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Title: Citizen or Subject?
Author: Hennessy, Francis X.
Language: English
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CITIZEN OR SUBJECT?
BY
FRANCIS X. HENNESSY
OF THE NEW YORK BAR
[Illustration]
“... _that this nation, under God, shall have a new
birth of freedom; and that government of the people,
by the people, for the people, shall not perish from
the earth._”
NEW YORK
E. P. DUTTON & COMPANY
681 FIFTH AVENUE
Copyright, 1923
By E. P. Dutton & Company
_All Rights Reserved_
PRINTED IN THE UNITED
STATES OF AMERICA
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
I. SUBJECTS BECOME CITIZENS _Page 1_
The American must know what a citizen is--Otherwise he will not
remain a citizen--If the American citizen exists, there is no
Eighteenth Amendment--Americans of 1776 knew distinction between
“citizen” and “subject”--While legally “subjects,” they had
governed themselves as “citizens”--Attempt to govern them as
“subjects” causes Revolution--Declare American concept, no government
interference with human liberty unless “citizens” grant
government power--Make thirteen nations, each composed of citizens--Its
“citizens,” in “conventions,” constitute each government
by grant of power to interfere with human liberty--“Democracy”
and “Republic” distinguished--Revolution to make American concept
American law.
II. THE STATE GOVERNMENTS FORM A UNION OF STATES _Page 17_
Revolution continues--Thirteen nations form league or federation of
states--Members of federation act through respective attorneys-in-fact,
state legislatures--Legislatures constitute federal government
and grant its federal powers to govern states--Distinction
between legislatures’ power to make federal Articles and citizens’
power to make national Articles under which men are governed--Citizens’
power exercised in 1776 and legislatures’ power in
1781--Revolution won, establishing American concept as American
law.
III. AMERICANS FIND THE NEED OF A SINGLE NATION _Page 25_
Federation of states unsatisfactory--General government, with only
federal power to govern states, not able to secure what whole
American people want--They learn need of general government
with some enumerated national powers to govern men.
IV. THE BIRTH OF THE NATION _Page 29_
Philadelphia Convention assembles ostensibly to draft and propose
purely federal Articles--It drafts and proposes a “Constitution”
with both national and federal powers--First Article is the constitution
of American national government because it grants all
the enumerated powers to interfere with human liberty of American
citizens--Fifth and Seventh Articles relate to the grant of
national power, though neither grant it--Other four Articles
neither grant nor relate to grant of national power--Fifth prescribes
constitutional mode for its future grant by American citizens
in “conventions”--Also prescribes constitutional mode for
future grant of federal power by state legislatures--Philadelphia
knows and decides that legislatures can never grant national
power and Articles are sent to “conventions” of “citizens,” as in
1776--Whole American people become a nation--American citizen
first exists on June 21, 1788, when American citizens make
their only grant of national powers--States and their citizens and
constitutions and governments are made subordinate to citizens
of America--These facts entirely forgotten in 1917.
V. THE CONSENT OF THE GOVERNED _Page 55_
Education of personal experience, from 1775 to 1790, accurately
taught science of government to average American--It taught
him that citizens only can grant government power to interfere
with human liberty, though legislatures can grant federal power
to govern states--Modern leaders lack that practical education
and the accurate knowledge it taught the early American--Modern
average American has sensed something curious about making
of Eighteenth Amendment--That he may understand what
he senses and know why there is no such Amendment, must
briefly consider the Constitution.
VI. THE CONVENTIONS GIVE THE CONSENT _Page 64_
In conventions, whole American people themselves make
Constitution--“Felt and acknowledged by all” that legislatures could
never make First Article because it constitutes government of men--From
early American, modern American learns that grant of power
to govern men is the constitution of the government of men--Because
First Article grants of that kind are enumerated, American
government known as government of enumerated powers--Primal
security to human freedom that citizens, not legislatures,
grant all power of that kind--Because this primal security
known to early Americans, their “conventions” insist that Constitution
(Tenth Amendment) declare that every power of that
kind not granted by American citizens remains with American
citizens--Our own leaders have not known this security or understood
that all ungranted powers of that kind were reserved by
American citizens to themselves.
VII. PEOPLE OR GOVERNMENT?--CONVENTIONS OR LEGISLATURES? _Page 80_
American nation a society of men like any other society of men--Herein
called America to distinguish it from federation of united states
which can make and are governed by federal parts of Constitution--Like
any society of men, America created by its original
human members in their “conventions”--Their knowledge of
that fact becomes our knowledge--Supreme Court knows and
states it--Citizen of America distinct from state citizen, though
the same human being--Distinction vitally important, as Supreme
Court explains--Only citizens of America can grant new power
to interfere with their own human freedom--All original American
citizens know this--Many explain it to us, Daniel Webster
vehemently and clearly.
VIII. PHILADELPHIA ANSWERS “CONVENTIONS, NOT LEGISLATURES” _Page 95_
Philadelphia knowledge and decision that legislatures of states, members
of the federation, cannot make Articles which create government
power to interfere with freedom of men, members of
the nation--The decision, based on knowledge of basic American
law, is embodied in Seventh Article and proposing Resolution
at Philadelphia in 1787--Human members of nation described
as “conventions” in Seventh Article--Story of Seventh
Article at Philadelphia--Madison asks searching question of any
American who thinks possible any other decision than the Philadelphia
decision--Now educated with the early Americans, we
give the same answer as that of Philadelphia, while our leaders
have given the opposite answer.
IX. THE FIFTH ARTICLE NAMES ONLY “CONVENTIONS” _Page 110_
Philadelphia story of Fifth Article--Relates to future grants of
national power by American citizens but makes no grant--Meaning
to “conventions” must be meaning now--Madison writes it at
Philadelphia, and he and many others from Philadelphia are in
“conventions” who made it--Its Philadelphia story from May 29
to September 10, 1787, one week before end of Convention.
X. ABILITY OF LEGISLATURES REMEMBERED _Page 115_
Fifth Article in last Philadelphia week--Philadelphia, previously
concentrated on its own First Article, has so far forgotten that
future Articles will probably be federal, which legislatures can
make--Wherefore, legislatures not yet mentioned in tentative
Fifth Article--Madison and Hamilton recall probability that all
future Articles will be federal and suggest a Fifth Article which
mentions “legislatures” as well as “conventions”--Full record of
September 10, 1787, day of that Madison suggestion--Added mention
no support for modern error that Fifth Article a “grant”--Moderns
ignore that one supposed grantee is supposed grantor
and that “grant” would make Americans “subjects”--In language
of Fifth Article, Philadelphia finds no suggestion of modern
error and the Article, with its added mention of legislatures,
is passed without discussion--Having no suggestion of a
“grant,” it is known at Philadelphia to be constitutional mode of
future exercise of the two existing but different abilities of
“legislatures” and “conventions”--Madison, Wilson and Marshall
on this fact--Full Philadelphia story of September 15, when
Fifth Article finally considered--Defeat of Gerry’s motion to
strike out “by conventions in three-fourths thereof”--Modern
error of thinking and acting as if that motion had been carried.
