the “conventions” which ratified the proposed Constitution.

We have already sensed that the existence of the supposed Eighteenth Amendment depends entirely upon an amazing modern meaning put into the Fifth Article made in those conventions. Let us, therefore, who are Americans now educated in the experience of the Americans who assembled in those “conventions,” sit therein with them and there read the story and the language of the Fifth Article as they read it when they made it.

CHAPTER IX THE FIFTH ARTICLE NAMES ONLY “CONVENTIONS”

It has been the misfortune of our prominent Americans of this generation that they read the Fifth Article with preconceived notions of its meaning. To the error of that method of reading it, we average Americans will not pay the tribute of imitation. We know that its meaning to those who made it in the “conventions” of the earlier century is the meaning which it must have as part of the supreme law of the land. That we may read it as they read it and get its clear and only possible meaning, as they got it, we shall briefly review the story of its wording and its proposal at Philadelphia. That Convention immediately preceded the assembling of the people in their own “conventions.” In each of their “conventions,” among the people assembled, were some who had been prominent at Philadelphia, such as Madison and Randolph and Mason in Virginia, Hamilton in New York, Wilson in Pennsylvania and the Pinckneys in South Carolina. Moreover, between the Philadelphia proposal and the assembling of these conventions, Madison and Hamilton, proposer and seconder of the Fifth Article at Philadelphia, had been publishing their famous essays, now collectively known as The Federalist, in the New York newspapers to explain the Articles worded at Philadelphia and to urge their adoption. Under which circumstances, it is clear that, if we want to read and know the meaning of the Fifth Article as it was understood in those conventions, the Fifth Article which named those same “conventions,” we must complete our education by an accurate and brief review of the story of that Article at Philadelphia. Only in that way shall we average Americans of today be in the position in which were the Americans who made that Article.

When we read that story of Philadelphia, in relation to the Fifth Article, one thing stands out with amazing clarity and importance. We already know how that Convention, until its last days, was concentrated upon the hotly debated question of its own proposed grants of national powers in the First Article. In the light of which continued concentration, it is not surprising to learn that, until almost the very last days, the delegates forgot entirely to mention, in their tentative Fifth Article, the existing and limited ability of state legislatures to make federal or declaratory Articles, and mentioned only “conventions” of the people, who alone could or can make national Articles.

The first suggestion of what we now know as the Fifth Article was on the second day, May 29, when the Randolph Resolution 13 read “that provision ought to be made for the amendment of the Articles of union whensoever it shall seem necessary.” This wording was the exact language of Resolution 17 of the report of the Committee of the Whole. It was adopted by the Convention on July 23. Three days later, with the other Resolutions, it was referred to the Committee of Detail “to prepare and report the Constitution.” On August 6, this Committee, in the first draft of our Constitution, reported the following: “Art. XIX. On the Application of the legislatures of two-thirds of the states in the Union, for an amendment of this Constitution, the legislature of the United States shall call a convention for that purpose.”

We see clearly why the delegates, their minds concentrated on their own proposed grants of national powers, mentioned only the people themselves, the “conventions” of the “Seventh” and “Fifth” Articles, who alone can make national Articles, and forgot to mention legislatures, because the latter never can make national Articles. That kind of Article was the only thing they were then thinking about. Naturally, it then escaped their attention that, if they proposed a wise and proper distribution of national power between the new American government and the respective existing state governments, almost every future Article, if not every one, would be of the federal kind, which legislatures or governments could validly make, as they had made all the Articles of the existing federation. Clearly for that reason this Article XIX never even mentioned the existing and limited ability of legislatures.

Between this report of August 6 and August 30, the Convention was again entirely occupied with the grants of national power and the election of the legislators to exercise it or, in other words, with what is now the First Article. On August 30, Article XIX was adopted without any debate.

We are now aware that the Convention was within two weeks of its end and no one had mentioned, in what is now the Fifth Article, the state governments or legislatures as possible makers of federal Articles, if and when such Articles were to be made in the future.

It was not until September 10, Monday of the last Convention week, that Article XIX again came up for action, when Gerry of Massachusetts moved to reconsider it. His purpose, as he himself stated it, was to object because it made it possible that, if the people in two-thirds of the states called a convention, a majority of the American people assembled in that convention “can bind the Union with innovations that may subordinate the state constitutions altogether.” Hamilton stated that he could see “no greater evil, in subjecting the people in America to the major voice than the people of any particular state.” He went on to say that he did think the Article should be changed so as to provide a more desirable “mode for introducing amendments,” namely, drafting and proposing them to those who could make them. In this respect he said: “The mode proposed was not adequate. The state legislatures will not apply for alterations, but with a view to increase their own powers. The national legislature will be the first to perceive, and will be most sensible to, the necessity of amendments; and ought also to be empowered, whenever two-thirds of each branch should concur, to call a convention. There could be no danger in giving this power, as the people would finally decide in the case.” (5 Ell. Deb. 531.)

Roger Sherman of Connecticut then tried to have the Article provide that the national government might also propose amendments to the several states, as such; such amendment to be binding if consented to by the several states, namely, all the states. For reasons that will appear in a moment, this clear attempt to enable the states, mere political entities, and their legislatures, always governments, to do what they might wish with the individual freedom of the American citizen—thus making him their subject—was never voted upon. It was, however, seconded by Gerry of Massachusetts. Its probable appeal to Sherman, always a strong opponent of the national government of individuals instead of the federal government of states, was that it would make it difficult to take away any power from Connecticut, unless Connecticut wished to give it up. Its appeal to Gerry, consistently a Tory in his mental attitude to the relation of government and human being, was undoubtedly the fact that it would permit government or governments to do what they might wish with individual freedom. It does not escape the attention of the average American that our governments and leaders, during the last five years, have not only displayed the mental attitude of Gerry but have also acted as if the proposal, which he urged, had been put into what is our Fifth Article. Only on that theory can we average Americans, with our education, understand why governments in America have undertaken to exercise and to vest in our government a national power over us, which power neither is enumerated in the First Article nor was ever granted by the citizens of America to their only government; nor can we understand why our leaders have assumed that governments in America, which are not even the government of the American citizens, can do either or both of these things. We know, if governments and leaders do not, that neither thing can ever be possible in a land where men are “citizens” and not “subjects.”

CHAPTER X ABILITY OF LEGISLATURES REMEMBERED

Living through the days of that Convention, we have now seen three months and ten days of its sincere and able effort to word a Constitution which would “secure the Blessings of Liberty” to the individual American. We have seen them spend most of their time in the patriotic endeavor to adjust and settle how much, if any, national power to interfere with individual freedom that Constitution shall give to its only donee, the new and general government. In other words, we have seen the mind and thought and will of that Convention almost entirely concentrated, for those three months and ten days, upon the Article which is the constitution of government, the First Article, with its enumerated grants of general power to interfere with the human rights of the American citizen.

Keeping in mind the object of that intense concentration, the First Article grants of power of that kind, we average Americans note, with determined intent never to forget, the effect of that concentration upon the wording of our Fifth Article up to that tenth day of September. We note, with determined intent never to forget, that, from May 30 to September 10, the only maker of future changes mentioned was the “people” of America, the most important reservee of the Tenth Amendment, the “conventions” of the American people named in both the Seventh and the Fifth Articles.

As this fact and its tremendous meaning have never been known or mentioned in the sorry tale of the five years from 1917 to 1922, we average Americans are determined to dwell upon it briefly so that we cannot escape an accurate appreciation of the short remaining story of the one week at Philadelphia, in 1787, in relation to our Fifth Article.

Only a week earlier, because the First Article did grant enumerated powers to interfere with individual rights, the Convention had known that the seven articles must go to the people directly to say their “Yes” or “No” to those grants of the First Article. For that reason the Convention (considering limited legislative ability to make federal Articles and omnipotent ability of the “people” to make all Articles) had decided that it MUST propose the mode of ratification by the “people,” the “conventions” of the Seventh and the Fifth Articles. As Marshall later authoritatively stated in the Supreme Court, the legal necessity of deriving national powers from the people themselves, the “conventions,” was then known and acknowledged by all.

It was natural, therefore, up to that September 10, that a convention, concentrated entirely upon grants of that kind, when wording its Article with a mode of procedure for making future changes, should have forgotten any changes except of the kind on which its own mind was concentrated and should have mentioned in its amending Article, up to September 10, no maker of future changes except the people themselves, “conventions” of the Seventh and the Fifth Articles.

And, at this point, we average Americans note, again with intent never to forget, that if the one competent maker of such Articles, the “conventions,” had remained the only maker of Articles mentioned in the Fifth Article, even the great “constitutional” lawyers of 1920 would never have made the monumental error of assuming that the Fifth Article was a grant of power (to those who made it and all the original Constitution) to make future Articles. Even they would have noticed and applied to their reading of the Fifth Article the well known legal fact that grantors never can and never do grant to themselves what they already have or a part of it.

Therefore, noting and remembering these significant facts, we turn with interest to the short story of how those able Americans at Philadelphia, their minds no longer exclusively concentrated on their own enumerated grants, remembered that there was another maker of Articles with existing but limited ability to make federal or declaratory Articles. And, with interest, we shall learn how this last week thought caused the Convention to change the Fifth Article by adding a mention of that existing limited ability and prescribing the mode of its future constitutional exercise.

That we average Americans may never be misled by inaccurate statements of the short story of how the mention of that limited ability was added to the mention of the unlimited ability of the “people” or “conventions” of the Fifth Article, it is fitting that the full record of the story be given verbatim. It adds not a little to our amusement that the story is copied from the brief of the leading “constitutional” lawyer of 1920 who championed the validity of the Eighteenth Amendment on the remarkable assumption and error, common to all his associates and his opponents, that the new mention changed the Fifth Article into a grant of ability to those legislatures instead of what its author, Madison, knew and stated that Article to be, a “mode of procedure” for the future constitutional exercise either of that existing limited ability or the other existing unlimited ability of the “people” or “conventions” of the Seventh and Fifth Articles. This is the record of that September 10, as copied from that brief, beginning immediately after Hamilton had voiced his opinion that there could be no danger in letting Congress propose an Amendment “as the people would finally decide in the case.”

“Mr. Madison remarked on the vagueness of the terms, ‘call a Convention for the purpose’ as sufficient reason for reconsidering the Article. How was a Convention to be formed? by what rule decide? what the force of its acts?

“On the motion of Mr. Gerry to reconsider

“N. H. div. Mas. ay. Ct. ay. N. J. no. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay. (Ayes—9; noes—1; divided—1.)

“Mr. Sherman moved to add to the article ‘or the Legislature may propose amendments to the several States for their approbation, but no amendments shall be binding until consented to by the several States.’

“Mr. Gerry 2ded. the motion.

“Mr. Wilson moved to insert ‘two thirds of’ before the words ‘several States’—on which amendment to the motion of Mr. Sherman

“N. H. ay. Mas. (no). Ct. no. N. J. (no). Pa. ay. Del. ay. Md. ay. Va. ay. N. C. no. S. C. no. Geo. no. (Ayes—5; noes—6).

“Mr. Wilson then moved to insert ‘three fourths of’ before ‘the several Sts.’ which was agreed to nem: con:

“Mr. Madison moved to postpone the consideration of the amended proposition in order to take up the following,

“‘The Legislature of the U.S. whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States, shall propose amendments to this Constitution, which shall be valid to all intents and purposes as parts thereof, when the same shall have been ratified by three fourths at least of the Legislatures of the several States, or by Conventions in three fourths thereof, as one or the other mode of ratification may be proposed by the Legislature of the U.S.’

“Mr. Hamilton 2ded. the motion.

“Mr. Rutlidge said he never could agree to give a power by which the articles relating to slaves might be altered by the States not interested in that property and prejudiced against it. In order to obviate this objection, these words were added to the proposition: ‘provided that no amendments which may be made prior to the year 1808, shall in any manner affect the 4 & 5 sections of the VII article.’ The postponement being agreed to,

“On the question On the proposition of Mr. Madison & Mr. Hamilton as amended

“N.H. divd. Mas. ay. Ct. ay. N.J. ay. Pa. ay. Del. no. Md. ay. Va. ay. N.C. ay. S.C. ay. Geo. ay. (Ayes—9; noes—1; divided—1.)”

II Farrand, 558, 559.

No American citizen, now living or in the generations to come, if he values at all the human liberty which the entire Constitution was established to secure, can spend too much time in reading and understanding that short record. It is the record left by Madison himself, even though it be copied from the brief of the leading “constitutional” lawyer of 1920 who maintained his whole argument for the Eighteenth Amendment on the ground that we have been “subjects” of an omnipotent government, his clients, since the day, June 21, 1788, when that Fifth Article was enacted by the American people to secure “the Blessings of Liberty for themselves and their posterity.”

As we shall later find herein, it is the claim of all who believe the new Amendment to be in our Constitution, although they have hitherto not understood their own claim, that the words of the Article, which appear in that short record, are the words which changed the American individuals, free men from July 4, 1776, into subjects of an omnipotent government, composed of the legislative governments of a fractional part of the states. Moreover, as we shall also later learn herein, this absurd and amazing claim is based wholly on the monumental error of assuming, without the faintest suggestion or proffer of support for such an assumption, that the new wording of the Fifth Article, as proposed by Madison on September 10, changed the amending Article into a grant of ability to make every kind of Article. The monumental error fails to see that Madison merely added to the previous mention of the unlimited ability of the people or “conventions” a similar mention of the existing limited ability of the state legislative governments to make federal Articles or Articles which neither exercise nor grant power to interfere with human freedom. Moreover, as we shall also learn later herein, the extraordinary and unfounded assumption (that the amending Article was changed on September 10 into a grant of ability to make Articles instead of a recognition and mention of two existing different abilities, one of which had always been mentioned therein) has been hitherto concurred in by every one who has challenged the validity of the Eighteenth Amendment. They have only differed from the supporters of the new Amendment in contending that the impossible grant, absurdly imagined to have been made by the grantors to themselves as well as to state legislatures, was a grant of limited ability but did not include the ability to make an amendment such as the Eighteenth.

When we do come later herein to the briefs and arguments of the opponents and supporters of the supposed Eighteenth Amendment, we shall look in vain to find therein the faintest suggestion of a claim that there is anything in the record of September 10, 1787, to justify their extraordinary and unfounded assumption that the Fifth Article, on that day, was changed so as to make it a grant of power from the “conventions” of the people to the “conventions” of the whole American people and to the state legislatures. On the contrary, we shall find every opponent of the supposed new Amendment making easy the way of its supporters by joining in the common assumption of all and predicating every argument against the new Amendment on the same extraordinary assumption that the Fifth Article is a grant of power to the grantors and to the state governments. Not once, in any brief or argument of the most renowned lawyers in America, shall we find even the faintest knowledge of two facts which must be so if the Fifth Article is a grant of power to the two supposed grantees. That each of the two facts is a patent absurdity will not alter the logic that they must be facts, if the Fifth Article is a grant to those two grantees. The first patently absurd fact is that, if the Fifth Article is a grant, the “conventions” of 1788 granted to themselves, the supposed grantors, exactly the same omnipotent power to make all Articles, which the grantors (a supposed grantee) were exercising at the very moment when they made the Fifth Article. The second patently absurd fact, if the Fifth Article is a grant, is that the whole people of America, assembled in their “conventions,” after eleven years as free men, voluntarily relinquished that status to become, as the whole people of America, “subjects” of the same legislative governments who are one of the supposed donees of the absurd and imaginary grant. This remarkable fact follows as the logical conclusion of the concept that the “conventions” granted to the “conventions” and to the state governments, with Congress to determine which shall exercise it, the very omnipotent power which the people themselves (the supposed grantors) were then exercising in their “conventions” and which eleven years before they had denied to the British Parliament. When we later realize that none of our modern leaders saw either absurd fact to be the certain result of the concept that the Fifth Article is a grant, we average Americans ought certainly to be convinced that, if we wish to keep our individual rights in any matter, it is going to be necessary for us to understand for ourselves how our Constitution secures those rights to us.

Forewarned of such necessity, we return with renewed interest to the examination of the record of the day on which it is assumed that Madison suggested that the Fifth Article should be changed into a “grant” and then proposed to the American people, so that they might voluntarily relinquish their status as free men and become “subjects” of a government with omnipotent ability to legislate in restraint of their individual freedom “in all matters whatsoever.” It ought not to detract from our amusement that this remarkable proposal of such a “grant” (as our modern leaders see it) was to go to the American people in each state and there be approved by that people with the knowledge that the people in that particular state, on the occasion of a future proposal, might not elect a single member of the legislative governments who would exercise that omnipotent power over their every individual right.

Our amusement is not lessened when we find that the supposed “grant” was suggested by Madison and seconded by Hamilton. The Philadelphia Convention was being held in the America which had just emerged from an eight year Revolution to establish the doctrine that no government could be omnipotent in its ability to interfere with individual freedom. The Convention itself had devoted three months and ten days, before the day in question, to bitter dispute about giving even enumerated powers of that kind to the American government mentioned in the First Article. It is therefore, with great amusement but with serious intent never to forget, that we note that not a single voice was raised in the Convention either to uphold or to protest this supposed and absurd “grant” of omnipotence to an entirely different government. On the contrary, as we note with intent never to forget, the newly worded Article was treated by the Convention as if every important matter in it had been settled before the state governments were even mentioned in it as makers of the kind of Articles which they already had the power to make, federal Articles. As soon as the newly worded Article had been suggested by Madison and Hamilton, the Article which Madison himself describes as a constitutional mode for the exercise of existing abilities to make Articles, only one change (utterly unimportant now) was suggested in the new wording. This was the suggestion that the Article should not provide a constitutional mode in which existing ability to interfere with slavery could be constitutionally exercised prior to the year 1808. This change was immediately made by the Convention. Then, without the slightest objection to any other part of the supposed absurd “grant,” the Convention approved the newly worded Article.

From the absence of one word of protest we quite clearly realize that no man in that Convention so misconstrued the simple statement of Madison’s Fifth Article as to read into it an imaginary “grant” of any ability whatever to the state legislative governments. We realize that these men, who were accurate thinkers, knew that the “conventions” named in this Madison Article were exactly the same “conventions” which Philadelphia had already named in what we know now as the Seventh Article. We realize that they knew at once, when Madison proposed his Article, that the “conventions” named in it, like the same “conventions” named in the Seventh, were “We, the people” of America, named in the Preamble. And, from a moment’s reflection, we are aware that the delegates at Philadelphia immediately knew that Madison was not making the absurd suggestion that the American people, the “conventions” of the Seventh and Madison’s new Article, should grant, in the very “conventions” of the Seventh, to themselves, anything whatever of power, either all or part of the power which they would be then exercising in those “conventions.” From which it follows, as the night the day, that the delegates also knew that if Madison’s Article was not a grant by the “conventions” to the “conventions,” it was not a grant to the “legislatures.” For which reason we will not dwell at all upon the obvious fact that there is not the slightest suggestion of a word of grant in the Fifth Article.

Before emphasizing the absurdity of the thought that the Americans at Philadelphia ever intended the plain statement of the Fifth Article to be a “grant” of power of any kind, it seems proper that we should grasp at once what it clearly was understood by them to be. Their understanding and knowledge of its meaning become very clear to us, when we read it, as they heard it from Madison, fresh from their great debate as to the grant of enumerated powers in their First Article and their proposal of a ratification by “conventions” as the only valid mode of ratification for an Article which grants power to interfere with human freedom. We recall now that, when Madison suggested his Fifth Article to them, on September 10, the echoes were still ringing of the sound statements of Madison and others that Philadelphia must propose a mode of ratification by the people or “conventions” because legislatures never could be competent, in America, to make Articles which did constitute government by granting power to interfere with human freedom. When we read Madison’s Fifth Article, with the same statements still fresh in our minds, we realize at once how the delegates at Philadelphia recognized, in the Madison Article, the meaning of every reference to the duties imposed upon, not the powers granted therein, to Congress. The delegates had met at Philadelphia with purpose and intent to draft and propose constitutional Articles in their judgment best designed to secure human liberty to Americans, and then, after they had drafted their Articles and knew the nature of such Articles, whether national or federal, to propose a mode of ratification in which their proposed Articles would be made by those competent to make them.

When September 10 had come they had finished their work of drafting their Article, which constituted government, the First Article. For the purpose of reaching their decision as to the valid mode of ratification for an Article of that kind, they had considered and discussed the existing unlimited ability of the “people” or “conventions” to make all Articles, and the existing limited ability of the state legislatures to make some. The unerring decision which they had made was that their Articles would not be validly made, because the First Article constituted national government of men, unless they proposed a mode of ratification by the “conventions” of the American people.

We note, with intent to remember, that they were well aware that drafting and proposing an Article did not make it valid or part of a Constitution and that proposing a mode of ratification did not make it a valid mode, unless the ratifiers were competent to make the proposed Article. We recall that Wilson, who appears in the brief record of September 10, later made clear the knowledge of those at Philadelphia that their proposal of Articles and their proposal of a mode of ratification could not make either valid, that the making of a proposal is not the exercise of any power.

In the Pennsylvania convention he said: “I come now to consider the last set of objections that are offered against this Constitution. It is urged that this is not such a system as was within the powers of the Convention; they assumed the power of proposing.... I never heard, before, that to make a proposal was an exercise of power.... The fact is, they have exercised no power at all; and, in point of validity, this Constitution, proposed by them for the government of the United States, claims no more than a production of the same nature would claim, flowing from a private pen.” (2 Ell. Deb. 469-470.)

Now, if Wilson and the other delegates at Philadelphia, on September 10, knew that to make a proposal was no exercise of power, they clearly understood that Madison’s Fifth Article, when it stated that Congress might propose an Amendment and Congress might propose a mode of ratification, was an Article which purported to grant no power to Congress. If we recall the truth, which Madison so often expressed, that it is the privilege of any citizen or body of citizens to propose that existing power be exercised, we realize that, if the Fifth Article had not mentioned Congress as the maker of either proposal, Congress would still have had full ability to make either or both proposals at any time. As the delegates at Philadelphia knew this as well as we now know it, as we have been helped to our appreciation of it by them and their statements, it is apparent how instantly they knew that the mention of Congress, as the proposer of an Amendment and as the proposer of its mode of ratification, meant that Congress alone was to be left with—not given—the duty which they had assumed themselves to perform at Philadelphia. That duty, as they knew and we now know, was to draft a proposed Article and, after it had been worded, to examine it and its nature and (with the validity of their ultimate proposal absolutely determined by that nature) then to propose the Article and a mode of ratification for it which would mean ratification by those competent to ratify an Article of its particular kind. In other words, they knew that, whenever Congress performed the duty they had just performed themselves, after an Article had been drafted, it would be legally necessary for Congress, as it had been for them at Philadelphia, to consider the existing and different abilities of the “people” or “conventions” and the state legislatures to make Articles, and from that consideration to ascertain a competent ratifier for the particular Article they had drafted and, the validity of the ratification to depend entirely on the accuracy of their ascertainment and not on their own proposal of ratification, to propose a mode of ratification in which that Article would be made by those competent to make it. With the meaning and effect of a “proposal” so clearly known to them all, with their own immediate recent experience in the performance of the very duty which Madison’s Fifth Article left the duty of Congress in the future, it was a simple matter for these delegates at Philadelphia to know exactly what was the only possible meaning of Madison’s words, when the same “shall have been ratified by three fourths at least of the legislatures of the several states, or by conventions in three fourths thereof, as one or the other mode of ratification may be proposed by the legislature of the U. S.”

How accurately Madison himself knew all this, how accurately he knew that the Philadelphia proposal would validate neither proposed Articles nor proposed mode of ratification, and that Congress proposal in the future would never validate either proposed Article or proposed mode of ratification, he has not left to speculation.

It was the charge of the opponents of the proposed Constitution that the Philadelphia Convention had exceeded its powers in proposing those Articles. Madison defended himself and his Philadelphia associates in The Federalist, Number 40, published in the New York Packet on Friday, January 18, 1788. With his logical mind, he echoed the knowledge of Wilson and his other colleagues, who had drafted and proposed the Articles and proposed their ratification by the “people” or “conventions” of the Seventh and the Fifth Articles. It was his knowledge, as it was their knowledge, that the Philadelphia proposals were, as the future Congress proposals would be, no exercise of power and that the validity of any Article, proposed at Philadelphia or proposed by Congress, must always depend, not merely upon its being ratified in the mode proposed respectively by Philadelphia or by Congress, but also—and immeasurably the most important test of valid ratification—upon its being ratified by ratifiers competent to make the particular Article.

It was his knowledge, as it was their knowledge, as it is now our knowledge, that if a proposed Article directly interfere with or grant power to interfere with human freedom, as the First Article, or the Eighteenth Amendment, it can never be validly made by government but only by the “people” of the Tenth Amendment; the “conventions” of the “Seventh” and “Fifth” Articles.

Among other things, in his defense of himself and his Philadelphia associates, this is what Madison said of them: “They must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former would render nominal and nugatory the transcendent and precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,’ since it is impossible for the people spontaneously and universally to move in concert towards their object; and it is therefore essential that such changes be instituted by some informal and unauthorized propositions made by some patriotic and respectable citizen or number of citizens. They must have recollected that it was by this irregular and assumed privilege of proposing to the people plans for their safety and happiness that the states were first united against the danger with which they were threatened by their ancient government; that committees and congresses were formed for concentrating their efforts and defending their rights; and that conventions were elected in the several states for establishing the constitutions under which they are now governed;... They must have borne in mind that as the plan to be framed and proposed was to be submitted to the people themselves, the disapprobation of the supreme authority would destroy it forever; its approbation blot out antecedent errors and irregularities.”

And so we come from that September 10, 1787, with the accurate knowledge that Madison then proposed and Hamilton seconded and all the delegates adopted the first amending Article which ever mentioned the state governments as makers of any future Amendments. And we know that they did so with the unmistakable intent and understanding that it changed not at all the existing inability of any governments in America to create, for themselves or for other governments, any national power to interfere with the citizens of America in the exercise of their human freedom. And we also come from that record with the certain knowledge that the Madison Fifth Article of September 10 merely provided that, when future Articles were suggested, the Congress should play the part which the Philadelphia Convention was playing, which part involved no exercise of power of any kind, and that such part of Congress should consist in merely proposing an Article and proposing its mode of ratification. And we also come from that day with the equally certain knowledge, which we do not intend to forget, that Madison himself knew clearly that the valid ratification of future Articles would depend, as he knew the valid ratification of the Philadelphia Articles did depend, not on the fact that ratification was in the mode proposed but on the fact that the proposer of a mode of ratification should propose a mode in which the proposed Article could be made by those competent to make an Article of its particular kind.

For these reasons, if the supporters of the Eighteenth Amendment expect us, now educated with those earlier Americans up to and including the record of September 10, 1787, to believe that the Madison Fifth Article, first worded on that day, purported to grant or was understood and intended by Madison and his colleagues to grant any power to the state legislative governments in America over ourselves, the citizens of America, we shall hereafter listen, with naught but amusement, to these amateur “constitutional” thinkers and their effort to change legal fact into fiction by assumption. Confirmed by our education with Madison and the others who had all to do with the wording and the making of that Fifth Article of September 10, 1787, we recognize, even if these “constitutional” thinkers do not recognize, that we ourselves are the “conventions” of the Fifth Article in which sit the American people to exercise their exclusive ability to grant to government any power to interfere with their individual freedom. We have now, even if these “constitutional” thinkers never have had, the knowledge of the legal necessity that power of that kind must be derived from ourselves, the “people” of the Tenth Amendment and the “conventions” of the Seventh and the Fifth Articles—the necessity in 1787 “felt and acknowledged by all.” We know, as Marshall knew in one of those “conventions” of 1788 and as he knew and stated on the Bench of the Supreme Court, that there is but one way in which we, the citizens of America, can act safely or effectively or wisely on the subject of new interference with our individual freedom, by assembling in our “conventions,” the “conventions” of the Fifth as well as the Seventh Article.

And so, with our knowledge and certainty that the Madison Fifth Article of September 10 never could change the status of the free American into that of the subject of an omnipotent government, we come to the last business day of the Philadelphia Convention, September 15, the only other day on which the Madison Fifth Article, with its mention of legislative ability to make federal Articles but not national Articles, was ever considered at Philadelphia.

On that day the Committee of Style reported the seven Articles which we now know as our Constitution. The Madison amending Article, except that “the legislature of the U. S.” was called “the Congress,” was identical with that of September 10. As it is important that we Americans shall never be told anything about the record of September 10 or September 15, in relation to this Madison Fifth Article, which is not something that is in the record, that we may be given no distorted version of what happened in that Convention about the only Article which ever mentioned state “legislatures” as makers of some future Articles, we shall have again the pleasure of reading the entire record of September 15. Again we read it from the brief of the great “constitutional” lawyer of 1920 who argued on the assumption that this Article, worded by Madison, was intended to make us and did make us, the citizens of America, the subjects of an omnipotent government, composed mostly of the client governments whom he represented in the Court Room of 1920. This is his record of the full story of September 15 in relation to the Fifth Article of Madison, from which record this “constitutional” lawyer and his associates hope to derive—how we know not—some support for this belief and this argument.

“Mr. Sherman expressed his fears that three fourths of the States might be brought to do things fatal to particular States, as abolishing them altogether or depriving them of their equality in the Senate. He thought it reasonable that the proviso in favor of the States importing slaves should be extended so as to provide that no State should be affected in its internal police, or deprived of its equality in the Senate.

“Col. Mason thought the plan of amending the Constitution exceptionable and dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, and in the second, ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the government should become oppressive, as he verily believed would be the case.

“Mr. Govr. Morris & Mr. Gerry moved to amend the article so as to require a Convention on application of two thirds of the Sts.

“Mr. Madison did not see why Congress would not be as much bound to propose amendments applied for by two thirds of the States as to call a Convention on the like application. He saw no objection however against providing for a Convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum etc. which in Constitutional regulations ought to be as much as possible avoided.

“The motion of Mr. Govr. Morris and Mr. Gerry was agreed to nem: con (see: the first part of the article as finally past)

“Mr. Sherman moved to strike out of art. V. after ‘legislatures’ the words ‘of three fourths’ and so after the word ‘Conventions’ leaving future Conventions to act in this matter, like the present Conventions according to circumstances.

“On this motion

“N.H. divd. Mas. ay. Ct. ay. N.J. ay. Pa. no. Del. no. Md. no. Va. no. N.C. no. S.C. no. Geo. no. (Ayes—3; noes—7; divided—1.)

“Mr. Gerry moved to strike out the words ‘or by Conventions in three fourths thereof’

“On this motion

“N.H. no. Mas. no. Ct. ay. N.J. no. Pa. no. Del. no. Md. no. Va. no. N.C. no. S.C. no. Geo. no. (Ayes—1; noes—10.)

“Mr. Sherman moved according to his idea above expressed to annex to the end of the article a further proviso ‘that no State shall without its consent be affected in its internal police, or deprived of its equal suffrage in the Senate’

“Mr. Madison Begin with these special provisos, and every State will insist on them, for their boundaries, exports, etc.

“On the motion of Mr. Sherman

“N.H. no. Mas. no. Ct. ay. N.J. ay. Pa. no. Del. ay. Md. no. Va. no. N.C. no. S.C. no. Geo. no. (Ayes—3; noes—8.)

“Mr. Sherman then moved to strike out art. V. altogether

“Mr. Brearley 2ded the motion, on which

“N.H. no. Mas. no. Ct. ay. N.J. ay. Pa. no. Del. divd. Md. no. Va. no. N.C. no. S.C. no. Geo. no. (Ayes—2; noes—8; divided—1.)

“Mr. Govr. Morris moved to annex a further proviso—‘that no State, without its consent shall be deprived of its equal suffrage in the Senate’

“This motion being dictated by the circulating murmurs of the small States was agreed to without debate, no one opposing it, or on the question, saying no.”

11 Farrand 629-631.

At once we notice with interest that these men, renowned as the marvelous leaders of a people better acquainted with the science of government than any other people in the world, men who have spent three entire months and fifteen days in their wonderful effort to frame a constitution which will secure “the Blessings of Liberty” to all American individuals and their posterity, still have no knowledge whatever, the weird and marvelous knowledge of 1917 and 1920, that this Madison Fifth Article gives to the state governments the very omnipotence which the American people, by a successful Revolution, had just wrested from the British Parliament. We note with interest Mason’s objection to the Madison “mode of procedure” in which may thereafter be exercised the limited ability of these very state governments to make federal Articles and the unlimited ability of the people or conventions to make national Articles. Mason’s objection, having direct reference to the grant of national powers in the First Article and his fear (the continued and expressed fear for the next two years in the “conventions” of the Seventh and the Fifth Articles) that the people may find these enumerated powers oppressive, is that, if the people do find them oppressive, Congress, which has these powers, will never propose an Amendment to take any of these powers away from Congress. For which reason Morris and Gerry moved to amend the Article so that, if Congress does not propose an Amendment for which there seems to be a demand, the legislatures of two thirds of the states may insist that Congress call a convention and that such convention may propose an Amendment. This suggestion was carried.

We next find Sherman moving to strike out the words “three fourths” after the word “legislatures” and after the word “conventions.” This motion was defeated. We next find, and we fix firmly in our mind with intent never to forget, that Gerry moved to strike out of Madison’s Article all reference to the “people” of the Preamble and the Tenth Amendment, the “conventions” of the Seventh and the Fifth Article, as the makers of any future Articles or changes in the Constitution. His motion was “to strike out the words ‘or by conventions in three fourths thereof.’”

As almost every one, during the last five years, including the sponsor of the Eighteenth Amendment in the House of Representatives, seems to have had an edition of our Constitution, in which the Fifth Article does not contain these words, and as everyone, during the same five years, has argued and acted as if these words were not in the Fifth Article or have no meaning whatever of the slightest importance, we intend to note and never forget that Gerry’s motion to strike these words out was beaten by a vote of ten to one.

As we know, the “people” of America themselves are identified by the word “conventions” in this Fifth Article, just as they are identified by the same word in the Seventh Article. As we know, we ourselves—the posterity of the “people” of the Preamble—are identified by this word “conventions” in the Fifth Article, just as we are identified in the Tenth Amendment as the most important reservee thereof by the word “people.” Wherefore our interest in this motion of Gerry and its overwhelming defeat is only exceeded by our absolute amazement, for the last five years, at the universal ignorance of the fact that it was defeated and of the fact that we are mentioned in the Fifth Article as the only competent makers of any new Articles which either directly interfere or grant power to interfere with our individual freedom.

We do not know, and to an extent we do not care, what was the purpose of Gerry. Gerry was always an opponent of a Constitution which vested national power in a general government. He was an advocate of the continued complete independence of each state and its government and of a mere federal union of states with a purely federal constitution. He was also always a consistent Tory in his mental attitude as to the relation of human being to government. If he had been successful in striking out any mention of ourselves, the “people” or “conventions,” leaving only the mention of the state legislatures, with their existing ability to make federal Articles, it would have been impossible that any further national power (beyond the grants of the First Article) be vested in the general government or taken from each state government, as only we ourselves could make national Articles like the First. We surmise that a mixture of his Tory mental attitude and his opposition to a general national government (which minimized the importance and diminished the independent sovereignty of each state government) prompted his motion. That his motion was overwhelmingly defeated is the only important fact for us American citizens. We shall not forget it even if our leaders and our “constitutional” thinkers forget it and ignore it.

We have no further interest in the short record of that September 15. No other change was made in the Madison Fifth Article except to take out of it any constitutional mode of procedure for the exercise of the existing ability of ourselves, the “people” or “conventions,” to deprive any state of an equal representation in the Senate with every other state. We still can do that, but we have no constitutional mode of procedure under the Fifth Article by which we can exercise our ability to do it. This change was not, however, as so many have absurdly thought, an exception to an imaginary power which we ourselves, the “conventions” of the Seventh Article and the “people” of the Preamble and the Tenth Amendment, in those very “conventions,” “granted” to ourselves, the same “people” and “conventions” mentioned in the Fifth Article. It was a recognition of our existing ability, about to be exercised in those “conventions,” the ability of the supreme will in America to deprive any state of its equal representation in the Senate; and it was our own exclusion of that ability from any constitutional exercise. The reflecting mind will remember that, in the heated arguments at Philadelphia, there was strong sentiment in favor of asking us, the people of America, the “conventions” of the Seventh Article, to exercise our exclusive ability in that very respect and make the Senate a body composed of members elected from larger proportions of the people than the members of the House of Representatives. It was the recollection of that effort which prompted the request that our exclusive ability to do that very thing should not be provided with a constitutional mode of future exercise.

We average Americans may now leave, in our present education, the entire story of that wonderful Convention at Philadelphia. We leave it with a knowledge of our Constitution we never had until we had lived with those Americans through the actual record of those three months and seventeen days from the end of May to September 17, 1787. We bring from it a knowledge that brooks no contradiction. We are certain that nothing in any of the Articles proposed at Philadelphia purported to give the state legislatures any power of any kind whatever, in the Fifth Article or anywhere else, either to interfere with the individual freedom of the American citizen or to grant the power of such interference to themselves or to our only government, the Congress. We bring from that Convention the knowledge that, unless something in the conventions of the American people, the “conventions” of the Seventh Article and the Fifth Article, changed the free men of America, the citizens of America, into subjects of an omnipotent legislative government, we ourselves in 1923 are still the citizens of America and possessors of the supreme will in America and are subjects of no government or governments in the world.