XI. CONVENTIONS CREATE GOVERNMENT OF MEN _Page 141_
“Conventions” of Seventh Article, making Constitution, know same
“conventions” of Fifth Article to be themselves, the American
citizens--Americans, in “conventions,” with American concept
that government exists solely to secure individual and his freedom,
read and make Fifth Article--Madison hits hard modern
concept of Bolshevist Russian and Eighteenth Amendment American
that human beings are made for kings or legislatures or
political entities--Conventions hear Madison explain Fifth Article
as prescribing procedure in which “conventions” can again
assemble constitutionally to exercise their power and in which
“legislatures” may act constitutionally in making future federal
Articles--Recognize its constitutional mode as exact Revolutionary
mode just followed by Madison and others at Philadelphia
and that future Congress should do exactly what Philadelphia
did and no more--Recognize Fifth Article settles how each “convention”
vote shall count as one vote of American citizens and
how many “convention” votes shall be necessary and sufficient to
make a future Article which “conventions” of American citizens
alone can make--Recognize words “in three-fourths thereof” after
word “conventions” most important words in Fifth Article and
a great security to individual liberty--Average American now
sees why Eighteenth Amendment Tories seek escape from that
security by asserting Constitution created supreme will independent
of American citizens, i.e., will of state legislatures.
XII. TWO ARTICLES NAME “CONVENTIONS” _Page 171_
From 1775 to 1789, all Americans aim to secure individual welfare--With
this one aim, “conventions” continue to read Fifth Article
and recognize statements of Fifth and Seventh, as to “conventions,”
identical in nature--Recognize both ordain WHEN convention-made
Articles, granting power to interfere with individual
freedom, shall validly constitute government of American
citizens--Recognize “conventions” of Seventh and Fifth as whole
American people of Preamble--Recall ability of legislatures to
make federal Articles and know mention of “conventions” and
“legislatures” grants no power to either--State “legislatures”
lesser reservee and “conventions” of American citizens most important
reservee in Tenth Amendment--“Conventions” recognize
two exceptions in Fifth Article, not as exceptions from power
granted therein, but as intentional refusal to provide a constitutional
mode in which existing ability may be exercised to do what
is mentioned in two exceptions--“Conventions” finish reading
Fifth Article and, from its clear language, know it is not a grant
of power but a constitutional mode for the exercise of either of
two existing powers, one limited and the other unlimited.
XIII. CONVENTIONS KNOW “CONVENTIONS” ARE “THE PEOPLE” _Page 180_
Americans, in their “conventions,” explain and support and oppose
the proposed Articles--Whether for or against the Articles, their
invariable and clear statements confirm the “convention” knowledge
that the Fifth is not a grant of power either to themselves,
“conventions,” or to the state “legislatures”--Conventions
check Fifth Article mention of “legislatures” and “conventions”
with statement that proposed constitution is “one federal and
national constitution”--Henry insists that proposed Articles make
the state legislatures weak, enervated and defenseless--“Abolish
the state legislatures at once”--Wilson admits that the Articles
take power from the state legislatures and give them no new
power--“The diminution is necessary to the safety and prosperity
of the people”--Madison explains the importance of his
words, “in three-fourths thereof,” after the word “conventions,”
as requiring more than a mere majority of American citizens for
new interference with individual liberty--Hamilton states his
own conviction that amendments will be to the federal and not
the national part of the Constitution and emphasizes the legal
necessity that grants of national power must come from the people
and not the legislatures--“Conventions” reluctant to give
even the enumerated national powers of the First Article and
insist on the Tenth Amendment declaration that all other power
of that kind is reserved by themselves to themselves--“In their
hands it remains secure. They can delegate it in such proportions,
to such bodies, at such times, and under such limitations,
as they think proper”--In 1907, the Supreme Court states, what
the “conventions” knew, that all powers not granted in the First
Article are reserved to the “conventions” of American citizens
“and can be exercised only by them or on further grant from
them”--The “conventions,” having secured the liberty of American
citizens from all government interference except under the
First Article grants, end their great work.
XIV. SEVENTEEN ARTICLES RESPECT HUMAN FREEDOM _Page 212_
Hamilton’s conviction, that all Amendments would be of the federal
kind which legislatures can make, verified by the seventeen
amendments prior to 1917--As Supreme Court has repeatedly
held, the first ten Amendments merely declared what was already
in Constitution--A relevant and important declaration in the
Tenth is that the entire Constitution gives no power of any kind
to state legislatures--Amazing modern Tory concept that these
ten Amendments are an American Magna Charta or compact
between a master government and its “subjects”--Madison and
Supreme Court on the “impious doctrine” that Americans are
“subjects”--Eleventh and Twelfth Amendments have naught to
do with individual freedom--Thirteenth, Fourteenth and Fifteenth
neither exercise nor create government power to interfere with
human liberty--On the contrary, their purpose and effect are to
make human liberty universal--Sixteenth removes a federal limitation,
in favor of the states, from a power the “conventions”
gave to Congress--Seventeenth relates only to the election of
Senators--When 1917 opens, Congress has no power to interfere
with individual liberty of American citizens which Congress did
not have in 1790--When 1917 opens, no legislatures, since July
4, 1776, have dared to interfere with the individual liberty of the
American citizens outside the First Article grants or have dared
to attempt to create a new power so to interfere--When 1917
opens, we have not become “subjects” but still are citizens of
America.
XV. THE EXILED TORY ABOUT TO RETURN _Page 231_
When 1917 begins, relation of American citizen to all governments
in America and relations of governments to one another just
the same as in 1790--American government can interfere with
the American citizen on matters enumerated in the First Article--No
other governments can interfere with him at all--The government
of each state can interfere with its own citizens, except
as the American Constitution forbids, on matters in which the
citizens of each state give their own government power to interfere--No
government, either American government or state government,
can get any new power of that kind except directly
from its own citizens--No government can get any power of
that kind from other governments--New federal power of American
government can be granted by members of federation, the
states, acting through their respective attorneys-in-fact, the state
legislatures--State legislatures are powerless to govern or to
create power to govern American citizen--In these respects, supremacy
of American citizens over all governments same in 1917
as in 1790--1917 leaders did not know, what 1790 average American
knew, that Revolution had ended forever Tory law that
governments are master and Americans are “subjects.”