CHAPTER XI CONVENTIONS CREATE GOVERNMENT OF MEN

From which common sense statements of what always has been both reason and law, we know that whatever the Fifth Article meant to those who made it, in the conventions named in it as well as in the Seventh Article, it means today. There is no better way in which we can grasp its meaning to the American people assembled in those conventions, than by sitting with them and reading it as they read it, with their fresh knowledge of all the wonderful things in which they had participated from the Statute of ’76 to the proposal from Philadelphia of 1787. As we have just lived through all that period with them, we are in a wonderful position to read it and understand it as they understood it. Moreover, we are in a wonderful position to listen to the statements of the men in those “conventions.” In those statements, whether by advocates or opponents of the Constitution, we shall find the invincible negation—without one dissent—of the absurd assumption that Madison’s Fifth Article is a “grant” of any ability to make Articles. In those statements, we shall find all discussion of that Fifth Article centering upon the one question, i.e., whether it provides a practical mode of procedure in which the exclusive ability of the “people” or “conventions” can defend individual rights by withdrawal of some part of the power of interference therewith granted in the First Article. Mason had pointed out at Philadelphia that the procedural provisions of the Fifth Article—and it consists entirely of procedural provisions for the exercise of existing powers—left the drafting and proposal of Amendments entirely to governments. For which reason, in the “conventions,” Henry and all the great opponents of the Constitution argued that, if the individual Americans found the granted national powers of the First Article dangerous to human liberty, the “people” or “conventions” would never get the constitutional opportunity to exercise their ability to withdraw.

“You”—the “you” being the individual Americans assembled in one convention—“therefore, by a natural and unavoidable implication, give up your rights to the general government.... If you give up these powers,” the enumerated powers of the First Article, “without a bill of rights, you will exhibit the most absurd thing to mankind that ever the world saw—a government that has abandoned all its powers—the powers of direct taxation, the sword, and the purse. You have disposed of them to Congress, without a bill of rights—without check, limitation, or control. And still you have checks and guards; still you keep barriers—pointed where? Pointed against your weakened, prostrated, enervated state government! You have a bill of rights to defend you against the state government, which is bereaved of all power, and yet you have none against Congress, though in full and exclusive possession of all power! You arm yourselves against the weak and defenseless,” the state legislatures mentioned in the Fifth Article, “and expose yourselves naked to the armed and powerful. Is not this a conduct of unexampled absurdity?”

So thundered Henry in the Virginia convention. (3 Ell. Deb. 446.)

“To encourage us to adopt it, they tell us that there is a plain, easy way of getting amendments. When I come to contemplate this part, I suppose that I am mad, or that my countrymen are so. The way to amendment is, in my conception, shut. Let us consider this plain, easy way.” Then follows the verbatim statement of the Madison Fifth Article as proposed from Philadelphia. “Hence it appears that three fourths of the states must ultimately agree to any amendments that may be necessary. Let us consider the consequence of this. However uncharitable it may appear, yet I must tell my opinion—that the most unworthy characters may get into power and prevent the introduction of amendments. Let us suppose—for the case is supposable, possible, and probable—that you happen to deal those powers to unworthy hands; will they relinquish powers already in their possession, or agree to amendments? Two thirds of the Congress, or of the state legislatures, are necessary even to propose amendments.... To suppose that so large a number as three fourths of the states will concur is to suppose that they will possess genius, intelligence, and integrity, approaching to miraculous. It would indeed be miraculous that they should concur in the same amendments, or even in such as would bear some likeness to one another; for four of the smallest states, that do not collectively contain one tenth part of the population of the United States, may obstruct the most salutary and necessary amendments. Nay, in these four states, six tenths of the people may reject these amendments.... So that we may fairly and justly conclude that one twentieth part of the American people may prevent the removal of the most grievous inconveniences and oppression, by refusing to accede to amendments. A trifling minority may reject the most salutary amendments. Is this an easy mode of securing the public liberty? It is, sir, a most fearful situation, when the most contemptible minority can prevent the alteration of the most oppressive government; for it may, in many respects, prove to be such.” (3 Ell. Deb. 48.)

So thundered Henry against the weakness of the Madison procedure in which only by proposal from governments could there be constitutionally evoked the exclusive ability of the citizens of America to dictate how much power to interfere with individual freedom should be left for the citizens of each state to use in governing themselves, and how much power of that kind should be retained by the individual people of America themselves. Henry was opposing a Constitution in which the individual people of America were dictating that their general government, the Congress, should have only the enumerated powers of that kind which are in the First Article. In it, they were dictating that each state government, except as the American people forbade it, should have just so much of that kind of power as the citizens of that particular state should grant that government. And in it, they were dictating that the people of America themselves, the most important factor and reservee of the Tenth Amendment, should retain all other power of that kind to be granted only by themselves, the “conventions” of the Madison Fifth Article. Throughout all his thunder against that Constitution, Henry, like every other opponent of that Constitution, never questioned that this was the exact distribution of power to interfere with individual freedom which was dictated in the Constitution. His only complaint, and their only complaint, was that the Madison Fifth Article, because its constitutional procedure could only be evoked by a proposal from governments, was no protection to human liberty against the granted power of that kind in the First Article. The absurd thought of our modern “constitutional” thinkers (contradicting the plain statement of the Tenth Amendment and contradicting everything that was said in the “conventions” that made the Fifth Article) is that the Article itself is a “grant” of omnipotent power to governments (the legislative governments of the states) to interfere with individual freedom. When we contrast the knowledge of Henry and his colleagues with the modern absurdity, we echo Henry’s words and exclaim, “We suppose that we are mad, or that our modern constitutional thinkers are so.” If Henry had read into that Fifth Article, if the opponents of the proposed Constitution had read into it, any “grant” of ability to state governments, certainly it was an absurdity for him to refer to those governments as “weakened, prostrated, enervated” by the proposed Constitution.

And so, educated in the experience of those Americans who assembled in those “conventions” named in the Seventh and Fifth Articles, we sit with them in the conventions of that earlier day and read that Fifth Article with them, while they decide to make it with the six other Articles. Living through their experience, like them we have become “a people better acquainted with the science of government than any other people in the world,” so far as government is intended to secure individual liberty and happiness. When we sit with them, we intend not to forget, as they never did forget in those conventions, that this was the sole purpose of the Constitution they considered and made, the purpose of securing individual liberty and happiness. In this respect, they differed in their whole philosophy of government with the new school of thought that, in our day, has its different manifestations of exactly the same philosophy of government on the part of the Bolshevik in Russia and the minority in America which has dictated that government enactment of the new constitution of government, known as the Eighteenth Amendment.

The Americans of ’76 and ’87 set the individual liberty and freedom of man above everything in this world except the Divine Will of the Creator of man. In the Preamble of their Constitution, they echo the declarations of their Statute of ’76. Their creed was that the laws of right and wrong are immutable; that the Creator made the individual man and granted human freedom to him; that such freedom is inherently subject only to the Divine Will, the immutable law of right and wrong, but that it may voluntarily become subject, by the will of the individual man, to the exercise of powers of interference which only he and his fellow men themselves can ever validly grant to government.

“But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.” (Madison or Hamilton, Fed. No. 51.)

When we sit in the conventions of 1787 and 1788 with the Americans who had this common concept of the only purpose of government of men, their concept is our own as we read with them the language of the Fifth Article. And it is impossible for us, as it is impossible for them, to find concealed in that language the thought of a “grant” to government, a “grant” which would challenge this concept of the very purpose of government. They are sitting in “conventions” assembled to determine whether American individuals will enter into the new society of men, which is to be America. They have received the Fifth Article from Americans in Philadelphia, who have accompanied the proposal of that Fifth Article with a letter which states, “Individuals entering into society must give up a share of liberty, to preserve the rest.” This statement is recognized by the Americans, in the “conventions” where we sit, as the exact statement of the concept of the sole purpose of a government of men. With that concept and that letter before us, how can we or the Americans with whom we sit find in the Fifth Article the remarkable idea that Americans, entering the society of America, are to give up all their liberties to the state governments in order that Americans may preserve the rest of their liberties?

In these modern days, however, there has asserted itself, in Bolshevik Russia and in the America of which we are the citizens, two distinct manifestations of an entirely different concept of the purpose of government than was the concept of the Americans in the “conventions.” Although the manifestation of the new concept by the Bolshevik in Russia has been different from the manifestation of the new concept by an aggressive and organized minority in America, the new concept, at the bottom of each manifestation, is exactly the same. It is the concept that the purpose of constituting a government of men is to secure the welfare of the state or community or nation and not the liberty and happiness of the individuals who compose the nation. This is the exact concept of the Bolshevik Russian and the Eighteenth Amendment American. To neither of them would the words of that letter from Philadelphia convey the slightest meaning, the words “individuals entering into society must give up a share of liberty, to preserve the rest.” In their mutual concept, the individual has no liberty which government need respect. In the Bible of their concept, men cannot find the words which declare the basic American principle, that every just power of government must come from the individuals who are to be governed by its exercise. It is, however, a misnomer to call this common concept of the Bolshevik Russian and the Eighteenth Amendment American a new concept. It is identical with the old concept known as “Socialism,” the concept that community welfare, the prosperity and power and strength of a nation, are more important things than individual liberty and happiness and enjoyment of human freedom. It is a concept which sets the state (a political entity created by men) and the welfare of the state above what the Americans of ’76 and ’87 knew and proclaimed to be superior to all human creations, namely, the individual man, the noblest creation of the Divine Creator. In other words, the common concept of the Bolshevik Russian and the new Amendment American is but the reaction to the century-old concept whose repudiation was the main theme of the Declaration of Independence, the concept that individual men, the creation of God, are made for kings or governments or political entities.

To those who hold such a concept there comes no shock when they are asked to imagine that the language of the Fifth Article implies a grant of ability to the state governments to do what those governments will with the liberties of the citizens of America. But we are sitting in “conventions” of Americans of a different type, Americans who, eleven years earlier, have repudiated forever the concept that men are made for kings or governments or political entities. And, if we wish to know what the Americans in these conventions think of the concept of the Bolshevik Russian and the Eighteenth Amendment American, we get our wish from the man who wrote the language of the Fifth Article.

“We have heard of the impious doctrine in the Old World,” the reactionary doctrine of modern Russia and of our own aggressive minority, manifested in two different disguises, “that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape—that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form?... As far as the sovereignty of the states can not be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter. How far the sacrifice is necessary, has been shown. How far the unsacrificed residue will be endangered, is the question before us.”

This is the language of Madison, in The Federalist, Number 45, asking the individual Americans to make the Constitution to secure their individual happiness. It will amaze us later herein to hear the thought of our modern “constitutional” thinkers that his Fifth Article makes the state governments (from whom that Constitution took sovereignty to secure the individual happiness of the American citizen) a supreme and omnipotent government of the American citizens, a government knowing no will but its own. Meanwhile let us forget this latter day nonsense and breathe again the real American atmosphere, where individuals, entering a society, give up a share of their liberty, to preserve the rest. Let us sit with the real “constitutional” thinkers of America as they sat in the conventions and read with them the Fifth Article worded by Madison. This is what they read:

ARTICLE V

Sitting with these Americans, in their “conventions,” we note immediately, as they note, that the Article names themselves. And we note, as they note, that it names themselves, the individual American citizens, the “people” of the Preamble and the Tenth Amendment, by exactly the same name, “conventions,” as in the Seventh Article and as in the Resolution of the Philadelphia Convention, which proposed the only valid mode of ratification for the constitution of government of men in the First Article, the mode which required ratification by the individual Americans themselves, the “conventions” of the Seventh and the Fifth Articles. We cannot help noting it—as we intend never to forget it—because we are sitting with them, as the people of America, in the very “conventions” so named in the Seventh Article.

Having their vital and accurate knowledge of the difference between federal and national Articles, that only the latter kind exercises or grants power to interfere with individual human freedom, we recognize at once why the state legislatures are also mentioned in the Fifth Article, although they never can make national Articles. We know it is because those “legislatures,” as the Tenth Amendment expressly declares, retain their existing ability to make federal Articles or Articles which neither exercise nor grant power to interfere with individual freedom. And, sitting in those “conventions,” where Hamilton also sits, we recall his remarkable prophecy, just made to us in The Federalist, as we were about to enter the “conventions” with the other Americans therein. “For my own part, I acknowledge a thorough conviction that any amendments which may, upon mature consideration, be thought useful, will be applicable to the organization of the government, not to the mass of its powers.” (Fed. No. 85.) In that absolutely accurate advance knowledge of the complete history of constitutional amendment from 1789 to 1917, we recognize the motive which prompted Madison and Hamilton, on September 10, 1787, to add the mention of those legislative governments to the Fifth Article mention of the exclusive ability of the people or “conventions” to make all future Articles which do relate to the “mass of its powers” to interfere with individual freedom conferred upon the one government of America. We understand that these legislative governments are mentioned in the Fifth Article, which we are now reading in the “conventions” of old, because those “legislatures” have an existing ability to make federal Articles which relate to other things than the national power of government to interfere with individual freedom.

Having thus satisfied ourselves, in those conventions, that we ourselves, the “people” of America, are mentioned in the Fifth Article as the sole makers of any future Article which exercises or grants power to interfere with our individual freedom, we turn with interest to the procedure which the Article establishes as the only constitutional mode of procedure in which that exclusive ability of our own may hereafter be evoked to exercise and be exercised.

From the language of the Article itself, we know at once that it is simply the statement of a mode of procedure in which our own unlimited ability or the limited ability of the state legislatures, when the occasion seems to arise for the respective exercise of either ability, are hereafter to be evoked by some body of men, playing the part which the Philadelphia Convention has just played in evoking our own exclusive ability, the ability of the “people” or “conventions.”

Outside the language of the Fifth Article itself, many other things make that fact clear to us. For instance, we recall what Madison has just told us. He had written this Article at Philadelphia. Then, asking the American people to prescribe this constitutional mode of procedure for the future exercise of either respective existing ability, he has explained to us, just before the convention in which we sit, what the Fifth Article means.

“That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, that A MODE FOR INTRODUCING THEM should be provided. The mode preferred by the Convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and State governments TO ORIGINATE the amendment of errors, as they may be pointed out by the experience on one side, or on the other.” (Fed. No. 43.).

Sitting in the conventions of more than a century ago, we are naturally uninfluenced (in our reading of plain English) by the story of a century which has not even yet begun, the century that later began in 1800. And so we get from his own words the knowledge that the author of the Fifth Article knew it to be nothing but a constitutional mode of procedure, for the future exercise of either ability to make Articles. We see that the mode leaves with either “the general and state governments” the ability to propose an Amendment to those with existing power to make the particular proposed Amendment. And we note, with intent to remember, that the author of the Fifth Article, while he tells us about this reservation of existing abilities to propose amendments, pointedly does not tell us that the Article grants any power to any government or governments to make Amendments. In other words, we know that the Fifth Article reserves to the general government and to the state governments exclusively what otherwise they and every one else would have had—what Madison himself called “the unauthorized privilege of any respectable citizen or body of citizens”—the ability to propose, but that it does not grant to any of those governments or all of them collectively the ability which none of them ever had or can have, the ability to make, constitutional Articles of a national kind, which relate to interference with individual freedom. With this knowledge confirmed by the clear statement of the author of the Fifth Article, we read with interest its procedural provisions about the originating of new Articles, about their drafting and their proposal and the proposal of a mode of ratification for them, after they have been drafted and their nature has determined who can make them.

Sitting in those conventions of old, we are in the company of many of the men who were at the Philadelphia Convention. In Virginia we see Madison and Randolph and Mason and others; in New York we see Hamilton and others; in Pennsylvania we see Wilson and others; in South Carolina we see the Pinckneys and others. That is our experience in all the conventions. On all sides, among the American people assembled therein, are those familiar with and talking about the work at Philadelphia and the great debate there, in which was ascertained, from the character of the Articles drafted there, which maker of Articles, the state legislatures, with their existing ability to make federal Articles, or the “people” themselves, the “conventions,” with their existing unlimited ability to make all Articles, could make the Articles drafted and about to be proposed. These men, by their presence and their words, remind us how the nature of their First Article, the fact that it constituted government to interfere with human freedom, compelled the announcement of the decision that legislative governments could never make that kind of an Article. These men, by their presence and their words, remind us how they reached the ascertainment of the fact which compelled their Proposing Resolution to propose a mode of ratification by the “people” themselves, by the “conventions” of the Seventh and the Fifth Articles. They remind us, as one of the men with us later said in the Supreme Court, that all assembled in our “conventions” feel and acknowledge the legal necessity that every power to interfere with individual freedom must be derived by direct grant from the people. And, sitting in those conventions with them, where we all read the Fifth Article they are asked to make, we recognize with certainty that it prescribes that the Congress shall do exactly what the Philadelphia Convention has just done—propose, and nothing more.

The words of the Fifth Article tell us that only Congress shall draft and propose a new Article, just as the Philadelphia Convention drafted and proposed its new Articles; that, after Congress has drafted its new Article and is about to propose it, just as the Philadelphia Convention did, when it exercised no power at all, Congress shall examine carefully the nature of the drafted Article and, having ascertained by such examination which existing ability to make Articles (the limited ability of legislative governments or the unlimited ability of the “people” or “conventions”) is competent to make that particular Article, Congress shall propose ratification by the ability which can make the proposed Article.

We are not misled because the Article prescribes this one constitutional mode to evoke the existing limited ability or the existing unlimited ability. Providing a CONSTITUTIONAL mode for the exercise of either does not lessen one ability or increase the other. By reason of our education, we know the difference between the revolutionary exercise of existing power and the constitutional exercise of existing power. Because we have become of the “people better acquainted with the science of government than any other people in the world,” we know that to do something in a revolutionary manner does not necessarily mean to do it by bloodshed or on the battle-field. We know that to do something in a revolutionary manner means to do it outside of any legally prescribed mode of procedure for the exercise of existing power. We know that to do the same thing, in a constitutional mode, is to do it in some mode prescribed by human law or constitution. And that is why we understand, as did the men with whom we are sitting in those conventions, that Congress, in the future, is to do exactly what the Philadelphia Convention did and nothing more. Congress is to do it constitutionally (where the Philadelphia Convention did it outside of any human law and in a revolutionary manner) because the Fifth Article commands that Congress alone shall do it. Congress, when doing it, will be exercising no power. The Philadelphia Convention exercised no power when it did exactly the same things. And, when Congress does it, Congress will be bound, as Philadelphia was bound, to ascertain and propose the mode of ratification by which the proposed Article will be ratified by ratifiers competent to make that particular kind of an Article.

As we sit in the “conventions” and keep clearly in our mind that the “conventions” and the “state legislatures” (both of which are mentioned in the Fifth Article) each have existing but very different abilities to make Articles, every part of the language of the Fifth Article confirms our knowledge that the whole Article is no “grant” of power but is a “constitutional” mode for the exercise of existing powers.

Long after the conventions in which we sit, the Supreme Court paid the tribute to those who wrote the Fifth Article that they were “masters of apt, precise and classic English.” Keeping this thought in mind, our attention is directed to the three-time use of the one word “propose” in the Fifth Article. We know that to use the same word three times in one sentence is very poor English unless there is a distinct and definite intent and purpose that the meaning each time shall be identically the same. Such definite intent and purpose is the only deduction from what would otherwise be the inexcusable tautology of the language of the Fifth Article. So, when we read that Congress “shall propose amendments” or shall “call a convention for proposing Amendments” and that “one or the other mode of ratification may be proposed by the Congress,” we know with certainty that each use of the word “propose” is intended to convey an identical shade of meaning. From which we know that, as the proposal of a new Article (by Congress or a Convention) will be a mere proposal and will not make the proposed Article valid, so also the Congress proposal of a mode of ratification will remain a mere proposal and will not make that proposed mode valid for that proposed Article, unless its proposed ratifiers are competent to make that particular kind of an Article. This is what they had just known at Philadelphia about their own proposals (both of Articles and of mode of ratification) to us as we sit in the “conventions.” And so, in these conventions, we know the proposals mentioned in the Fifth Article to be identical (in nature) with the proposals made from Philadelphia. We know the procedure outlined in the Fifth Article to be exactly the same procedure as has just been followed at Philadelphia. We know that our ratification (in these “conventions”) of that procedure will be our approval of the procedure they followed at Philadelphia and will be its prescription as the CONSTITUTIONAL procedure hereafter to be followed when either existing ability, that of the state governments or that of ourselves in “conventions,” is to be hereafter evoked to exercise. From all of which we recognize that, if Congress should propose a mode of ratification by state legislatures and the proposed Article is a grant of power to interfere with the individual liberty of the American citizen, the state legislatures will remain just as incompetent to make that Article as they were known to be at Philadelphia when Madison and his colleagues held them to be incompetent to make their proposed Article of that kind, the First Article. And so we understand that the mere Congress proposal of a mode of ratification (for such an Article) by state governments will not give state governments ability to make such an Article.

Sitting in those old conventions, we now have read the procedural provisions of the Fifth Article up to the point where proposals bring, in a constitutional manner, a proposed new Article to makers with existing ability to make the particular Article which has come to them.

We now read with interest the next chronological step of the procedural provisions, the mention of the two existing makers of Articles—the state legislatures, makers of federal or declaratory Articles, and the “conventions” of the American citizens, makers of any Article.

We are actually sitting in “conventions” identical with those named in the Fifth Article. We are in the “conventions” mentioned in the Seventh Article and named therein by exactly the same word as is used in the Fifth Article, the word “conventions.” Both Seventh and Fifth Articles have been worded at Philadelphia. We, assembled in the “conventions” named in the Seventh Article, are the whole American people. In our conventions, so assembled, we are to make both the Seventh and the Fifth Articles, with their common use of exactly the same word “conventions.” And so we understand, with a knowledge which nothing can disturb, that the “conventions” of the Fifth Article mean exactly what the “conventions” of the Seventh Article mean. Thus we know, with knowledge which nothing can disturb, that the “conventions,” named in both Articles, are the American people, only competent makers (in 1787 or at any future time) of national Articles which interfere with or grant power to interfere with the individual freedom of the American citizen.

We recall vividly the proposal that came from Philadelphia eleven years earlier or in 1776, that the Americans in each former colony constitute a government with such powers to interfere with the human freedom of its citizens. We recall that such governments were constituted in what Marshall states to be the only way in which men can act safely, effectively or wisely, when constituting government of themselves, namely, by assembling in “conventions.”

We also recall vividly the proposal that came from the same Philadelphia a year later or in 1777, that the states constitute a federal government of states. And we recall that the state legislatures, because they possessed existing ability to make federal Articles, did validly make the federal Articles suggested in that proposal.

We also recall, that the new Constitution, which is before us in the “conventions” named in the Seventh Article, is to be both a national Constitution, constituting government of men, and a federal Constitution, constituting government of states. And we recall that only one of the present Articles in that proposed Constitution, the First Article, constitutes government of men by granting government power to interfere with individual freedom. And we recall, with Hamilton in the Convention beside us, the probability that all future Articles in that dual Constitution, will probably be of the federal or the declaratory kind which the existing ability of state legislatures can make.

And so we understand why Madison and Hamilton, in their Fifth Article, mention that existing ability of the state legislatures to make Articles which do not relate to interference with individual freedom, as well as they mention our own exclusive ability, the ability of the “conventions” of the American people, to make Articles which do relate to interference with individual freedom.

And, sitting in those conventions with the “people better acquainted with the science of government than any other people in the world,” when we read the language of the Fifth Article, it is impossible for us to make the monumental error of assuming that the mention of the two existing abilities adds anything to one or subtracts anything from the other.

And so, with our minds in those “conventions” free from any possibility of such monumental error, we now read and clearly understand the most important words in the constitutional mode of procedure for existing powers, which we know as the Fifth Article. To none of the Americans in those conventions is there any doubt, to no American, who understands what America is, can there ever be any doubt, what are the most important words. They are the words “in three fourths thereof” immediately following the words which name the very kind of “conventions” in which we sit. These words, “by conventions in three fourths thereof,” bring home to us the marvel of what our “conventions” are doing.

In them sit the people of America, possessors of the supreme will in America, assembled in their respective states, as free men and not as the citizens of the particular state in which each convention of Americans assembles.

We realize, as the Preamble of the Constitution before us expressly declares, what is the first proposal upon which we act affirmatively, when we say “Yes” to the whole proposal from Philadelphia. The first effect of that “Yes” is that we, that part of the American people in that particular state, do consent (with the Americans in eight or more other willing states) to join the new nation or political society of men, which is to be America, and that we consent to be, with those other Americans, the citizens of the new nation as soon as the Americans in eight other willing states give their similar “Yes.” We are well aware, as we sit in one of the “conventions,” that the Philadelphia proposal has left it open for the free Americans in each state to become members or not of the new society as they please, and that, therefore, the joining of that society, by the Americans in at least nine states, will mean that the new nation is created by unanimous action of the majority in every state whose Americans become citizens of America.

From which we realize that the original grants of national power by its citizens to the only government of the new nation will be the second effect of the “Yes” from the Americans in nine conventions. Thus these original grants, the First Article grants of enumerated power to interfere with the individual freedom of the American citizen, will be made simultaneously by the majority of Americans in every state where Americans become citizens.

But, once these early Americans leave those first “conventions,” the whole American people will constitute the members or citizens of the new nation, America.

As in any other republican nation, all national powers must be granted by its members or citizens. Any future national power, not granted by the citizens themselves, will be neither just nor valid because power of the American government to interfere with the freedom of the American citizen will not have been granted by those to be governed by its exercise.

But, when the whole American people leave these “conventions” as the united citizens of America, although it will be wise and proper and necessary that American citizens shall hereafter assemble in “conventions” in their respective states for the making of new proposed grants of power to interfere with their freedom, it will no longer be necessary that a “Yes” from every “convention” should be given to any future grant of such power. When the whole American people assembled in those first conventions, a “Yes” from every “convention” was necessary because that “Yes” meant the willingness of the Americans in that state to become citizens of America. But, once they all have become its citizens, it is in that capacity—and not as citizens of each respective state—that the American government will interfere with their individual freedom.

And it now dawns upon us, probably for the first time, how imperative it is that the new Constitution should contain an explicit command, prescribing how the vote of each “convention” should count and how many “convention” votes should be sufficient and necessary for any future proposed grant of power to interfere with the freedom of American citizens. This brings home to us the impressive and important meaning of the words “in three fourths thereof” after the word “conventions” in the Fifth Article.

If they had not been written therein by the genius of the men at Philadelphia, the method of counting the vote of each “convention” and the number of “convention” votes CONSTITUTIONALLY requisite hereafter for a new grant of national power would be a matter of infinite dispute. And so we recognize and pay our tribute, as we sit in one convention of the first American citizens, to the wonderful foresight of Madison and Hamilton and their colleagues at the Philadelphia Convention which has just completed its labors. That tribute is evoked by the words “three fourths thereof” after the word “conventions.”

We see that these words end all possibility of dispute in two important respects where dispute would be certain if the CONSTITUTIONAL mode of procedure did not contain our command that, when future “conventions” are asked for further grant of power to interfere with our individual freedom, the “Yes” of each convention shall count as one “Yes” and a “Yes” from three fourths of the “conventions” shall be both necessary and sufficient to make a new grant of such power. And, as we dwell upon these amazingly important words, their presence in the Fifth Article compels a greater tribute to the men who wrote them than that demanded by the fact that this ends the possibility of the disputes we have mentioned. It grows upon us that these words are among the most important securities to individual liberty in the whole Constitution. With increasing admiration for the men at Philadelphia, we sit in those early “conventions” and recall how much Madison and his colleagues have just told us in The Federalist about the danger to individual right from the tyranny of the citizens of a republic themselves, whether that tyranny is attempted by a majority or an aggressive minority of such citizens. We recall The Federalist, Number 51, and its forceful exposition of the merits of the proposed Constitution and its remarkable distribution of powers (powers granted to the new government in the First Article, powers left with each state over its own citizens and powers retained by the American people themselves) as security for individual rights.

“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence arises a double security to the rights of the people.... It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: The one by creating a will in the community independent of the majority—that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.... Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger.... In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good.... It is no less certain than it is important, understanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And, happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle.” (Fed. No. 51.)

In those important words of the Fifth Article, “in three fourths thereof” after the word “conventions,” we now recognize the judicious mixture of the federal principle in our own command which controls our future CONSTITUTIONAL exercise of our exclusive ability to create new power to interfere with our individual freedom.

These words do not challenge or disturb the legal American necessity that our American government must get any new power of that kind from us ourselves, assembled in our “conventions.” But, with a practical wisdom never exceeded in framing the “constitution” of a self-governing nation, these words impose an amazingly effective check upon the existing ability of a majority or aggressive minority, in the republic which is America, to interfere with individual rights. These words do not attempt to destroy or alter that existing ability of the citizens of the new republic. On the contrary, these words recognize the existence of that ability. But, with the wisdom which means so much security to every individual right in America, these words make it impossible that such ability can be CONSTITUTIONALLY exercised unless a majority or an aggressive and organized minority, when seeking new government power to interfere with the individual freedom of the American citizen, obtain a majority support from the American citizens residing in every one of three fourths of the state in America.

Leaving (just for a moment) the conventions of the old days, we of this generation realize with gratitude the check so provided. We understand now, as we never understood before, why the organized minority which demanded that government write the new Amendment into our Constitution was driven by this constitutional check to ignore the plain fact that the new Amendment can never validly be put into the Constitution (if we still are citizens and not subjects) unless a “Yes” from the “people” themselves, the “conventions” of the Fifth Article, is obtained from three fourths of those “conventions.” We realize that the organized minority in question must support their proposition on the concept that Madison and Hamilton, who introduced and seconded the Fifth Article at Philadelphia, intended that Article “to create a will in the community” (which is America) “independent” of the supreme will of the American people themselves, intended it to create that anomaly of a superior will to the supreme will and to make that superior will the will of the legislative governments of a fraction of the states. We refer that organized minority to the quoted words of Madison or Hamilton, referring to such creation of a will independent of the people themselves: “This, at best, is but a precarious security, because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method [not the creation of a will independent of the human members of the society] will be exemplified in the federal republic of the United States,” the very Constitution of which contains the Fifth Article. We average Americans are now satisfied, beyond dispute, that neither Madison nor his associates in the early conventions, to which we will now return, understood or meant that the Fifth Article would or should create such an independent will.

Sitting again in the conventions of old, we recall exactly the same thought expressed by Madison himself in The Federalist, No. 10, where he says: “When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and form of popular government, is then the great object to which our inquiries are directed.... Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such co-existent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression.” These thoughts, from the worder of the Fifth Article, sink deep into our minds and hearts as we sit in those conventions. They come before us with startling clearness, when we read his words in that Article, “conventions in three fourths thereof,” and his words in reference to that Fifth Article mode of procedure, “In requiring more than a majority, and particularly in computing the proportion by states, not by citizens, it departs from the national and advances toward the federal character.” (Fed. No. 39.)

We realize that his mode of procedure is national, in its strict conformity to the Statute of ’76, that all power over the people must come directly from the people, but that a judicious mixture of the federal system, in counting the votes of the people, is the best check human ingenuity has yet devised to protect individual rights against a tyrannical majority or an aggressive minority.

CHAPTER XII TWO ARTICLES NAME “CONVENTIONS”

As we sit in those conventions and dwell upon the wisdom of the practical thought which inspired those words, “in three fourths thereof” after the word “conventions,” we know why the people with whom we sit compelled the tribute that they grasped the science of government better than any other people in the world. The one aim of all of them was the happiness and welfare of the individual. The welfare or prosperity of the political entities, which we know as America and the respective states, were of no importance to these people, except as they contributed to the welfare of the individual. The prestige and the power of each and every government in America and of all governments in America together were of no importance to these people, except as they contributed to the welfare of the individual.

And when we sit with them in their conventions, after living with them through their experience from 1775, we realize (as we have never realized before) that the Statute of ’76 was enacted, that the national constitutions of government were made by the people in each colony, that the sacrifices of the Revolution were endured for eight years, that the federation of states was established by states in 1781, that the wisdom and ability and patriotism of America had just assembled at Philadelphia in 1787 and made its proposal which we are considering in these conventions—all that the welfare of the INDIVIDUAL might be secured. We realize that the wisdom and ability and patriotism of America, at Philadelphia, had labored for months to ascertain, by the light of all human experience, in what proportion (solely to secure the welfare of the individual) power to interfere with individual freedom ought to be surrendered at all to governments and retained by the people, and in what proportion the quantum of surrendered power should be left with each state government over its own individuals and given to the new general government over its individual citizens. We realize that the wisdom and ability and patriotism of America, at Philadelphia, had known that no governments, then or in the future, if individual welfare was to be secured, could ever legally determine either proportion or could ever alter either proportion, when once established by the supreme will in America, the “people” of the Preamble and Tenth Amendment, the “conventions” of the Seventh and Fifth Articles.

And so we, of this later generation, sit in those “conventions” of the Seventh Article and we read the Fifth Article, where the same “conventions” are named, and look with awe upon the practical wisdom which dictated these words “in three fourths thereof,” after that mention of those “conventions” of the American people in the future. We realize now that those words are among the greatest securities to individual welfare written into the proposed Constitution by the wisdom and ability and patriotism of America, at Philadelphia. In that Constitution, other great securities protect individual welfare against usurpation from outside America and against usurpation by government or governments in America beyond the exercise of the national powers granted to each government by its own respective individual citizens. But this particular great security of individual welfare, the words “in three fourths thereof,” secures individual welfare against the unjust oppression of a majority or an aggressive minority of the Americans themselves unless that majority or minority secure a majority of the Americans in each of three fourths of the states to support the unjust oppression of individual welfare.

And thus, in those conventions, we realize, perhaps for the first time, that the important statements of the Seventh and the Fifth Articles are, in substance, identical statements by the supreme will of the American people. They are respectively the two statements or commands of the citizens of America, the new nation, as to WHEN the grants of power in the First Article shall be the grant of the American citizens and as to WHEN the grants of any similar power, in the generations to come, shall be the grants of the American citizens. In their language, in their purpose and in their plain command, both statements are exactly alike in substance. The statement or command of the American people, in the Seventh Article, is that the constitution of the government of interference with individual freedom, the First Article, shall be the Constitution of the American people when nine of the “conventions” (named in the Seventh and Fifth Articles) shall have said “Yes” to that constitution, to the enumerated grants of national power in the First Article. The statement or command of the American people, in the Fifth Article, is that any new proposed constitution of government of interference with individual freedom of the American citizen (the supposed Eighteenth Amendment being the first new constitution of that kind) shall be the Constitution of the American people when three fourths of the “conventions” (named in the Seventh and the Fifth Articles) shall have said “Yes” to that new proposed constitution.

At this point, we average Americans, sitting with those amazing Americans in their “conventions,” fix firmly in our minds, with intent never to forget, the fact that the “conventions” of the Seventh Article command are indisputably the American people themselves; that the “conventions” of the Fifth Article command are identical (except as to the time in which the American people assemble) with the “conventions” of the Seventh Article command; and that, therefore, the “conventions” of the Fifth Article command are also the people of America themselves. But the whole people of America are the “We, the people” of the Preamble. They are the only reservee of the Ninth Amendment, “the people” therein. They are the “most important factor” and reservee of the Tenth Amendment, “the people” therein. Wherefore, we grasp clearly why they are mentioned in the Fifth Article, because they have no government attorney in fact—as they could not have if we are “citizens of America”—to surrender what they reserved to themselves in the Ninth and Tenth Amendments.

Sitting in those conventions, we recall the limited ability of state legislatures, each speaking for its own state, to make federal Articles, Articles that neither interfere nor give power to interfere with individual liberty, the ability that made all the federal Articles of 1781. And we recall that the Constitution does not take that ability from the “states respectively” and their governments but reserves it to the “states respectively” and their governments, as the Tenth Amendment expressly declares. And so we understand the mention of that limited ability in the Fifth Article in the words “ratified by the legislatures of three fourths of the several states.” And, educated by the experience of the amazing Americans with whom we sit, we realize the meaning of this particular statement or command of the supreme will, the people of America. That supreme will is creating a new nation out of its human possessors. It is destroying forever the complete independence of the respective states, but leaving each of the states a political entity with citizens and much independence. It is incorporating the system of a federal union of states into the new national system of a union of all individual Americans, and it is subordinating the members of the federal union and also the federation itself to the union of human beings, to the supreme will in America, the will of the citizens of that nation. Therefore, as each state is no longer completely independent, it is no longer necessary that every member of the federal union shall utter its “Yes” to the making of any new Article of the federal or declaratory kind, the only kind which governments ever can make. And so we clearly understand, as the early Americans in their conventions understood at once, that the words “ratified by the legislatures of three fourths of the several states” was to be the command of the American people, sitting in those conventions, that a “Yes” from three fourths of the state governments would, thereafter, be necessary and sufficient for the making of a new proposed federal or declaratory Article. And we do not understand, as the Americans in those conventions never understood, that those words implied any “grant” of ability to the state governments to make any Articles in our Constitution, much less Articles by which governments interfere or give power to interfere with the individual freedom of the American citizen outside the matters enumerated in our First Article.

On the contrary, it becomes amazingly clear to us that the “conventions” of the American citizens are mentioned in the Fifth Article because the American citizens are the important reservee of the Ninth and Tenth Amendments. And it becomes equally clear that the “legislatures of the several states” are mentioned in the Fifth Article because the “states respectively” are the lesser reservees named in the Tenth Amendment.

The Tenth Amendment tells us that no power of any kind is given, by the new Constitution, to any grantee except to the new nation and its government, the American government. It tells us that some powers, which each state had hitherto possessed, are taken from it; that the exercise of other powers, which each state had hitherto possessed, are now prohibited to it; and that only the other powers (which each state had hitherto possessed) are left with that state by the command of the supreme will in America, ourselves, the citizens of America. It tells us emphatically that no new powers of any kind are given to any state or to any collection of states or to their governments. It tells us that the American people, in making their Constitution, left each state and each state government powerless, as they had been, alone or in combination with other governments, to interfere with the individual rights of any human being outside that particular state. And finally it tells us, what the Supreme Court has expressly declared to be the most important declaration in that Tenth Amendment, that we ourselves, the individual citizens of America, the “people” of the Preamble and of that Tenth Amendment, retain (secure from any valid exercise by any government or governments in the world and only capable of exercise by ourselves in our “conventions”) every power to interfere with the individual freedom of the American citizen except in the matters enumerated in the First Article.

And so, in those “conventions,” we need no constitutional thinker to tell us the simple fact that only those who have can give. If the state legislatures have not, as indisputably they have not, any ability to exercise or to grant power of general interference with individual rights throughout America, and if, as the Tenth Amendment expressly declares, the entire Constitution adds naught to their existing ability to make Articles of another kind, the Fifth Article merely prescribes the constitutional mode of procedure, in which, by command of the American people, that existing and limited ability shall thereafter be exercised.

And likewise, if the American people themselves, the Seventh Article “conventions” in which we are sitting, have exclusive ability to exercise or to give power of general interference with their own individual rights, and if, as the Ninth and Tenth Amendments together expressly state, those “conventions” retain that exclusive ability, clearly the Fifth Article reference to the same “conventions” of the American citizens is but prescribing the constitutional mode of procedure in which, by command of the American people, that exclusive ability of their own shall thereafter be exercised. When the “apt, precise and classic English” of the Fifth Article permits no other meaning, we cannot imply that the Article intends to grant what one supposed grantee (who is the supposed grantor) already has and what the other cannot ever have. Nor can we imply that the Article intends to provide a constitutional mode of procedure in which those, who have not, may give. Moreover, as this absurd implication would make the individual American people “subjects,” as soon as they adopted that Article, we now know, with absolute certainty, that the Americans, in the “conventions” in which we are sitting, adopted it as their fundamental law of procedure with the only meaning which its own “apt, precise and classic English” permits.

We have now read, in those conventions of old and with the Americans therein who made it, all of the Madison Fifth Article save the two exceptions at the end thereof, beginning “provided that no amendment, etc.” In those conventions, the meaning of those two exceptions needs but a moment’s thought. One exception is that no change may be constitutionally made, prior to 1808, in relation to the existing evil of human slavery. The other exception is that no change may be constitutionally made which shall give any state greater representation in the Senate than each other state. These are not exceptions to any power “granted” in the Article. No power of any kind, as we already know, is “granted” anywhere in the Article, but the Article does mention two existing abilities, one limited and the other unlimited, and prescribes the constitutional mode of procedure in which each of the respective existing abilities may be exercised. The exceptions simply mean that the Article provides no constitutional mode of procedure in which may be exercised existing ability to change the Constitution in the matters mentioned in the two exceptions.

We average Americans have now examined carefully the record of the wording of all our Constitution at Philadelphia and particularly the record of the wording of the three Articles, the First and the Seventh and the Fifth, which either purport to give or mention future giving (by the “people,” who alone can give) power to interfere with the individual freedom of the American citizen. Furthermore, we have sat in the “conventions” of the American people, in which all those worded Articles were made, and have read, with the Americans in those “conventions,” the apt, precise and classic English of the Fifth Article, which told them, as it tells us, that the Article merely prescribes the constitutional mode of procedure, in which thereafter can be exercised either the existing limited ability of the state governments or the existing unlimited ability of the American citizens themselves, the “conventions” of the Seventh and the Fifth Articles. We are certain, therefore, that nowhere in the Constitution, made in those early “conventions,” can the most ingenious mind discover what would have been the greatest blunder in the history of mankind, anything which changed the actual and legal relation of the individual American to government and made him the “subject” of any government or collection of governments in America. It would be unwise, however, for us to leave those conventions without listening to some few of the great Americans, who sat therein, telling us how the new Constitution does secure the status of the free individual American and protect his individual freedom from all usurpation by any government or governments in America.

CHAPTER XIII CONVENTIONS KNOW “CONVENTIONS” ARE “THE PEOPLE”

“When a single government is instituted, the individuals of which it is composed surrender to it a part of their natural independence, which they before enjoyed as men. When a confederate republic is instituted, the communities of which it is composed surrender to it a part of their political independence, which they before enjoyed as states.... Since states as well as citizens are represented in the Constitution before us, and form the objects on which that Constitution is purported to operate, it was necessary to notice and define federal as well as civil liberty.... Under these impressions, and with these views, was the late convention appointed; and under these impressions, and with these views, the late convention met. We now see the great end which they proposed to accomplish. It was to frame, for the consideration of their constituents, one federal and national Constitution ... a constitution that would insure peace, freedom, and happiness to the states and people of America.” (2 Ell. Deb. 429, et seq.)

So spoke the great Wilson, beginning his explanation of the proposed Constitution to the first Americans assembled in the “conventions” named in the Seventh and Fifth Articles, the Americans in Pennsylvania. As we listen to him, we remark the insistence upon the fact that the Constitution to be considered is both a “federal and national Constitution.” And, in strict conformity to this fact, Wilson is heard explaining the difference between the federal liberty of a state, controlled by the federal Articles of a constitution, and the natural liberty of a man, controlled by the national Articles of a constitution. We listen to him with great interest when he tells us that this federal and national Constitution has been framed to insure “peace, freedom and happiness to the states and the people of America.” In his words we hear the echo of the fact so clearly declared in the Tenth Amendment, that the federal powers, not delegated in this Constitution to the new government, are reserved “to the states respectively,” and the national powers, not therein delegated, are reserved “to the people” themselves of America.

And, remembering that the two distinct reservees of the Tenth Amendment are respectively named in the Fifth Article, we keep in mind that the new Constitution is both “a federal and a national Constitution.” From which we know, as Wilson knew, that these reservees are named in the Fifth Article, the “state legislatures” because of their limited ability to make federal or declaratory Articles, and the “conventions” because of their ability to make Articles of every kind, the “conventions” of the Fifth and Seventh Articles being the people themselves. As we are actually sitting with Wilson in one of the “conventions” of the Seventh Article, there is no possibility of our forgetting, as none of the people in any of those conventions ever forgot, that the “conventions” of the Seventh Article are exactly the same as the “conventions” of the Fifth Article and that both are the people of America, assembled in their “conventions.”

None of the Americans in those conventions could be guilty of the ridiculous modern blunder about the Fifth Article. None could possibly read that Article to mean that the American citizens, “assembled in conventions,” were granting to the American citizens, “assembled in conventions,” any ability whatever to make Articles. The modern blunder becomes clear to us. Although the Seventh and Fifth Articles have only been proposed and have not yet been made, we sit in one of those “conventions” about to exercise ability to say “Yes” to any Article, whether federal or national. So, with amazement at the blunder of 1917 and 1920 about the Fifth Article, we listen intently to the Wilson statement which brings home the absurdity of the idea that the Article is a grant of ability to make Articles.

As in all those conventions, he is meeting the usual charge that the new Constitution endangers individual liberty because it lacks a bill of rights. As in all the conventions, he is pointing out that no bill of rights is needed in a Constitution which gives to government no power to interfere with individual freedom, except the specific and enumerated powers of the First Article. He is repudiating the thought that anywhere in the Constitution, in its Fifth Article or elsewhere, outside of the First Article, is there any grant to any government of power to interfere with individual liberty. And this is what he has to say about the Philadelphia Convention, which ended in the preceding September, and about the constitutional Articles that Convention proposed, including the Fifth Article. “A proposition to adopt a measure that would have supposed that we were throwing into the general government every power not expressly reserved by the people, would have been spurned, in that House, with the greatest indignation.” (2 Ell. Deb. 436.)

We Americans, who will listen later herein to some extraordinary ideas about the Fifth Article from our modern “constitutional” thinkers, wonder just exactly with how much indignation the Fifth Article would have been spurned in all the conventions of that earlier day, if Patrick Henry or any other great opponent of the proposed Constitution had only been able to point out that the Fifth Article was a “grant” to a general government (the legislative governments of some of the states) not only of every power “expressly reserved by the people” but also of every power given to Congress by the First Article. We also wonder whether the indignation would have been increased or entirely dissipated if Henry or some other opponent had informed those conventions, the assembled people of America, a people so jealous of all government interference, that the omnipotence was granted so that the state legislatures, never elected by the American citizens at all, might, without the slightest restraint or any constitutional restriction, interfere with every individual right of the American citizen.

While many apparently sane and reasonable modern inhabitants of America have listened to such ideas in the last five years as if those who advanced the ideas were talking or thinking intelligently, we rather believe that the Americans in those early conventions, even from Henry, would not have received such ideas complacently. However, as we have found in those early Americans much of the natural humor which is the characteristic of a human being who thinks for himself, we are inclined to believe that the modern ideas in relation to the Fifth Article, about which ideas we have just been talking, would not have been received in any of those conventions with indignation but would have been greeted with prolonged laughter.

But the Henry of those days had not the intellectual calibre of our “constitutional” thinkers. Therefore, in those conventions, not even from one of the many bitter opponents of the proposed Constitution, do we hear any suggestion that there lurks somewhere in the Fifth Article, between its lines, because not hinted at in its apt, precise and classic English, the extraordinary grant of omnipotence to the legislative governments of some of the states. On the contrary, in every convention, we find the new Constitution bitterly assailed because its provisions reduce the state governments to that pitiable condition where Henry calls them the weakened, enervated and defenseless state governments. Indeed, we are inclined to mirth when we contrast these modern ideas of the Fifth Article (that it grants omnipotence over individual rights to some state governments) with many of Henry’s word pictures of the effect of the proposed Constitution on those state governments.

This is one of those pictures which he exhibits to the Americans in Virginia, assembled in their conventions: “What shall the states have to do? Take care of the poor, repair and make highways, erect bridges, and so on, and so on? Abolish the state legislatures at once. What purposes should they be continued for? Our legislature will be indeed a ludicrous spectacle—one hundred and eighty men marching in solemn, farcical procession, exhibiting a mournful proof of the lost liberty of their country, without the power of restoring it. But, sir, we have the consolation that it is a mixed government; that is, it may work sorely on your neck, but you have some comfort by saying, that it was a federal government in its origin.” (3 Ell. Deb. 171.)

Clearly, neither Henry nor the other opponents of the new Constitution had the modern ability to discern that it only appeared to deprive the state governments of much of their former powers. They could not see, they did not know, that its Fifth Article granted those state governments the omnipotence over individual liberty which the Statute of ’76 had denied to the British Parliament. And because Henry and his colleagues had not the discernment of our leaders, we hear Wilson and the supporters of the Constitution defending it against the plain fact that it did rob the state governments of much of their former power. For example, we hear Wilson saying: “The secret is now disclosed, and it is discovered to be a dread, that the boasted state sovereignties will, under this system, be disrobed of part of their power.... I know very well, sir, that the people have hitherto been shut out of the federal government; but it is not meant that they should any longer be dispossessed of their rights. In order to recognize this leading principle, the proposed system sets out with a declaration that its existence depends upon the supreme authority of the people alone.... When the principle is once settled that the people are the source of authority, the consequence is, that they may take from the subordinate governments powers with which they have hitherto trusted them, and place those powers in the general government, if it is thought that there they will be productive of more good. They can distribute one portion of power to the more contracted circle, called state governments; they can also furnish another proportion to the government of the United States. Who will undertake to say, as a state officer, that the people may not give to the general government what powers, and for what purposes, they please? How comes it, sir, that these state governments dictate to their superiors—to the majesty of the people?... I have no idea that a safe system of power in the government, sufficient to manage the general interest of the United States, could be drawn from any other source, or vested in any other authority, than that of the people at large; and I consider this authority as the rock on which this structure will stand. If this principle is unfounded, the system must fall.... With how much contempt have we seen the authority of the people treated by the legislature of this state!” (2 Ell. Deb. 443, et seq.)

But we cannot stay much longer in the Pennsylvania Convention. It would be unwise, however, for us to depart therefrom without hearing the accurate confirmation of our own reading and understanding of the Fifth Article from its own “apt, precise and classic English.” Wilson was explaining his opposition to the doctrine that a constitution is a compact between a master government and servant people. In other words, he was explaining the American Statute of ’76, stating the legal principle that Americans are not “subjects.” “The citizens of united America, I presume, do not wish to stand on that footing with those to whom, from convenience, they please to delegate the exercise of the general powers necessary for sustaining and preserving the Union. They wish a principle established, by the operation of which the legislatures may feel the direct authority of the people. The people, possessing that authority, will continue to exercise it by amending and improving their own work.” (2 Ell. Deb. 498.)

To us average Americans this seems like sound American law and in strict keeping with our reading of the plain language of the Fifth Article, as we read it with the Americans in those old conventions. Wilson and his associates seem to know with certainty that the Fifth Article is not to change all the free individual Americans into “subjects” of the legislative governments of which he speaks. Indeed, he calls all those free Americans, to some of whom he was speaking, “the citizens of America,” although the nation of America would not exist and they would not be its citizens until they and the Americans, in eight other conventions, had said “Yes” to the Constitution they were discussing. Therefore, when he speaks of that Constitution as establishing a principle “by the operation of which the legislatures may feel the direct authority of the people” or “citizens of America,” and immediately adds that those citizens, possessing the exclusive authority to exercise and vest ability to interfere with individual freedom, “will continue to exercise it by amending and improving their own work,” the enumerated grants of such authority in the First Article, we realize with certainty that he and his associates know that the Fifth Article in that Constitution does not mean that the legislatures (who are to feel the direct authority of the people) can thereafter exercise the authority of the citizens of America by altering, subtracting from or adding to the First Article quantum of delegated power to interfere with the individual freedom of the American people.

In this convention, where the Americans in Pennsylvania are assembled, we have heard the consistent emphasis laid upon the fact that the Constitution is both a federal and a national Constitution, the distinction from all other constitutions so clearly recognized by the Fifth Article mention of the two makers of Articles. Later herein we will learn how this distinctive quality of our Constitution, this distinction recognized in its Fifth Article as well as in its Tenth Amendment, has neither been felt or acknowledged but has been wholly ignored by our modern “constitutional” thinkers for five years last past. At this point, therefore, it is well that we sit for a moment in the Virginia convention and listen to Henry, the greatest and most determined opponent of the Constitution before it was adopted. With our minds fixed upon the language of the Fifth Article and its clear mention of the exclusive existing ability of “conventions” to make national Articles, a mention emphasized by the equally clear recognition of the limited ability of the legislative state governments to make Articles which are not national, it is interesting to hear Henry refer to the difference between federal and national Articles; and it is more than interesting, it is amazingly important to hear him proving, by the fact that the Americans in Virginia are assembled in one of the “conventions,” that the Articles which have been just proposed from Philadelphia, are national and, therefore, of the kind that legislative governments can never make.

It is Thursday, June 5, 1788, the day on which began the immortal Virginia debate. For a year, since the proposal from Philadelphia, the new Articles have been the subject of the severest scrutiny on the part of those determined to secure the rejection of those Articles by the American people in Virginia. Throughout all America, these Articles have been examined and assailed and condemned in public writing and speech by those equally determined to secure their rejection by the Americans assembled in the other “conventions.” On the other hand, the same Articles have been explained and their necessity, if American individual liberty is to be secure, has been demonstrated in the famous essays which we now know as The Federalist, nearly all of which essays were the work of Madison and Hamilton, who are responsible for the wording and the meaning of the Fifth Article. Like the other “conventions,” assembling when all minds sought the best protection for individual liberty against oppressive governments, the members of the Virginia convention have been carefully chosen to speak the will of the Americans in Virginia by a simple “Yes” or “No” to these seven Articles, the first of which constitutes government ability to interfere with individual liberty.

Could anything be more vitally important to individual liberty than that just such “conventions,” so chosen, not the state legislatures, each elected by the citizens of its own state for an entirely different purpose, should continue to have their exclusive ability to determine how much power to interfere with individual freedom shall be surrendered by the American people, and how the quantum (which is surrendered) shall be apportioned for exercise between the one American government and the respective states and their respective legislative governments? Later herein we shall learn how clearly Madison and Hamilton, responsible for the wording and meaning of the Fifth Article, knew and appreciated the practical and amazing importance as security to individual liberty, in this distinction between the two makers (“conventions” of the American people themselves and state “legislatures”) named in their Fifth Article and in the distinction between their respective and existing abilities to make Articles in a Constitution which is both a federal and national Constitution. And, as we know, as the Supreme Court has declared in the voice of the Marshall who sits with us in that Virginia convention, the knowledge and appreciation was not peculiar to Madison and Hamilton. It was the common knowledge and appreciation of all the Americans who made the Fifth Article in those conventions. “To the formation of a league, such as was the Confederation, the state sovereignties were certainly competent”; but when a grant of enumerated power to interfere with individual freedom was asked, “the legal necessity of referring it to the people and of deriving its powers directly from them was felt and acknowledged by all.” When such a grant is asked, whether it be asked in the shape of the First Article or of the Eighteenth Amendment, it is not referred to the people at all, unless it is sent to them to be considered and discussed before they choose, from among themselves, those of themselves who will assemble in the “conventions” for the one and sole purpose of uttering the carefully weighed “Yes” or “No” of the Americans in the state where the particular convention assembles. As all in those early conventions knew, as Marshall declared from the Supreme Court, that assembling in those “conventions” is the only way in which the American people can act “safely, effectively and wisely” when asked for a grant of power to interfere with individual freedom, and, as the Statute of ’76 and good sense and practical experience alike teach all free men, that is the only way in which any just power of government can be derived “directly” from the citizens upon whom it is to be exercised.

We commend a careful thought of this distinction, vital and important to individual human liberty, to the constitutional thinkers of 1917 and 1920. Whenever they read a Fifth Article which included the words “or in conventions in three fourths thereof,” they have assumed that two makers of Articles were named in the amending procedure of the Constitution (which is both federal and national) in order that Congress, when it wanted new power to interfere with individual freedom, might weigh the chance of getting it from each maker and then ask it either from those who reserved it exclusively to themselves, the “people” of the Tenth Amendment, or from those who never had it or the ability to grant it, the other reservee of the Tenth Amendment, “the states respectively” and their governments. Or perhaps it was the concept of these modern constitutional thinkers that the Fifth Article mentions two makers of Articles merely that Congress may choose either, according to its whim, as a fortunate golfer chooses between his two golf suits. That is their idea of the security to human individual liberty against government usurpation which Madison and Hamilton and the American people established about eleven years after they declared that no just power to interfere with human freedom could ever be obtained, except from the citizens with whose individual liberty the exercise of the power was to interfere!

As Henry and his fellow Americans in the Virginia convention had no such absurd concept, we return to hear him charge that the Philadelphia Convention had exceeded its authority in proposing the Constitution of national government and to prove that the proposed Constitution was national by the fact that the Americans in Virginia are assembled in “convention” to say “Yes” or “No” to that Constitution, whereas, if it had consisted only of federal Articles, it would have been sent to the legislatures.

“The distinction between a national government and a confederacy is not sufficiently discerned. Had the delegates, who were sent to Philadelphia, a power to propose a consolidated government instead of a confederacy? Were they not deputed by states, and not by the people? The assent of the people, in their collective capacity, is not necessary to the formation of a federal government.... They are not the proper agents for this purpose. States and foreign powers are the only proper agents for this kind of government. Show me an instance where the people have exercised this business. Has it not always gone through the legislatures?... Are the people, therefore, in their aggregate capacity, the proper persons to form a confederacy? This, therefore, ought to depend on the consent of the legislatures, the people having never sent delegates to make any proposition for changing the government.” (3 Ell. Deb. 52.)

In these words, as always in the convention where we sit and listen to him, Henry attests the universal knowledge, common to advocate and opponent of the proposed Constitution, that the Constitution has not been referred to the state governments because of their absolute inability to constitute government of individuals, to give to government any power to interfere with individual liberty. In this, he and the others but echo the knowledge of the Americans at Concord, on that October day, eleven years earlier, where they returned a proposed Constitution with Articles of that kind to the legislature which had proposed it. We recall their own statements that even a supreme legislative government “either in their proper capacity or in joint committee, are by no means a body proper to form and establish a Constitution.” We recall their statements of the important knowledge that “a Constitution, alterable” even “by the supreme legislative, is no security at all against the encroachment of the governing part on any or on all their rights and privileges.” But we also hear, in these words of Henry, his knowledge—the knowledge of all Americans at that time—of something else interesting and important to us. We hear him twice identify the assembling of the American people, in the “conventions” named in the Seventh and the Fifth Articles, as the people “in their collective capacity” and the people “in their aggregate capacity.” As we hear him, and as we hear Wilson in the Pennsylvania convention stating that “in this Constitution the citizens of America appear dispensing a portion of their power,” as we hear similar statements in all those “conventions,” we sense the universal knowledge of all those conventions that they are the American people, the citizens of the new republic. And later herein, with our education of 1790 completed by sitting in these very conventions, we intend to listen (with amazement and without the slightest belief) to the remarkable statements of 1917 and 1920, that the states, political entities, made our Constitution or that the citizens of the different states, in their capacity as such citizens, gave to the American government the enumerated First Article powers to interfere with the individual liberty of the citizens of that entirely different and greater nation, America. Impressed by Henry’s knowledge that the conventions which made the Constitution were the people of America, “in their collective capacity,” “in their aggregate capacity,” and impressed with Wilson’s knowledge that “the citizens of America”—not the states or the citizens of the states—“are seen dispensing a portion of their power,” we are going to laugh at the concepts of 1917 and 1920 and know that Marshall was right when he said, speaking of the American people and their assembling in those “conventions”: “It is true, they assembled in their several states, and where else could they have assembled?... 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.”

Yet, when we later come to the modern days of 1917 and 1920, we shall see all our leaders, whether for or against the Eighteenth Amendment, blandly assume a most extraordinary meaning from the Fifth Article mention of the state legislatures. Not a single member of any state legislature is elected by the citizens of America. Moreover, the Tenth Amendment expressly declares that the Constitution—that great power of attorney from American citizens to their only American government—gives no power whatever to the states or their governments. Nevertheless, with amusement and absolute incredulity, we shall hear every statesman of 1917 and every lawyer of 1920 assume and act and argue upon the extraordinary concept that the Fifth Article of that Constitution is a great power of attorney to the state legislatures as attorneys in fact for the American citizens.

“We all know the severe scrutiny to which the Constitution was exposed—some from their own knowledge, others from different sources. We know with what jealousy, with what watchfulness, with what scrupulous care its minutest provisions were examined, discussed, resisted, and supported by those who opposed and those who advocated its ratification.” (4 Ell. Deb. 486.) So spoke Martin Van Buren in the Senate on April 7, 1826. We sit in the conventions which made the Constitution of which he spoke. We listen to every word that is said therein. We hear the Fifth Article explained by its worder, Madison, as nothing but a mode of procedure. From not one of the opponents of the Constitution, not even from Henry, do we hear a single word of attack upon the Fifth Article except as to the weakness of the mode of procedure which it provides for evoking the power of the “people” themselves, assembled in “conventions” of the very same kind, to withdraw from the one American legislature, the Congress, some enumerated power of the First Article which is found oppressive to individual liberty. On the contrary, we not only hear no single word of complaint that the Fifth Article or any Article gives one iota of power to the state legislatures, but the whole complaint of all the opponents of the Constitution which we do hear is that it practically destroys all existing ability and power of those state governments. Only a moment ago we have heard Henry ask: “If you adopt this Constitution, why continue the state legislatures at all?”

Anticipating the extraordinary concept which we are later to hear in 1917 and 1920, that the citizens of America by the Fifth Article made a collection of the state legislatures an omnipotent government over everything in America, including every individual right, we wonder if the constitutional thinkers of 1917 and 1920 remember that we are sitting with a people who, just five years before the conventions in which they and we sit, ended an eight-year war to make certain that there never again should be a government of that kind in America, to make certain that they themselves should never be the “subjects” of any government or the citizens of any nation whose government should have even one power to interfere with individual liberty, except power of that kind granted directly by its citizens themselves.

It was Maclaine in the North Carolina convention who first used the exact expression that the Americans, who sit in the conventions where we are, were a people “better acquainted with the science of government than any other people in the world.” In the same convention, on July 29, 1788, this is what he had to say about the consistent attack upon the Constitution, because it robbed the state legislative governments of so much of their previous power. “Mr. Chairman, that it will destroy the state sovereignty is a very popular argument.... Government is formed for the happiness and prosperity of the people at large. The powers given it are for their own good.... The powers to be given the general government are proposed to be withdrawn from the authority of the state governments, in order to protect and secure the union at large. This proposal is made to the people. No man will deny their authority to delegate powers and recall them, in all free countries.... It may be justly said that it [the Constitution which contains the Fifth Article] diminishes the power of the state legislatures, and the diminution is necessary to the safety and prosperity of the people.” (4 Ell. Deb. 180.) It certainly would have surprised Maclaine, as well as all the Americans in those conventions, to have heard any one of themselves stating that the same Constitution vested the state governments with an omnipotence they had never possessed, the very omnipotence denied to the British Parliament eleven years earlier.

In the Virginia convention we hear Madison, who drafted and suggested the Fifth Article at Philadelphia, speak of the important distinction between the makers of the federal Articles of 1781, only seven years made, when we sit in that Virginia convention, and the “convention” makers of the proposed Articles of the new national Constitution. If these “conventions” make it, he says, it will be a government established, not through the intervention of the legislatures but by the people at large. Fie goes on to say “In this particular respect, the distinction between the existing and proposed governments is very material. The existing system has been derived from the dependent derivative authority of the legislatures of the states; whereas this is derived from the superior power of the people. If we look at the manner in which alterations are to be made,” now referring directly to the Fifth Article, “the same idea is, in some degree, attended to.” (3 Ell. Deb. 94.)

We feel that it will be quite difficult, when we come later to the constitutional thinkers of 1917 and 1920, for them to convince us that Madison meant his Fifth Article to alter “the dependent derivative authority of the legislatures of the state” and, whenever another government makes the suggestion, put that dependent authority above what he calls “the superior power of the people.”

And we feel that these “constitutional thinkers” will find it impossible to convince us when we recall Madison’s other words, directly referring to his Fifth Article and the existing power of the people, mentioned therein by the word “conventions.” These are the words to which we allude: “Were it [his Fifth Article] wholly national, the supreme and ultimate authority would reside in the majority of the people of the Union, and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government.” It is Madison himself who puts the one word “majority” in italics. He does so to call attention to the fact that his Article leaves “the supreme and ultimate authority” in the people (named as “conventions” in his Article) but not necessarily capable of exercise by the majority in any constitutional manner. He goes on to explain this very fact by saying that when the mode of procedure prescribed in his Article is read, it is found that “in requiring more than a majority, and particularly in computing the proportion by states, not by citizens, it departs from the national and advances towards the federal character.” (Fed. No. 39.)

In New York we find Hamilton, who seconded the suggestion of Madison’s Fifth Article at Philadelphia, almost immediately after he had stated that there would be no danger in permitting Congress to propose amendments since “the final decision in the case will rest with the people.” As we recall, Hamilton said this when the tentative Fifth Article mentioned no one but the people, “conventions,” as the maker of future Articles, because he and Madison and their associates at Philadelphia, whose minds had so far been concentrated upon the national First Article, had not yet grasped the fact, later stated by Hamilton to be his conviction, that all future changes would probably relate “to the organization of government and not to the mass of its powers.” We are, therefore, interested to find Hamilton, in New York, on Friday, December 14, 1787, pointing out that “It has not a little contributed to the infirmities of the existing federal system that it never had a ratification by the PEOPLE. Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers.... The possibility of a question of this nature proves the necessity of laying the foundations of our national government [the First Article grant of national powers] deeper than in the mere sanction of delegated authority [referring directly to the state legislatures which are mentioned in the Fifth Article]. The fabric of American empire ought to rest on the solid basis OF THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.” (Fed. No. 22.) The capitals are those of Hamilton himself. We rather feel that his stress upon the “PEOPLE” sharply contrasted with the state “legislatures,” as the only legitimate direct source of national power, such as is granted in the First Article and the Eighteenth Amendment, will be somewhat of a shock to the “constitutional thinkers” of 1917 and 1920. Sitting in the conventions of old, we rather recognize the capitalized words, where Hamilton says that national power in America “ought to rest on the solid basis of the CONSENT OF THE PEOPLE,” as a direct echo from the Statute of ’76, enacted only eleven years before those conventions. That Statute says that every just power of government must be derived directly from the governed.

And we become rather convinced that Hamilton and Madison, when submitting the Fifth Article at Philadelphia, never worded it so that national power in America could be granted through the illegitimate authority of the state legislatures, when we read what either one or both of them have to say on Tuesday, February 5, 1788, in The Federalist, No. 49. “As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory to recur to the same original authority”—a direct reference to the “conventions” of the Seventh and the Fifth Articles—“whenever it may be necessary to enlarge, diminish, or new-model the powers of government.”

If we ever had any doubt as to what Hamilton meant the Fifth Article to provide, our doubt is ended forever when we hear Hamilton, in the New York Convention, speak of the state legislatures, which the “constitutional thinkers” of 1917 and 1920 assume to have been made attorney in fact for the American people for every purpose by that Fifth Article. “Look through their history,” he says, speaking of those state legislative governments. “What factions have arisen from the most trifling causes! What intrigues have been practiced for the most illiberal purposes! Is not the State of Rhode Island, at this moment, struggling under difficulties and distresses, for having been led blindly by the spirit of the multitude? What is her legislature but the picture of a mob?” Most of the states “are either governed by a single democratic assembly, or have a senate constituted entirely upon democratic principles. These have been more or less embroiled in factions, and have generally been the image and echo of the multitude.... Let us beware that we do not make the state legislatures a vehicle in which the evil humors may be conveyed into the national system.” (2 Ell. Deb. 317.) When Hamilton knew that these state legislatures were not the legitimate source of national powers in a republic and when he had this view of their general character, will any sane man believe that he advocated that the citizens of America should make these legislatures (although the citizens of America elect not a single member in them) absolute attorney in fact for the citizens of America for all purposes? Will any sane man believe that he proposed to substitute them, as grantors of national power, for the “conventions” of the Fifth Article, which “conventions” already excited the admiration of the entire world, according to the author of the Fifth Article, as the only safe or effective mode in which the free citizens of a nation could vest its government with any power to interfere with their own individual liberty.

“The authority of Constitutions over governments, and the sovereignty of the people over Constitutions, are truths which are at all times necessary to be kept in mind; and at no time, perhaps, more necessary than at present.” This impressive statement of the truth that the “governments,” state “legislatures,” never were placed by the Fifth Article above the Constitution in which it is, and above the sovereignty of the people, mentioned therein as “conventions,” and cannot be placed there by another government, the Congress, is not a statement made in the heat of the controversy about the Eighteenth Amendment. It is the statement of James Madison, author of the Fifth Article, made in the Virginia House of Delegates in 1799;

It is becoming almost impossible for us, as we sit in these conventions and hear every word that is said, to understand the source of the modern thought, if we can dignify it by calling it “thought,” that the Fifth Article is a power of attorney from the citizens of America to the state governments, every member of which is elected by the citizens of the respective states and not by the citizens of America. It is beginning to grow upon us that any such “thought” is based on sheer assumption and that the entire record of the “conventions” is a closed book to those who hold the assumption. We know that they have the explicit statement of the Tenth Amendment, that the Constitution gives no power of any kind to any donee except the one new American government, the government with the enumerated powers of the First Article. As no power of attorney was ever written or can be conceived except one which grants the attorney in fact some power, the Tenth Amendment makes absolutely certain that neither the Fifth Article nor the entire Constitution gives to the state legislatures any power as attorneys in fact for the citizens of America.

Moreover, breathing the atmosphere of those first “conventions” of the kind named in the Seventh and the Fifth Articles, the “conventions” where individual liberty of the American is the only object of advocate and opponent of the Articles under consideration, we begin to sense that the holders of the impossible assumption have never fully grasped the amazing and vital distinction between “state legislatures” and “conventions” of the kind named in the Seventh and the Fifth Articles. When we shall hear the “constitutional thinkers” of 1917 and 1920 speak of the “legislatures” and the “conventions” as two different agents given omnipotent attorneyship in fact over all the individual rights of the citizens of America, we shall wonder if these thinkers appreciate that the “state legislatures” are permanent bodies, always existing, and that the “conventions” of the Fifth Article are, to the “conventions” in which we sit, bodies that never would have an existence until some future moment, when the American citizens themselves would again be called to assemble in and thus make those “conventions.” Nothing could show more clearly that the “conventions” of the Seventh Article looked upon the “conventions” of the Fifth Article, not as the donee of any power of attorney, but as themselves or their posterity, the citizens of America, assembling again to determine whether there shall be any change in the distribution of power to interfere with their individual liberty. And our thought, re-echoed again and again by Marshall and others from the Bench of the Supreme Court in the century that follows the first assembling of these “conventions,” seems but the repetition of what we hear said in the Massachusetts Convention as the tribute of its Americans to the Fifth Article.

On January 23, 1788, the Americans, assembled in Massachusetts, took up the consideration of that Article. As in every convention, there had been great opposition to the earlier Articles; as in every convention, nearly all of it had been to the great national powers of the First Article granted to the new government and taken from the state governments; and, as in every convention, almost all of this opposition had been the continued complaint that the state governments were being destroyed.

It was not that the Americans loved the state governments. The truth is that, like every natural human being, they objected to all governments. Their sole thought was fear of oppressive government infringement upon their individual liberty. In this respect, the Americans in each convention feared their own legislative government less than the new proposed Congress, because they would elect all the members of the former and only a few members of the latter. If it had been suggested, by any of the many opponents of the new Constitution, that any possible twisting of the words of the Fifth Article meant that governments outside their state, not one of whose members they themselves would elect, could infringe upon their every individual right, without any constitutional restraint, the record of every convention would have been one unanimous “NO,” against the new Constitution. But, as no “constitutional thinker” of 1917 or 1920 sat in any of those conventions, no such suggestion was ever made therein.

And so, on that January 23, we hear the Fifth Article read in that Massachusetts convention, and we see Rufus King rising and we hear him state that “He believed gentlemen had not, in their objections to the Constitution, recollected that this Article was a part of it; for many of the arguments of gentlemen were founded on the idea of future amendments being impracticable.” He dwelt “on the superior excellence of the proposed Constitution in this particular, and called upon gentlemen to produce an instance, in any other national constitution, where the people had so fair an opportunity to correct any abuse which might take place in the future administration of the government under it.”

And then we hear Dr. Jarvis: “Mr. President, I cannot suffer the present Article to be passed, without rising to express my entire and perfect approbation of it. Whatever may have been my private opinion of any other part, or whatever faults or imperfections I have remarked, or fancied I have seen, in any other instance, here, sir, I have found complete satisfaction: this has been a resting place, on which I have reposed myself in the fullest security, whenever a doubt has occurred, in considering any other passage in the proposed Constitution. The honorable gentleman last speaking has called upon those persons who are opposed to our receiving the present system, to show another government, in which such a wise precaution has been taken to secure to the people the right of making such alterations and amendments, in a peaceable way, as experience shall have proved to be necessary. Allow me to say, sir, as far as the narrow limits of my own information extend, I know of no such example. In other countries, sir,—unhappily for mankind,—the history of their respective revolutions has been written in blood; and it is in this only that any great or important change in our political situation has been effected, without public commotions. When we shall have adopted the Constitution before us, we shall have in this Article an adequate provision for all the purposes of political reformation. If, in the course of its operation, this government shall appear to be too severe, here are the means by which this severity may be assuaged and corrected.... We have united against the British; we have united in calling the late federal convention; and we may certainly unite again in such alterations as in reason shall appear to be important for the peace and happiness of America.” (2 Ell. Deb. 116.)

No man ever voiced such sentiments, no conventions of Americans ever listened to them, with any knowledge or thought that the Fifth Article, “the wise precaution” to secure the liberty of the individual if the government with the national powers of the First Article oppressed that liberty, was itself a grant to another government, ten legislatures outside of the Massachusetts in which that convention was held, to infringe upon the individual liberty of every American in Massachusetts on every subject without any constitutional restraint.

And so, we average Americans end our education in the only “conventions,” named in the Seventh or the Fifth Articles, which yet have assembled. And we end that education knowing that there is nothing anywhere in the Constitution those conventions adopted, and especially nothing in the Fifth Article, which changed the free American into a subject of any government or governments in America. Everything we have heard—and what we have repeated is but little of what we have heard—serves but to emphasize the only meaning of its “apt, precise and classic English,” the plain meaning which we got from its language when we read it at the beginning of these conventions with the Americans who made it.

It is, as its author explained it, naught but a constitutional mode of procedure in which may be thereafter exercised, in a constitutional manner, either the limited ability of state governments to make Articles which do not concern themselves with the infringement of individual liberty or the unlimited ability of the people themselves, the “conventions” of the kind in which we have sat, to make any Articles. The procedure prescribed for such constitutional exercise is simplicity itself to those who sit in those conventions. It is exactly the procedure just followed (up to the point where the work of any proposer of a new Article and its mode of ratification must end) by the Philadelphia Convention which drafted it and the other six Articles. The Philadelphia Convention found itself without any CONSTITUTIONAL mode of procedure in which could be evoked to exercise the existing and exclusive power of the people of America to grant any government power to infringe upon the individual liberty of the American citizens. There being no constitutional mode of procedure, no designated body to draft Articles with such grants and to propose them and to ascertain and propose the valid mode of ratification for them, the Philadelphia Convention did that work, guided only by basic American doctrine, the Statute of ’76 and the experience of the “conventions” which had made the national Articles of 1776. It followed a certain mode of procedure in the doing of these things, knowing and stating that to draft Articles and propose them and ascertain and propose the right mode of ratification for them is not the exercise of any power. With a knowledge which we of a later generation never should have forgotten—and which we who have been educated with them never will forget—the Philadelphia Convention knew that there were two makers of Articles in America, each of which had exercised its respective and different ability to make them, during the eleven years which preceded the Philadelphia Convention. They knew that every Article that was national could be made by no one but the people themselves, the “conventions,” which had made the national Articles of ’76 and which are named as the makers of all future Articles of that kind in the Seventh and the Fifth Articles proposed by Philadelphia.