XVI. THE TORY “EIGHTEENTH AMENDMENT” _Page 239_
December, 1917, closing month of America’s first year in World War
for human liberty--American citizens have but one government,
Congress, which can interfere with their human liberty in any
matter--Congress knows it cannot interfere by making the command
which is Section 1 of the Eighteenth Amendment--Amazing
Resolution in Senate that legislative governments of state
citizens be asked directly to interfere with human liberty of
American citizen in matter not enumerated in First Article--Resolution
asks some state governments to give only American
government a new enumerated power to interfere with freedom
of American citizen, the first new power of that kind since June
21, 1788--Some leaders question “wisdom” of Resolution--No
leader questions power of any governments (except Congress in
the enumerated First Article matters) to interfere with freedom
of American citizen--No leader questions power of any or all
governments to give a new enumerated power of that kind to
the only American government or to any government--No leader
knows that, in 1917 as in 1787 and in 1790, only the “conventions”
of American citizens can make the command or the grant
of power--House of Representatives adds absurdity to absurdity--Adds
to Resolution that state governments, while interfering
with liberty of American citizen and granting only American
government first new enumerated power so to interfere, should
also give themselves (the granting governments) the very power
they assume to exercise over American citizens--Webb, explaining
to the House his proposed change in Section 2 of the Amendment,
states this to be the meaning and purpose of the change--Article
IV contrasted with absurd modern error, as to meaning
of Article V--That modern error is sole basis of Tory concept
that any or all governments could make Articles like First
Article or supposed Eighteenth Amendment--Article IV guarantees
to citizens of each state that their state government shall be
republican, getting from them its every power to interfere with
their individual freedom--Senate Resolution asks state governments,
outside each state, to give each state government power
to interfere with the freedom of its own citizens--Congress of
1917 acted on assumption that Article V meant to enable Congress
to suggest any desired breach of the guarantee in the
closing words of Article IV.
XVII. THE TORY IN THE HOUSE _Page 254_
Despite our education with Americans from 1775 to 1790, in 1917,
when Americans are at war for human liberty, the only American
government recognizes other governments (the state legislatures)
as an omnipotent Parliament with all American citizens
as “subjects”--Volstead Act is only statute in America, interfering
with individual liberty, which does not even pretend to
be founded on direct grant of power from its citizens to the government
which enacted it--Webb, in the House, states, “We
thought it wise to give both the Congress and the several states”
new power to command the American citizen on this matter not
enumerated in the First Article--His tribute to the state governments,
as master governments of American citizen, exactly
the tribute paid by Lloyd George to the power of the Westminster
Parliament over its “subjects”--Marshall, Hamilton, Madison,
the Virginia Convention of 1788, the Supreme Court repeatedly
and even in 1907, flatly deny the concept of Webb and the 1917
Congress--Concept of latter merely repeats mistake of government
counsel on which Supreme Court dwelt with emphasis in
1907--Ignores most important factor in Tenth Amendment, “people”
or “conventions”--From the early Americans, “Who but the
people can delegate powers? What have the state governments
to do with it?” and “How comes it, sir, that these state governments
dictate to their superiors--to the majesty of the people?”--Webb
reads to the House a Fifth Article in which “conventions”
does not appear--Madison tells Webb and all of his Tory
concept, “These gentlemen must here be reminded of their error.
They must be told that the ultimate authority 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”--Webb closes in the House with
an eloquent appeal to every other follower of Mohammet.
XVIII. THE TORY IN THE SENATE _Page 275_
Calm and sound reasoning of Federalist, advocating the real
Constitution, contrasted with irrelevant personal abuse by those
supporting the imaginary new Constitution--Latter, because facts
and law make their Tory concept absurd, revive “impious doctrine
of Old World” that human beings were made for political
entities and governments--Senator Sheppard and his eloquent
claim that American citizens, like other machinery, must be
kept in good condition for their government owner--His “discovery”
that the states, political entities, made the Constitution
of America, the nation of men--Story of America (from May
29, 1787, to July, 1917) being a sealed book to him, he does
not know that our Constitution is both federal and national--Supreme
Court, in early days and in 1907, and Webster and
Lincoln tell him his mistake--Not knowing the decision of Gettysburg,
recorded at Appomattox, he chooses between Lord North
of 1775 and Calhoun and summons the latter to prove that the
American people did not make their Constitution and its grant of
enumerated power to interfere with their individual freedom--Jefferson,
Pendleton, Webster and many other Americans correct
Sheppard’s error of fact--As the American people of 1776
accomplished their successful Revolution against government,
may it not be the thought of Sheppard and other Tories that the
Eighteenth Amendment has been established by a successful revolution
of government against the people--Marshall again tells
us of the American day when the legal necessity “was felt and
acknowledged by all,” that every power to interfere with human
liberty must be derived from the people in their “conventions”--Acting
on the Congress proposal of 1917, governments of state
citizens command the American citizen and create a new government
power to interfere with his individual liberty--But no
statesman has yet told us how or when, prior to 1917, we became
“subjects.”
XIX. ARE WE CITIZENS? _Page 298_
Hamilton thinks it a prodigy that Americans, in “conventions,”
voluntarily constitute the enumerated First Article government powers
to interfere with their individual liberty--Marshall, in Supreme
Court, declares “conventions” to be the only manner in
which they can act “safely, wisely and effectively” in constituting
government of themselves, by making such grants--When
proposed 1917 first new grant of that kind is supposedly made,
American people and their “conventions” are completely ignored--The
proposers have a Fifth Article which does not mention
“conventions”--The proposers have the old Tory concept, that
the people are the assets of the state and that government is the
state--Still trying to find out how and when we became “subjects,”
we expect to get information from the litigations of 1920--We
expect great counsel, on one side, to urge the facts we
know--We fear that other great counsel will urge, in reply,
some fact or facts which we have not been able to ascertain--We
are certain that there is no Eighteenth Amendment, if the
facts we have learned are all the facts--That we may listen
intelligently to all the great counsel, we review some of the facts
we have learned.