And so, when the Philadelphia Convention had drafted its Articles and was about to propose them, it recognized the legal necessity of ascertaining, from the nature of those Articles, whether they were in the power of both or only of one of those existing makers of Articles. In the ascertainment, with their minds on the First Article grants of national power to interfere with individual liberty, they knew that no governments in America could make an Article of that kind. Their ascertainment was then ended and they knew that they must propose that mode of ratification which would send their Articles to the only valid ratifiers, the people themselves, the “conventions” of the Seventh and the Fifth Articles.

This was the procedure they had followed, when there was no constitutional mode of procedure provided. And so, with the extraordinary wisdom that characterized everything they did, that Philadelphia Convention wrote exactly the same procedure into the Fifth Article so that never again there might be lacking in America a constitutional mode of procedure for the evoking and the exercise of the only power that is ever exercised when constitutional Articles are made, the power of making them. As the Philadelphia Convention ended its existence with its own proposals, some new body had to do that work, when any new Article was to be proposed. As the work of the Philadelphia Convention had not been the exercise of any power but merely the work of proposing, it was a certainty that the new constitutional mode, exactly the same mode as that of Philadelphia, would also be the exercise of no power. And so, the Philadelphia Convention named the Congress (or a convention demanded by the state legislatures) to do the work of the Philadelphia Convention in drafting and proposing any new Article, and it named the Congress to perform the duty of ascertaining (by the nature of the new drafted Article) which of the two makers could make it, and then to propose a mode of ratification by which it would be validly ratified by such competent maker. As to the only powers ever to be exercised in the making of any new Article, the power of legislatures to make federal Articles, and the exclusive power of the people or “conventions” to make national Articles, the constitutional mode of procedure did not (nor could it, if Americans were not to become “subjects”) give the governments any of the exclusive ability of the people or “conventions,” and it did not (nor could it, if America were to be a republic) alter the existing ability of the majority of the American people to make their governments what they will. But, for the very practical purpose which Madison so clearly explained, the purpose of providing some check upon the tyranny of the majority or an aggressive minority over the individual rights of all Americans, the Fifth Article procedure could and did fail to provide any CONSTITUTIONAL method in which government power to interfere with individual liberty, as all surrendered power of that kind was distributed between different governments in the Constitution, could be changed in any way or transferred from one government to another, unless the “conventions” of the American citizens in three fourths of the states said “Yes” to any proposed change or transfer.

The Philadelphia Convention having proposed this particular check upon the existing ability of the people themselves to oppress individual liberty, a check which makes the words “by conventions in three fourths thereof” by far the most important words, the Fifth Article goes on to prescribe exactly the same check on the exercise of the ability of the state legislatures to make federal Articles.

That the Fifth Article, a constitutional mode of procedure for the exercise of two different existing abilities, was not a grant of any power to the state legislative governments is something that was known to every man in the conventions which made that Fifth Article.

In the Pennsylvania convention, Wilson plainly stated the knowledge of all that the supreme power “resides in the people, as the fountain of government; that the people have not—that the people meant not—and that the people ought not—to part with it to any government whatsoever. In their hands it remains secure. They can delegate it in such proportions to such bodies, on such terms, and under such limitations, as they think proper. I agree with the members in opposition, that there cannot be two sovereign powers on the same subject.... My position is, sir, that, in this country, the supreme, absolute, and uncontrollable power resides in the people at large.” (2 Ell. Deb. 456 et seq.)

When more than half a century had passed, the same thing was known to those who knew American Constitutional Law.

“It is obviously impossible for the whole people to meet, prepare and discuss the proposed alterations, and there seems to be no feasible mode by which an expression of their will can be obtained, except by asking it upon the single point of assent or disapproval. But no body of representatives, unless specially clothed with power for that purpose by the people when choosing them, [ergo, no permanent state governments or legislatures] can rightfully take definitive action upon amendments or revisions; they must submit the result of their deliberations to the people—WHO ALONE ARE COMPETENT TO EXERCISE THE POWERS OF SOVEREIGNTY IN FRAMING THE FUNDAMENTAL LAW—for ratification or rejection.”

So spoke the great Cooley in reference to making changes in national constitutions in his work on Constitutional Limitations (7th ed., 1903, at p. 61).

When one hundred and seventeen years had passed since the conventions in which we just sat, the same thing was known in the Supreme Court, in 1907.

CHAPTER XIV SEVENTEEN ARTICLES RESPECT HUMAN FREEDOM

“For my own part, I acknowledge a thorough conviction that Amendments which may, upon mature consideration, be thought useful, will be applicable to the organization of the government, not to the mass of its powers.” (Fed. No. 85.)

This was the statement of Hamilton to the American people when he was asking them, about to assemble in their conventions, to make their First Article grants of enumerated powers to interfere with their individual freedom and to make their Fifth Article mode of procedure, in which they could exercise CONSTITUTIONALLY their exclusive ability, assembled again in “conventions,” to add or subtract from that grant of enumerated powers of that kind.

When he used the words, “mass of its powers,” he referred directly to that First Article grant. It contains all the powers that were ever given to any government to interfere with the individual freedom of the American citizen. He knew what the Supreme Court clearly declared in United States v. Cruikshank, 92 U. S. 542, that, beyond the scope of its enumerated powers, there is no government of the American citizens. He knew that, in the geographical territory which is each state, there would thereafter be two governments, the government of enumerated powers, governing the American citizens in that state under the First Article grants from the American citizens, and the state governments, governing the citizens of the state, under whatever grants of national power its state citizens gave that government.

With such knowledge, he would have found it impossible to make the blunder of assuming that either government could give or join with governments in giving to the other any power to interfere with the citizens of the grantee in their enjoyment of individual liberty. He knew that, “In our republican forms of government, the absolute sovereignty of the nation is in the people of the nation; and the residuary sovereignty of each state, not granted to any of its public functionaries, is in the people of the state.” (Story, 1 Ell. Deb. 65.)

When Hamilton stated, in those days of 1788, his conviction that new Articles would relate to the “organization of government and not to the mass of its powers,” he was epitomizing the common knowledge of everyone, at that time, that the new Constitution was both federal and national. He was predicting that the power to interfere with individual liberty, to the extent which Americans had surrendered any power of that kind to their governments, had been so wisely distributed, between the government of the citizens of America and the political entity which was each state, that it would never be necessary for the citizens of America to alter that distribution by giving any more to their government. That is why he prophesied that no new Article of the kind which only “conventions” of those citizens can make, Articles changing the “mass of powers” granted to that government by the First Article, would ever be needed.

And we recall that this conviction probably influenced the last day remembrance in the Philadelphia Convention by Madison and himself, that the Fifth Article should also contain some reference to the state legislatures and their future exercise of their existing abilities to make federal or declaratory Articles, which do not change the “mass of powers” in that First Article grant and do not relate to government interference with the individual liberty of the American citizen.

The statement of Hamilton was not meant as a prophecy. It was the result of a great mind reasoning from cause to probable effect. As we come down through the century or more that follows that statement and reach the beginning of the year 1917, we pay our tribute to a mind which could reason so correctly as to what would happen for more than a hundred years. We shall find that never again, from 1787 to 1917, did experience find it necessary that the “conventions” of the American citizens, the “conventions” named in the Seventh and the Fifth Articles, should again be assembled to alter, as they alone can alter, the mass of enumerated powers to interfere with their own individual liberty, which they granted in that First Article.

It is a striking commentary upon the ability of Hamilton and his generation, when contrasted with our modern “constitutional thinkers,” that he knew and appreciated what would happen in a century to come, while they have not understood what had happened in a century that had gone, although the record of that century was spread out before them to read. None of our leaders have appreciated the fact that every one of the first seventeen Amendments to our Constitution was of the kind that state legislatures had ability to make before our Constitution was even drafted at Philadelphia, because all were federal (or declaratory) Articles and were not national Articles. If they had known, after these seventeen Amendments were history, what he prophesied before the Constitution itself was adopted, the story of the last five years might not have been what we shall learn hereafter that it was.

That we may know, of our knowledge, what he prophesied and what they entirely overlooked and ignored, let us briefly examine the nature of those seventeen Amendments. Thus we will learn why governments, known at Philadelphia in 1787 to be incompetent to make national Articles, could and did make those seventeen Articles in the constitutional mode of procedure which the Fifth Article provided for the exercise of their existing ability limited to the making of federal or declaratory Articles.

The first ten Amendments were declarations insisted upon by the American citizens, assembled in “conventions” where we have sat, as specific security against government usurpation of power over their individual freedom. The Supreme Court has repeatedly declared that everything in those ten Amendments was in the Constitution when it was ratified by those “conventions” and that the Amendments simply declared what the will of the people themselves, assembled in those “conventions,” had already established as the fundamental law in America. Certainly no man would challenge the prophecy of Hamilton on the theory that any one of those Amendments added to the mass of government powers to interfere with human freedom. They are, each and every one of them, the declaration that government cannot do “this” and government cannot do “that.” So far from being national Articles, the kind which only “conventions” of American citizens could or can make, the kind which tell government that it can command the American citizens on this or that subject, they are all Articles which tell government that it cannot command the American citizen. And, for the further security of the individual freedom of the American citizen, a security never needed more than in this year 1923, the Tenth Declaration emphatically declares who it is that RETAINS the exclusive ability to alter, in one iota, “the mass of powers” (over the individual freedom of the American citizen) granted by them in the First Article and the exclusive ability to exercise any power of that kind over them, which was not granted in the First Article. Who can deny that, stated in our own words, this is what we find in the plain declaration of the Tenth Amendment? “We, the people of America, assembled in our conventions, have granted to the American government enumerated powers of the First Article. They are the only powers of that kind delegated to any government, by which it can interfere with our individual freedom in our capacity as American citizens. All powers, which the citizens of each state have hitherto had and which we have not taken from them herein, we have left with them; and the citizens of each state can grant so much of said powers as they please to their own government to govern them as citizens of that state. All other powers, outside those we have granted to our government to interfere with us and those we have left to the citizens of each state for their own respective exercise, we reserve exclusively to ourselves, in our capacity as citizens of America. And, if any government should deem it wise that any one of these powers (which we so reserve exclusively to ourselves) should be exercised, we have provided in the Fifth Article the mode of procedure in which we, assembled in our conventions, can CONSTITUTIONALLY exercise it or grant it to the government which wants to exercise it.”

Later herein we Americans, fresh from the “conventions” which demanded these declarations for the better protection of individual liberty, are going to hear expounded a doctrine, which would mean that these declarations were themselves the American Magna Charta. We are going to hear, to our amazement, that these declarations were a compact between an omnipotent government and its subjects, ourselves, who have always imagined that we were “citizens” and not “subjects.” We are going to hear, to our utter incredulity, that these declarations are the promise of a government—itself omnipotent over ourselves and our Constitution and our government which we thought to be the supreme government in America—that we, the subjects of that omnipotent government, may have certain privileges which this omnipotent government will not take from us.

When first we shall hear this 1917 resurrection of the Tory concept that government is master and Americans are “subjects,” that government is the state and we are its assets, we shall naturally be astounded and indignant that even a few inhabitants should still retain what Madison called “the impious doctrine” of the Old World, that people are made for governments, not governments for the people. Quickly, however, we shall become alarmed to find how wide-spread, among the “constitutional thinkers” of our own generation, is the complacent acceptance of the Tory concept and to learn that, when its application in any given instance injures a client of one of those constitutional thinkers, no matter how he may argue against the application in the particular instance, he neither knows nor uses for his client the fact that the Statute of ’76 repealed the doctrine on which Magna Charta rested, the Tory concept that government is the state and that we are its “subjects.”

It will be difficult for us to understand these leaders of our generation. In addition to what we have just lived through with the early Americans, these leaders will have before them countless decisions of the Supreme Court, flatly contradicting the Tory concept on which all these leaders reason. “The concessions of Magna Charta were wrung from the King as guarantees against the oppressions and usurpations of his prerogatives.... The omnipotence of Parliament over the common law was absolute, even against common right and reason. The actual and practical security for English liberty against legislative tyranny was the power of a free public opinion represented by the Commons.” We are going to find many of our leaders with the fixed Tory concept that there is in America a legislative government, unknown to the generation of Americans who created all government in America, and that this omnipotent government can do whatever it pleases, without any constitutional restraint, with almost everything in America, including ourselves and our Constitution and our American government. Curiously enough, we are going to be told that the one thing, in which this omnipotent legislative government falls short of absolute omnipotence, has nothing to do with any individual human freedom, but is its inability to change the equal representation of every state in our Senate. It will be quite amazing to us to hear these men, not proving this Tory concept but stating it as axiomatic American law and on it basing their every argument and audaciously claiming that our Supreme Court has no right even to consider whether it is so or not. But there will be something to alarm us even more. We will find our other “constitutional thinkers,” by circumstances obliged to challenge some particular deduction from this Tory concept, without any knowledge of the invincible facts which challenge the concept itself. To most of these men it will be as if the Statute of ’76 had been repealed and the result of our Revolution reversed, in 1787, by the very “conventions” in which we have sat. It will be our amazement to hear that these “conventions” never created the citizen of America but that the American people, assembled therein, voluntarily made themselves “subjects” of the omnipotent government. And these modern “constitutional thinkers” will discuss this omnipotent government on the basis that those “conventions” made that particular government (not the one to whom the First Article grants its powers) attorney in fact for the general people of America, authorized to interfere with their individual freedom, “on all matters whatsoever.” To most of these men, it will be as if the Supreme Court, in countless ways, had not declared:

Of course, fresh from the conventions of old, we shall know that these men are talking nonsense. We shall know that the last two quoted statements from the Supreme Court, in Hurtado v. California, 110 U. S. 516, are but the expression of what was once the common knowledge of a people then “better acquainted with the science of government than any other people in the world.” But, as our knowledge shall be as the knowledge of the Americans of old, who fought an eight year war of sacrifice to make any such Tory concept in America absolute nonsense, it is well for us, while we are examining the nature of the first seventeen Amendments of our Constitution, to keep in mind one thing, which we now know and which, if it had not been forgotten, would have prevented the monumental blunder of the generation in which we ourselves are the American citizens. This one thing is the fact that the Constitution, made in the conventions we have just left, is a federal and a national Constitution. That fact and its influence upon the Convention, which framed the Fifth Article, and on the “conventions” of the American citizens, which made that Article, led them to provide, in their Fifth Article, the CONSTITUTIONAL mode in which state governments could exercise their existing limited abilities to make federal and declaratory Articles, like all the Articles of 1781 and like the first seventeen Amendments, and also to provide therein the constitutional mode in which the “conventions” of the American citizens could exercise their exclusive ability to make NATIONAL Articles, like the First Article and the supposed new Eighteenth Amendment.

Having fixed this clearly in our mind, we now proceed to examine the nature of the remaining Amendments that were made, prior to 1917.

The Eleventh Amendment gave no power of any kind to anyone. It simply declared that the Court of the American nation could not have jurisdiction of law suits against one of the states “by citizens of another state, or by citizens or subjects of any foreign state.” We commend, however, to the modern “constitutional thinkers,” whose Tory concept we shall meet later, this early American recognition of the fact that, in America, we are “citizens.” It will be noticed that this Eleventh Amendment, declared by the President to have become part of the Constitution on January 8, 1798, speaks of the “citizens” or “subjects” of any foreign state but speaks only of “citizens” in America.

The Twelfth Amendment likewise has naught to do with power of governments over human liberty. It deals solely with the manner in which the Chief Executive of America shall be chosen.

The Thirteenth, Fourteenth and Fifteenth Amendments are the famous so called Slavery Amendments. Even the modern “constitutional thinker” of 1917 and 1920, no matter how Tory his concept, will hardly dare to claim that these Amendments give government power to interfere with the rights which the Creator gave to the human being.

Of these Amendments, in the Civil Rights Cases, 109 U. S. 3, the Supreme Court again said that “they abolished slavery, and established universal freedom.”

When, therefore, in the year 1920, we shall hear these Amendments, which establish universal freedom, cited as Articles of exactly the same nature as a supposed new Article, directly interfering with the freedom of the American citizen on a matter not enumerated in the First Article, we shall be rather surprised. But we shall be more than surprised, when we hear the reason of the modern “constitutional thinker” why both Articles are within the power of the state governments, who are his clients, to put into our Constitution. Not knowing that our Constitution is a federal as well as a national Constitution, not knowing that his government clients always had the ability to make federal Articles and never had and have not now the ability to make Articles which interfere with human freedom, we shall find him stating, as axiomatic, that the slavery Amendments, which establish universal freedom, and the supposed Article of 1917, which interferes with freedom of the individual, are identical, for the reason that both affect the individual and his rights and liberties. On the remarkable nature of this identity, that one secures and the other interferes with individual liberty and, therefore, both affect individual liberty, we shall find that he bases the Tory concept that state governments can do as they please with all liberties of the American citizens. While his theory will serve only to amuse us, we commend, to his reading, this extract from a better American lawyer:—“The legislature may not confer powers by law inconsistent with the rights, safety, and liberties of the people, because no consent to do this can be implied, but they may pass limitations in favor of the essential rights of the people.” (Woods appeal, 75 Pa. 59.)

The Sixteenth Amendment simply removes, from one of the great powers granted to Congress by the citizens of America in their First Article, a federal limitation upon its exercise, a limitation entirely for the benefit of the states which are political entities.

In the “conventions” we have just left, the First Article grant of power to the new government to impose direct taxation was the object of incessant attack. No prerogative of government is more cherished by any government than its ability to exact financial tribute from human beings by means of taxation. Under the old federation of states, although the federal government needed money, it was without any power of taxation. All it could do was to ask the various state governments to supply it with the money. Article VII of the “Articles of Confederation” provided that the expenses of the federal government “shall be defrayed out of a common treasury, which shall be supplied by the several states, in proportion to the value of all land, within each state, granted to or surveyed for any person, as such land, and the buildings and improvements thereon, shall be estimated, according to such mode as the United States in Congress assembled shall, from time to time, direct and appoint. The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several states, etc.”

Section 8 of the First Article of the proposed new Constitution read that “The Congress shall have power to lay and collect taxes, duties, etc.” At Philadelphia, in 1787, a tremendous fight was made against the proposal of this grant by the citizens of America to their government. Many delegates at Philadelphia, who had the financial welfare of their particular state government at heart, contended that, if the new government were given the power of direct taxation of the people, the new government would leave the people with no money to be collected by the state governments for their own purposes. The nationalists at Philadelphia, however, knew that a national government without power of direct taxation over its own citizens would be a helpless government. Therefore, they insisted that the proposed grant of this power remain in the First Article. As a concession to the opposition made on behalf of the state governments, there was added to the proposed First Article a purely federal limitation on the exercise of the national power of direct taxation. This federal limitation, on behalf of the states and their governments, read: “No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.”

In the conventions of the citizens of America, the friends of the respective state governments made every effort to defeat the First Article grant of national power to impose direct taxation upon the citizens of America.

In the Virginia convention, from Randolph and from Henry, arguing respectively for and against the grant, we get our certain knowledge that the apportionment limitation on the exercise of the granted power was a purely federal limitation aimed entirely to secure to the respective state governments the just amount of the moneys which could be collected by taxation from the Americans living in the respective states.

Randolph argued: “The difficulty of justly apportioning the taxes among the states, under the present system, has been complained of; the rule of apportionment being the value of all lands and improvements within the states. The inequality between the rich lands of the James River and the barrens of Massachusetts has been thought to militate against Virginia. If taxes could be laid according to the real value, no inconvenience could follow; but, from a variety of reasons, this value was very difficult to be ascertained; and an error in the estimation must necessarily have been oppressive to a part of the community. But, in this new Constitution, there is a more just and equitable rule fixed—a limitation beyond which they cannot go. Representatives and taxes go hand in hand; according to the one will the other be regulated.... At present, before the population is actually numbered, the number of representatives is 65. Of this number, Virginia has a right to send ten; consequently she will have to pay ten parts out of sixty-five parts of any sum that may be necessary to be raised by Congress. This, sir, is the line.” (Randolph, 3 Ell. Deb. 121.)

As to the granted power of direct taxation, Henry argued: “We all agree that it is the most important part of the body politic. If the power of raising money be necessary for the general government, it is no less so for the states.... The general government being paramount to the state legislatures, if the sheriff is to collect for both—his right hand for Congress, his left for the state—his right hand being paramount over the left, his collections will go to Congress. We shall have the rest. Deficiencies in collections will always operate against the states.... Congress will have an unlimited, unbounded command over the soul of this Commonwealth. After satisfying their uncontrolled demands, what can be left for the states? Not a sufficiency even to defray the expense of their internal administration. They must therefore glide imperceptibly and gradually out of existence.” (Henry, 3 Ell. Deb. 148 et seq.)

The Sixteenth Amendment merely removed, in one respect, this federal limitation upon the exercise of the national power of direct taxation granted by the First Article. The Amendment read: “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.” This Amendment, being nothing but a change in the federal aspect of the Constitution, being a change in the protection given to each state as a political entity, was an Amendment which the state legislatures, each acting as attorney in fact for its own respective state, were entirely competent to make.

The Seventeenth Amendment has no relation to human freedom. It merely provided that the state governments should no longer elect the august Senators in the American Congress, some of whom we shall meet later herein.

This last Amendment, prior to 1917, provided that those Senators should be thereafter elected in our states by ourselves, the American people. Curiously enough, it is from the Senate in which they sit that came the proposal which caused the trouble which is obliging us to educate ourselves to find our “when” and “how” between 1907 and 1917 we became “subjects” instead of keeping our status as citizens of America.

Early in our education (p. 26) we were informed that our public statesmen and constitutional thinkers brought to the year 1917 the false “knowledge” that legislatures in America, if enough combined, had the omnipotence over individual freedom, which the early Americans denied to the British Parliament. Their false “knowledge” was undoubtedly caused by their failure to appreciate, if they knew or remembered, that America is a national union of men while there is also a subordinate and federal union of states. Ignoring this simple fact, they also ignored the important fact that the Constitution is both national and federal and contains Articles of both kinds. Blind to both important facts, they acquired their false “knowledge” from the fact that the “legislatures,” to whom they ascribed omnipotence over individual freedom, had made the first seventeen Amendments.

The fallacy of their deduction is mathematically demonstrable.

A constitutional Article which gives to government any power to interfere with individual human freedom IS the constitution of government of men. That is why the First Article WAS the constitution of the government of the nation of men. And, in turn, that is why the legal necessity of having it made by the men themselves, in their “conventions,” was “felt and acknowledged by all” Americans.

If one doubts that the First Article WAS the constitution of the government of men, test the truth of the statement in this way. First, assume that the “conventions” made no Article save the First. Then ask yourself if the whole American people would not have constituted their government with its great enumerated powers to interfere with their individual liberty. In the second place, make exactly the opposite assumption. Assume that the “conventions” made all the Articles from the Second to the Seventh, both inclusive, but did not make the First Article. Then ask yourself whether the whole American people would have constituted any government with a single power to interfere with their individual freedom.

Let us now apply exactly the same test to each of the first seventeen Amendments and then to the supposed Eighteenth Amendment.

Take any one of the first seventeen Amendments and assume that anything new which it put into the Constitution was the entire Constitution. Then ask yourself whether, if the Constitution consisted solely of the new matter in the Amendment, there would be any government of the whole American people with a single power to interfere with their individual human liberty. Take all the seventeen Amendments and assume that any change all of them made was the entire Constitution. Then ask yourself whether, if any new matter in the seventeen Amendments composed the entire Constitution, would there be any government of the whole American people with a single power to interfere with their individual human liberty.

Now make the same assumption about the supposed Eighteenth Amendment. Assume that it is the entire Constitution and that there are no other Articles. Immediately it is seen that, if the Eighteenth Amendment were the entire Constitution, there would be a government of the whole American people with an enumerated power to interfere with their individual human liberty.

Now we see the fallacy of the false “knowledge” which our statesmen and constitutional thinkers brought to the year 1917. Now we know the marvelous foresight of Hamilton when he stated his conviction that Amendments would relate to “the organization of the government, not to the mass of its powers.” None of the seventeen Amendments did relate “to the mass of its powers” to interfere with individual human liberty. That is why state legislatures, representing the federal members of the union of states, could make the federal or declaratory seventeen Amendments. The fact that those “legislatures” in 1787 could make Articles of that kind, as they had made them in 1781, did not deceive the Americans at Philadelphia into a false “knowledge” that those “legislatures” could make the First Article with its enumerated powers to interfere with the individual freedom of the members of the nation of men. The fact that the same “legislatures,” still representing the members of the subordinate union of states, still could make declaratory or federal Articles, and had made seventeen Articles of that kind, not one of which constituted new government power to interfere with individual liberty, should not have misled the statesmen and constitutional thinkers of our generation.

But it did.

CHAPTER XV THE EXILED TORY ABOUT TO RETURN

We have now educated ourselves accurately to know, at the beginning of 1917, what was our own relation to all governments and what was the relation of those governments to one another. With certainty, we know that those relations, at the beginning of 1917, were exactly what they had been at the close of 1790. It is amazingly important that we never forget that particular knowledge, when reading the story of what has happened since the beginning of 1917.

With certainty, through our education we know that, at both times, the following was our own relation to all governments and the relation of each of them to the others.

No individual in America was a “subject” of any government or governments. Each individual was a “citizen” of the nation which is America. The citizens of America, as such citizens, had given to their only government its enumerated powers to interfere with their individual freedom. Those American citizens had given these enumerated powers by direct grant from themselves, in the only manner, in which they can act effectively on such a subject, by assembling in their “conventions.” Those American citizens had made it the imperative law of America that no new power of that kind (to interfere with their freedom) could be created except by the new exercise of their own ability in the same manner.

The very essence of the wisdom and efficiency of the manner of the first exercise was that the exercise was by “conventions” of themselves, chosen by themselves, after specific grants had been proposed to them to be made by them. These “conventions,” chosen from among themselves for the one purpose of saying “Yes” or “No” to the proposed grants, had made those grants in the only way in which the American people “can act safely, effectively and wisely” in the making of such grants. In their Fifth Article, made in the first “convention” exercise, they had mentioned the very “convention” method in which they were then assembled to make their First Article grants. Thus, they made that method CONSTITUTIONAL for future exercise of their own exclusive power to make grants of that kind. Thus they had secured their liberty against any attempt by government to interfere with their individual freedom, as American citizens, except in the matters named in the enumerated powers of the First Article. In this way, they had secured their liberty, in their capacity of American citizens, against any attempt by other governments than their only government at Washington, even in the matters enumerated in the First Article.

Nearly every individual in America was also a citizen of a state. In each state, its citizens had vested the legislative government of the state with limited powers to interfere with the individual freedom of those within the jurisdiction of that state. The limitations upon the power of each state government to interfere with those within its own jurisdiction were, firstly, limitations imposed by the citizens of America in their Constitution upon the power of each state to govern itself; secondly, the limitations imposed by the citizens of each state in their own constitution; and, thirdly, the limitations imposed by the traditional American principle that no government, without limit, can do what it will with the individual freedom of its citizens. In each state, subject to those limitations, its own citizens were exclusively competent to determine the exact quantum of ability which its own legislative government should have to interfere with the individual human freedom of those within its jurisdiction. No government or governments outside each state could interfere with the individual freedom of its citizens, as such citizens, in any matter. No outside government at all, except Congress, could interfere with their freedom, as human beings, in any matter. The legislative governments of the other states, either singly or collectively, on no matter, could either exercise themselves or give to any government a single power to interfere with the human beings in each particular state. The one American government, at Washington, could only interfere with those human beings on the matters enumerated in the First Article. No new ability in that government so to interfere with them could be granted except by direct grant from the citizens of America assembled in their “conventions.” The Fifth Article had been the command of the citizens of America that only a “Yes” from three fourths of those “conventions” of themselves should be valid to add a new power over themselves to those enumerated in their First Article.

From 1776 to 1917 it had been the obeyed fundamental law in America that no government could acquire, from another government or from other governments, any power to interfere with the individual freedom of the human beings within its jurisdiction.

The human beings in each state were members or citizens of the nation which is America. They were also, in each state, the members or citizens of the nation which is that state. The states were also members of their own federation, whose federal government had been continued by the citizens of America. In its personnel, that federal government was identical with the national government of those citizens of America. In the Fifth Article, the citizens of America had recognized and mentioned the existing ability of the states, as political entities, to make constitutional Articles of a federal nature. For that reason, the Fifth Article had been the command of the citizens of America that, when the states exercised their limited ability, a “Yes” from the legislatures of three fourths of the states should be effective to make a federal Article.

In the matter of interference with individual human freedom, so far as experience tells the story, there had continued from 1776 to 1917 the knowledge of the legal fact, made basic American law by the Statute of ’76, that no government could get any national power except by direct grant from its own citizens, and that no government could exercise any national power over any but those in its own jurisdiction and then only by direct grant of that power from its own citizens.

We know that this was the wonderful system of constitutional government under which Americans had lived from 1790 to 1917. We know that the Americans, who were our predecessors in 1787, had prescribed that system as best calculated to protect their human liberty and our own from outside aggression and from usurpation of power by their governments and our own. Educated with them, from the day when they were all subjects of a legislative government, we know much of their struggle to rid themselves forever of the status of “subject” and to become free men. In that education, however, we have dwelt but little so far upon one phase of that struggle. At this point, it is essential that we educate ourselves briefly but accurately on that one phase.

Whenever government exists, even government limited to those powers thought by its citizens necessary to secure human liberty, the weakness of human nature makes it certain that the exercise of granted powers will not always be for the common benefit of the citizens who grant them. When the government is the State and human beings are its “subjects,” that weakness is usually more apparent. As a result, in every country the rich and powerful largely secure the actual control of government. That they may entrench themselves in its control and the exercise of even its lawful powers, they lavish favors on a class actually large in number but comparatively constituting a small minority of the people of the country. For this class, it is of material advantage that government should be the State and command the people as its “subjects.” When a man is born or educated as a member of this minority, it is beyond the experience of the human race that his mental attitude should not regard the relation of “subject” to ruler as the proper relation of human being to government.

In those earlier days, in whose experience we have just been educated, the human beings in America, who had that mental attitude, were distinguished from the Americans by the name “Tories.” Throughout this book it is that mental attitude which we characterize as “Tory.” It is those who display that mental attitude whom we call “Tories.”

At the time of our Revolution it is a historical fact that about one third of our population was Tory in its mental attitude. Many of the Tories, quite possibly most of them, were actuated by a sincere and deep conviction that it was better for every one that human beings should be subjects. That conviction had been the basis of nearly all science of government for centuries. It is really a remarkable fact that our history should show, from their recorded statements and writings, so many men in 1787 accurately grasping the fallacy of that historical doctrine that men were made for kings or governments.

In our education, we now grasp accurately that the Americans, who ended forever the status of “subject” in America, in their Revolution, had not only to contend with their former omnipotent government but also with one third of their own population, the Tories. When that Revolution had succeeded, when the Statute of ’76 had actually been made the basic law of America, many Tories, in the natural course of events, became citizens of the particular state, now a free republic, in which they lived. When the Convention of 1787 assembled at Philadelphia, when the respective “conventions” in each state later assembled, many delegates were men with a known leaning to the Tory mental attitude. It is not to be understood that, by reason of this fact, their loyalty to the new institutions of their country was not sincere. One of the great liberties secured by those new institutions was the right of the human being to think and talk as he pleased as to what is the mode of government best designed to secure the happiness of men. As a matter of fact, when those “conventions” assembled, many of our most prominent Americans of the Revolution had begun sincerely to doubt whether the American people had yet learned enough to profit most by their legal ability now to dictate to all their governments how much power each government should have. It is the record of impartial history that the people’s distribution of all surrendered power of a national kind, the grant to the new government and reservation to the old state governments, was dictated by two opposite factors. The wise and able leaders, whether their mental attitude was American or Tory, knew that the general government must get a grant of much power of that kind, if it were successfully to promote the welfare of the American people. On the other hand, they knew with certainty that such grants must be specified and enumerated and limited, or the American people would make no grant at all. It was, as it still is, the basic law of America that grants of that kind could only be obtained directly from the people themselves. The American mental attitude, that citizens and not governments shall define the extent of government power to interfere with individual freedom, was the controlling factor when the Constitution made its great distribution of all surrendered powers.

If we go back to the “conventions” of those who established the system, we find a striking fact. In those “conventions” there were many men whose personal opinion always had been and still was in full accord with the Tory concept of what ought to be the relation of government to human being. But these men, with that Tory concept of what government ought to be, were just as keenly aware as were those with the American concept, that the Tory concept had forever disappeared from American law. Whenever any suggestion was based upon the Tory concept, these very men were among the quickest to perceive and the most strenuous to insist that the suggestion could not be met because the American concept had displaced the Tory concept forever in America. If our modern leaders, who have the same Tory concept of what government ought to be, had evinced the same perception and the same insistence, the story of the last five years would be a different story. Because these leaders have had no knowledge of what America is, we average Americans must now come straight from the “conventions” in which the Americans established the Constitution to secure individual freedom and we must educate ourselves in the story of the last five years in which our governments and our leaders have calmly assumed that citizens are subjects.

CHAPTER XVI THE TORY “EIGHTEENTH AMENDMENT”

In the closing month of 1917, the American people had been for eight months participants in the World War. In that winter, under the direction of their only government, exercising its war power, they were marshalling all that they had to win that war and to win it quickly. The mind of the people themselves was concentrated on that one purpose. The response of the average American citizen to the call of his government, the assembling of millions of average American citizens as soldiers for that war, the outpouring of their money by other millions, should have made it impossible that the government servant of those American citizens should have entirely forgotten and ignored the knowledge of the “conventions” of 1787, that the American is a citizen and not a subject. Even if their personal experience had made them members of the class which naturally have the Tory mental attitude, the spirit of 1917 should have awakened our legislators from their wrong Tory concept of our American basic law. If plain words were needed to teach them that basic law, only ten years earlier the Supreme Court had stated that law in words which even a child can understand.

Yet the statesmen of America, when its citizens were offering their lives and their all, chose that December of 1917 to propose that legislative governments, which have never been the governments of the American citizen, should exercise one of those reserved powers of “the people” and should give to the legislative government of the American citizens future ability to exercise that same power, although American citizens had expressly reserved the power to themselves exclusively.

In December, 1917, as in January, 1790, the American Congress was the only legislative government of the American people.

Outside of that legislature, American citizens have no legislative government.

In the Senate, on April 4, 1917, Senator Sheppard of Texas had introduced a Resolution, known as Senate Joint Resolution 17. The Resolution itself, apart from the proposed new constitutional Article which the senator suggested that legislative governments should make, read as follows: “Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two thirds of each House concurring therein), That the following amendment to the Constitution be, and hereby is, proposed to the States, to become valid as a part of the Constitution when ratified by the legislatures of the several States as provided by the Constitution:”

The proposed new national Article, which this 1917 Resolution suggested should be made by legislative governments, originally and in April, 1917, read as follows:

By reason of our education in the actual constitution of our only American government and our respective state governments, we grasp immediately the startling nature of the suggestion that the state governments make that Section 1 and that Section 2. We first dwell with amazement upon the proposed Section 1 and its proposed makers.

It is a general and direct command to all human beings anywhere in America, directly interfering with their individual freedom, on a matter not enumerated in the First Article. Since we denied omnipotence to Parliament, no legislature or legislatures had ever dared to make any general command to the American people, except the American Congress and it only since 1789 and on matters enumerated in the First Article. From 1776 to 1789, no legislature or legislatures had any power whatever to make a general command to Americans on any subject whatever. When Americans, in answer to the Philadelphia 1787 proposal, made themselves a nation and constituted its government, they gave to that government enumerated powers to make general commands on some subjects. All other power to make general commands of that kind they withheld from every government and reserved exclusively to themselves, as they had denied every power of that kind to every government in the world by their Statute of ’76. For which very clear reasons, it had been continually repeated in the Supreme Court for a century that only one government in the world could make a general command to the citizens of America, and that the Congress itself could not make any such command on any subject not enumerated in the First Article.

The Congress proposal of the Eighteenth Amendment was its own recognition of the truth that the sole government of American citizens had no power to command them on that subject. It is probable that nothing ever originated in Congress more remarkable than this proposal that, because Congress itself was without the power to make the command, Congress should ask inferior governments of other citizens to make a command to the American citizens. If it were possible that this could be done, there would be no American citizen. While no public leader or renowned lawyer has known this simple fact, the story of five years has shown how difficult it is to educate the average citizen away from the “American” mental attitude of 1776. In 1922, our Chief Executive commented on the fact that the disobedience of American citizens to the command made by the state governments had become a public scandal. From 1765 on, similar disobedience of Americans to commands made by government without authority from Americans was a public scandal to Tories in America and in the British Parliament.

There can be no mistake about the Tory mental attitude of the supposed American government which asked the governments of state citizens to make the 1918 command to the American citizens, interfering with their individual liberty on a matter outside the First Article. The request was a frank avowal of the Tory concept that the people are “subjects” and that government can constitute new government of men “in all matters whatsoever.” Even in choosing the time for the proposal and the command, there was sincere and flattering imitation of a Tory precedent of Revolutionary days. When Americans of New York were away from their homes and at the battlefields of the Revolution, it was a Tory who stirred up the House of the Six Nations to make a home attack upon what was cherished by those Americans. And it cannot be ignored that it was in 1918, when millions of Americans were away from their homes either fighting or prepared to fight for human liberty, the Houses of forty-five distinct nations were stirred up to make a home attack upon what those Americans cherished, their individual freedom. And the analogy does not end with this fact. Whenever the Tory concept of the relation of government to “subject” has prevailed, government has never recognized any obligation of government to obey law made by government. In the years which followed 1918, this was strikingly exemplified by the sole American government which had asked the governments of state citizens to make a command to the citizens of America. The command, in simple English, forbade that certain things be done in “the United States and all territory subject to the jurisdiction thereof.” The American government insisted that its citizens must obey the command. But the American government itself frankly added that, on its own ships which flew the American flag, it would not pay the slightest attention to the command. And not until this frank Tory attitude had been given unenviable notoriety did the American government ask the remarkable information from its Attorney General whether ships, owned by the American government and flying the American flag, constituted “territory subject to the jurisdiction” of America. Then, while the chief champion of the new Article before the Court of 1920 and his associate government officials waited for the information from their associate Attorney General, the American government continued to act on the claimed assumption that its ships were not “territory subject to the jurisdiction” of America. Facts speak for themselves. It seems impossible to question the consistent Tory attitude of the American government in every matter relating to the supposed Eighteenth Amendment.

Let us now consider the second section of this amazing new Article, as such second section was originally suggested by the Senator from Texas.

In its then form it was the suggestion that, after or simultaneously with the state government exercise of an imaginary power to command the American citizens, those same state governments should vest in the only government of American citizens a future ability to make commands on the same subject, a subject not enumerated in the First Article. The Statute of ’76, the reasoning and the decision at Philadelphia in 1787 that its First Article could only be made by the “conventions,” the clear and explicit statements in the Supreme Court (from Marshall to Brewer in 1907) that no valid grant of national power could ever be made except by the “conventions,” the prescription in the Fifth Article of the constitutional mode in which a “Yes” from three fourths of those conventions would validly make grants of such power—all these things meant nothing whatever to the Senator from Texas or his colleagues in Congress, to the legislators in the various states, to government officials or to the “constitutional” lawyers who have discussed the Eighteenth Amendment. None of them realized the clear fact that, if government could get new power over human beings from government, the Americans, through whose education we have lived, had wholly failed to achieve their one purpose, security of human freedom from any interference by government except under some power of interference directly granted by themselves to that government.

Many of the colleagues of the Senator from Texas questioned the wisdom of asking the grant on that subject. We know not one, however, who questioned the ability of the proposed donors to make the grant. We know not one who questioned as a fact that a fractional part of our state governments have the very omnipotence over the individual people of all America, which those earlier Americans denied to the British Parliament. Among our “constitutional” lawyers, there were many who were engaged to combat in court the validity of the new Article. They questioned its validity on the ground that it took from the states, which are mere political entities, part of the power which each state had not surrendered. In this, they ignored the legal fact, settled by innumerable decisions, that the people of America, not the states, made the Constitution and all its grants of national power. They questioned its validity on the ground that the power (to make constitutional Articles) “granted” (?) in the Fifth Article did not include the power to make fundamental changes in the Constitution. In this, they wholly ignored the certain fact that no such power is granted in the Fifth Article but that two distinct powers, then existing, one limited and the other unlimited, are mentioned and not granted in the Fifth Article, and a mode of procedure for the future exercise of each is prescribed. In all their challenges to the validity of the new Article, however, we know not one who ever knew or mentioned the only and the invincible challenge to that validity, that new power to interfere with the individual freedom of the American citizen could only be obtained constitutionally by direct action of the American people themselves, assembled in the “conventions” of the Fifth Article. It meant nothing to them that the Fifth Article prescribed that such grants should be valid only when there had been a “Yes” evoked from three fourths of those conventions. If we would realize the amazing ignorance, during the last five years, shown on these matters, we must continue the tale of the proposed new Article.

Before the proposed Article had left the Senate for the first time, what we now call Section 2 read, “The Congress shall have power to enforce this Article by appropriate legislation.” With the section in that language, the Joint Resolution was passed and sent to the House of Representatives on August 1, 1917. (Congressional Record, Vol. 55, p. 5666.) It was reported out of the Judiciary Committee and taken up by the House on December 17, with the proposed Section 2 reading, “The Congress and the several states shall have concurrent power to enforce this Article by appropriate legislation.”

Somewhat educated with those Americans whose experience made them better acquainted with the science of government than any other people in the world, we realize that only Mark Twain could do full justice to the nature of this alteration to the proposed Section 2. It was not enough that Congress, because it did not have the power to make a certain command to its own citizens, should ask inferior governments, which are not the government of the American citizens, to make that command. It was not enough that the American Congress, when asking these inferior governments to make that command, should ask them to give Congress a future ability to make commands on that subject on which the citizens of America had never given any government or governments ability to make any commands to the citizens of America. The House alteration in the second suggestion from the Senate would indicate that the House became jealous of the Senate ignorance of fundamentals in the relations of governments to one another in America and in the relation of all governments in America to the individual American. It is difficult otherwise to explain the House alteration in the Section 2 of the Amendment which came from the Senate. As the House reported the two sections back to the Senate, this is what the two sections proposed. Section 1 embodied a command (to be made by the inferior state legislatures) which directly interferes with the individual freedom of the American citizens on a subject not enumerated in their First Article. Section 2 embodied a grant of future ability to make similar commands on the same subject, and the grant was to be from the state legislatures to the Congress and to the very state legislatures who were supposed to make the grant itself and the command of the First Section.

This is exactly the form in which the Second Section of the supposed new Amendment was later ratified by these very state legislatures. That Second Section has been the subject of unlimited discussion for the past five years. Every one seems to have given it whatever meaning pleased him at some particular moment. When the House Chairman of the Judiciary Committee reported this Section to the House he frankly stated that “We thought it wise to give both the Congress and the several states concurrent power to enforce this Article and let that power be set forth and granted in the Article we propose to submit.” (Congressional Record, Vol. 56, p. 424.) But when Wheeler, counsel for a political organization which dictated that governments constitute this new government of men, wrote his briefs to uphold the validity of the new Article which Webb championed in the House, he explained that this Webb Second Section “does not add to the power already conferred upon Congress by Section 1” but that “it does, however, make clear that the power is reserved to the states to pass legislation in aid of the acts of Congress.” As in most matters, the various champions of the supposed Eighteenth Amendment are unable to understand and agree upon the meaning of plain English. From time to time, in our education, it will be clear that they do not know and understand what the American people did in 1788 in their “conventions” but that, while flatly contradicting one another, they are all satisfied that the American citizens did give the state legislatures unlimited ability to interfere with individual freedom of the American citizen. It seems natural, therefore, to find Webb and Wheeler flatly contradicting one another as to the plain meaning of Section 2 of the Eighteenth Amendment. Despite the absurdity of the concept, Section 2 means exactly what Webb stated it to mean when he brought it from the House Judiciary Committee which had written it. It means, in the plainest English, that the state legislatures grant to themselves (as well as to Congress) ability to make commands of the very same kind as the same state legislatures make, without the grant, in the First Section. And it is a remarkable fact that, in all the comment on that Section 2 for five years, no word has been spoken about this ridiculous proposal that the state legislatures make a certain command and then grant themselves the power to make such commands. However, the absence of such comment has been quite in keeping with the fact that our modern leaders and lawyers, during the same five years, have never known or commented upon the fact that the Eighteenth Amendment depends for its existence upon the similar and equally absurd concept that the Fifth Article is a grant from the “conventions” to the “conventions” as well as to the state legislatures.

By reason of our education, we have many natural questions to ask about that Section 2 and the unique House addition to its supposed grant. While some of those questions may be academic, inasmuch as we know that the new Article is not in the Constitution, the thoughts which suggest the questions are strikingly pertinent to our general query, “Citizen or Subject?”

In the first place, we recall the opening words of Section 4 of the Fourth Article of the Constitution. Those words are, “The United States shall guarantee to every State in this Union a Republican Form of Government.” These words immediately precede the Fifth Article. Moreover, the Supreme Court has decided that it is the particular duty of Congress to see that this particular guarantee of the Fourth Article is strictly fulfilled. (Luther v. Borden, 7 How. 1; Pacific Telephone Company v. Oregon, 223 U.S. 118.) In the light of these facts, we wish to know whether the Congress, which proposed the change in Section 2, so that state governments outside a particular state might give to the state government of that state new power to interfere with its citizens, understood that the Fifth Article was meant to enable Congress to originate any desired breach of the guarantee in the Fourth Article. From our education, we know that, so long as any state has a republican form of government, its legislature can have no power to interfere with the individual freedom of the citizens of a state except by the grant and continued consent of those citizens themselves. We know that the citizens of each state, in 1776, gave its legislature power to interfere with their freedom in the matter which is the subject of the Eighteenth Amendment. We know that, then or at any time since then and now, the citizens of each state could take back that power so given. But, if the governments of thirty-six states outside any given state, by the Second Section of the Eighteenth Amendment, have granted the legislature of that particular state a new and second power to interfere with the individual freedom of the citizens of that state, in the matter which is the subject of the Eighteenth Amendment, what has become of the republican form of government in that state? No republican form of government ever exists where governments, outside a state, give to its legislature any power to interfere with the individual freedom of its citizens.

The case of Rhode Island or Connecticut makes our point clear, although the question is equally apt for any state, if the Eighteenth Amendment is in the Constitution. Neither the American citizens in Rhode Island nor the legislature of Rhode Island, which speaks only for its citizens and not for any citizens of America, have ever said “Yes” to the grant to the legislature of Rhode Island of this new power to interfere with the individual human freedom of the citizens of Rhode Island. The other power to interfere with that freedom, on the same subject, which the citizens of Rhode Island gave to their legislature, is a power which the citizens of Rhode Island can take back from that legislature at any time. But, if the Eighteenth Amendment is in the Constitution, the legislature of Rhode Island has a power to interfere with the citizens of Rhode Island in the exercise of their human freedom, which power has been granted by governments outside of Rhode Island, and which power cannot be taken away from that legislature by the citizens of Rhode Island.

We average Americans again ask whether the Congress, chosen to fulfill the guarantee of the Fourth Article, understood the meaning of the Fifth Article to be that it could suggest and originate any desired breach of that guarantee?

In the second place, we would like to ask another question of the Congress which proposed that Second Section and of all who uphold the validity and the sanity of the Eighteenth Amendment. This other question is about the two distinct powers, in relation to Prohibition, which the legislature of every state must have, if the Amendment is in the Constitution? The question is simple. When such legislature passes an act like the Mullan-Gage Law in New York, who determines which of the two distinct powers the state legislature exercises? Is it the power granted by the citizens of that state and revocable by them? Or is it the power granted by governments outside that state, over which the citizens of that state have not the slightest control? The query is a pertinent one. It is not beyond reasonable assumption that the citizens of New York may amend their state constitution and forbid their legislature to enact any statutes interfering with the freedom of the citizens of New York, in any way, on the matter which is the subject of the Eighteenth Amendment. Such a step on the part of the citizens of New York would be absolutely valid. It is not forbidden even by the remarkable Eighteenth Amendment. Such a step would immediately deprive the legislature of the State of New York of any power from New York citizens to pass such law. Moreover, it would end that Law itself, if that Law was passed in the exercise of the power, in such matters, granted by the citizens of New York. If it were determined, however, that the Mullan-Gage Law had been passed by the New York legislature in the exercise of power delegated to it by governments outside of New York, the Mullan-Gage Law would still remain a valid statute. This would mean, of course, that the republican form of government guaranteed to the citizens of New York, by the Fourth Article, had come absolutely to an end. Our particular query, at this point, is obviously one of considerable importance to us American citizens, each of whom happens to be also a citizen of some state to which the citizens of America made the guarantee of the Fourth Article and imposed on the very Congress, which originated the Eighteenth Amendment, the duty of having that guarantee fulfilled.

There are other equally pertinent questions which we might ask about this unique Section 2 of the Eighteenth Amendment. We will leave them for the present, so that we may continue the story of the travel of the proposed new Article through the two Houses of the Congress which suggested that governments exercise and give government ability to exercise this new power over American citizens, not enumerated in the First Article. We come now to the days on which the House of Representatives and the Senate discussed the Joint Resolution. In the recorded eloquence of the advocates of the proposal, we shall find much to remind us of the prevailing attitude in the British Parliament toward us in 1775. But, in that eloquence, we shall look in vain for any echo of the Philadelphia of 1787 or of the “conventions” in which Americans once assembled and gave their only government its only enumerated powers to interfere with their individual freedom.

CHAPTER XVII THE TORY IN THE HOUSE

“Let facts be submitted to a candid world.” They have “combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws; giving” their “assent to their acts of pretended legislation;. .. For. .. declaring themselves invested with power to legislate for us in all cases whatsoever.”

It is doubtful if our Congress of 1917 ever read the above language. It is certain that such Congress, reading those words, would heed them just as little as all advocates of the supposed Eighteenth Amendment have heeded the express commands of the Americans who uttered those words.

For the information of those who think that governments in America can validly make grants of national power, like those in the First Article and the Eighteenth Amendment, we state that the quoted words are from the complaint of the American people against their British Government on July 4, 1776. For their information, we also state that, on that famous July day, all Americans ceased forever to be “subjects” of any government or governments in the world. For their information, we also state that it will require more than a combination of our American government and the state governments to subject us American citizens to a jurisdiction foreign to our Constitution and unacknowledged by our laws, the jurisdiction of the state governments, none of which has aught to do with the citizens of America.

It is a known legal fact, decisively settled in the Supreme Court, that the jurisdiction of the American government over the American citizen and the jurisdiction of the state government over the state citizen are as distinct and foreign to each other as if the two citizens were two human beings and the territory of the state were outside of America.

In our Constitution all power ever granted to interfere with the individual freedom of American citizens is vested in our only legislature, the Congress. That is the opening statement of that Constitution in its First Article, which enumerates all powers of that kind ever validly granted to that legislature.

In our Constitution no power whatever over the citizens of America was ever granted to the states singly or collectively, or to the governments of the states singly or collectively. That all governments in America, including the Congress of 1917, might know that settled fact, it was stated with the utmost clarity in the Tenth Amendment to that Constitution. That Amendment, repeatedly held by the Supreme Court to be part of the original Constitution, is the clear declaration that no power of any kind over us, the citizens of America, is granted in that Constitution to any government save the government of America, and to it only the enumerated powers of that kind in the First Article. It is also the clear declaration that all powers to interfere with individual freedom, except the powers granted in the First Article to the American government and powers reserved to the citizens of each state respectively, to govern themselves, are reserved to the American citizens.

Wherefore, now educated in the experience of the Americans who insisted on that declaration, we make exactly the same charge, against the Congress of 1917 and all advocates of the Eighteenth Amendment, that was made by those Americans against their king who insisted that they were “subjects” of an omnipotent legislature.

In December, 1917, the Congress knew that it could not make, to the citizens of America, the command which is Section 1 of the Eighteenth Amendment. By reason of that knowledge, that legislature—the only American one—paid its tribute to the state legislative governments as collectively a supreme American Parliament with exactly the same omnipotence over all Americans “as subjects” which the Americans of 1776 denied to the British Parliament.

Congress ought to have known that no government except Congress can make any command on any subject to American citizens. It did know that Congress could not make the command of the new article to the American citizen. Therefore it paid its tribute to the state governments. It asked them, as competent grantors, to give it a new enumerated power to interfere with the individual freedom of the American citizen.

It is history that those state governments, each with no jurisdiction whatever except over the citizens of its own state, went through the farce of signing the requested grant in the name of the citizens of America. It is law that those state governments are not the attorneys in fact of the citizens in America for any purpose whatever. It is law that no governments have any power of attorney from the citizens of America to grant to any government a new enumerated ability to interfere with the individual freedom of the American citizens. For which simple legal reason, the supposed grant of such a power, by government to government, in Section 2 of the Eighteenth Amendment, is a forgery.

The supposed Volstead Act was enacted under this grant. It has met with the severest criticism. No one, however, has yet pointed out one particular fact to the careful thought of every average citizen of America. There are thousands of laws, interfering with individual freedom, in the statute books of the American nation and of the respective states. In one respect, however, this Volstead Act is absolutely unique among statutes in America. It is the one law in America of that kind, the kind interfering with individual freedom, which does not even pretend to be founded on a grant of authority directly from its citizens to the government which passed it. It is the only law in America, directly interfering with human freedom, which was enacted under a grant of power made by government to government. It does not detract from this unique distinction that the American government requested the grant, and the state governments made it, and the American government acted under it, by passing the Volstead Act, all being carefully planned and accomplished while millions of Americans were preparing to give and thousands of them did give their lives for the avowed purpose of securing human liberty from the oppression of government.

When, in 1787, Americans at Philadelphia had worded our Constitution, Gerry, opening the short discussion of its Fifth Article, made this important and accurate statement of fact: “This constitution is to be paramount to the state constitutions.” All American citizens know that each state legislature is the creature of its state constitution and absolutely subject to that constitution. We thus have clearly established that the American Constitution is paramount to all the state constitutions and that each state constitution is respectively paramount to the state legislature which it creates and controls. It remained for the Congress of 1917 and all advocates of the Eighteenth Amendment to acquire and state and act upon the remarkable “knowledge” that those same state legislatures are paramount to everything in America, including the American Constitution, which is paramount to the state constitutions which created these very legislatures. That such was the unique knowledge of the Congress of 1917 is made clear by its request to those state governments to make the command of Section 1 to the citizens of America and to make the grant of Section 2 of power over the citizens of America.

“We thought it wise to give both the Congress and the several states concurrent power to enforce this Article and let that power be set forth and granted in the Article we propose to submit.”

So spoke Congressman Webb, introducing the proposed Eighteenth Amendment, exactly as it now reads, to the House of Representatives, on December 17, 1917. This was the day on which that House discussed and passed the Senate Joint Resolution 17, which proposed that Amendment and submitted it to governments to make it. Webb was a lawyer of renown and chairman of the Judiciary Committee and had entire charge of the passage of the Resolution in the House on behalf of those who had ordered the American Congress to pass that Resolution.

From one instance alone, we may immediately glean how clearly Webb and all leading supporters of the Eighteenth Amendment, in and out of Congress during the past five years, have shown an accurate “knowledge” of the basic principles of all government in America. We realize that such knowledge, if human liberty is to remain secure, is an essential qualification of leaders of a people once “better acquainted with the science of government than any other people in the world.”

No sooner had Webb read the Section 2 and made his quoted statement of its purpose than he was asked a pertinent and important question. The query was whether, if Congress and a state government each passed a law and they flatly conflicted, which law would control? Webb had made long preparation to carry out his purpose that the Eighteenth Amendment be inserted in the Constitution by government. He was prepared with his immediate response to that ignorant question. His prompt answer was: “The one getting jurisdiction first, because both powers would be supreme and one supreme power would have no right to take the case away from another supreme power.” (Congressional Record, Vol. 56, p. 424.) It is sad to relate that this lucid explanation of the manner in which two distinct supreme powers dictate to one “subject,” the American citizen, elicited the next query, “Does the gentleman say that as a lawyer?” With the charity that real intelligence displays to ignorance, Webb again explained the simple proposition of two distinct and supreme powers to command on exactly the same matter. We commend Webb’s American mental attitude, without the slightest Tory taint, and his mastery of American law, to all who ever wish to dictate to human beings as “subjects.”

Fresh from our education in the experience of the earlier real Americans, we deem it proper to dwell for a moment further on that opening statement of Webb: “We thought it wise to give both the Congress and the several states concurrent power to enforce this Article and let that power be set forth and granted in the Article we propose to submit” to the state governments.

We recall vividly the statement of Lloyd George made only last year in the British Legislature. He was speaking of the proposed treaty with Ireland, then before that Legislature, and this is what he said, in substance. “The Parliament at Westminster [legislative government, not the people of the British Empire] is the source of every power in the British Empire.” It is our just tribute to Webb and every American who believes that the Eighteenth Amendment is in the Constitution, that they understand that the American nation is founded and exists on exactly the same principle. They have all acted upon the one conviction that the state governments collectively are exactly the same as the Parliament at Westminster, are above the American Constitution and need obey no command in it, and are the legitimate source of any power to interfere with the individual freedom of the American citizen, on any matter whatsoever.

On our part, probably blinded by our own education with the earlier Americans, we still believe that Webb and all who think with him are hopelessly ignorant of American law. We believe that they do not understand in the least the vital change in the status of the American individual, from “subject” to “citizen,” on July 4, 1776.

We remember Marshall’s clear statement, in the Supreme Court, that, in the days when Americans “were better acquainted with the science of government than any other people in the world” and the First Article grants of power over them were requested, the legal “necessity of deriving those powers from them was felt and acknowledged by all.” We know that they made no change in the imperative nature of that necessity. We do not understand how that legal necessity, during the past five years, has not been known to Webb and those of his Tory faith.

We remember Marshall’s equally clear statement, again in the Supreme Court, that, when new grants of such power are wanted from its citizens by the American government, there is only one way, in which those grants can be validly or “effectively” made, namely, by those citizens themselves, assembled in their “conventions.” It is true, the American citizens assembled in those conventions in their several states. “No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass” and of compelling them to assemble in one “convention,” when it is necessary for them to act, as possessors of exclusive ability to vest national power over them.

We do not understand how Webb and those of his Tory faith have forgotten this legal fact, possibly the most important in America to the liberty of its citizens.

We remember how well this legal fact was once known to all Americans, how clearly the Americans in Virginia expressed it as the then knowledge of all Americans and their leaders. “The powers granted under the proposed Constitution are the gift of the people, and every power not granted thereby remains with them, and at their will.” (Resolution of the Americans in Virginia, ratifying the Constitution and making the grants of its First Article, 3 Ell. Deb. 653.) We do not understand how Webb and those of his Tory faith, speaking the language of Lord North in 1775 and of Lloyd George in 1922 as to the British Government of “subjects,” should translate the quoted accurate statement of American law into, “The powers granted under the proposed Constitution are the gift of the people, but every power not granted therein remains with the collective state legislative governments and can be granted by those governments, without any action by the citizens of America themselves.”

We know that the Supreme Court, in 1907, did not so understand.

We do not understand how Webb and those of his Tory faith could believe that one of those reserved powers could be exercised by the collective state governments, Section 1 of the new Amendment, or could be granted by those governments, Section 2.

We remember that Madison, who worded the Fifth Article, and Hamilton, who seconded it at Philadelphia, did not so believe but knew that such belief came in direct conflict with basic American law. “As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority [the people themselves in “conventions”] whenever it may be necessary to enlarge, diminish, or new-model the powers of the government.” (Hamilton in The Federalist, No. 49.) “The fabric of American Empire ought to rest on the solid basis of the consent of the people. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.” (Hamilton in The Federalist, No. 22.) “The express authority of the people alone could give due validity to the Constitution.” (Madison in The Federalist, No. 43.) “It is indispensable that the new Constitution should be ratified in the most unexceptionable form, by the supreme authority of the people themselves.” (Madison, at Philadelphia, 5 Ell. Deb. 158.) “The genius of republican liberty seems to demand on one side, not only that all power should be derived from the people, etc.” (Madison in The Federalist, No. 37.) and “There is certainly great force in this reasoning, and it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occasions.” (Madison or Hamilton in The Federalist, No. 49.)

We average Americans know that, in the Fifth Article, there is “marked out and kept open, for certain great and extraordinary occasions a constitutional road to the decision of the people” when their own exclusive ability is alone competent to do what is deemed wise to be done. We know that the direct command to American citizens, interfering with their individual freedom and contained in Section 1 of the new Amendment, was the first direct command of that kind ever attempted to be put in our Constitution. We know that the grant of power to make such commands, which is the grant of the second section of that Amendment, is the first and only grant of that kind ever supposedly made since 1788. Knowing these undoubted facts, we cannot understand why Webb and those of his Tory faith did not know that the request for the command of Section 1 and for the grant of Section 2 was “a great and extraordinary” event, and that only through the “constitutional road for the decision of the people” themselves, “marked and kept open” in the Fifth Article, the assembling of the people themselves in their “conventions,” could a valid command and a valid grant be achieved.

The more we average Americans consider, however, the Congressional record of 1917 and the story of the subsequent five years, the more do we understand the curious mental attitude which has led Webb and those of his Tory faith, who believe that the new Amendment is in the Constitution, to think that governments could make that command to and that grant of power over the citizens of America. Our consideration leads us to think that none of these men have ever read or grasped the meaning of the words expressing a knowledge so often shown by our Supreme Court:

We are sorely afraid that Webb and the Congress of 1917 and all upholders of the new Amendment have made exactly the same vital mistake which had been made, in that reported case, by the counsel who there represented the very same government which repeated the mistake in 1917.

That counsel had contended for the proposition that there are “legislative powers affecting the nation as a whole [the citizens of America] which belong to, although not expressed in the grant of powers” in the First Article. The answer of the Supreme Court was decisive on the mistake of that counsel and the mistake of the 1917 request from Congress to the state governments. The answer was that the proposition

We average Americans know, and Webb and those of his Tory faith cannot deny, that the power to make the command of Section 1, the power purported to be granted in Section 2, are among the powers of which the Supreme Court speaks as reserved, not to the states, but to the people of America. We also know, and again they cannot deny, that only those, who have, can give, or grant. For which reason, we ask that they answer this question: How can the state governments exercise or grant a power which was not reserved to the states but was reserved by the citizens of America to themselves?

In asking this question we but echo the learned Pendleton’s question, in the Virginia convention of 1788: “Who but the people can delegate powers?... What have the state governments to do with it?” (3 Ell. Deb. 37.) And we also but echo the question of Wilson, in the Pennsylvania convention of 1787: “How comes it, sir, that these state governments dictate to their superiors—to the majesty of the people?” (2 Ell. Deb. 444.)

But we, the citizens of America, have a further charge, at this point, to make against Webb and all who claim that the new Amendment is in the Constitution or that any governments could put it there. In the case of Kansas v. Colorado, supra, counsel for the government of America made a monumental error by displaying his ignorance of the most important factor in the Tenth Amendment, “the people” of America. By reason of that particular ignorance, he assumed that all power to interfere with the individual freedom of Americans, on every subject, must be vested in some government or governments. This was the Tory concept, accurately rebuked by the supreme judicial tribunal, knowing only American law based on the American concept of the relation of “citizens” to their servant government and not on the Tory concept of the relation of the master government to its “subjects.” He did not know what Cooley knew when he made his accurate statement that “There never was a written republican constitution which delegated to functionaries all the latent powers which lie dormant in every nation and are boundless in extent and incapable of definition,” (Constitutional Limitations, 7th Ed., 1903, p. 69.) By reason of his ignorance, he contended that government could command American citizens by interfering with their individual freedom on a matter not enumerated in the First Article. His particular error, in that respect, is repeated by Webb and all who uphold the validity of the command made in Section 1 of the new supposed Amendment.

But they were not content with repeating his one monumental error. They have not only ignored the most important factor in the Tenth Amendment, “the people.” They have also wholly ignored the most important factor in the Fifth Article, the mention of the way in which the citizens of America made their only valid grants of power to interfere with their individual human freedom, the mention of the only way in which new grants of power of that kind can ever be constitutionally made, the assembling of those citizens in their “conventions” in their several states. So assembled in such “conventions,” they made all their grants in the First Article and then, in their Fifth Article, mentioned their own assembling in exactly similar conventions in the future and prescribed that a “Yes” from three fourths of those conventions would be the only valid signature of the citizens of America to any new grant of a further enumerated power to interfere with their individual freedom.

There never has been any other possible meaning to those words in the Fifth Article, “or by conventions in three fourths thereof.” To the Americans who worded that Article at Philadelphia and to the Americans who made that Article, assembled in just such “conventions” as are mentioned in words therein, that quoted phrase was the most important factor in the Fifth Article. To them, those quoted words therein were the complement of their most important factor in the Tenth Amendment, the reservation to themselves (“the people” or citizens of America) of every national power not delegated in the First Article. Together, the two important factors were the command of the citizens of America that all national powers so reserved to themselves could be delegated only by themselves, assembled in their “conventions” —“by conventions in three fourths of” their states. We, who have lived through their education with them, realize this with certainty. Webb and those who believe with him know nothing about it.

Recognizing that Congress had been given no power to make the command which is Section 1 of the new Amendment, they first asked the state governments to make that command to the citizens of America. This was an exact repetition of the error made by counsel in Kansas v. Colorado, supra. This was their ignoring of the most important factor in the Tenth Amendment. Then, that the display of their own ignorance should contain something original, they ignored the most important factor in the Fifth Article and requested that a new power, reserved by the citizens of America to themselves, should be granted by the state governments. Everything that they have said or done, during the last five years, is based on that ignoring of that most important factor in that particular Article.

Indeed Webb himself made this very clear at the very opening of his appeal that Senate Resolution Number 17 be passed in the House on December 17, 1917. He merely paused to make the lucid explanation of how two supreme powers act, and then went on to read the Fifth Article as it appears in his expurgated edition of our Constitution. This is the Fifth Article he read to our only legislature:

It is clear to us, who have followed the framing of that Article in Philadelphia in 1787, that the Americans who framed it there and the Americans who made it, in their later “conventions,” would not recognize their Fifth Article. In the expurgated edition, the most important factor in the real Fifth Article is not only ignored but is entirely missing. It has been stricken from the Article. We do not know who ordered that it be stricken out. We recall with interest that, on September 15, 1787, at Philadelphia, Gerry, always a consistent Tory in mental attitude, moved that it be stricken out of the Article. We recall that his motion was defeated by a vote of 10 to 1. Nevertheless, when we come to read that Article, as Webb and his colleagues for the new Amendment know it, we find that they must have some other record of the vote on that old September 15, 1787, and of the later votes in the “conventions” of the citizens of America. We find that in the Fifth Article, as Webb and his colleagues know it, there are no words “by conventions in three fourths of” the several states. We realize that this reading of his Fifth Article and the absence of those important words from it was no mere inadvertence on the part of Webb. Clearly those words are not in his Fifth Article. Only a few moments after his reading of it, on December 17, 1917, he quoted with approval a statement, by some former Senator, that the American people have a “right to be heard in the forum of the state legislatures, where alone the question can be decided whether the national Constitution shall be amended.”

In view of these facts, we educated citizens of America have no difficulty in grasping the Tory mental attitude of Webb (and his colleagues for the new Amendment) that all constitutional protection for our individual freedom may be legally dispensed with at any time by government, if governments only get together and act jointly, as in the proposal and supposed adoption of the new Amendment entirely by governments. For the edification of Webb and those of his faith in that respect, we would like to inform them that all who believe that the new Amendment has been or can be put in the Constitution by governments, “seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed” our national and state governments, “not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must be here reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other.” (Fed. No. 46.) It contributes not a little to the importance of the quoted statements that they were written by Madison, who also wrote the real Fifth Article. They are his warning to the then “adversaries of the Constitution.” They serve well as our warning to the present adversaries of our Constitution, who assume and have acted on the assumption that they can ignore its most important factors whenever government desires to exercise or to grant a new power to interfere with our individual freedom, although we have not granted it but have reserved it to ourselves.

We might continue somewhat indefinitely the story of Senate Joint Resolution 17 in the House of Representatives on that December day of its passage therein. We would find, however, what we have already seen of Webb and his colleagues there to be typical of all they have said and all that they knew of basic American law. We cannot leave that House on that day, however, without some comment upon the final eloquent appeal made by Webb at the close of his arduous labor to secure the passage of the Resolution.

To those, who have any knowledge in the matter, it is well known that Christ preached the doctrine of free will and temperance, while Mohammed laid down the law of prohibition. With great curiosity, therefore, we have listened for years and still listen to the ceaseless tirade coming from Christian churches where men style themselves American “Crusaders” and denounce, in no temperate language, all Americans who do not align themselves under the “Crescent” flag of Mohammed and respect his Mohammedan command embodied in the First Section of the Eighteenth Amendment. Our curiosity is not lessened by the fact that their denunciation of those, who flatly deny that the command itself is Christian, is always accompanied with an equally temperate denunciation of those who dare to question their Tory concept that governments in America can constitute new government of men.

We have seen Webb, with a candor only equalled by ignorance, frankly array himself with those who believe the Tory concept, that the legislatures of the state citizens are “the only tribunal” in which the national part of the Constitution of the American citizens can be changed. To his credit, therefore, we find it a matter of record that, with equal candor, he frankly arrays himself under the “Crescent” flag of Mohammed and eloquently appeals to all other devotees “of the great Mohammed” in support of the Mohammedan and un-Christian precept embodied in the Eighteenth Amendment. That full justice may be done his eloquence and his candor, these are his own words on his immortal December 17, 1917: “During one of the great battles fought by Mohammed, the flag was shot from the ramparts. A daring and devoted soldier immediately seized it with his right hand and held it back on the rampart. Immediately his right arm was shot off, but, never faltering, he seized the flag with his left hand and that, too, was instantly shot away whereupon with his bleeding stubs he held the emblem in its place until victory came.

“With a zeal and a determination akin to that which animated this devotee of the great Mahomet, let us wage a ceaseless battle and never sheathe our swords until our constitutional amendment is firmly adopted and the white banner of real effective prohibition proudly floats over every courthouse and city hall throughout this, the greatest nation upon earth.” (Congressional Record, Vol. 56, p. 469.)

CHAPTER XVIII THE TORY IN THE SENATE

When our present Constitution was before the people of America, waiting their approval or rejection, Madison and Hamilton published their series of essays, now known as The Federalist. It is not our intent to dwell upon the knowledge of American basic law shown by these two men. Elsewhere our Supreme Court has paid its deserved tribute to The Federalist as an authority of the greatest weight in the meaning of our Constitution. At this moment, we desire to mention one remarkable quality which makes those essays unique among arguments written in the heat of a great political controversy. They were written to urge that human beings create a great nation and grant some enumerated powers to interfere with their own freedom. They were written when other great leaders were opposing that project with the utmost ability and eloquence. These opponents, as is the custom with men in any heated controversy, denounced the project and its advocates. The abuse of both project and advocates has probably never been exceeded in America. Yet it is one remarkable quality of the arguments of Madison and Hamilton, in The Federalist, that they themselves never leave the realm of reason and fact and law, or descend to irrelevant abuse of those who differ in opinion with them.

We, who have lived through the last five years in America, can truthfully say that the advocates of the new constitution of government, the Eighteenth Amendment, have made their essays and speeches and arguments notable for the same quality, by its utter absence.

Because fact would interfere with the making of their new Constitution, they have changed fact. Because law meant that government could not constitute their government of the people, they have stated law which has never been law in America since 1776. Because reason would prevent the achievement of their purpose, they have appealed to irrelevant abuse of those who dared to differ in opinion with them.

In view of these known facts, we average Americans shall not be surprised when we read the record of the Senate on its own proposal that government should exercise a power not delegated to interfere with individual freedom. Fresh from the reading of the record in the House, we shall not be surprised to find that the Senate also ignored the most important factors in the Tenth Amendment and the Fifth Article, “the people” in the one, and the mention of the people’s exclusive ability to make national Articles in the other.

When his proposing Resolution came before the Senate on July 30, 1917, Senator Sheppard quickly made clear his mental attitude on the relation of government to human beings. Whenever a sincere Tory has voiced himself on that matter, it has always been inevitable that he betray the thought that human beings are the assets of the State and not its constituent members. As Madison said, “We have all known the impious doctrine of the Old World, that people were made for kings and not kings for the people.” In the country or in the mind where that doctrine prevails, it is held to be the right and the privilege of government to see that the people, like the other assets of the State, are kept in good condition so that all property of the State may have its greatest economic value in the market of the world.

And so we find Sheppard, through all his opening support of the new constitution of government based on the Tory doctrine, making clear the necessity that our government keep that asset, which is the citizens of America, in good physical condition like any other machine that may be in America.

“In an age of machinery and of business transactions on a scale more enormous and complicated than ever before, the clear eye, the quick brain and the steady nerve are imperatively demanded. Society today is more dependent upon the man at the machine than at any previous period. We are coming to understand that the engine of the body must have the same care as the engine of the aeroplane, the battleship, the railway train, the steamship or the automobile; that the trade in alcohol is a form of sabotage which the human machine cannot endure; that it is no more to be tolerated than would be the business of making and selling scrap iron to be dropped into the delicate and complex machinery of modern manufacture, transportation and commerce.” (Congressional Record, Vol. 55, p. 5550.)

After this admirably accurate appreciation of the relation of our American government to the asset which is ourselves, Sheppard then proceeded to teach us (who have just lived through the education of the American human beings who made the Constitution) the real facts of that making, as he knows them.

He is advocating that our only American government should ask the legislative governments of the states, which are not the governments of American citizens, directly to interfere with our individual freedom and to grant to themselves and to our only government future power to interfere therewith on a matter not enumerated in the First Article. Naturally, as real fact would make manifest the absurdity of such proposal, he states that, when the Constitution was made, “by votes of the Southern States the power to amend the federal Constitution was vested in three fourths of the states.” Undoubtedly he meant us to understand that the Constitution (through whose real making we have just lived) was made by the states and that the Southern States granted to the legislatures of three fourths of the states the omnipotent ability over the human beings of America, which those human beings themselves had denied to the English king and his legislature. That he meant us so to understand we shall learn to a certainty in a moment. Meanwhile, let us note how inadvertently he states part of the truth, while omitting all reference to the part thereof which would make his own proposal the clear absurdity which it was.