XX. LEST WE FORGET _Page 307_
“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”--Our first glance at briefs of 1920 gives
us hope that some modern leaders have acquired the knowledge
of Hamilton and his generation--We find, in one brief, in Marshall’s
words, the Supreme Court statement of the fact that
“conventions” of the people, not states or their governments, made
the Constitution with its First Article grants of power to interfere
with human liberty--But this brief, to our amazement, is that of
the foremost champion of the only other grant of that kind, the
Eighteenth Amendment, a grant made entirely by government to
government--In 1920, seven litigations argued and reported under
the one title “The National Prohibition Cases”--Distinguished
counsel appear for many clients, for the claimed omnipotent Parliament
of America, for the American government which we
used to know as our supreme government, for a few state governments
who did not wish to be part of the omnipotent Parliament,
for those engaged in the lawful business of manufacturing,
etc., the commodities named in the Eighteenth Amendment--Like
the human right to breathe, such manufacture, etc., was not the
privilege of a citizen--Both rights are among the human rights
men have before they create nations and give governments power
to interfere with some or all of their human rights--Citizens of
America, giving their only American government its enumerated
powers, gave it no power to interfere with the human right mentioned
in the new Amendment--Human rights never are privileges
of citizens--Citizens establish government to protect existing
human rights--Only “subjects” get any rights or privileges from
government--All early Americans knew these primal truths--Neither
the French aristocrats, before French Revolution, nor
Tories of 1776 in England or America knew them--Eighteenth
Amendment Tories do not know them--Madison (in 1789) and
Supreme Court (in 1890) knew that commodities named in new
Amendment are among those in which a human right “of traffic
exists”--In litigations of 1920, no counsel appear on behalf of
the human rights of American citizens--But we know that no
decision of our own Supreme Court, established to secure our
human rights, although the decision may settle disputes between
other litigants, can change us from “citizens” into “subjects.”
XXI. BRIEFS IGNORE THE AMERICAN CITIZEN _Page 325_
No counsel knows all are discussing whether Americans, twelve years
after 1776, voluntarily became “subjects”--Common concept of
all that Fifth Article a “grant” of power to state governments
(of state citizens) making them attorneys-in-fact for citizens of
America--Discussion entirely as to extent of power “granted”--Eighteenth
Amendment concept that Fifth Article “grant” made
some governments of state citizens a supreme American Parliament,
unrestrained master of every human right of all American
citizens--Opposing concept that the Fifth Article “grant” made
those state governments a Parliament whose one limit is that it
cannot interfere with the sovereignty of any political entity which
is a state--Both concepts ignore supremacy of nation of men over
federation of states--Both ignore dual nature of “one national
and federal Constitution”--Both ignore “conventions” in Seventh
and Fifth Articles as the citizens of the American nation--Both
ignore that each state “legislature” is attorney-in-fact for the
citizens of its own state and that no legislatures are (except
Congress in enumerated matters) attorneys-in-fact for the citizens
of America in any matter--Our facts, brought from our education with
the early Americans, all ignored by all counsel in the litigations--The
Virginia Convention itself and Lee, Pinckney, Hamilton,
Madison, Wilson, Iredell and others state what all counsel
of 1920 entirely ignore.
XXII. NO CHALLENGE TO THE TORY CONCEPT _Page 335_
Eighteenth Amendment rests on imaginary Fifth Article “grant”
making the state governments of state citizens attorneys-in-fact
for the citizens of America, empowered to give away all human
rights of the citizens of America--“Grant” assumed in every
brief--No brief recognizes that one supposed “grantee” is supposed
“grantor”--Or that each of two supposed “grantees” was
a competent maker of Articles (as proposed Articles were respectively
federal or national) before and when the “conventions”
made the Fifth Article--Or that Philadelphia Convention knew
and held “conventions” existing ability competent to make any
Article and state legislatures, existing ability incompetent ever to
make Articles like First Article or Eighteenth Amendment--Or
that Tenth Amendment declares no power given to state “legislatures,”
while all ability to make national Articles “reserved” to
“conventions” of “the people” of America--No brief challenges
sheer assumption of Fifth Article “grant” or supports assumption
by any fact--Every brief, for or against Amendment, is based on
the sheer assumption--No brief knows that enumerated powers of
only American government to interfere with human freedom can
be changed by no one save the citizens of America themselves in
their “conventions”--Madison’s tribute to these “conventions” in
which “free inhabitants” constitute new government power over
themselves--Hamilton explains great danger to human liberty if
“legislatures” or permanent government bodies could create such
new government power--That knowledge of his generation confirmed
by story of government-made supposed Eighteenth Amendment--Our
gratitude to that generation of men who (1776) made
it and (1788) left it impossible that governments could create
new government power to interfere with American human liberty--Our
regret that modern leaders have not known this great and
immutable protection to American liberty.
XXIII. THE CHALLENGES THAT FAILED _Page 350_
Supreme Court wisely writes no opinion in “National Prohibition
Cases”--In each of four numbered paragraphs, Court states its
own negation of one challenge made to new Amendment--All
four challenges are negatived in seventeen lines of statement--First
two challenges trifling and purely technical--Third challenge
based on rights of the citizens of some particular state--Fourth
challenge to “extent” of Fifth Article “grant” of power
by “conventions” to “conventions” and “legislatures”--This challenge
asserts “grant” which advocates of Eighteenth Amendment
must and cannot prove--Court negative amazingly accurate--All
counsel have argued incessantly about “extent” of power “granted”
by Fifth Article--Court negatives in statement which speaks of
power “reserved” in Fifth Article--Concept of “grant” disappears--Court
knows what “conventions” knew, when they made
Fifth Article, when they insisted on Tenth Amendment Declaration
expressly stating the distinct reservees of the two existing
powers “reserved” in Fifth Article--Supreme Court of Marshall’s
day knows it and Supreme Court of 1907 knows it--“Citizen or
Subject?”--Eighteenth Amendment answers “Subject”--Real Constitution
answers “Citizen”--“Conventions” insisted on plain statement
of correct answer--Counsel of 1920 do not know it--Their
four challenges make plain that fact--All challenges based on
error that governments of state citizens are attorneys-in-fact for
citizens of America--In Virginia Convention and in Supreme
Court, Marshall explains that powers of state governments “proceed
not from the people of America” but from the citizens of each
respective state--No counsel of 1920 knows this important fact.