We note his reference to that part of the Fifth Article which mentions the ability of three fourths of the state legislatures to amend the federal Constitution. Because we have lived through the days of the real American leaders, we recall that our Constitution is both federal and national and that state legislatures always had ability to make federal Articles and never had ability to make national ones. We also remember that those state legislatures were permitted, by the people who made our Constitution, to retain some of the ability they had and were given no new ability. We also remember that the Fifth Article mentions their existing ability to make federal Articles and prescribes, as the command of the people of America, that a “Yes” from three fourths of them shall validly make a change in the federal part of our dual Constitution. For which reason, with somewhat of amusement, we note Sheppard’s inadvertent accuracy of statement, when he says that three fourths of the state legislatures may amend the federal Constitution. With our knowledge, we do not care what he meant or intended that others should understand. We know that nothing has been more definitely settled in America, since 1776, than that legislative governments never can make a national Article or change our national Constitution.

We now come to that part of Sheppard’s oration in which he makes certain his remarkable “knowledge” that our Constitution was made by the states—which are political entities—and not by the people of America. With a complacency requisite in one who advocates that unique constitution of a new kind of government in America, government of the people by government without authority from the people, we find him quoting from Calhoun of 1833 the doctrine that the states made the Constitution. “In this compact they have stipulated, among other things, that it may be amended by three fourths of the states; that is, they have conceded to each other by compact the right to add new powers or to subtract old, by the consent of that proportion of the states, without requiring, as would otherwise have been the case, the consent of all.” (Congressional Record, Vol. 55, p. 5553.)

The history of America from May 29, 1787, to July 30, 1917, was clearly a sealed book to Sheppard of Texas on that later day.

On May 30, 1787, at Philadelphia, Randolph of Virginia offered the three Resolutions, which proposed that the people of America create a nation and absorb into their national system the federal union which had been made by the states. The first resolution was to express the sentiment of the convention “that the union of states merely federal will not accomplish the objects”; the second was to express the sentiment that “no treaty or treaties among the whole or part of the states, as individual sovereignties, would be sufficient”; and the third was to express the sentiment “that a national government ought to be established, consisting of the supreme legislative, executive, and judiciary.”

The work of that Philadelphia Convention was carried to a successful conclusion on the basis of those sentiments. When their proposed Constitution had been worded, it was sent to and made by the one people of America, not by the states.

So declared Justice Story, from the Bench of the Supreme Court, as far back as the decision of Martin v. Hunter’s Lessee, 1 Wheat. 324. As Story was an associate of Marshall on that Supreme Court, and as he is recognized as one of the greatest exponents of our Constitution, we average Americans prefer his knowledge to that of Sheppard even when the latter does quote from Calhoun. Furthermore, in an unbroken line of decisions, extending over the entire period of more than a century of whose history Sheppard knows naught, the Supreme Court has insistently proclaimed the same fact, namely, that the people of America—not the states—made our Constitution.

Indeed, many men before Sheppard have attempted to deny that fact. History, however, records no successful denial. As Sheppard states, the words of Calhoun were from his reply to Webster in 1833. In the history of a century, all a sealed book to Sheppard, Haine also asserted, against Webster, the belief of Calhoun and Sheppard as to what were the facts of the making of our Constitution. We average Americans, in an earlier chapter herein, have read Webster’s statement as to what were the facts of that making. Having lived, ourselves, through the days when the Americans did make their own Constitution, we agree wholly with Webster and the Supreme Court and know that the states had no part whatever in its actual making. Over fifty years ago, however, it became absolutely immaterial, except for academic purposes, what might be the personal beliefs of ourselves or Calhoun or Haine or Sheppard or Webster. Shortly after the middle of the last century, the Southern States, just as unwilling as Sheppard in 1917 to accept the unalterable decision of the Supreme Court that our Constitution is not a compact between states, appealed to the only tribunal to which there is any appeal from that Court, the tribunal of civil war. Even Sheppard must know the result of Gettysburg, the surrender forever of any claim that the Constitution is a compact between the states. Even Sheppard must some time have heard the echo of Lincoln’s appeal, at Gettysburg, that government of the people, by them and for them, should not perish from the earth. Even Sheppard must recognize, whether or not he wish to do so, how successfully the American people, whose predecessors made the Constitution, answered that appeal of Lincoln and intend to keep our government a government of the people, by them and for them, instead of a Sheppard government of the people, by governments without authority from the people.

We average Americans, however, do not question the wisdom of Sheppard in quoting the repudiated claim of Calhoun, so long as Sheppard and his colleagues intended to continue their effort to impose upon us the new constitution of a new kind of American government, which is their Eighteenth Amendment. If he and they were to find anywhere citations in support of the ability of governments in America to exercise and to grant undelegated power to interfere with human freedom, to what source could he or they go for such citations? Their proposition depended wholly for its validity upon the Tory concept of the relation of government to its assets and subjects, the people. And, in the five volumes of the records of the conventions of the Americans, in the two volumes of The Federalist, and in over two hundred volumes of American decisions in the Supreme Court, he and they knew that no single citation of authority could be found to support the idea that we Americans are “subjects” and not citizens. In the face of such a situation, he and they had but a choice between the repudiated claims of Calhoun and Haine or the concepts of Lord North and his associates in the British Parliament of 1775. We average Americans know what choice we would have made, under such circumstances. For which reason we are not surprised to find Sheppard, after his remarkable quotation from Calhoun, continuing on to say that the states “by reserving to themselves the unqualified and exclusive right of amendment kept intact their sovereign capacity in so far as the organic law of the nation was concerned.” (Congressional Record, Vol. 55, p. 5553.)

With the Supreme Court, we have always known and we still know, despite Sheppard, that the people of America did all the reserving that was done and which the Tenth Amendment merely declared had been done. We note, with intent to remember, how clearly Sheppard demonstrated his total ignorance of the most important factor in that Tenth Amendment, “the people,” and of the most important factor in the Fifth Article, the mention of the reserved exclusive ability of the people themselves, assembled in their “conventions,” to amend or change or add any national Article in their Constitution.

As we go on with his oration of that July day, we find him insisting, as we found the House insisting on a later day, that the states and their legislative governments are all the protection to our individual liberties which the American people were able to attain by the efforts of those remarkable years from 1775 to 1790. Curiously enough, that insistence is mentioned in the same breath in which he suggests that we, the citizens of America, have some rights, evidently in the nature of privileges which a government confers on its subjects. This is what he has to say: “In refusing the people the right to appeal to the only tribunal having power of amending, the tribunal of the states, for the redress of what they consider one of the most terrible grievances in the republic, Congress would deny to them one of the most sacred of all rights, the right of petition.”

Why should the supreme legislature not deny that right of petition to us, if the inferior state legislatures, who are not governments of the citizens of America, claim power to deny us any right they please, as they do by their supposed Eighteenth Amendment to our Constitution?

But we waste time on this Sheppard. Let him say his own farewell to us; the citizens of America, in his closing words of July 30, 1917. As Webb, in the House, closed with his eloquent appeal to every true Mohammedan, we naturally find Sheppard closing with his appeal to whatever Tory sentiment believes that the same most important factor in the Tenth Amendment and the Fifth Article should be equally ignored.

“At the close of this debate we will have an opportunity to enable the states to exercise their highest function—the right to shape, alter, and develop the federal Constitution. They are the proper tribunal to decide the fate of this Amendment. They compose the mightiest array of free commonwealths united in a federated whole the world has ever seen.... If there is anything in the Amendment subversive of their liberties and their welfare, they can be trusted to condemn it. Let not Congress assume to judge for them. Let Congress discharge its preliminary task of submission and stand aside. Let it put in motion the referendum provided by the national organic law—the method of amendment the states themselves established when they created the Constitution. Let the states perform the duty which remains the sole instance of their sovereignty over the federal government itself.” (Congressional Record, Vol. 55, p. 5554.)

If it were still 1833, if there never had been a Gettysburg or an Appomattox, could Calhoun himself have done better? If there never had been the Statute of 1776 or an American Revolution to make it the basic law of America, could any Tory peer in the Westminster Parliament of 1775 have been more zealous to see that the states themselves—which are mere political entities—should determine whether there was anything in the Eighteenth Amendment “subversive of their liberties and their welfare?” If there is, “they can be trusted to condemn it.” Let our “Congress discharge its preliminary task of submission and stand aside.” What if there is anything in the Amendment subversive of our liberties and our welfare? Why should we be trusted with the opportunity to condemn it, the opportunity which we reserved exclusively to ourselves by the most important factors in the Tenth Amendment and the Fifth Article?

Why should we remember that Jefferson, also from a Southern State, penned the Statute of 1776 in which the American people commanded that no government acquire power over people except from people and not from governments? Why should we remember that Pendleton, also from the South, while actually engaged with all the rest of the American people in making the First Article, referred to it and asked, “Who but the people can delegate powers? What have the state governments to do with it?” Why should we remember that Wilson, in the previous December, that of 1787, said of our Constitution, “Upon what principle is it contended that the sovereign powers reside in the state governments? The proposed system sets out with a declaration that its existence depends upon the supreme authority of the people alone? How comes it, sir, that these state governments dictate to their superiors—to the majesty of the people?” Why should we remember that Webster, answering Hayne and Calhoun, said, also speaking of our Constitution, “While the people choose to maintain it as it is—while they are satisfied with it, and refuse to change it—who has given, or who can give, to the state legislatures a right to alter it, either by interference, construction, OR OTHERWISE?... Sir, the people have not trusted their safety, in regard to the general constitution, to these hands. They have required other security and taken other bonds.” (4 Ell. Deb. 508.)

It is true that these earlier Americans have clearly in mind the most important factor in both the Tenth Amendment and the Fifth Article. But it must not be forgotten that Pendleton and Wilson and the Americans of that day, in making our Constitution, in constituting a new government and giving to it some powers over the freedom of human beings, were acting entirely outside any written law except the Statute of ’76. Is not their example a sound precedent for those who are now constituting a new government of Americans and giving it power over their freedom, for those who made the Eighteenth Amendment and those who upheld its validity? What if the makers of the new government are themselves government? If governments choose to act outside of all written law and to ignore that part thereof which is the important factor of the Tenth Amendment and the Fifth Article, are these governments not emulating the example of the American people in 1787? True, these American people did act in strict conformity to the Statute of 1776, and this modern constitution of new government by government is not in conformity with that Statute. But was not that Statute itself the revolt of human beings against government? If human beings, by successful revolt against government, could change themselves from subjects to citizens, why cannot government, by successful revolt against human beings, change them from citizens to subjects?

If, however, Sheppard and Webb and those of their Tory faith insist that the new constitution of government is in our Constitution, and put there validly, under claimed grant from us to state governments of omnipotence over American citizens, we, on our part, know that their claim is without the slightest support. Moreover, our knowledge in that respect is knowledge of indisputable legal fact. That the fact would be equally indisputable, even if our Constitution was a compact between states, as Calhoun did claim, and as Sheppard does claim, we can clearly demonstrate even to Sheppard himself. Our education with the earlier Americans, who changed their status from that of subject to citizen, has taught us all we need for that demonstration.

Let us assume, what Sheppard asserts, that the states made the Constitution, that it is a compact between states. Sheppard is a Texan. If our Constitution is a compact between states, the State of Texas is one of the parties to that compact. We ask Sheppard whether he and the other Texans are the State of Texas or whether the legislative government in Texas is the State of Texas? If he answers that the Texas legislature is the State of Texas, we proceed no further. That answer will be his frank confession that the Texan is a subject of the Texas government and not a citizen or member of the Texas State.

On the other hand, if he answers that the human beings of Texas are the State of Texas, we do proceed further. We proceed along the most definitely settled legal principle in America. If the human beings in Texas are its citizens and constitute its State, the constitution of Texas is their creation and the legislature of Texas is the creature of that constitution. From the Texans, through the creation which is their constitution, that legislature derives its every power over the human beings in Texas and cannot have any such power except by grant from those human beings themselves. That is the law of Texas, settled by hundreds of decisions in Texas and America. Now, if our American Constitution is a compact between the State of Texas—the human beings in Texas—and the other states—the human beings in the other states—how comes it that the mere creature of the Texans, without power over them except from them, can, by combination with other servant legislatures outside Texas, give to itself and to other governments outside Texas a new power to interfere with the freedom of the human beings in Texas?

We are rather afraid that Sheppard and those of his faith, even assuming that our Constitution is a compact between states, have entirely overlooked the legal fact that a government is not the State in America. We are rather afraid that they have reverted to what Madison called “the impious doctrine of the Old World,” namely, that the government is the State and the human beings are its asset and its property. We are rather afraid that they agreed with the concept of Louis of France, expressed in his famous “I am the State.”

On no other basis can we explain their complete ignorance of the one important factor in the Tenth Amendment and the Fifth Article, “the people” of America, who, assembled in their “conventions,” as mentioned in the Fifth Article, are the citizens of America and compose the State or Nation of America.

We average Americans, in the light of our education, reading the record of that July 30 in our Senate, would have thought, were it not for one fact, that every senator was using the expurgated edition of the Constitution, which Webb later used in the House, and which omits entirely from the Fifth Article the words, “by conventions in three fourths of” the states. Were it not for that one fact our thought would have been justified. We know that the proposition of Sheppard, embodied in his Senate Resolution No. 17, was that the proposed new Article should be referred to the tribunal of the state legislative governments. We know, and we have quoted his own statement, which is the basis of that knowledge, that he held that legislative tribunal to be “the only tribunal having power of amending” our Constitution. We know that he held this legislative tribunal to be “the proper tribunal to decide the fate of this Amendment.” We know his confidence that this legislative and government tribunal has “the right to shape, alter, and develop” our Constitution, ordained and established by the citizens of America. His conviction, in this respect, is stamped indelibly on our mind, because it came in such sharp conflict with our knowledge that all Americans of an earlier day held that every national Article, like the First Article and the supposed Eighteenth Amendment, must be referred to that other tribunal, the only tribunal competent to make such Articles where men are citizens and not subjects, the tribunal of the American citizens themselves, the tribunal mentioned in the Fifth Article in the words “by conventions in three fourths of” the states in America.

We know, therefore, inasmuch as neither Sheppard nor any senator but one apparently knew of the existence of that other and supreme tribunal or of the presence of those words in the Fifth Article, that all senators save that one must have been using an expurgated edition of the Fifth Article.

On that July 30 we find Senator Ashurst making plain that he has our edition of our Constitution. He said, “When our federal Constitution was written in 1787, two methods of amending were provided; and, unless I am mistaken, it was the first written constitution in history which provides for two methods of amendment.” This brief and simple mention of that significant fact, in relation to the Fifth Article, seems to have been the only cognizance of the fact itself, in the Senate of that day or in the entire subsequent history of the Eighteenth Amendment, even in the great litigations about it in which were arrayed against one another the most renowned “constitutional” lawyers in America. So far as would appear from the Senate record, no knowledge of the amazingly important effect of that Fifth Article mention of two distinct powers (one limited and then existing in government and the other unlimited and then and now existing in the American people) to make future Articles was acquired in the Senate or afterward, from the fact itself or from Ashurst’s allusion to the fact.

Back at Philadelphia in 1787, Gerry, always Tory in his mental attitude to government and human being, realized fully the amazing importance of this Fifth Article mention of the two then existing powers to make Articles, the limited power of legislative governments to make federal Articles (which had made all the federal Articles of 1781) and the unlimited and exclusive power of the people themselves to make national Articles, which had been exercised to make the national Articles in each existing state constitution, and which the Philadelphia Convention had already ascertained and held was the only power competent to make such Articles as their own proposed First Article and the Eighteenth Amendment. While the Philadelphia Convention had been discussing and deciding that their proposed Constitution, because of its First Article, the real constitution of government, must be referred to the people, Gerry had always opposed that decision. He had always fought to have that First Article sent to government, to have its grants of power over the freedom of men made by government to government. When, therefore, the closing business day of that Convention was reached on September 15, 1787, he made his final and consistent Tory effort that citizens should be asked to make a Fifth Article which would change them back again to the subjects they had been in 1775. That effort was his motion of September 15 to strike from the Fifth Article, as we know it, the words “or by conventions in three fourths of” the states. He knew, as we know, by reason of our education with the Americans who defeated his effort, that those words are the Fifth Article mention of the then existing only ability in America which then could or now can make such Articles as the original First Article or as the supposed Eighteenth Amendment. He knew, as we average Americans now know, that, only if such mention were stricken from that Fifth Article, could any future possible claim be made that legislative governments have ability to exercise or to grant undelegated power to interfere with individual freedom. With the important object in mind, that he secure some foundation for such claim in the future, he made his motion to strike that mention of our exclusive power from that Fifth Article. As we average Americans know, his effort to have a convention even propose such a Fifth Article to “a people better acquainted with the science of government than any other people in the world” was beaten by the decisive vote of 10 to 1.

The proposal of the Eighteenth Amendment by government to government was the attempt of our servant American government to reverse the result of that vote of September 15, 1787. The action of the state legislative governments in America upon that proposed Eighteenth Amendment was an action depending entirely for its validity upon a recount of that vote and the assumption that the convention did strike out that mention of our exclusive power to make national Articles and that the Fifth Article went to the American people and was made by them without that mention in it. For which very obvious reasons, we average Americans do not understand how the fact, to which Ashurst made brief allusion on July 30, 1917, was not the basis of every attack made in the Supreme Court by many of the most renowned “constitutional” lawyers in America, when they did assail the validity of that Eighteenth Amendment.

It is difficult to pick out the one most remarkable thing in the complete story of the last five years. Yet we are inclined to believe that, from a certain point of view, the one most remarkable thing is the absolute failure of even one of those renowned lawyers to appreciate or know or mention the fact and its decisive effect upon the alleged validity of the Amendment they challenged, the fact that the Fifth Article does name two future makers of Articles, the governments which could and did make the federal Articles of 1781, but which neither could nor did make the First Article of 1787 or the Eighteenth Amendment of 1917, and the citizens of America, who could and did make the First Article of 1787 and who alone can make but have not made the Eighteenth Amendment.

Even Ashurst seems to have known that it was remarkable, unique in history, for the Fifth Article to name two different makers of future Articles. It is amazing that the imperative reason for this naming of two makers, distinct and different in their ability to make, never suggested itself to any of the renowned lawyers of 1920, even though they knew the dual nature, national and federal, of our Constitution. It is amazing when we realize that the Supreme Court, in 1819, had stated, as an obvious thing, that, when the First Article (granting power to interfere with the freedom of men) was proposed, the legal “necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all.” It is amazing when the same Supreme Court in 1907 had authoritatively repeated that statement: “The powers the people have given to the general government are named in the Constitution, and all not there named, either expressly or by implication, are reserved to the people and can be exercised only by them or upon further grant from them.”

However, we average Americans, still pursuing the history of America to learn when we again became “subjects,” will later herein consider the litigation about the Eighteenth Amendment. So far as the Senate is concerned, we leave it on December 18, 1917, the day on which it finally proposed that legislative governments make the Eighteenth Amendment, whose Second Section was exactly of the same nature as the First Article, namely, an Article of the kind which the Philadelphia Convention of 1787 had known never could be made by legislative governments in America. In that Senate, as in the House, the public record discloses no American who did not ignore the most important factor in the Tenth Amendment and the Fifth Article, no American who knew the legal necessity of deriving, directly from the people themselves, every power to interfere with the individual freedom of the people.

So far as history tells the tale, in the legislatures of the states, that legal necessity was “known and acknowledged” by none. There were many therein, as there were many in the later court litigations, who opposed the making on the ground of its unwisdom. There were also many, again as in the later litigations, who contended that there should be no interference with the freedom of American citizens, as such, except on the matters enumerated in the First Article. But, neither in our own American legislature nor in these state legislatures, as in the later litigations, was there one who knew the only legal and maintainable ground for that belief, the legal fact, as the Philadelphia Convention found it, that only the American people could validly grant government power to interfere with their individual freedom, and the legal fact that the American people, constituting their government, kept the legal situation, in that respect, exactly as the Philadelphia Convention found it, by the most important factors in the Tenth Amendment and the Fifth Article.

The amazing haste with which the ratifying legislatures exercised, for the first time in America, this imaginary power to interfere with the individual freedom of the American citizens is a matter of history. The manner in which that legislative exercise of imaginary government power over subjects was secured in many states is something with which we are all familiar. We desire, however, to emulate the example set by Madison and Hamilton in The Federalist, so far as judgment can restrain the honest indignation of citizens, when government undertakes to make them “subjects.” Therefore we leave it entirely to those who uphold the validity of the supposed new Amendment to substitute irrelevant matter, mostly personal abuse that is harmless in view of its source, for the sound legal arguments in support of validity, which they can never find until the Statute of ’76 is repealed and our constitutions of government are so changed that we cease to be citizens and become the subjects our ancestors were in 1775.

For those who would like to look upon all American governments as model exemplars of American respect for American law and American constitutions, the date of the proposal in December, 1917, and the quickness of ratification and the manner in which ratification was largely secured, are all matters most unpleasant to contemplate. Even now the most sincere advocate of the new Amendment never speaks of it without unwittingly showing his chagrin at the general knowledge that it was proposed and passed by governments when millions of the citizens of those governments were fighting and were armed to fight for human liberty, and that even governments would never have dared to pass it except at that particular time.

These facts, however, reflect only on the virtue of the Amendment. They have no bearing upon its validity. We average Americans are interested now only in that claimed validity. We know that, if it is valid, we have become subjects, that we are no longer citizens. We are seeking to find out when and how that change was made in our relation to all governments in America. Beginning on July 4, 1776, we have come down to December 18, 1917. We have found ourselves, on that day, still citizens. We know that our servant legislature at Washington made a proposal on that day, which was legally absurd, unless we had already become subjects. We have listened carefully to what they had to say, in support of that proposal, and have ascertained that they neither knew nor understood the most important factor in our Tenth Amendment and Fifth Article, by which our ancestors kept their own and our status as citizens. We know that the state legislatures could not change that status. Therefore we now simply note the fact that, in 1918, some of them ratified the proposal on the basis that all of us were their subjects. We know that our own government at Washington has acted, whenever it felt disposed to enforce the supposed new command against us and not to disobey it openly itself, as if we were the subjects of those ratifying legislatures.

We know also that in 1920, after more than a year of exhaustive study of our history and our Constitution and our laws by hundreds of our most eminent lawyers, all working for one object, the legal demonstration of the invalidity of the new Amendment, a chosen number of the most renowned “constitutional” lawyers in America appeared in the Supreme Court and orally argued against validity and filed the briefs against validity which were the result of this concentrated effort. We know also that, in that court, on behalf of our own government and on behalf of those other governments which that government has proclaimed to be the supreme dictator in America, there also appeared another chosen array of the most renowned “constitutional” lawyers, in the forefront being a former justice of that court, now the American Secretary of State. This latter array appeared to demonstrate how and when, since 1790, our own status was changed from citizen to subject and the collective legislatures of some of the states were substituted for ourselves as possessors of the supreme constitutional will in America.

We average Americans, therefore, to complete our education, now turn to the arguments of these lawyers and to their briefs, with somewhat of chagrin at our own unaided ability to ascertain the “when” and “how” we became subjects and our Constitution, in its national Articles and aspect, became the creature of legislative governments, although the American people originally created it to be the master of all governments.

CHAPTER XIX ARE WE CITIZENS?

“The establishment of a Constitution, in time of profound peace, by the voluntary consent of a whole people, is a prodigy.” (Fed. No. 85). Those were the words of Hamilton, in a final appeal to the people of America, as they were about to assemble in their “conventions.”

As he thought it a prodigy that their voluntary consent should be secured to that constitution of government contained in the First Article, he frankly added that he looked forward “with trembling anxiety” to their own determination as to whether or not they would give that necessary consent to the enumerated grants in that First Article. We know how the patriotic efforts of himself and Madison and his other colleagues were later rewarded by the giving of that consent. We know where those average Americans of that day gave that consent, where they made that constitution of their national government which is that First Article. “It is true, they assembled in their several states—and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments.”

In the many other Supreme Court decisions, telling the tale of the completion of the “prodigy” and all stating the same legal fact, is there a more apt and accurate expression of the knowledge of the American people, who were better acquainted “with the science of government than any other people in the world,” that the “conventions” in the respective states, assembled to constitute their American government by grants like those in the First Article and the Eighteenth Amendment, are the Americans themselves and that the state governments never are the American people themselves and never represent those people for national purposes. It was natural that such apt and accurate expression of that concept should have been voiced by Marshall in the Supreme Court. He had been one of those people, fighting on the battle-field with them to wrest from all governments in the world any ability to constitute government by making grants like those in the First Article or the Eighteenth Amendment. He had been one of those people in one of those “conventions,” in their respective states, where they made the only Article of that kind which ever entered their and our national American Constitution. Later it became his privilege and duty (and our great good fortune) to explain who alone could make and did make that First Article and who alone can ever validly make Articles like it or the Eighteenth Amendment, namely, the American people themselves, assembled in convention in their respective states.

When, therefore, we read the Fifth Article, made by him and his fellow Americans in those “conventions,” we recognize at once and we will never forget or ignore their mention of themselves, in the very word by which he and they then described themselves, “conventions” in their respective states.

In making the Eighteenth Amendment grant of power to interfere with American freedom, we—the American citizens and “conventions” of this generation—have been ignored as completely as if we were not named in the Fifth Article.

We have been trying to ascertain “when” and “how” the American human beings, now ourselves, ceased to be “citizens of America” and again became “subjects” of governments. We have gone to the record of our Congress on those days in 1917, in which it acted on the assumption that the “when” and “how” were already history. We have found no Senator or Congressman who vouchsafed any information or displayed any knowledge of this matter, so vitally important to us who were born citizens and free men. We have seen the leader of the House advocates of the new constitution of government, the Eighteenth Amendment, read a Fifth Article in which the “conventions” of those who made it and the First Article are not mentioned. We have seen the leader of the same advocates in the Senate complacently assert the repudiated thought that the states made the First Article, our constitution of our government. We have seen him follow up this error with the Tory mistake of assuming that the government of the state is the state. We have seen him point out, to our American amazement, the remarkable and hitherto unknown fact, never mentioned by the people who made the Fifth Article, that the state governments are the only tribunal in which our national constitution of government can be changed, that those governments are a tribunal in which new enumerated power can be given by government to government to interfere with our own individual freedom.

Fresh from our education with the Americans who made that Fifth Article in “conventions” of the very kind mentioned therein, we see that those legislators of 1917 know naught of American history or law or constitution of government of men, that from them we cannot learn “when” or “how” we ceased to be “citizens” and became “subjects.” But, there assembled in the Supreme Court in March, 1920, many renowned “constitutional” lawyers. Some came to challenge, some to uphold the new Amendment, the new government-made constitution of government right to interfere with individual human freedom.

To the reading of all their briefs and arguments we bring our knowledge that the new Amendment never entered our Constitution unless we were “subjects” before 1917 or unless the new Amendment was itself a revolution (by government against citizens) which made us “subjects.”

We expect the lawyers against the new Amendment to challenge its existence with the facts and knowledge we bring from our education with the Americans who made themselves free men and citizens.

We expect the lawyers for the new Amendment to point out the day and the manner in which they claim that government of the American people by the American people did disappear from America.

Unless these lawyers for the Amendment do point out that day and manner and sustain their claim as to both, we know that the existence of the new Amendment is successfully challenged by the facts which we have acquired in our education. Before we listen to the expositions of these facts by the lawyers against the new Amendment, let us briefly review the facts themselves as they bear upon the supposed existence of the new Amendment.

When 1776 opened, the American people were subjects in rebellion against their omnipotent government. By direct action of themselves, in July, 1776, they made themselves free men, made their former colonies independent states and made each of themselves a citizen of some one of those states. Almost immediately, the Statute of ’76 having declared the actual fact that the supreme will in America was possessed by the American people, at their suggestion and with their permission, the citizens of each state constituted their own government with its national powers to interfere with the individual freedom of its own citizens. In strict conformity to the Statute of ’76 and to the sole American concept of the relation between government and human being, those grants of power to interfere with individual freedom, like every other grant of that kind until the Eighteenth Amendment, were made by the respective citizens to their respective governments.

In 1777 the committee of the American people known as the Second Continental Congress proposed a union of states or political entities and a general government to govern states but not to interfere directly with the human freedom of the individual. Because there is a vital distinction between the ability to govern states and the ability to interfere with individual freedom, those Americans knew that states or political entities could make federal Articles but that only citizens could ever validly make national Articles. It was impossible for these Americans not to know this difference between the respective abilities of states and citizens of America. Their Statute of ’76 had declared this sole American concept of the law controlling the relation of government to human being. They were actually engaged in their Revolutionary War for the very purpose of making it forever American law that no governments could ever grant national power in any matter. Because, therefore, the proposed Articles of 1777 were only federal Articles with grants of federal power, it was “felt and acknowledged by all” that the state legislatures were competent to make those Articles. So we recall, with intent to remember, that those federal Articles were made in the exercise of that legislative government ability to make federal Articles, which is mentioned in our own Fifth Article.

In 1787, from the same Philadelphia, there came the proposal that the American people, collectively the possessors of the supreme will in America, create a new nation, with themselves as its members or citizens and, as its members, constitute its government with national powers to interfere with their own individual freedom. Because the legal necessity of deriving powers of that kind from the people themselves was “felt and acknowledged by all,” the inevitable legal decision was reached at Philadelphia that the existing ability of legislative governments to make federal Articles neither then did nor ever could include the ability to make national Articles like the First Article and the supposed Eighteenth Amendment. By reason of that legal necessity and its then recognition by all, because the First Article contained grants of national power, “by the convention, by Congress, and by the state legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively, and wisely on such a subject, by assembling in convention.” The reasoning and the decision itself were embodied in Article VII and in the Resolution which went from Philadelphia with the proposed seven Articles, including the Fifth Article.

As the Supreme Court has definitely settled, the Tenth Amendment merely declares what was in that original proposed Constitution. Therefore the Constitution gave no new government ability anywhere except to the government at Washington. It gave to that government only specific ability to govern human beings, in certain matters. It merely reserved to each state government some of its former ability to govern its own citizens. It gave neither to any state government nor to all state governments collectively any new ability to govern. And it reserved to the American people themselves all ability to exercise or to grant any national power to interfere with the freedom of American citizens except those enumerated powers in the First Article. The Supreme Court has definitely settled that this reservation of such power exclusively to themselves, by the makers of the Fifth Article, is the most important factor in our constitutional distribution of that kind of power among our American government, our state governments and, most important of all, ourselves, the citizens of America. For which reason, until this generation, it has always been axiomatic that the mention of that exclusive ability of our own, “conventions” of Americans in their respective states, is the most important factor in the Fifth Article.

In strict conformity with the Statute of ’76 and without usurping the reserved powers of the most important factor in both the Tenth Amendment and the Fifth Article, seventeen federal changes were made, between 1789 and 1917, in the federal part of our Constitution, which is both a federal and a national Constitution. The situation in 1917 was exactly the same as it had been since July 4, 1776, when it was known even to the humble townsmen of Concord that governments could not make national Articles in American constitutions. Or rather, the situation in 1917 was the same unless, somewhere prior to 1917, the Statute of ’76 had been repealed and the most important factor in both Articles had been eliminated from the Fifth Article and Tenth Amendment of the American Constitution, which is the security of the American citizen against usurpation of power even by governments in America.

We know that Gerry moved to strike that important factor from the Fifth Article in September, 1789, and that he failed in his effort. We know that Webb and the legislative advocates of the new Eighteenth Amendment had a Fifth Article in which that most important factor was not present. Apparently they based their government proposal and government ratification of the Eighteenth Amendment upon a Fifth Article which did not contain that most important factor, the reference of the makers of the Fifth Article to themselves as the makers of all future Articles of a national kind, the reference of those makers to themselves in the words “conventions” of the American people, assembled in their respective states.

Keeping all these settled facts clearly in our minds, we now take up the arguments and the briefs in which, in March, 1920, the constitutional lawyers of America, who disputed the presence of the new Amendment in our Constitution, should have presented these irresistible facts. Then we shall take up the arguments and briefs of those other renowned lawyers in which they presented those other facts (still unknown to us average Americans) which can alone refute our knowledge that the new Amendment never went into our Constitution, because we are still citizens and governments are yet unable to create government power to interfere with our individual freedom.

CHAPTER XX LEST WE FORGET

“The important distinction so well understood in America, between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country.... Even in Great Britain, where the principles of political and civil liberty have been most discussed, and where we hear most of the rights of the Constitution, it is maintained that the authority of the Parliament is transcendent and uncontrollable, as well with regard to the Constitution, as the ordinary objects of legislative provision. They [the legislature] have accordingly, in several instances, actually changed, by legislative acts, some of the most fundamental Articles of the government.” (Fed. No. 53.)

Coming from Madison or Hamilton, this is the best kind of testimony that the earlier Americans, who established that constitution of government which is the First Article, knew that it was “unalterable by government.” And it is the best kind of testimony that the same American makers of the Madison Fifth Article knew that it did not grant to state governments any ability to add to or subtract from the First Article enumerated and constituted powers in government to interfere with the freedom of American citizens. If Madison and Hamilton had been with us in our Congress of 1917, their statement would have been slightly altered. They would have spoken of “the important distinction so well understood in America” in 1787, as one which “seems to have been little understood and less observed in any other country” and not known or observed at all by our Senators or Congressmen of 1917.

The Americans of 1787, who “so well understood” the important distinction, made their knowledge a noticeable thing in the language of their Statute of ’76 and of their Constitution. With their knowledge of the important distinction, they permitted the respective states, through the respective legislatures thereof, to constitute the government of states, to make the federal Articles of 1781. With their knowledge of the important distinction and in deference to their own clear Statute of ’76, these intelligent Americans refused to permit the states or the legislatures of the states to establish the government of men, to make the national Article—the First Article—which is the constitution of government power to interfere with individual human freedom. Moreover, by their knowledge of the important distinction and of the Statute, they knew that Constitution, that enumerated grant of national power over themselves, to be “unalterable by government.” And that we and all later Americans might also know it, they, the American people or “conventions” of that day, insisted that the Tenth Amendment expressly declare that they, those “conventions” of the American people, reserved to themselves and their posterity, the “conventions” of any later day, exclusive ability to alter that constitution of national power, the First Article. And, for the same purpose, they, the “conventions,” mentioned themselves, the particular reservee of the exclusive ability to alter that grant of national power, in one particular earlier part of the Articles they made, the part we know as the Fifth Article. Naturally, the two men, who worded that Article at Philadelphia and who paid its later makers the deserved tribute to their knowledge of the important distinction, mentioned those makers, “conventions,” in that Fifth Article as future makers of all grants of national power and mentioned the legislatures, in the Fifth Article, as competent future makers of Articles that do not constitute new national government.

Because we have lived through the experience of the Americans to whom the tribute was paid, we know the distinction between a constitution of national government, “unalterable by government,” and Articles constituting government of political entities or states, alterable by the states or the legislatures of the states. Moreover, by reason of our experience, we sense the clear recognition of the distinction in the Fifth Article distinct mention of the people or “conventions,” as sole makers of national Articles, and the similar mention of the “legislatures” as competent makers of federal Articles. To our regret, we have found that our Congress, in 1917, knew naught of the distinction and naught of its recognition in the language of the Tenth Amendment and the Fifth Article. It is with relief, therefore, that we turn to the great litigations in the Supreme Court of 1920, in which the lawyers of the America, where the important distinction was once so clearly known, attacked and defended the proposal from the Congress of 1917 and the action of the state legislatures on that proposal. Fresh from the utter legislative ignorance of that distinction, it is with relief that, in our first glance at the briefs of those lawyers, we find what seems the clear echo of the accurate knowledge we have acquired in the company of those earlier Americans.

“There is only one great muniment of our liberty which can never be amended, revoked or withdrawn—the Declaration of Independence. In this regard, it ranks with the Magna Charta.”

The clear tribute to the unrepealed Statute of ’76 excuses, while it does not explain, the error of the allusion to Magna Charta. Graduate students of the history of the advance of Americans from subjects to free men, we average citizens grasp the error of the statement, “in this regard [that neither can ever be revoked] the Statute of ’76 ranks with the Magna Charta.” We know that the Statute was the revocation of the basic doctrine on which Magna Charta rested. Magna Charta was the grant of privilege from an omnipotent government to its subjects. All that subjects ever have are the revocable privileges granted by the master government. The Statute of ’76 states the basic American law that there are no subjects in America, that the human members of any political society or state or nation, except as they directly grant power over some of their human rights to secure enjoyment of the rest, need obey the command of no one except Him who gave them their human rights. In a free nation, such as the earlier Americans made of themselves, no man has any privileges granted by a master government. In a free nation, citizens or members of the society (and the supreme will therein) have their servant governments to which those citizens give whatever national powers those governments ever have. Except for the grants of such power which those citizens so make, the human beings retain, not as a gift or privilege of government but as the gift of Him Who created them, all human freedom of action. As citizens, they also possess the particular privileges which arise from membership in that particular society of men; but even those privileges are not the gift of government but the creation and effect of the society itself, just as every power of the government is also the gift of the society.

We pardon the error of the reference to Magna Charta, however, when we read on in the brief and find it immediately quoting from our Statute: “We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable Rights; that among these are Life, Liberty and the pursuit of Happiness. That to secure these Rights, Governments are instituted among men, deriving their just powers from the consent of the Governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers on such form, as to them shall seem most likely to effect their Safety and Happiness.”

At last, in this brief, we are getting the clear echo of our own knowledge that, until this Statute is revoked, it is not the right of “government or governments” to institute new government, laying its foundation on such principles and organizing its powers in such form as to “governments” shall seem most likely to effect the safety and happiness “of governments.” Moreover, in this brief, we are getting the clear echo of our own knowledge that this Statute can never be revoked, while we remain free men and citizens instead of the subjects we were until that Statute was enacted.

And when we turn to another brief for a moment, we are cheered to find the refutation of the Sheppard ignorance of the identity of those who made our Constitution, “We, the people of” America, in its Preamble and its most important factor of the Tenth Amendment, the “conventions” of ourselves in its Seventh and its Fifth Articles. With gratification that some “constitutional” lawyers still know and observe the important distinction between the ability of ourselves, the “conventions” of the Seventh and Fifth Articles, and the lack of ability in the “legislatures” of the Fifth Article to give to government national powers, we average Americans recognize, in the following challenge of this brief, the challenge we would have made to the Sheppard proposition that legislatures attempt to constitute such new government over us. This is the challenge of the brief to Sheppard: “The Constitution is not a compact between states. It proceeds directly from the people. As was said by Mr. Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, etc.” Then follows the Marshall clear exposition of how the people themselves, the “conventions,” made the constitution which is the First Article and how, if any other constitution of that kind, such as the Eighteenth Amendment, is ever to be made “safely, effectively, and wisely” it must be made by ourselves, assembled in the “conventions” named in the Fifth Article. The full extract from Marshall has been set out already herein at page 98.

In a second brief, in a different case, the same distinguished lawyer of 1920 is found bringing into bold relief another part of our knowledge so intimately connected with the supposed new constitution of government, the Eighteenth Amendment. And it is a part of our knowledge which challenges a new constitution made entirely by governments without any action by ourselves, the people or the “conventions” named repeatedly in the Constitution made by themselves. In that other brief, we find him stating as one of the propositions on which he bases his argument, “What the expression ‘legislatures of the several states’ meant as used in Article V, when that Article was adopted as a part of the Constitution, it means now.” The statement being undeniably true, he immediately proceeds to urge, with equal truth, that “however popular approval or disapproval [i.e., the direct action of the people themselves, as, for example, in the ‘conventions’ whence, as he already stated, our Constitution proceeded ‘directly from the people’] may be invoked, the people do not become a ‘legislature.’... As well confound the creator and the creature—the principal and the agent through which he acts.”

This is the echo of Marshall’s clear statement of the vital distinction between the same “legislatures” (who never are the people and never have the reserved ability of the people) and the “people” or “conventions” (which are the people and have the exclusive ability of the people). We recall the tribute paid to this distinction at Philadelphia. We recall the legal decision there, a decision based squarely on that distinction, that the legislative ability to make federal Articles could not constitute new government of men, as did the First Article, and that all Articles like it or the new Eighteenth Amendment must go to the “people” of the Tenth Amendment, the “conventions” of the Seventh and Fifth Articles. We recall Marshall’s appreciation of the accuracy of that legal decision, when he mentioned that the ability of the state governments or legislatures had been competent to make the federal Articles of 1781 but, when it was proposed to constitute government of men, to vest the national powers of the national First Article, “the necessity of deriving those powers directly from the people [the “conventions” of the Seventh Article] was known and recognized by all.” We remember that the “people” or “conventions,” so recognizing and knowing, mentioned themselves in the Fifth Article so that no one ever should forget the similar legal necessity that every Article like the First, such as the new Article, must always be made by those “conventions” so mentioned.

It is, therefore, with considerable satisfaction that we read, in this brief of 1920, the clear echo of all these settled facts, the knowledge that “legislatures” never are the people and never become the people. “As well confound the creator and the creature—the principal and the agent.”

In our gratitude for such remembrance, we ignore the inaccuracy of a suggestion that the “legislatures” of the Fifth Article are the agent of the principal therein mentioned, the “people” of America, the “conventions” which made the Constitution. Each of those “legislatures” is an agent of one particular reservee among those named collectively in the reservation of the Tenth Amendment in the words “to the states respectively,” while the “conventions” in the Fifth Article is the one most important reservee in that Tenth Amendment, “the people” of America, the most important factor in that Tenth Amendment and in America. For the purpose of making any Articles, whether federal or national, that important reservee has no legislative agents. For any purpose, it has but one legislative agent, the Congress; and to that one legislative agent it has given no power to make any constitutional Articles; but it has, in the Fifth Article, left with that agent the mere ability to draft and propose a new Article of either kind and, as did the Philadelphia Convention, from the nature of the Article it drafts, whether within the ability of “legislatures” or within the exclusive unlimited ability of the people or “conventions,” to ascertain and propose which shall make the drafted Article.

That the state legislatures are not agents of the American citizens, in that capacity, is self-evident. Each legislature is chosen by the citizens of a state. Moreover, the Constitution itself distinctly states that the “conventions” of the American citizens grant no power of any kind therein to the state “legislatures.”

That is why anything which these “legislatures” do, when it comes in conflict with a valid action of our legislature, the Congress, must always yield. We have the supreme will in America, and when our agent, the Congress, speaks with authority from us, it speaks for us, while the inferior agents of other lesser wills never speak for us. That clear distinction does not detract from the ability of those legislatures to make federal Articles in our Constitution. They do not get that ability from us, the citizens of America. They had that ability from those respective inferior wills, when we made our Constitution. By its exercise, they had made the federation of states and the federal Articles of its government. When we made our national Constitution, we continued that federation and the ability of its component members to make its federal Articles and put them in our Constitution, which is both our national Constitution and their federal Constitution. The ability to make those federal Articles is one of the powers reserved to those inferior wills by the reservation of the Tenth Amendment which reads “to the states respectively”; and it is not an ability to make Articles which is granted in the Fifth Article. No ability to make Articles is granted in that Fifth Article.

Inasmuch, however, as the writer of the brief in 1920 has known that “legislatures” do not ever become “the people,” it is quite probable that his reference did not intend to suggest that the legislatures of which he spoke and who are the agents respectively of other citizens, were the agents, for any purpose, of the citizens of America. With his recognition that legislatures never are the people and with the other quoted extracts of those briefs of 1920 before us, echoing the knowledge we have acquired, we feel at least that in the court of 1920, from the debate of men who know, we will learn whether and “when” and “how,” we, between 1907 and 1917, became subjects instead of the free men and citizens which we clearly were up to 1907.

At least such was the thought of one American citizen, when he read this quotation, in one of the briefs of 1920, “that the people do not become a legislature.... As well confound the creator and the creature—the principal and the agent through which he acts.” It was almost incredible to this particular American citizen that he found this statement and the statement that—“The Constitution is not a compact between states. It proceeds directly from the people.”—both in the briefs of the foremost champion of the new Amendment. And it seemed equally incredible to him to find the quotation about the Statute of ’76 being “one great muniment of our liberty which can never be amended, revoked or withdrawn” in the brief of the counsel for the political organization which dictated the new state government command to the citizens of America.

An unusual method had been adopted for the hearing of what were later reported under the one title the “National Prohibition Cases,” 253 U.S. 350. In that hearing, which continued for days, seven different litigations were argued because all dealt either with the validity of the Eighteenth Amendment or with the meaning of its remarkable second section or with the statute enacted under that section and known as the Volstead Act. For the same reason, the briefs on both sides of the various litigations were clearly the result of conference and collaboration. Nearly all of the briefs, challenging the new Article, made their challenge on the same two main points and in the expression of those two challenges, made constant reference to the different expression thereof in the other briefs.

In the litigation and argument of that March, appeared many of the best known lawyers in America. Among them were distinguished counsel, appearing on behalf of those legislative governments who claim and, in the new Article, have attempted to exercise the omnipotent supremacy over the citizens of America which was denied by the people of America to the British Parliament. Among them were other distinguished counsel, appearing on behalf of what had always been known as the supreme legislative government in America, our government with its enumerated powers and without omnipotence over us. Among them were still other distinguished counsel, appearing on behalf of some separate states or political entities to contend that there existed no constitutional ability anywhere, even in ourselves, to take from their particular state any more of its sovereignty than it had surrendered in those early days when the states made the Constitution, as Sheppard claimed in the Congress of 1917. Among them were still other distinguished counsel, some of them the most distinguished of all, appearing to oppose, as best they knew how, the total destruction of all legitimate industry in a business in which it was the human right of Americans to engage even before Americans wrote their Statute of ’76 and consequently not a privilege of the citizen of America or the citizen of any state.

As this fact has been the basis of many errors in that comedy and tragedy of errors, which is the five-year tale of the Eighteenth Amendment, we average Americans may well dwell for a moment upon the certainty of that fact. It is the natural mistake of those, who have the Tory concept of the relation of men to government, that they should first confuse the meaning of the words “privilege of a citizen” with the words “privilege of a subject” and thus believe that the nature of both privileges, and the source of each are the same. That mistake is but the echo of the error which confuses the nature of Magna Charta with that of the Statute of ’76. Magna Charta is the declaration of certain privileges which government will permit its subjects to keep as long as the government pleases. The Statute of ’76 is the declaration that destroys the relation of government to subjects, creates the relation of citizens to their servant governments, and states that the servants shall have no power to interfere with the human rights of the masters, given by their Creator, except such power as the masters choose to give, and that the servants shall keep that power only so long as the masters will. To the Tory concept, always concentrated on the relation of subject to master government, it is difficult of apprehension that the human being is born with the right to use his human freedom as he himself wills, so long as he does not interfere with the similar exercise of human freedom by the rest of us human beings. If men, in the exercise of their free will, would always obey the defined law of Him who created them, the exercise of human freedom by one individual would never interfere with the exercise of human freedom by all other individuals, and no human government need ever be constituted.

Among the human rights of Americans, as of all human beings, when they come into the world, is the human right to do everything which is forbidden in the first section of the Eighteenth Amendment. It is true, as we frequently hear stated, that the Supreme Court has decided that the right to do any of those things is not the “privilege” of American citizens or of the citizens of any state. It is also equally true, although the Supreme Court has never been called upon to decide that very obvious fact, that the right to breathe is not the “privilege” of an American citizen or of the citizen of a state. Both rights are among the rights of human beings, as such, and they are each of them among the rights of themselves, which we, “the people” of America, established and ordained our Constitution to secure. When we established that Constitution for that purpose, we admittedly gave our only American government no power to make the command of the first section of the Eighteenth Amendment. That is why the governments of other citizens were asked to make the command to ourselves, the citizens of America.

Each of the Americans, who created the nation that is America, already lived as a member and citizen of a state. In that state, when they had constituted it, the citizens thereof had subjected their human right (to do what the new Amendment says shall not be done) to a power in the government of that state (a power which they gave it and can take back from it) to make that kind of a command to them in that matter.

We thus have clearly in our minds that the individual in America has the human right (with which the new Amendment interferes) and that it is subject to the interference of no government, except as the citizens of that particular government have given it power so to interfere with it. The undoubted fact that the right itself is not the privilege of the citizen of America or the citizen of the state is simply another way of saying that the original human right itself is not granted to the human being by government or governments but by the Creator Who made him. Without the Tory concept, no man would even make the mistake of believing that a citizen gets any of his privileges from any government. The privileges of a citizen are the things which he acquires by his voluntary association with the other citizens as the members of a political society which is the nation. The human rights of the same individual are the rights which he brings into that association and subjects to whatever powers of its government are granted by himself and those other citizens with whom he associates as the nation.

Of course, the early Americans, with whom we have now been educated, not only knew these things clearly and accurately, but on their knowledge of them based everything that they did in the fifteen years which we have lived with them. The Americans of today, who uphold the new constitution of government made entirely by government, do not know them at all or understand them when they hear them. Neither would the aristocrats of France, before the French Revolution, nor the Tories of England, even at the time of our Revolution, have known or understood them. That is why the Americans continued their Revolution and won it, so that these things might be the basis of every government interference with any human right. Later they made the American Constitution solely to secure the greatest possible protected enjoyment of all individual human rights. That security is one of the privileges acquired by citizenship in the society which that Constitution created. Wherefore, it is of interest for us to know how clearly Madison, who largely planned that Constitution and who worded its Fifth Article, did know and understand these facts in relation even to the very things forbidden in the new constitution of government made entirely by government.

In the House of Representatives, in the first session of the new Congress with the enumerated powers of the First Article, on May 15, there came up for discussion “a proposed bill laying duties on goods.” Madison “moved to lay an impost of eight cents on all beer imported. He did not think this would be a monopoly, but he hoped it would be such an encouragement so as to induce the manufacture to take deep root in every state of the Union.” (4 Ell. Deb. 345.)

That the knowledge of Madison was not unknown to the Supreme Court a century later, in 1890, is a matter of record.

Returning to the courtroom of 1920, therefore, we are sincerely glad to note the appearance of quite an array of eminent counsel on behalf of those legitimately engaged in a business which is just as legitimate an exercise of human right, as it was when Madison hoped that it would take deep root in every state of the America he loved so well, a business which will continue free from unlawful usurpation of power by government so long as the Constitution planned by Madison is obeyed by governments in America. It is too bad that the eminent counsel, who shared Madison’s views in relation to that legitimate business, did not also have Madison’s accurate knowledge of the only way in which legitimate government power can be created to interfere with that or any other human right, the way which Madison so clearly stated in the Fifth Article—by grant from the “conventions” of American citizens.

When we average Americans look over the great array of counsel and the respective clients whose causes they champion, one fact lends no encouragement to our hope that we may learn the merits of the claim that, somehow between 1907 and 1917 we became subjects and lost our status as free men. Although each client is represented by his own distinguished attorneys and although eminent counsel argue and file briefs, as amici curiæ, on behalf of the state governments which claim that we are subjects and on behalf of some of the litigating other states and individuals, no amicus curiæ files any brief on behalf of us, the citizens of America, the reservees of the Tenth Amendment, the “conventions” of the Seventh and the Fifth Articles.

There is, however, this comfort. If, because the counsel in opposition to the new Amendment do not know and urge our legal protection against any new constitution of national government except by ourselves, the citizens of America, the “conventions” of the Fifth Article, and if, because of such ignorance on the part of counsel, the Court should not be called upon either to consider or pass upon our protection, no decision of the Court will be intended to have—as no decision of the Court could have—any effect upon our protection. If counsel fail to bring before the Court the legal facts which demonstrate that the new Amendment is not in the Constitution unless we Americans are “subjects,” our day in Court is merely postponed. And when that day shall come, when that Court is addressed by counsel who do represent the citizens of America and who accurately know the constitutional protection which we have for all our rights, there is not the slightest danger that the Court, established and maintained by us for the sole purpose of protecting our individual rights against usurpation by government, will decide that we are subjects and that governments can create new government power to interfere with the freedom of the individual American citizen.

Meanwhile, let us examine the briefs of March, 1920. In them, despite our regret that not one of them was written in our behalf, it may be possible, it ought to be a certainty, that we will hear something about the “when” and the “how,” after 1907, we are supposed to have lost our status as free men and citizens of America.

CHAPTER XXI BRIEFS IGNORE THE AMERICAN CITIZEN

There is one man whose skill as an artist could do justice to the atmosphere in which all the briefs of that March must have been written. Unfortunately, the reports of the death of that man are no longer greatly exaggerated. It is unfortunate that the man who pictured the sensations of a Yankee in King Arthur’s Court could not have lived to reverse the feat. Only his genius could picture one of the Americans of 1790 living in the atmosphere of the briefs of 1920 for the new Amendment and learning therein that the Americans of his own day never became citizens of America. Only the unique word-artist, who defined a cauliflower as a cabbage with a college education, could adequately state the startling fact that not one of the briefers knew that all were assembled in the court room of March, 1920, seriously to debate whether the Americans in 1788 voluntarily surrendered their status as free men and, repealing their Statute of ’76, declared themselves and their posterity subject to a legislative government superior to what they called their supreme legislature, a legislative government “invested with power to legislate for us in all cases whatsoever.”

Because Mark Twain is dead, we must get from those briefs, without his aid, the knowledge that the new Article depends entirely on the extraordinary concept that the Fifth Article constituted a hitherto unknown government of all American citizens, not our government of enumerated First Article powers but an entirely distinct government—not a member of it chosen by American citizens—“invested with power to legislate for us in all cases whatsoever.”

In other words, we are to learn from the briefs for the new Article that our supposed only and supreme American government is, and that all American citizens are, subject to the omnipotence of a still more supreme legislative government, consisting of the state legislative governments on whose behalf some of the most distinguished lawyers of 1920 appeared. It is the clear concept of those lawyers that upon the will of the governments they represented, a will subject to the restraint of no Constitution in America, depends entirely what measure of human freedom we individual American citizens may enjoy. This concept stands out clear and sharply defined in their briefs, although neither they nor their opponent lawyers grasp the fact. On the fact that the Fifth Article mentions their client governments, the state legislatures, they base the entire claim that the Eighteenth Amendment is in our Constitution. On this mention rests their extraordinary assumption that the Fifth Article is a “grant” of power to those governments—and to the very “conventions” which made the Fifth Article—to make new Articles of every kind, whether federal to govern states or national to interfere with the freedom of the individual.

Furthermore, we are to learn, from the briefs of the lawyers against the new Article, that they all assert, like their opponents, that the Fifth Article is a grant of power to the grantors and to the state governments. To our amazement, in the briefs of the lawyers against the new Article, we shall find no knowledge of or insistence upon the important fact that the Constitution is both a federal and a national Constitution. Most amazing of all, in no brief of any lawyer, shall we find the faintest recognition of the decisive fact that the “conventions” of the Fifth Article are the American citizens themselves, while the state “legislatures” of the Fifth Article are respectively the attorneys in fact for respective citizens of other political entities than the nation which is America. Most briefs, for the new Amendment, will dwell upon the fact that the people of America, not the states, made the Constitution. Yet, although it is equally true to say that the whole people of America or the “conventions” of the Seventh Article made the Constitution, no briefer will know that the “conventions” of the Fifth Article are also the whole people of America, while the state “legislatures” never are the attorneys in fact for the citizens of America, who never chose a single member of those “legislatures.”

That all those lawyers, who debated the extent of the imaginary “grant” of power in the Fifth Article, may do themselves strict justice, let us accurately state a few indisputable facts before we consider their briefs.

It is a fact that the subject matter of the first section command and the second section grant, in the Eighteenth Amendment, is the exercise of a human right, not the privilege of a citizen of America or the citizen of any state.

It is a fact that the Americans in each former colony, in 1776, constituted a state for themselves and a government of that state and subjected that particular right, as all their individual human rights, to the general welfare state power of that government, the power which is now known as the police power.

It is a fact that, from 1776 to 1787, that particular individual right, as all the human rights of the citizens of any state, was subject to no interference by any government or governments in the world except the one legislative government of that particular state. It is a fact that all the legislative governments of the other states and the government of the federation of states could neither exercise nor grant, as some of them have attempted to do in the Eighteenth Amendment, any power to interfere with that particular individual freedom or any other individual freedom of the citizens in that particular state.

It is a fact that, on June 21, 1788, the Americans in the nine states became collectively one political entity, the citizens of America, composing the nation which is America. It is a fact, and a fact which flatly denies the existence of the Eighteenth Amendment, that, on June 21, 1788, the existing state legislatures did not become an omnipotent legislative body of the new nation “invested with power to legislate” for American citizens “in all cases whatsoever” in interference with our individual freedom. It is a fact that those legislatures did not then become any government for the citizens of America on any subject whatsoever.

It is a fact that not one of those state legislatures received any new power to interfere with human freedom anywhere by any grant of such power in the seven Articles of our Constitution. The opening words of the First Article expressly so declare. They are, “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.” Moreover, the Tenth Amendment, the declaration insisted upon by the whole “people” of America in their “conventions,” expressly so declares. Its declaration is that the entire Constitution gives no new power to any government except the new government of America, the government constituted by the First Article.

It is a fact, again a fact which denies the existence of the Eighteenth Amendment, that the general constitutional restrictions upon government power to interfere with individual freedom are restraints upon the exercise of every grant of such power in the Constitution, and that they do not restrain the state governments because those governments are the donee of no power of that kind in that Constitution. This fact, a patent fact hardly needing settlement, was decisively settled in 1833 by the decision of the Supreme Court, announced by Marshall, in Barron v. Mayor of Baltimore, 7 Peters, 43. Barron contended that the Fifth Amendment restrained the power of the state governments. Marshall said:

The decision settled that the entire Constitution vested in the state governments not a single power to interfere with individual freedom in any respect. The decision is based on that one fact. The fact and decision expose the absurdity of the thought that the Fifth Article is a “grant” of any such power to the state governments, much less a grant of every such power to those governments. This absurd thought, however, is the assumption on which every advocate of the Eighteenth Amendment based his argument in March, 1920: and it is the assumption upon which wholly depends the existence of the Amendment.

It is a fact that the state legislatures, before the Constitution was even proposed, had existing ability to make federal Articles. It is a fact, as the Tenth Amendment declares, that the “conventions” of the Seventh Article reserved that federal ability to those state governments and that the Fifth Article did not “grant” it to them. It is a fact, that the “conventions” of ourselves, the American citizens assembled in their respective states, the “conventions” of the Seventh and the Fifth Article, even before the Constitution was worded or proposed, had exclusive ability to make national Articles, which either directly interfere or grant ability to interfere with individual freedom. It is a fact that this power of the “conventions” included the ability to make any kind of Article, either federal or national. It is a fact, therefore, as the “conventions” of the American citizens had this omnipotent power before the Fifth Article was even drafted, and as the Tenth Amendment states that they reserved it to themselves, that they did not grant all of it (as the advocates of the new Amendment claimed in March, 1920), or part of it (as the opponents of the new Amendment claimed in March, 1920) to themselves in their own Fifth Article. It is a fact, therefore, that the mention of the two existing abilities (the existing omnipotent ability of the “conventions” and the existing limited ability of the “state legislatures”) does not make the Fifth Article any “grant” of power either to the “conventions” (who made the Article) or to the state “legislatures.”

It is a fact that the very “conventions” named in the Fifth Article and the American citizens assembled therein, while they were making that Article, accurately knew that it was nothing but a constitutional mode of procedure for two distinct and existing powers, and that it did not “grant” any power whatever to the state governments.

Speaking of the Constitution, with its Fifth Article, the entire convention in Virginia declared that all the powers granted in the Constitution were being granted by the people of America “and that every power, not granted thereby, remains with them, and at their will.” Nothing could more clearly express the knowledge that the Fifth Article was not a grant of any power by the “conventions” to the “conventions” or to the state governments. In the Virginia convention, Lee stated: “This new system shows, in stronger terms than words could declare, that the liberties of the people are secure. It goes on the principle that all power is in the people, and that rulers have no powers but what are enumerated [in the First Article] in that paper.... Candor must confess that it is infinitely more attentive to the liberties of the people than any state government.” (3 Ell. Deb. 186.)

In the South Carolina convention, Pinckney said: “With us, the sovereignty of the Union is in the people” (4. Ell. Deb. 328), and again “I conceive it as indispensable, in a republic, that all authority should flow from the people.” (4 Ell. Deb. 326.)

Hamilton, one of the people assembled in the New York convention, said: “As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority,” the people themselves, the “conventions” of the Fifth Article and the Seventh, “whenever it may be necessary to enlarge, diminish, or new-model the powers of government.” (Fed. No. 49.) He could hardly have made more clear his knowledge that the Fifth Article was not a “grant” of power to the state governments. As Madison and Hamilton proposed and seconded the only Fifth Article, at Philadelphia, which ever mentioned the state legislatures, their own words have great weight in the interpretation of its language. For which reason, it is well to recall again that Madison, in Federalist Number 37, clearly said that “the genius of republican liberty seems to demand ... not only that all power should be derived from the people.” And either Madison or Hamilton said in The Federalist, Number 49, the reference to the Fifth Article being unmistakable from what they said, “There is certainly great force in this reasoning, and it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occasions.” As they both maintained, at the Philadelphia Convention and thereafter, that the ability of state governments was incompetent to constitute government with national powers to interfere with human freedom, and as they both repeatedly stated that it would be contrary to the genius of republican liberty that any governments should have that ability, they have made unmistakable their knowledge that the Fifth Article, which they proposed and seconded and which Madison probably worded, did not grant any such ability to governments.

In the Pennsylvania convention, Wilson clearly expressed the knowledge which reads the new Eighteenth Amendment out of our Constitution, when he said: “In this Constitution, the citizens of the United States appear dispensing a part of their original power in what manner and what proportion they think fit. They never part with the whole; and they retain the right of recalling what they part with.” (2 Ell. Deb. 437.) Can any man, even a modern “constitutional” lawyer, reconcile that knowledge with the thought that the Fifth Article is a grant of power to the state governments? Again in the same convention, he said, speaking of our Constitution: “Here, sir, the fee simple of power remains in the people at large and by this Constitution they do not part with it.” (2 Ell. Deb. 435.) In the North Carolina convention, Iredell, later on the Supreme Court Bench, said: “No man, let his ingenuity be what it will, could enumerate all the individual rights not relinquished by this Constitution.” (4 Ell. Deb. 149.)

All these facts should be dwelt upon and emphasized in the briefs of the lawyers against the new Article in which government attempts to exercise ungranted power and to grant new power to interfere with the individual freedom of the American citizen. And against all our education in the “conventions,” it must be the burden of the briefs of the lawyers for the new Amendment to uphold the amazing proposition that all the individual rights of the American citizens were, by the Fifth Article, made subject to a supposed omnipotence granted to the state governments, not a member of which is chosen by the citizens of America.

CHAPTER XXII NO CHALLENGE TO THE TORY CONCEPT

We average Americans, therefore, come to the courtroom of 1920 with some knowledge that is a mathematical certainty. We know that everything done at Philadelphia by the “conventions” named in the Seventh Article was done with one dominant purpose—the security of individual human freedom. We know that, at Philadelphia and in those “conventions,” the old states and their governments, the federal government and its continuation in the new Constitution, the new nation and its Constitution and its government were only important as the American citizens considered that each or all would contribute to the security of American individual freedom. We know that, only in rare instances, such as that of Gerry, did a Tory mental attitude lead a man into the error (for any American after ’76) of thinking that political entities (such as states or nations or their governments) have the slightest importance except in so far as they contribute to the individual freedom of the citizens who create them and must control them, if an American is to remain a citizen. We know that every American, in those “conventions,” discussed and voted upon every mention of these political entities, with insistent realization that nothing anywhere in the Constitution was intended to disturb or did disturb the legal fact that only the citizens of America, in “conventions,” ever could say how much national power the new government should have, how much each old state should be allowed to retain over its own citizens and how much the citizens of America should reserve from all governments in America. We also know this legal fact to have been the most important legal fact in America to the Americans in those “conventions.” We know that it was the legal fact whose denial by the British Parliament caused the Revolution. We know that, from July 4, 1776, everything which the Americans did was solely to make it impossible that any one could ever deny this legal fact in America.

And we also know, something that has been entirely ignored since 1917, that these “conventions” knew that the “conventions” of the Seventh and the Fifth Articles were identically the same thing and were the most important reservee in the Tenth Amendment, “the people” of America, in their aggregate and collective capacity as Henry accurately put it.

With this simple and amazingly important knowledge of facts, a knowledge acquired by our education with the Americans who made themselves and their posterity free men instead of “subjects,” we come to the arguments and briefs of 1920. There we expect to learn how the opponents of the Eighteenth Amendment presented and its supporters answered these facts. Because these facts we do know, if they are all the facts, flatly deny the existence of that new national Article, made by governments alone.

If forbearance were the sole rule for conduct, if conscience permitted us to ignore the great danger to our own individual freedom in every matter, we would be absolutely silent as to the contents of all those briefs. But, that the supposed presence of the new national Article in the national Constitution of a free people may never be a precedent for other government making of national Articles, it is our duty to learn and state what those briefs all disclose.

Not one of them recognizes the identity of the “conventions” of the Fifth Article with the “conventions” of the Seventh. And all ignore the identity of the Fifth Article “conventions” with “We, the people” of America, in the Preamble, and with the most important reservee of the Tenth Amendment, “the people” of America.

Every argument, whether for or against the new national article, is based upon the sheer and absurd assumption that the “conventions” in their Fifth Article did make a grant to themselves, the “conventions,” and to the state governments. The advocates of the new Article assume that the “conventions” granted to themselves and to the state governments all the inalienable omnipotence of the American people themselves, in their aggregate capacity as the citizens of America, the very omnipotence the supposed grantors were exercising when they made the Fifth Article. The opponents of the new national Article assert the absurd assumption of a “grant,” but contend for diverse reasons—remarkable by reason of the fallacy of a “grant” on which each rests—that the “conventions” grant to themselves only a part of the omnipotence which they already had and were exercising when they made the supposed “grant.” On which theory, they urge that the supposed “grant” to the state governments, being identical with the supposed “grant” to the grantors themselves, is only part of the omnipotence which the grantors already had and does not include ability to make Articles like the Eighteenth Amendment.

Not one of these briefs recognizes or urges that the Fifth Article is not a “grant” of ability to make Articles whether federal or national. No brief knows the Fifth Article to be simply the ratification, by the whole American people, of a hitherto revolutionary mode of procedure as the future CONSTITUTIONAL mode in which may be exercised either the existing and limited ability of state legislatures to make federal Articles or the existing and unlimited ability of the “people” (the “conventions”) to make any Articles. No brief either recognizes or urges the absurdity of the thought that the “conventions” intended to grant or did grant to themselves, the “conventions,” any part of the omnipotence which the supposed grantors were actually exercising when making the supposed grant.

No brief recognizes that one of the supposed grantees is the supposed grantor. No brief seems to know that the supposed grantees were respectively competent makers of certain kinds of Articles even before the Fifth Article was written at Philadelphia. No brief seems to know—or to sense the decisive effect of the fact—that, within the twelve years which immediately preceded the supposed “grant,” each of the two respective makers of Articles, who are mentioned in the Fifth Article, had exercised its respective ability to make Articles of a certain kind. No brief seems to know that one of the supposed grantees, the “conventions,” at the very moment of the supposed “grant,” was exercising its own unlimited ability to make Articles of every kind. For all that the briefs disclose, in the decisive effect of the two facts upon the supposed validity of the Eighteenth Amendment, the “state legislatures” might never have made the federal Articles of 1781 and the “conventions” might never have made the federal and national Articles of 1788.

No brief urges the greatest legal decision made at Philadelphia in 1787 as binding legal authority that the state “legislatures” of the Fifth Article never can, while the Fifth Article “conventions” always can, make a national Article like the First Article or the Eighteenth Amendment. One brief does suggest that decision as authority for the absurd proposition that the Fifth Article mentions no CONSTITUTIONAL mode in which even the exclusive ability of the “conventions” of the American citizens can be again exercised to make Articles like the First Article and the Eighteenth Amendment. In urging that absurd proposition, the briefer wholly ignores the fact that the Philadelphia Convention, which made that legal decision, reached its conclusion by ascertaining what were and still are the respective abilities (to make Articles) of the state “legislatures” and the “conventions,” both of which are named as future makers in the Fifth Article.

No brief recognizes the fact (or urges any argument based upon it) that the Constitution is both a federal and a national Constitution. For which reason, no brief points out that the Tenth Amendment expressly reserves the ability to make federal Articles to the state “legislatures” and the exclusive ability to make national Articles to the “conventions.” For which reason, no brief points out that each of the two reservees, named in the Tenth Amendment, is mentioned separately in the Fifth Article as a possible maker of future articles, whenever a proposed future Article is of the kind which the existing ability of the proposed maker is competent to make.

No brief, against the new Amendment, challenges the sheer and absurd assumption that the Fifth Article is a “grant.” No brief, for the new Amendment, offers or suggests the slightest fact in support of that sheer assumption.

Every brief for the new Amendment, on the fallacy of the sheer assumption that the Fifth Article is a grant, contends that the Article makes a fractional part of the state legislatures an omnipotent Parliament for the American people, a Parliament not restrained by any constitutional limitations in state or national constitutions but a Parliament which can do what it will with every individual right of every human being in America. These briefs neither know nor care that their concept of the Fifth Article means that the “conventions” of the American citizens, twelve years after the Declaration of Independence, intended to make and did make themselves absolute “subjects” of governments, not one of whose legislators was to be elected by Americans in their capacity as American citizens. The foremost of these briefs were written by eminent “constitutional” lawyers who had, as clients, the very governments which claimed this omnipotence over individual Americans as their “subjects.”

Every brief, against the new Amendment, not only admitted but asserted the absurd assumption that the Fifth Article is a “grant” to the grantors and to the state governments. In the foremost brief against the new Amendment, that absurd assumption is asserted or mentioned over fifty times. On this absurd assumption, every argument, in these briefs, as well as in the opposing briefs, is based. In this respect, there was but one difference between any brief and another. That difference was in reference to the extent of the supposed “grant” which the grantors made to themselves and to the state governments.

Not one brief, presented in these litigations of 1920, knew or urged the undoubted fact that, because our government is both federal and national, if it wants new power to interfere with the freedom of the American citizen, that government can get that power in only one CONSTITUTIONAL mode, through the “conventions” named in the Fifth Article. No briefer knew the legal necessity that all power of that kind must be obtained directly from the citizens of America, assembled in their “conventions.” We ourselves know that there was a day in America when that legal necessity “was felt and acknowledged by all.” It is almost impossible for us, therefore, educated as we are in the experience of the Americans who did know, to believe these statements about these briefs. Yet the briefs speak for themselves.

Before, however, we turn to verify the statements by the briefs themselves, it is well that we recall one amazing question and answer, during the arguments of 1920 in the Supreme Court, which question and answer overwhelmingly demonstrate that none of these “constitutional” lawyers knew or cared about the facts we know.

The Supreme Court had listened, for several days, to many clever arguments against the new national Article. The arguments had challenged validity on the ground that the new Article infringed upon the political freedom of some political entity, such as a state or its government. Sometimes the arguments had challenged validity on the ground that the new Article infringed upon the liberty of the citizens of some particular state. No argument had challenged validity on the one patent and unanswerable ground that the “conventions” of 1788 had provided that no national Article, which (like the First Article and the Eighteenth Amendment) directly interferes with or grants power to interfere with individual liberty of the American citizen, could ever be CONSTITUTIONALLY made, except in the one CONSTITUTIONAL mode of procedure, in which the only competent makers of national Articles can make such Articles, the “conventions in three fourths of” the states, mentioned in the Fifth Article.

Rice of Rhode Island, one of the many prominent lawyers against validity, was urging his particular argument. Ignoring the citizens of America in the “conventions” of the Fifth Article, he claimed that no power in America could interfere with individuals in Rhode Island, outside the First Article matters, without the consent of Rhode Island itself. He was interrupted by the Court. In substance, this is the question and answer that followed: Justice Brandeis: “The court is now fully acquainted with the nature of the arguments of the various counsel as to why the new Article has not been validly made. The Court would like to know, In what way do counsel think that the new Article could be constitutionally made?” And the answer of Rice, undoubtedly voicing the conviction of all his colleagues, for none of them had any other answer to volunteer, was: “In no way.”

Fresh from the “conventions,” which knew that they could have made what is supposed to be the Eighteenth Amendment, we could make the correct answer to that question. Our answer is that the “conventions” of the whole American people could have made this new Article in 1788 just as they did make the First Article of exactly the same kind. They could have made it, not because any Constitution gave them the power to make it. They could have made it because, in its making, they would have exercised exactly the same existing ability which they exercised when they destroyed the power of the British Government over themselves in 1776, which they exercised when they ended the complete independence of each state in 1788 and which they exercised when they made all the Articles of 1788. When they did each of these things, they had prescribed no “constitutional” mode of procedure in which they might constitutionally exercise that exclusive ability of their own. By the declaration of the Tenth Amendment, they reserved that exclusive ability to themselves. And, in the Fifth Article, they prescribed, for the first time, exactly the same mode, in which they were then exercising that exclusive ability, as the future CONSTITUTIONAL mode for its further exercise. As Marshall stated, in the Supreme Court, there is but one way in which they can exercise it, “safely, effectively, and wisely,” by assembling in their “conventions” in their respective states.

If the accuracy and truth of this sole possible correct answer to the question of 1920 is so well known to us, certainly it should have been known to at least one of the “constitutional” lawyers of 1920. Moreover, every “constitutional” lawyer of 1920 should have known that the mention of state governments in the Fifth Article was not intended to make them omnipotent over the individual rights of the American citizen or to provide an unsafe, ineffectual and unwise way or any way in which government in America could create new government power to interfere with individual freedom.

Madison wrote the Fifth Article. Immediately after he had secured its proposal from Philadelphia, in the Virginia convention he paid his famous tribute to the “conventions”—but not to the “state legislatures”—which he mentions in his Fifth Article. “Mr. Chairman, nothing has excited more admiration in the world than the manner in which free governments have been established in America; for it was the first instance, from the creation of the world to the American Revolution, that free inhabitants have been seen deliberating on the form of government, and selecting such of their citizens as possessed their confidence, to determine upon and give effect to it.” (3 Ell. Deb. 616.)

But, whatever the ignorance of our constitutional lawyers, we know why Madison, in his Fifth Article, mentions these “conventions” in which free inhabitants are seen deliberating on new grants or constitutions of government power to interfere with individual freedom. When future grants of such power are suggested, there is to be a CONSTITUTIONAL mode prescribed for the reassembling of such “conventions” to make or refuse the grants.

Our experience with Madison and his colleagues would educate these “constitutional” lawyers to keen realization that the Americans of old knew the vital distinction, so important to individual liberty, between permanent and existing state legislatures and these “conventions” of the American people themselves, chosen for the one purpose of answering “Yes” or “No” to a particular question previously carefully considered by all the American citizens.

Let these “constitutional” lawyers spend a moment with Hamilton, on Friday, March 14, 1788, when he was urging the American people to adopt the Constitution with that Fifth Article.

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.

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

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

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.

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:

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.