XXIV. GOVERNMENTS CLAIM AMERICANS AS SUBJECTS _Page 371_
Patrick Henry, opposing Constitution in the “conventions,” knows that
it takes power from the state legislatures and gives them no
power--All modern leaders “know” that it gives those legislatures
great power as attorneys-in-fact for the citizens of America--Many
modern leaders “know” that it makes those legislatures
an omnipotent Parliament over the citizens of America--No modern
leaders remember 1781 and 1787 existing ability of the state
legislatures to make federal Articles or Articles not creating
government power to interfere with human liberty--Common
modern concept that Fifth Article is “grant” to these “legislatures”
and to the very “conventions” which made the Fifth Article--Leading
brief, against Amendment, more than fifty times admits
or asserts this imaginary and remarkable “grant”--Some extraordinary
concepts of our American institutions in briefs--In a
famous opinion, Marshall explains a fact and on it bases the
entire decision of the Supreme Court--The fact itself is that the
Constitution granted no power of any kind to the state legislatures--No
brief knows or urges this fact or any of the facts we
learned in the “conventions,” the facts on which we base our
challenge to the Eighteenth Amendment concept that we are
“subjects”--Briefs for the Amendment examined to find out why
we are supposed to be “subjects”--Amazing claim that, when
governments alone change the national part of the Constitution,
Supreme Court has no power even to consider whether governments
in America can make a change in the enumerated powers
given to their own government by the citizens of America--Remarkable
Tory concept that the number of Senators from each
state is the only thing in America immune from government
invasion, if enough governments combine--Indignation of American
citizen changes to mirth when he realizes this concept to be
only basis of thought that he is a “subject” or that there is an
Eighteenth Amendment--American citizen, seeking to find (in the
briefs for the Amendment) what happened, between 1907 and
1917, to make him a “subject,” startled to hear the answer,
“Nothing”--Citizen’s amusement increased on learning, in same
briefs, that whole American people, in Constitution which expressly
declares it gives no power to state governments, made
those governments of state citizens irrevocable and omnipotent
attorneys-in-fact for the citizens of America--Amusement increased
by finding that main champion of Tory concept quotes
Marshall’s Supreme Court story of the making of the Constitution,
but omits, from the quotation, the paragraph in which Marshall
points out that everyone knew why the “legislatures” could not
make and only the “conventions” could make the national First
Article, with its grant of enumerated power to interfere with
human liberty--Curiosity added to mirth on finding this brief
echo Madison’s own knowledge that his Fifth Article contains
nothing but “procedural provisions,” while brief bases its entire
contention on mere assertion that Fifth Article is greatest grant
of power ever made by free men to government.
XXV. CITIZEN OR “EIGHTEENTH AMENDMENT”? _Page 397_
Congress is only legislature with any power of attorney from the
citizens of America--At very beginning and very end of original
Constitution, citizens of America expressly so state--All briefs of
1920 based on asserted assumption denying those two statements
and insisting Fifth Article is “grant” to governments of state
citizens--Briefs for new Amendment assert “grant” made governments
of state citizens omnipotent master of everything in America
(including all human rights) save number of Senators from each
state--On this Tory concept depends entirely existence of Eighteenth
Amendment--Tory concept being absolute myth, Amendment
disappears--Amusing to find Tory briefs for Amendment
with American citations and quotations which annihilate Tory
concept--Unconscious humor of Wheeler surpasses “Comic Blackstone”--Tory
legions, fighting under crescent of Mohammet, claim
to be American and Christian crusaders--Americans would have
remained “subjects” if Parliament, passing the Stamp Act, had
said: “You subjects must obey this command we make but, making it,
we do not legislate”--“Statement” that citizens of America universally
demanded this sole Amendment which attempts to change
the First Article enumerated powers--“Proof” that 4742 Tory
members of governments of state citizens said “Yes” to the
change--Jefferson and Madison tell us that concentration of all power
in legislatures “is precisely the definition of despotic government,”
that 173 “despots would surely be as oppressive as
one,” and that “an elective despotism was not the government we
fought for”--Calhoun contended one state might defy supreme
will of citizens of America--Tories for Amendment go far beyond
doctrine finally repudiated by Gettysburg--On Tory concept that
we are “subjects” of omnipotent government, assert that some
governments of state citizens may dictate, in all matters of human
right, what the citizens of America may and may not do--Echo
from “conventions” which made Fifth Article, “How comes it,
sir, that these state governments dictate to their superiors, to the
majesty of the people?”
XXVI. THE AMERICAN CITIZEN WILL REMAIN _Page 416_
Supreme Court holds American people, “for most important purposes,”
chose to be one nation, with only one government of the First
Article enumerated powers to interfere with human liberty--America,
the nation of men, and United States, the subordinate
federation of states--Tories for new Amendment must prove that
American people, as one “important” purpose, meant that governments
of state citizens could interfere with every human right of
American citizens--Reserved rights and powers of American citizens
are entirely at their own direct disposal, for exercise or
grant, “despite their legislatures, whether representing the states
or the federal government”--American citizen must know this of
his own knowledge or his human freedom will disappear--Emmett
and Webster and their generation knew it--Madison
writes Fifth Article and states exactly what it is to the “conventions”
which made it--Hughes unable to begin his Tory argument
for new Amendment without adding to that Madison statement
what Madison pointedly did not say--Senate now about to repeat
1917 blunder that governments of state citizens have aught to do
with altering the national part of the American Constitution,
which part is within the exclusive control of the citizens of
America themselves--“Conventions” are the people--“Legislatures”
are governments--“Citizen or Subject?”--Supreme Court
answer certain--Court’s history and traditions show American
concept of Hamilton that this Court bulwark of American citizen
against government usurpation of power to interfere with human
liberty--Webster forecast Court decision on new and Tory
Amendment, answering “Citizen or Subject?”--All Americans
once knew same correct answer to same question by Pendleton in
Virginia Convention of 1788, “Who but the people can delegate
power? What have the state governments to do with it?”
APPENDICES
I. THE ORIGINAL CONSTITUTION OF THE UNITED STATES _Page 445_
II. THE RESOLUTION WHICH PROPOSED THE CONSTITUTION
TO THE CONVENTIONS OF THE PEOPLE OF AMERICA _Page 458_
III. THE FIRST SEVENTEEN AMENDMENTS TO THE CONSTITUTION _Page 460_
IV. THE ALLEGED EIGHTEENTH AMENDMENT _Page 465_
V. THE NINETEENTH AMENDMENT _Page 466_
CITIZEN OR SUBJECT?
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.
The Declaration of Independence, _which was the first political act
of the American people in their independent sovereign capacity_, lays
the foundation of our national existence upon this broad proposition:
“That all men are created equal; that they are endowed by their
Creator with certain inalienable rights; that among these are life,
liberty, and the pursuit of happiness.” (Justice Bradley’s opinion in
Slaughter House Cases, 16 _Wall._ 36, at page 115.)
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:
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, and of deriving
its powers _directly_ from them, was felt and acknowledged by all.
(M’Culloch v. Maryland, 4 _Wheat._ 316.)
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:
To the formation of a league, such as was the Confederation, the State
sovereignties were certainly competent. (M’Culloch v. Maryland, 4
_Wheat._ 316.)
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 instrument contains an enumeration of powers expressly granted
by the people to their government.... In the _last_ of the enumerated
powers, that which grants, expressly, the means for carrying all
others into execution, Congress is authorized “to make all laws which
shall be necessary and proper” for the purpose. (Gibbons v. Ogden, 9
_Wheat._ 1.)
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:
The powers the people have given to the General Government are named
in the Constitution, and all not there named, either expressly or by
implication, are reserved _to the people_ and can be exercised only by
_them_, or upon _further grant from them_. (Justice Brewer in Turner
v. Williams, 194 _U. S._ 279.)
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.
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 powers,
and acting directly on the people, the necessity of referring it to
the people, _and of deriving its powers directly from them_, was felt
and acknowledged by all. The government of the Union, then, (whatever
may be the influence of this fact on the case,) is, emphatically,
and truly, a government of the people. In form and in substance it
emanates from them. _Its powers are granted by them_, and are to
be exercised directly on them, and for their benefit. (Marshall,
M’Culloch v. Maryland, 4 _Wheat._ 316.)
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.
In the Constitution are provisions in separate Articles for the
three great departments of government,--legislative, executive, and
judicial. But there is this significant difference in the grants
of powers to these departments: the First Article, treating of
legislative powers, does not make a general grant of legislative
power. It reads: “Article one, section one. All legislative powers
herein granted shall be vested in a Congress,” etc.; and then, in
Article 8, mentions and defines the legislative powers that are
granted. By reason of the fact that there is no general grant of
legislative power it has become an accepted constitutional rule that
this is a government of enumerated powers. (Justice Brewer, in the
Supreme Court, Kansas v. Colorado, 206 _U. S._ 46.)
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:
The powers the people have given to the General Government are named
in the Constitution, and all not there named, either expressly or by
implication, are reserved to THE PEOPLE and can be exercised only by
THEM, or UPON FURTHER grant from them. (Justice Brewer in Turner v.
Williams, 194, _U. S._ 279.)
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?
It is no longer open to question that by the Constitution a nation was
brought into being, and that that instrument was not merely operative
to establish a closer union or league of states. (Justice Brewer, in
Supreme Court, Kansas v. Colorado, 206 _U. S._ 46 at page 80.)
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.
The Constitution of the United States was ordained and established,
not by the states in their sovereign capacities [the respective
peoples or citizens of each State] but emphatically, as the preamble
of the Constitution declares, by “the people of the United States”
[namely the one people of America].... It was competent to the people
to invest the general government with all the powers which _they_
might deem proper and necessary; to extend or restrain these powers
according to their own good pleasure, and to give them a paramount
and supreme authority.... The people had a right to prohibit to the
states the exercise of any powers which were, in _their_ judgment,
incompatible with the objects of the general compact [between the
citizens or members of the new nation], to make the powers of the
state governments, in given cases, subordinate to those of the nation,
or to reserve to _themselves_ those sovereign authorities which _they_
might not choose to delegate to either. (Supreme Court, Martin v.
Hunter’s Lessee, 1 _Wheat._ 304, at p. 324.)
Instructed by experience, the _American people_, in the conventions
of their respective states, adopted the present Constitution.... The
_people_ made the Constitution and the people can unmake it. It is
the creature of _their_ will, and lives only by _their_ will. But
this supreme and irresistible power to make or to unmake resides only
in the _whole_ body of the people, not in any subdivisions of them.
(Marshall, in Supreme Court, Cohens v. Virginia, 6 _Wheat._ 264.)
The Constitution was ordained and established _by the people_ of
the United States for themselves, for their own government, and not
for the government of the individual states. Each state established
a constitution for itself, and in that constitution provided such
limitations and restrictions on the powers of its particular
government as its judgment dictated. _The people of the United States_
framed _such_ a government for the United States as _they_ supposed
best adapted to _their_ situation, and best calculated to promote
_their_ interests. The powers _they_ conferred on this government
were to be exercised by itself; and the limitations on power, if
expressed in general terms, are naturally, and, we think, necessarily,
applicable to the government created by the instrument. They are
limitations of power granted in the instrument itself; not of distinct
governments, framed by _different persons_ and for different purposes.
(Marshall, in Supreme Court, Barron v. Mayor of Baltimore, 7 _Peters_,
243.)
When the _American people_ created a _national_ legislature, with
certain enumerated powers, it was neither necessary nor proper to
define the powers retained by the states. These powers proceed, not
from the people of America, _but from the people of the several
states_; and remain, after the adoption of the Constitution, what they
were before, except so far as they may be abridged by that instrument.
(Marshall, in the Supreme Court, Sturges v. Crowninshield, 4 _Wheat._
122.)
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.
We have in our political system a government of the United States
and a government of each of the several states. Each one of these
governments is distinct from the others, and each has citizens of its
own who owe it allegiance, and whose rights, within its jurisdiction,
it must protect. The same person may be at the same time a citizen
of the United States and a citizen of a state, but his rights of
citizenship under one of these governments will be different from
those he has under the other.... Experience made the fact known to
_the people of the United States_ that _they_ required a national
government for national purposes.... For this reason, the people of
the United States ... ordained and established the government of
the United States, and defined its powers by a Constitution, which
they adopted as its fundamental law, and made its rules of action.
The government thus established and defined is to some extent a
government of the states in their political capacity. It is also,
for certain purposes, a government of the people. Its powers are
limited in number, but not in degree. Within the scope of its powers,
as enumerated and defined, it is supreme and above the states; but
beyond, it has no existence. It was erected for special purposes and
endowed with all the powers necessary for its own preservation and
the accomplishment of the ends its people had in view.... The people
of the United States resident within any state are subject to two
governments, one state, and the other _national_; but there need be no
conflict between the two. Powers which one possesses, the other does
not. They are established for different purposes, and have separate
jurisdictions. Together they make one whole, and furnish the people of
the United States with a complete government, ample for the protection
of all their rights at home and abroad. (Justice Waite, in Supreme
Court, United States v. Cruikshank, 92 _U. S._ 542.)
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.
The Convention which framed the Constitution was, indeed, elected by
the state legislatures. But the instrument, when it came from their
hands, was a mere proposal, without obligation, or pretensions to it.
It was reported to the then existing Congress of the United States,
with the request that it might “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.”
This mode of proceeding was adopted; and 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. 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 [the _American_ people] 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. From these conventions
the Constitution [_the First Article grants of power to interfere
with individual freedom_] derives its whole authority. The government
proceeds directly from the people; is “ordained and established” in
the name of the people.... It required not the affirmance, and could
not be negatived, by the state governments.... To the formation of a
league, such as was the Confederation, the state sovereignties were
certainly competent.
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,
acting directly on the people, the necessity of referring it to the
people, and of deriving its powers directly from them, was felt and
acknowledged by all. The government of the Union, then, (whatever
may be the influence of this fact on the case,) is, emphatically,
and truly, a government of the people. In form and _in substance_ it
emanates from them. _Its powers are granted by them_, and are to be
exercised directly on them, and for their benefit. (Marshall in the
Supreme Court, M’Culloch v. Maryland, 4 _Wheat._ 316.)