This Wheeler believes that the Statute of ’76 is “one great muniment of our liberty which can never be amended, revoked or withdrawn.” He says so in his brief. He also maintains that his state governments, not one of their members elected by us as citizens of America, have omnipotent power over our every liberty, except that they cannot change the number of senators from each State. At one point in his brief he “proves” overwhelmingly that the citizens of America universally demanded his new Article, the Eighteenth Amendment. His proof is—and we cannot deny the fact which he asserts as proof—that, in the year 1918, when Americans were in the Argonne Forest in France, four thousand seven hundred and forty-two Tories in forty-five state legislatures said “Yes” to this new command to the one hundred million American citizens on a subject not among the matters enumerated in our First Article. That his “proof” might be perfect (for the claim that the making of the command was demanded by the citizens of America) he fails to mention the fact that not one of those four thousand odd Americans, who were not the Americans in the Argonne or in our training camps preparing to fight for human liberty, was elected for any purpose by the citizens of America.

Reflecting upon this briefer’s admiration for the Statute of ’76 and upon his knowledge that the “legislatures” never are the people, while the “conventions” of the Fifth Article are the “people,” we wonder if he ever read a certain statement of the early American who wrote the Statute of ’76. It is a statement from Thomas Jefferson quoted by Madison, author of the Fifth Article, when he was urging the American people or “conventions” to make that Fifth Article. Jefferson was talking about a constitution, in which “all the powers of government ... result to the legislative body,” as they result (under the modern assumption as to what the Fifth Article says) to the state governments, the new omnipotent legislature of the American people. This is what Jefferson had to say, what Madison approved: “The concentrating these in the same hands, is precisely the definition of despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one.... As little will it avail us, that they are chosen by ourselves. An elective despotism was not the government we fought for.” (Fed. No. 48.)

It is clearly the view of Wheeler and all his associates that the early Americans did fight their Revolution so that we might have, in these modern days, an elective despotism of four thousand seven hundred and forty-two despots. That form of government is probably relieved from the odium of the Madison and Jefferson attack, by the “alleviation” that we ourselves, the citizens of America, those to be governed by this “elective despotism,” do not elect or choose even one of the despots!

We cannot linger longer with these amazing briefs of the champions of the Eighteenth Amendment. From the viewpoint of unconscious humor, we have become rather enamored of the Wheeler idea that “state governments” and “the people of America” expressed the same thought to the latter when they made the Fifth Article. Since we read Wheeler’s brief, we have been trying the same method with some famous statements of great Americans. For example, we have this new excerpt from Washington’s famous Farewell Address: “The basis of our political system is the right of the ‘state governments’ to make or alter the people’s Constitution of government. And the Constitution which at any time exists, till changed by an explicit and authentic act of ‘the legislatures of three fourths of the states’”—(Washington said ‘the whole people’)—“is sacredly obligatory upon all.”

And we like particularly the improved Wheeler concept of the rather crude Gettysburg speech of Lincoln. In its new form, altered by the Wheeler idea, it is wonderful to hear the appeal of Lincoln that we, who were not among the dead at Gettysburg, should play our part “that government of the people, by the state governments, and for those who control the state governments, shall not perish from the earth.”

We wonder if Hughes and Wheeler and Sheppard and Webb realize how far they have gone beyond the Calhoun idea that was repudiated forever at Gettysburg! In the old days, the Calhoun doctrine was that a single state, although but a political entity, could do as it pleased in its own affairs, even to leaving the Union without reference to the wishes of the citizens of America. That question was settled forever by the result at Gettysburg. The modern claim, the sole claim upon which the Eighteenth Amendment depends for existence, is that a state government, if it combines with enough other state governments, can go outside its own jurisdiction, outside the citizenship which chose the legislators in it, and issue its omnipotent command telling the citizens of America what they may do and may not do, “in all matters whatsoever.”

But we leave the Court of 1920, quite satisfied that the modern “constitutional thinkers,” who filed their briefs therein, have not exactly the American concept of the relation of government to human beings, which would have located them at Valley Forge, with Marshall, in the Winter of 1778.

We leave that Court, however, quite satisfied that the Court itself still has the knowledge which Marshall had, the knowledge stated in the Tenth Amendment and by the decision of that Court in 1907, that all the powers not granted by the Constitution to the general government at Washington “are reserved to the people and can be exercised only by them or, upon further grant from them.”

We do not forget the question of the Court, the question which none of the lawyers could answer, “In what way do counsel believe that the Eighteenth Amendment could be made CONSTITUTIONALLY?”

We do know the answer to that question. The Americans, in the “conventions” we just left, wrote the answer in the Fifth Article in the words which are the most important words in the Article and one of our greatest securities to human liberty, “by conventions in three fourths thereof.”

The “conventions” which mentioned themselves, the “conventions,” in the Fifth Article, are the same “conventions” which demanded that the declaration be made that every power, not granted in that Constitution to the government at Washington, remained where it had been. As the state governments had been incompetent to make the First Article or the Eighteenth Amendment, they remained incompetent to make either of them.

If we needed any assurance that the Supreme Court still retains the accurate conceptions of these early Americans, we find it in one of the most significant facts in the whole remarkable story of the last five years.

We do not need to recall how every lawyer dwells continuously upon the fact that the Fifth Article is a “grant” of power to make new Articles. We do not need to refresh our mind with the recollection that the Root brief referred to the Fifth Article over fifty times as a “grant” of such power. We know that every argument in every brief was based on the stated assumption that the Fifth Article was a “grant” and that it made the legislatures of state citizens attorneys in fact for the citizens of America, who elect none of the members of those legislatures.

Did this monumental error of all the lawyers have any effect upon the accurate knowledge of the Supreme Court? Did this insistence upon the absurd assumption that the Fifth Article is a “grant,” in which “conventions” grant something to themselves and to the state governments, lead the Court into the error of calling it a “grant?”

Read the conclusions of the Court, as they were stated by Judge Van Devanter. The opening sentence of that statement sweeps aside every assumption that the Fifth Article is a “grant.” Can our knowledge, brought right from the old “conventions,” be put more completely than in the one statement: “Power to amend the Constitution was RESERVED by Article V.”

Where is the “grant” all the lawyers have been talking about? Where is the “grant” on which the Eighteenth Amendment depends for existence? Where is the “grant” which makes the state legislatures of state citizens attorneys in fact, for any purpose, for the American citizens? Before the Constitution, in which is the Fifth Article, there was no citizen of America. And, as the exclusive ability of “conventions” to make NATIONAL Articles (like the ability of state legislatures to make Articles which are not national) “was reserved by Article V,” the state governments, as imaginary attorneys for ourselves, disappear entirely from the scene. We remain free citizens. We have not become “subjects.”

This comforting knowledge is emphasized when we find that, as the Supreme Court states its Fourth Conclusion, again the accurate statement is that the ability to make the new Article “is within the power to amend RESERVED by Article V of the Constitution.”

That is our own knowledge. We have brought from the conventions, in which we have sat with the early Americans, their knowledge that the ability of the “conventions” to make Articles of that kind, their exclusive ability to do so, was reserved to those “conventions,” the assembled citizens of America. We know that the Tenth Amendment expressly so declares. Therefore, when we go to the Supreme Court, with our contention that we still are citizens and that a revolution by government against the people, a revolution to make us “subjects,” must be repudiated by the Supreme Court which we have established to protect our human liberty against all usurpation by governments, our challenge will be in the words of Wilson, uttered in the Pennsylvania Convention where Americans first set their names to the Fifth Article:

“How comes it, sir, that these state governments dictate to their superiors—to the majesty of the people?”

CHAPTER XXVI THE AMERICAN CITIZEN WILL REMAIN

These words of Marshall tell every American why there is an “America,” a nation of men, in addition to a “United States,” a federation or league of political entities. The league existed before the Constitution created the nation. The league was not created by the Constitution. But the league was continued by the Constitution in which free men created the nation. In that Constitution, the league and its component members (the states) were made subordinate to the nation and its component members, who are the citizens of America.

How comes it, then, that modern leaders, for five years last past, have talked their nonsense about another government of the one American people? How comes it that they have argued and acted as if the Fifth Article constituted another government of the one American people?

It certainly would be startling for Marshall and his generation to hear the Eighteenth Amendment claim that one important purpose for which Americans chose to be one people was the purpose of enabling thirty-six legislatures of state citizens to interfere, “in all matters whatsoever,” with every individual liberty of all American citizens.

In the light of our education with the one American people who chose to be, “in many respects, and to many purposes, a nation” and to have, IN THAT CHARACTER, no government other than the government constituted by the First Article, how otherwise, than by the one word “nonsense,” can we dignify the five-year discussion as to the extent of the powers granted in the Fifth Article to other governments, the respective governments of the members of the league, to interfere with the liberties of the members of the nation, the citizens of America?

Citizens of America, particularly emigrants from Europe, must be taught the reason why and the fact that the one American people “were bound to have and did at last secure” a government free from interference by “legislatures, whether representing the states or the federal government.” (Judge Parker, supra, in Preface.)

Who is to teach the average citizen the reason or the fact? Have our most renowned lawyers shown any knowledge of either? Their own briefs have been permitted to speak for them. Which of those briefs has put a finger upon the basic flaw in the Eighteenth Amendment challenge to the fact that the American citizens “did at last secure a Government” which its citizens “could control despite” all legislatures, whether representing state citizens or themselves?

The men who wrote these briefs are far more than lawyers of great renown. They are among the best known leaders of public opinion in America. Many thousands of average citizens rely upon such men to know and state every constitutional protection to individual liberty. In any generation, reliance upon any public leaders for knowledge on that matter is a distinct menace to individual liberty. The imaginary Eighteenth Amendment will have served a useful purpose if it teaches us that we must know of our own knowledge, if we want to remain free citizens of America.

“No man, let his ingenuity be what it will, could enumerate all the individual rights not relinquished by this Constitution.” (Iredell, later a Supreme Court Justice, in the North Carolina convention, 4 Ell. Deb. 149)

These are the rights “retained by the people” of America in the Ninth Amendment because not enumerated in the First Article.

“If this Constitution be adopted, it must be presumed the instrument will be in the hands of every man in America, to see whether authority be usurped; and any person by inspecting it may see if the power claimed be enumerated. If it be not, he will know it to be a usurpation.” (Iredell, in North Carolina convention, 4 Ell. Deb. 172.)

All granted powers to interfere with the individual freedom of the American citizen, “in that character,” are enumerated in the First Article.

All powers of that kind not enumerated therein are reserved in the Tenth Amendment exclusively to the American citizens themselves to be exercised or granted by them in the “conventions” of the Fifth Article.

One of these powers is that which some governments of state citizens, in the Eighteenth Amendment, have attempted both to exercise and grant.

The brief of which public leader has known or stated these facts to the destruction of the Amendment and to the continued existence of the free American citizen?

The experience of ages has taught that human liberty, even in a republic, is never secure unless the citizens of the republic themselves understand the basic security which protects that liberty. The writer of this book wishes to keep his own individual liberties secure against usurpation by any government in America. He wishes to keep his status, as such citizen, to all governments in America—the status established by the citizens of America through whose experience we have been educated. He knows that such status must end forever unless American citizens generally have the same earnest wish and, of their own knowledge, know how the Constitution secures that status and their individual liberty.

Shortly after the American people had chosen to be a nation with one government of enumerated powers, there came to that then land of individual liberty an Irish exile. Quickly he assumed his place with the great lawyers of America. And in the year 1824 he made clear that he would have been able to teach our new citizens and our public leaders how the one American people “did at last secure a government” which that one American people “could control despite” the state legislatures. In the argument before the Supreme Court in the famous case of Gibbons v. Ogden (9 Wheat. 1, at p. 87), where his opponent was Webster, this is how Emmett stated a fact then known and “felt and acknowledged by all”:

“The Constitution gives nothing to the states or to the people. Their rights existed before it was formed.... The Constitution gives only to the general government, and, so far as it operates on the state or popular rights, it takes away a portion, which it gives to the general government.... But the states or the people must not be thereby excluded from exercise of any part of the sovereign or popular rights held by them before the adoption of the Constitution except where that instrument has given it exclusively to the general government.” The italics are those of Emmett.

What does this clear statement of fact (known by Emmett and his generation to be the exact statement of the Tenth Amendment) make out of every argument, whether for or against the Eighteenth Amendment, based on the assumption that the Fifth Article does give something to the states and their governments? Can any American citizen doubt that it makes clear that to describe such arguments by any other word save “nonsense” is to lend them a dignity which they do not possess?

Without a single exception, every argument during the last five years, whether for or against the Eighteenth Amendment, has deserved the criticism of the Supreme Court for the fact that such argument neither knew nor considered the meaning of the Tenth Amendment.

Why has every argument, for or against the new Amendment, ignored the simple and impressive fact that the one word “conventions” was written into the Fifth Article and the Seventh Article by the delegates at Philadelphia, very shortly after they had reasoned out and reached their famous legal decision as to the difference between the ability of “conventions” and the ability of “state legislatures,” also named in the Fifth Article? Why completely ignore the decisive effect of this fact when considered with the fact, that Philadelphia mentioned “conventions” in both Articles and only in the Fifth mentioned “state legislatures”? If we put ourselves exactly in the position of Philadelphia when it was doing this, we see at once why state “legislatures” are pointedly absent from the Seventh Article. Philadelphia knew the nature of the First Article, that it constituted government ability to interfere with individual freedom. Philadelphia knew that neither “state legislatures” nor any combination of governments can make an Article of that kind in any land where men are “citizens” and not “subjects.” That is why “legislatures” are not mentioned in the Seventh Article. But Philadelphia did not know the nature of any Article which might be proposed at any particular time in the future by the body which was to perform the duty of proposing, the duty which Philadelphia was then performing. And Philadelphia knew that any future proposed Article might be of the kind which state legislatures could make. It was the conviction of Hamilton that all future proposed Articles would be of the kind that “legislatures” could make because they would be of the kind that did not relate to “the mass of powers” to interfere with individual liberty. That is why Philadelphia, almost immediately after it had omitted any mention of “legislatures” in the Seventh Article, did mention “legislatures” in the Fifth Article, which related to the making of future Articles whose nature Philadelphia could not possibly know.

Let us not forget what Madison told us about the Seventh Article: “This Article speaks for itself. The express authority of the people alone could give due validity to the Constitution.” (Fed. 43.) This is his statement that the Article itself tells us that “the express authority of the people” will make the Articles proposed from Philadelphia. How does the Article speak for itself and tell us that? By its one word “conventions.” Could Madison tell us more plainly that the word “conventions,” which he and his associates wrote into the Seventh and which he wrote into the Fifth Article, means “the express authority of the people”?

Can any supporter of the Eighteenth Amendment find any statement from Madison in which he tells us his word “legislatures” means what he has just told us his word “conventions” means? And, when “conventions” meant the “express authority of the people” before the Fifth or Seventh Articles were written, how could the mention of “conventions” in the Fifth imply a grant from the “conventions” to the “conventions”?

Why not admit the simple truth overlooked for the past five years? The respective mentions of “Congress,” of “conventions” and of state “legislatures” in the Fifth Article speak plainly of each body respectively doing something which it could do if there were no Fifth Article.

If there were no Fifth Article, could not Congress draft an Article and propose it and propose a mode of ratification? Philadelphia did all these things and knew and stated that it exercised no power in doing any of them. The mention of Congress implies no “grant.” On the contrary, it is a command which prevents the rest of us from making such proposals and prevents “conventions” or state “legislatures” from making Articles, within their respective abilities, unless proposed to them by “two thirds of both houses of Congress.”

If there were no Fifth Article, could not “conventions” make any kind of an article, as they had made the National Articles of 1776 and as they were making the Articles of 1787? The mention of “conventions” implies no grant. On the contrary, it is a command telling the “conventions” that a “Yes” from three fourths of the “conventions” shall be necessary and sufficient for “constitutional” exercise of the power they have. It is a great security for human freedom. It makes very difficult oppression of the people by the people.

If there were no Fifth Article, could not state “legislatures” make declaratory or federal Articles, which neither exercise nor create power to interfere with human individual freedom? They had, in 1781, made an entire constitution of Articles of that kind. The mention of “legislatures” implies no “grant.” On the contrary it is a command to these “legislatures,” representing the members of the union of states. The command comes from the superiors of the states, the “conventions” of the whole American people.

It is not the only command which the “conventions” of that one people made to the states and their “legislatures.” How absurd to imply from that command that it is a “grant” of power to those commanded governments, giving them omnipotence over every human freedom of the American people who made the command!

We know what Madison told the Americans in the “conventions,” when he asked them to make his Fifth Article. He told them that it was a “mode of procedure” in which either the general government or the state governments could originate, by proposal, the introduction of changes into the Constitution which is both national and federal. He pointedly did not tell those Americans that the Fifth Article is a “grant” of any ability to the state governments to make national Articles and he pointedly did not tell them that it is a “grant” of ability to anyone to make any Articles.

Why then was it necessary for the leading brief, in support of the Eighteenth Amendment, to add to Madison’s explanation of his own Fifth Article (the explanation that it was a “mode of procedure”) the absurd statement that it was a “grant” from the “conventions” to the “conventions” and the state legislatures of power to make Amendments? Why then was it necessary that this brief, speaking of the Fifth Article, should say: “The people thus ordained the mode of Amendment,” exactly what Madison said, “and in their own interest they established this power of Amendment”—exactly what Madison pointedly omitted to state to the Americans he asked to make the Fifth Article?

The answer is simple. Without adding to the Madison statement what he pointedly omitted to state, without stating the addition as axiomatic, Hughes could not even begin any argument for the Eighteenth Amendment.

The statement which Hughes adds to that of Madison is a statement which flatly contradicts everything we have heard in the “conventions.” It flatly contradicts everything the Americans did from 1775 on. It flatly contradicts the Tenth Amendment declaration that the Fifth Article gives no power whatever to the states or their governments. The added statement is sheer “nonsense,” assumed and asserted as axiomatic fact.

And, during the last five years, how has every argument against the Eighteenth Amendment met the “nonsense” of the assumption that the Fifth Article is a “grant?” In no way at all, except by assuming and asserting the same “nonsense,” and by then undertaking to prove another absurdity, namely, that the Fifth Article does not relate to the making of fundamental changes because the imaginary “grant” is limited in extent and does not include power to take away from the importance of the respective political entities which are the states.

Let no American citizen make any mistake as to this one fact. In no argument either for or against the Eighteenth Amendment has there been any challenge to the sheer assumption that the Fifth Article is a “grant” of ability to make changes in the Constitution which is both federal and national. On the contrary, in every argument, the foundation of everything asserted and urged is that very assumption.

In every argument against the Eighteenth Amendment, possible changes in the Constitution (which is both federal and national) have been divided into two classes, but not into the federal class and the national class. It has been invariably contended that the first class include those which can be made under the imaginary “grant” of power in the Fifth Article and in the mode of procedure therein prescribed. On the other hand, it has been invariably contended that the other class includes those which cannot be made under that imaginary “grant” or in any CONSTITUTIONAL procedure because they take away from the citizens of a state their right to govern themselves.

All arguments alike, whether for or against the Eighteenth Amendment, have wholly ignored the fact that the citizens of America, for the protection of the individual liberty of the one American people, IN THAT CHARACTER, established the Constitution and made it the supreme law over the citizens of the respective states and the states themselves and the state governments and the league of the states, which the citizens of America continued as subordinate to their nation of men.

For this reason probably, no argument, on either side, has ever recognized the identity of the “conventions” of the Seventh Article with the “conventions” of the Fifth Article. For this reason probably, no argument has ever recognized the identity of both “conventions” with the most important factor and reservee in the Tenth Amendment, “the people” of America, as distinguished from the lesser reservees, the peoples or citizens of each state, “the states respectively.”

It is this very failure to recognize this identity which has forced the opponents of the new Amendment into the “nonsense” of assuming and asserting, with their adversaries, that the Fifth Article is a “grant” to the “conventions” and the state “legislatures.” If there had not been this failure, everyone would have recognized that the “conventions,” which made the Constitution, neither could nor did “grant” to themselves, the “conventions” named in the Fifth Article, any or all of the very power which they were then exercising. The “nonsense” of the concept of such a “grant” is patent once there is recognized the identity between the “conventions” with the most important reservee of the Tenth Amendment, the one American people of Marshall.

We all know that, for five years, that identity has never been known or mentioned. The failure to know or to mention it has been emphasized by the occasional references to “conventions” which have been made. In one or two arguments, there has been passing attempt to support the “nonsense,” that the Fifth Article is a “grant,” but a “grant” limited in extent, by a suggestion that the Eighteenth Amendment could be “grafted” on the Constitution entirely outside of any mode of procedure mentioned in the Constitution. The suggestion has been that it could be “grafted” on the Constitution by “conventions” of the citizens of each state, provided that the citizens of every state gave their consent. In these suggestions, we ourselves, the citizens of America, the whole American people of Marshall, have figured not at all.

We, who are the citizens of America, must now realize the vital importance to our personal liberty of our own knowledge that we are citizens of America as well as citizens of some particular state. Wilson pointed out to the Americans in the Pennsylvania convention the dual capacity of the American, if the new Constitution were adopted. We remember his statement that “it was necessary to observe the two-fold relation in which the people would stand—first as citizens of the general government and, secondly, as citizens of their particular state. The general government was meant for them in the first capacity; the state governments in the second. Both governments were derived from the people; both meant for the people; both therefore ought to be regulated on the same principles.” And we remember the one most important American principle, that every government in America must get, directly from its own citizens, every power to interfere with their individual freedom.

We cannot help contrasting the accurate statement of Wilson, “in this Constitution the citizens of America appear dispensing a portion of their power,” with what must be the modern statement, if the Eighteenth Amendment is in the Constitution, namely, “in this Constitution the state governments appear dispensing to themselves and to the national government another portion of the power of the citizens of America.”

And, if that modern statement is “nonsense,” what else but “nonsense” are the arguments which rely upon its truth or which do not point out its absurdity?

What action of our public leaders, even in this year 1923, does not disclose that they still have the Tory concept that states and their governments, both of which are political entities, can exercise or grant power which the Tenth Amendment expressly declares that the American citizens reserved exclusively to themselves, and which the Supreme Court, even as late as 1907, clearly held “could be exercised only by them or upon further grant from them?” No discerning American has failed to note that the Senate still clings to the delusion of 1917, that states and their citizens and their governments have anything whatever to do with the national part of the Constitution of the citizens of America. In the newspapers, on January 30, 1923, under the heading, “Favor New Defense for Constitution,” appeared a dispatch from Washington. It told how the senators on the Judiciary Sub-Committee had agreed to report favorably a proposal again to amend the Constitution by changing the language of the Fifth Article. And the main element of the proposed change is to provide that any state may require that ratification by its legislature be subject to confirmation by popular vote of the citizens of that state.

The citizens of each state make their own Constitution. In it, they give to their own government what ability they please to interfere with their own individual freedom. What have the citizens of any State, what have the citizens of every state, in their capacity as state citizens, to do with grants of power to the American government to interfere with the individual liberty of the American citizens? Have not the American citizens, in every state, protection against grants of such power to the one government of the American people except by the citizens of America themselves, in that character? Is there anything in the Fifth Article, as it was written by Madison and made by the one American people, which permits any state governments—which have no power even over their own respective citizens except by grant from them—to exercise or create new government power to interfere with the liberty of the citizens of the distinct and supreme nation, America?

Why persistently and insistently ignore the basic American legal principle that every state government must get its own power over its own citizens from them and that the only government of the American citizens must get its every national (as distinguished from federal) power directly from the citizens of America, assembled in the “conventions” named in the Fifth Article?

Is there any doubt that Madison, who wrote the Fifth Article, knew whom its word “conventions” described? When he asked the one American people to make the entire Constitution, this is what he told them about the Seventh Article, in which the same word “conventions” was used: “This Article speaks for itself. The express authority of the people alone could give due validity to the Constitution.” If the Seventh Article “speaks for itself” and points out that “the people alone” are to make the Constitution, with its grants of national power in the First Article, what word in that Seventh Article identifies the makers of the Constitution, which Madison and all Americans know was made by the one people of America? Is there any word in it except the one word “conventions” to describe the people or citizens of America? And if that one word “conventions” makes the Article speak for itself and tell us that the American citizens themselves made the whole Constitution, does not the word “conventions” in the Fifth Article speak just as plainly for itself and tell us that it also describes and identifies the one people of America, the citizens of America?

Why then tinker with the Fifth Article and repeat the monumental error on which the existence of the Eighteenth Amendment is assumed? Why propose an Amendment to the Fifth Article, which Amendment will itself assume that the Fifth Article already is a “grant” to the state legislatures of ability to give away from the citizens of America their exclusive power to say to what extent and in what matters their one American government may interfere with their individual freedom in their character as American citizens?

Why not be sane and admit that the Fifth Article is not a “grant” to the legislatures of state citizens? It is settled fact that each such legislature, like every legislature in America, must get its every power to govern its own citizens from its own citizens. That is why the Fourth Article guarantee of “a Republican Form of Government” to every state has taught us (pp. 250-1) the absurdity of the thought that the Fifth Article enables state governments outside Rhode Island to give its government power to interfere with the individual freedom of citizens of Rhode Island. And there is a further and more monumental absurdity, in this same respect, when we contrast this Fourth Article guarantee with the assumption that the Fifth Article is a “grant” to the state legislatures. One of the great purposes for which the whole American people made themselves one nation of men was that the strength of such a great nation might be used to secure to the Americans in every state the ability to govern themselves without any interference from outside the state, in all matters except those in which the citizens of America took from them the ability to govern themselves. That is why the citizens of America wrote that guarantee into the Fourth Article as a command to their inferiors, the states and the state governments. Having thus secured “a Republican Form of Government” to the Americans in every state by the command of the Fourth Article, is it conceivable that the same whole American people, immediately thereafter and in the Fifth Article, created for the citizens of America a government which has not even the semblance of “a Republican Form of Government”? That is the concept on which the existence of the Eighteenth Amendment depends. It is not in the Constitution unless, immediately after the guarantee of the Fourth Article and in the Fifth Article, the whole people of America said: “We have just insisted that the Americans in each state must be governed by a government which gets its power directly from them. For ourselves, however, as the whole American people, we are content to let two thirds of Congress and the legislatures of three fourths of the states interfere with our individual freedom, in all matters whatsoever. For that reason, we make this grant to those legislatures. For ourselves, as one people, we have no desire for a Republican Form of Government.”

Does not the claim that the Americans did say this in their Fifth Article entitle us more justly than Henry to exclaim: “I suppose that I am mad, or that my countrymen are so!” (3 Ell. Deb. 446.)

We know, with certainty, that the Eighteenth Amendment is not in our Constitution, and we know that the real and invincible challenge to its existence has never been made. What will be the epitaph of the audacious attempt of government to dictate to Americans as “subjects,” when the challenge is presented to the Supreme Court? No patriotic American can have the slightest doubt. No man, familiar with its history and traditions, can fail to know the answer of that Court to the question, “Citizen or Subject?”

It is not unknown that there is growing up in America, even among many public leaders and lawyers, an unfounded concept that the Supreme Court was created by the American citizens to make law. Such concept is quite in accord with the concept—indeed it is part of the concept—that government can create and constitute new government of men. But the entire history and tradition of the Supreme Court flatly denies the existence of any such concept in the mind of the Court itself. Even in the National Prohibition Cases, the Court quickly displayed the American concept of the relation of men to all governments in America. When the lawyers had finished their incessant talk about the imaginary Fifth Article “grant” which would make all American citizens “subjects” of some governments of state citizens, had the Tory concept of such a grant made the slightest impression upon the mind of the Court? We all know that in the decisions, which merely negatived four unsound challenges to the Amendment, the first statement of the Court was a reference to the power “RESERVED” in the Fifth Article.

And we know how, in the same litigations, the Court wholly ignored the absurd claim, even when advanced by a former justice of the Court, that, when governments had attempted to put anything into our Constitution, so long as the attempt did not involve changing the number of senators from a state, the Court was without power to review the action of governments or to protect the American citizen against usurpation by government.

The Court will never be called upon to exercise a higher or graver trust than to answer the question “Citizen or Subject?”, when the real challenge is made to the new attempted constitution of government of men entirely by government. The Court is not unaware that the whole American people established their Constitution for the one purpose of protecting individual liberty.

Nor will anyone familiar with the unbroken tradition of the Supreme Court listen, with aught but mingled incredulity and indignation, to the suggestion that the Court itself has not always understood that it is itself but a part of the limited government of the one American people, created by that people as one means to that sole end.

“It is emphatically the province and duty of the Judiciary Department to say what the law is.”

This is the clear statement of Marshall in Marbury v. Madison, 1 Cranch. 137, declaring unconstitutional a section of an act of Congress, which had been passed at the first session in 1789. The entire Bench and Bar of America, including the Supreme Court, for fourteen years, had practiced on the assumption that the section was constitutional. Yet in 1803, the Supreme Court declared it to be unconstitutional. Nothing could more clearly establish the knowledge of the Supreme Court that no continued thought (even by the Court itself), that any command of legislatures is valid, will ever blind the Court to its bounden duty to announce the fact that the command was made without authority from the people, when that fact is once made clear to the Court.

Exactly the same attitude was taken by the Court in relation to an income tax and a federal limitation on a national power given to impose direct taxation.

When that federal limitation was imposed it was aimed only at taxation on land and at what were then known as “poll” or “capitation” taxes. In the days of the “conventions” where we have sat, all other kinds of taxation were deemed to be indirect taxation.

In the very early days of the Supreme Court, this knowledge of the “convention” days was echoed in decisions which, on that ground, held that certain taxes, which today might be regarded as direct taxation, were not within the federal limitation as to apportionment of direct taxes among the states. Among those taxes, those imposed without apportionment, were a tax on carriages and receipts of insurance companies and on the inheritance of real estate. Even as late as the days of the Civil War, when a tax was imposed upon incomes and without apportionment among states, the Supreme Court held that such tax was not a direct tax within the meaning of “direct tax” to those who imposed the federal limitation.

Nevertheless, when the income tax law of 1894 had been enacted, its opponents again carried to the Supreme Court the claim that it violated the federal limitation on the power of direct taxation, because it did not apportion the tax among the states. And the Supreme Court, by a divided vote and on the ground that a tax on the income from land was a tax on the land itself and consequently a direct tax, held the Income Tax Law of 1894 to be void. It was by reason of this decision that the Sixteenth Amendment was proposed and adopted, making the federal change in the Constitution that lifted the federal limitation from the national power of direct taxation insofar as a tax on incomes was concerned.

In these decisions, as in the many others which have followed the same clear American concept of duty and power, the Supreme Court has always known and followed the reason stated by Hamilton for its existence as part of the limited government of the one American people.

In Federalist, Nos. 78 and 81, appealing to the Americans to make the Constitution, Hamilton points out that the Constitution does not authorize the Supreme Court to exercise its will to make the law what the Court thinks it ought to be, but does impose upon the Court the duty of exercising its judgment to ascertain what the law has been made by those competent to make it. And then he points out that the Supreme Court, in this Constitution of a self-governing people, is made the great bulwark of the people against legislative encroachment upon the rights or powers of the people reserved to themselves.

This knowledge of Hamilton has been the knowledge of the Supreme Court from its institution. It has been reiterated and explained and expounded in that Court from the days of Marshall to our own day. It has become part and parcel of the great traditions of that Court, which are the foundation of the great respect which the average American citizen pays to its decisions and its authority as his own great protection against usurpation of power by other departments of his various governments.

And so the average American citizen will look forward with certainty to the decision of that Court when the real challenge is made to the existence of the Eighteenth Amendment by an American who does know and assert the plain facts which mean that either there is no Eighteenth Amendment or there never has been an American citizen. It is simple fact that the existence of the Eighteenth Amendment, that government-made constitution of government of men, is absolutely incompatible with the existence of a citizen of America. It is simple fact that the Fifth Article did not grant to state governments or to any governments the ability to make Articles like the First Article or the Eighteenth Amendment, or else the Fifth Article made all Americans “subjects” of a part of the state governments, with omnipotent ability in those governments to legislate for Americans “in all matters whatsoever.”

And it is simple fact that the Supreme Court must and will—when the real challenge is at last made—decide that the Eighteenth Amendment is not in the national part of the American Constitution because it was made by governments and not by the “conventions” of the Fifth Article. Otherwise, in the face of history, in the face of the record of the “conventions” of the American citizens, and in the face of all that the Supreme Court has hitherto decided, the Court must decide that the American citizen has never existed. The possibility that there should be such a decision is absolutely beyond conception.

What the decision will be was long ago foreshadowed and forecast by Daniel Webster. It would almost seem as if Webster had heard the Sheppard claim that the states made the Constitution and that the states had then agreed between themselves that the governments of thirty-six of the states, in combination, could command the American citizen in any matter of his individual freedom. It would almost seem as if Webster had heard Hughes deny, while his associate lawyers for the Eighteenth Amendment still asserted with Sheppard, that the Constitution was a compact between states and then had heard them all insist that the Fifth Article was a “grant” which made thirty-six governments of state citizens an omnipotent Parliament over all citizens of America.

“When the gentleman says, the Constitution is a compact between the states, he uses language exactly applicable to the old Confederation. He speaks as if he were in Congress before 1789. He describes fully that old state of things then existing. The Confederation was, in strictness, a compact; the states, as states, were parties to it. We had no other general government. But that was found insufficient, and inadequate to the public exigencies. The people were not satisfied with it, and undertook to establish a better. They undertook to form a general government which would stand on a new basis—not a confederacy, not a league, not a compact between states, but a constitution; a popular government, founded in popular election, directly responsible to the people themselves, and divided into branches, with prescribed limits of power, and prescribed duties. They ordained such a government; they gave it the name of a constitution; and therein they established a distribution of powers between this, their general government, and their several state governments. When they shall have become dissatisfied with this distribution, they can alter it. Their own power over their own instrument remains. But until they shall alter it, it must stand as their will, and is equally binding on the general government and on the states.” (Webster’s concluding remarks in the reply to Hayne, 4 Ell. Deb. 518.)

Is not the same doctrine certain from the Court which knew the whole Constitution so well that it decided, in the important case of Barron v. Mayor of Baltimore, supra, p. 376, that the entire Constitution gave no power of any kind to the state governments? Is not the same doctrine certain from the Court which held:

When the real challenge to the Eighteenth Amendment is presented before that Court, it will be necessary for the defenders of the Amendment to abandon the disguise in which they attempt to conceal the real nature of their Tory concept. No one of them has been bold enough to state in words the real claim about the Fifth Article. That real claim is that the Article is a “grant” and that the “grant” gives to thirty-six governments of state citizens unrestricted ability to interfere with the freedom of the American citizen on every subject enumerated in the First Article and on every subject not enumerated in the First Article. That is not the way any defender of the Amendment states his claim. It is always stated that those thirty-six governments can change the Constitution by putting into it anything which the American citizens, assembled in their “conventions,” can put into it. Our education with the Americans in the “conventions” has taught us that both statements are exactly the same statement. If the thirty-six state governments can make the command to the American citizens which is embodied in the First Section of the Eighteenth Amendment, by putting that command into the national part of our Constitution, any thirty-six state legislatures can make any command to the American citizens on any subject enumerated or not enumerated in the First Article. The claim, that the Fifth Article “grants” to the thirty-six state governments the right to put the command in the Constitution, is identical with the claim that the Fifth Article “grants” to the state governments the right to make the command to the citizens of America. A legislative command to human beings, interfering with their individual freedom, is a legislative command by whatever name it may be called. Mere omission to call a legislative command by the usual names, an “Act” or “Statute,” cannot alter its essential nature.

From June 21st, 1788, the birthday of the American nation of men, there has been but one possible answer to the question which is the title of this book. That one answer was known to everyone in the “conventions” which made the Fifth Article. The Americans in those conventions all knew that they were becoming “citizens” of America, not “subjects” of any governments. They knew that they were dispensing part of the power of the American citizens to Congress in the First Article; and that the rest of that power they were reserving to themselves. They knew that they were giving no power whatever to the state governments with whom they never deal except to command those governments.

That is why Pendleton, in the Virginia convention, made his statement of fact in the oratorical form of a question, because the one answer to the question was known and “felt and acknowledged by all.” His statement of fact, made in the oratorical form of a question, is, in substance, exactly the title of this book:

“Who but the people can delegate powers?... What have the state governments to do with it?” (3 Ell. Deb. 37.)

APPENDICES — APPENDIX I THE ORIGINAL CONSTITUTION OF THE UNITED STATES — Article. I. — Article. II. — Article III. — Article. IV. — Article. V. — Article. VI. — Article. VII.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Section, 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section. 2. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have ^the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Section. 3. The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States ^{is tried} the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Section. 4. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

Section. 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Section. 6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Section. 7. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Section. 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Section. 9. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Section. 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of ^the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of ^the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Section. 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

Section. 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section. 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Section. 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Section. 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Section. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section. 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Section. 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Section. 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Section. 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Section. 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of it’s equal Suffrage in the Senate.

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth. In witness whereof We have hereunto subscribed our Names,

Go Washington—Presidt and deputy from Virginia

APPENDIX II THE RESOLUTION WHICH PROPOSED THE CONSTITUTION TO THE CONVENTIONS OF THE PEOPLE OF AMERICA — In Convention Monday September 17th 1787.

APPENDIX III THE FIRST SEVENTEEN AMENDMENTS TO THE CONSTITUTION

1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

3. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

4. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

5. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor to be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

7. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

11. The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

12. The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States directed to the President of the Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of death or other constitutional disability of the President.—The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

13. Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation.

14. Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

15. Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude—

Section 2. The Congress shall have power to enforce this article by appropriate legislation—

16. The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

17. The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

APPENDIX IV THE ALLEGED EIGHTEENTH AMENDMENT

Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Sec. 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Sec. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

APPENDIX V THE NINETEENTH AMENDMENT — Transcriber’s Notes

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.