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
The Constitution is a written instrument. As such its meaning does
not alter. That which it meant when adopted it means now. _Being a
grant of powers to a government its language is general._... While the
powers granted do not change, they apply from generation to generation
to all things to which they are in their nature applicable. This in
no manner abridges the fact of its changeless nature and meaning.
Those things which are within its grant of power, as those grants were
understood when made, are still within them, and those things not
within them remain still excluded. (Justice Brewer, in the Supreme
Court, South Carolina v. United States, 199 _U. S._ 437, at p. 448.)
It is not only the same in words, but the same in meaning, and
delegates the same powers to the government, and reserves and secures
the same rights and privileges to the citizen; and as long as it
continues to exist in its present form, it speaks not only in the same
words; but with the same meaning and intent with which it spoke when
it came from the hands of its framers, and was voted on and adopted by
the people of the United States. (Scott v. Sandford, 19 _How._ 393, p.
426.)
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
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 its equal Suffrage
in the Senate.
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.
The people of these United States constitute one nation. They have a
government in which all of them are deeply interested. (Justice Miller
in the Supreme Court, Crandall v. Nevada, 6 _Wall._ 35.)
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.
The powers the people have given to the General Government are named
in the Constitution, and all not there named, either expressly or by
implication, are reserved to the _people_ and can be exercised only by
_them_, or upon further _grant_ from _them_. (Justice Brewer in Turner
v. Williams, 194 _U. S._ 279.)
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.
The two governments in each state stand in their respective spheres
of action in the same independent relation to each other, except
in one particular, that they would if their authority embraced
distinct territories. That particular consists in the supremacy of
the authority of the United States when any conflict arises between
the two governments. (Justice Field, in Tarble’s case, in the Supreme
Court, 13 _Wall._ 397.)
With such knowledge, he would have found it impossible to make the
blunder of assuming that either government could give or join with
governments in giving to the other any power to interfere with the
citizens of the grantee in their enjoyment of individual liberty.
He knew that, “In our republican forms of government, the absolute
sovereignty of the nation is in the people of the nation; and the
residuary sovereignty of each state, not granted to any of its public
functionaries, is in the people of the state.” (Story, 1 _Ell. Deb._
65.)
When Hamilton stated, in those days of 1788, his conviction that new
Articles would relate to the “organization of government and not to
the mass of its powers,” he was epitomizing the common knowledge of
everyone, at that time, that the new Constitution was both _federal_
and _national_. He was predicting that the power to interfere with
individual liberty, to the extent which Americans had surrendered
any power _of that kind_ to their governments, had been so wisely
distributed, between the government of the citizens of America and the
political entity which was each state, that it would never be necessary
for the citizens of America to alter that distribution by giving any
more to _their_ government. That is why he prophesied that no new
Article of the kind which only “conventions” of those citizens can
make, Articles changing the “mass of powers” granted to that government
by the First Article, would ever be needed.
And we recall that this conviction probably influenced the last day
remembrance in the Philadelphia Convention by Madison and himself,
that the Fifth Article should also contain some reference to the state
legislatures and their future exercise of their existing abilities to
make _federal_ or declaratory Articles, which do not change the “mass
of powers” in that First Article grant and do not relate to government
interference with the individual liberty of the American citizen.
The statement of Hamilton was not meant as a prophecy. It was the
result of a great mind reasoning from cause to probable effect. As we
come down through the century or more that follows that statement and
reach the beginning of the year 1917, we pay our tribute to a mind
which could reason so correctly _as to what would happen for more
than a hundred years_. We shall find that never again, from 1787 to
1917, did experience find it necessary that the “conventions” of the
American citizens, the “conventions” named in the Seventh and the Fifth
Articles, should again be assembled to alter, as they alone can alter,
the mass of enumerated powers to interfere with their own individual
liberty, which they granted in that First Article.
It is a striking commentary upon the ability of Hamilton and his
generation, when contrasted with our modern “constitutional thinkers,”
that he knew and appreciated _what would happen in a century to come_,
while they have not understood what _had_ happened in a century that
had gone, although the record of that century was spread out before
them to read. None of _our_ leaders _have_ appreciated the fact that
every one of the first seventeen Amendments to our Constitution _was
of the kind_ that state legislatures had ability to make before our
Constitution was even drafted at Philadelphia, because all were
_federal_ (or declaratory) Articles and were not _national_ Articles.
If they had known, _after_ these seventeen Amendments were history,
what he prophesied _before_ the Constitution itself was adopted, the
story of the last five years might not have been what we shall learn
hereafter that it was.
That _we_ may know, _of our knowledge_, what _he_ prophesied and
what _they_ entirely overlooked and ignored, let us briefly examine
the nature of those seventeen Amendments. Thus we will learn why
governments, known at Philadelphia in 1787 to be incompetent to make
_national_ Articles, could and did make those seventeen Articles in the
_constitutional_ mode of procedure which the Fifth Article provided
for the exercise of their existing ability limited to the making of
_federal_ or declaratory Articles.
The first ten Amendments were declarations insisted upon by the
American citizens, assembled in “conventions” where we have sat, as
specific security against government usurpation of power over their
individual freedom. The Supreme Court has repeatedly declared that
everything in those ten Amendments was in the Constitution when it
was ratified by those “conventions” and that the Amendments simply
declared what the will of the people themselves, assembled in those
“conventions,” had already established as the fundamental law in
America. Certainly no man would challenge the prophecy of Hamilton
on the theory that any one of those Amendments added to the mass of
government powers to interfere with human freedom. They are, each
and every one of them, the declaration that government cannot do
“this” and government cannot do “that.” So far from being _national_
Articles, the kind which only “conventions” of American citizens could
or can make, the kind which tell government that it can command the
American citizens on this or that subject, they are all Articles which
tell government that it _cannot_ command the American citizen. And,
for the further security of the individual freedom of the American
citizen, _a security never needed more than in this year_ 1923, the
Tenth Declaration emphatically declares _who_ it is that RETAINS the
_exclusive_ ability to alter, in one iota, “the mass of powers” (over
the individual freedom of the American citizen) granted _by them_ in
the First Article and the exclusive ability to exercise any power _of
that kind_ over them, which was not granted in the First Article. Who
can deny that, stated in our own words, this is what we find in the
plain declaration of the Tenth Amendment? “We, the people of America,
assembled in our conventions, have granted to the _American_ government
enumerated powers of the First Article. They are the only powers _of
that kind_ delegated to any government, by which it can interfere
with our individual freedom in our capacity as American citizens. All
powers, which the citizens of each state have hitherto had and which
we have not taken from them herein, we have left with them; and the
citizens of each state can grant so much of said powers as they please
to their own government to govern them as citizens of that state.
All other powers, outside those we have granted to our government to
interfere with us and those we have left to the citizens of each state
for their own respective exercise, we reserve exclusively to ourselves,
in our capacity as citizens of America. And, if any government should
deem it wise that any one of these powers (which we so reserve
exclusively to ourselves) should be exercised, we have provided in
the Fifth Article the mode of procedure in which we, assembled in
our conventions, can CONSTITUTIONALLY exercise it or grant it to the
government which wants to exercise it.”
The powers the people have given to the General Government are named
in the Constitution, and all not there named, either expressly or by
implication, are reserved to the people and can be exercised only by
them, or upon further grant from them. (Justice Brewer in Turner v.
Williams, 194 _U. S._ 279.)
Later herein we Americans, fresh from the “conventions” which demanded
these declarations for the better protection of individual liberty,
are going to hear expounded a doctrine, which would mean that these
declarations were themselves the _American_ Magna Charta. We are going
to hear, to our amazement, that these declarations were a compact
between an omnipotent government and its subjects, ourselves, who
have always imagined that we were “citizens” and not “subjects.” We
are going to hear, to our utter incredulity, that these declarations
are the promise of a government--itself omnipotent over ourselves and
_our_ Constitution and _our_ government which we thought to be the
supreme government in America--that we, the subjects of that omnipotent
government, may have certain privileges which this omnipotent
government will not take from us.
When first we shall hear this 1917 resurrection of the Tory concept
that government is master and Americans are “subjects,” that government
is the state and we are its assets, we shall naturally be astounded and
indignant that even a few inhabitants should still retain what Madison
called “the impious doctrine” of the Old World, that people are made
for governments, not governments for the people. Quickly, however, we
shall become alarmed to find how wide-spread, among the “constitutional
thinkers” of our own generation, is the complacent acceptance of the
Tory concept and to learn that, when its application in any given
instance injures a client of one of those constitutional thinkers,
no matter how he may argue against the application in the particular
instance, he neither knows nor uses for his client the fact that the
Statute of ’76 repealed the doctrine on which Magna Charta rested,
the Tory concept that government is the state and that we are its
“subjects.”
It will be difficult for us to understand these leaders of our
generation. In addition to what we have just lived through with
the early Americans, these leaders will have before them countless
decisions of the Supreme Court, flatly contradicting the Tory concept
on which all these leaders reason. “The concessions of Magna Charta
were wrung from the King as guarantees against the oppressions and
usurpations of his prerogatives.... The omnipotence of Parliament over
the common law was absolute, even against common right and reason. The
actual and practical security for English liberty against legislative
tyranny was the power of a free public opinion represented by the
Commons.” We are going to find many of _our_ leaders with the fixed
Tory concept that there is in America a legislative government, unknown
to the generation of Americans who created all government in America,
and that this omnipotent government can do whatever it pleases, without
any constitutional restraint, with _almost_ everything in America,
including ourselves and our Constitution and our American government.
Curiously enough, we are going to be told that the one thing, in
which this omnipotent legislative government falls short of absolute
omnipotence, has nothing to do with any individual human freedom, but
is its inability to change the equal representation of every state
in our Senate. It will be quite amazing to us to hear these men, not
_proving_ this Tory concept but stating it as axiomatic American law
and on it basing their every argument and audaciously claiming that
our Supreme Court has no right even to consider whether it is so or
not. But there will be something to alarm us even more. We will find
_our_ other “constitutional thinkers,” by circumstances obliged to
challenge some particular deduction from this Tory concept, without
any knowledge of the invincible facts which challenge the concept
itself. To most of these men it will be as if the Statute of ’76 had
been repealed and the result of our Revolution reversed, in 1787, by
the very “conventions” in which we have sat. It will be our amazement
to hear that these “conventions” never created the citizen of America
but that the American people, assembled therein, voluntarily made
themselves “subjects” of the omnipotent government. And these modern
“constitutional thinkers” will discuss this omnipotent government on
the basis that those “conventions” made that particular government
(not the one to whom the First Article grants its powers) attorney in
fact for the general people of America, authorized to interfere with
their individual freedom, “on all matters whatsoever.” To most of these
men, it will be as if the Supreme Court, in countless ways, had _not_
declared:
In this country, written constitutions were deemed _essential_
to protect the rights and liberties of the people against the
encroachment of power delegated to their governments, and the
provisions of Magna Charta were incorporated into bills of rights....
Applied in England only as guards against executive usurpation and
tyranny, here they have become bulwarks against arbitrary legislation;
but in that application, as it would be incongruous to measure and
restrict them by the ancient customary English Law, they must be
held to guarantee, not particular _forms of procedure_, but the very
substance of individual rights to life, liberty and property.
Of course, fresh from the conventions of old, we shall know that these
men are talking nonsense. We shall know that the last two quoted
statements from the Supreme Court, in Hurtado v. California, 110 _U.
S._ 516, are but the expression of what was once the common knowledge
of a people then “better acquainted with the science of government
than any other people in the world.” But, as our knowledge shall be
as the knowledge of the Americans of old, who fought an eight year
war of sacrifice to make any such Tory concept in America absolute
nonsense, it is well for us, while we are examining the nature of the
first seventeen Amendments of our Constitution, to keep in mind one
thing, which we now know and which, if it had not been forgotten, would
have prevented the monumental blunder of the generation in which we
ourselves are the American citizens. This one thing is the fact that
the Constitution, made in the conventions we have just left, is a
_federal_ and a _national_ Constitution. That fact and its influence
upon the Convention, which framed the Fifth Article, and on the
“conventions” of the American citizens, which made that Article, led
them to provide, in their Fifth Article, the CONSTITUTIONAL mode in
which state governments could exercise their existing limited abilities
to make federal and declaratory Articles, like all the Articles of 1781
and like the first seventeen Amendments, _and also_ to provide therein
the _constitutional_ mode in which the “conventions” of the American
citizens could exercise their exclusive ability to make NATIONAL
Articles, like the First Article and the supposed new Eighteenth
Amendment.
Having fixed this clearly in our mind, we now proceed to examine the
nature of the remaining Amendments that were made, prior to 1917.
The Eleventh Amendment gave no power of any kind to anyone. It
simply declared that the Court of the American nation could not have
jurisdiction of law suits against one of the states “by citizens of
another state, or by citizens or subjects of any foreign state.” We
commend, however, to the modern “constitutional thinkers,” whose Tory
concept we shall meet later, this early American recognition of the
fact that, in America, _we are “citizens.”_ It will be noticed that
this Eleventh Amendment, declared by the President to have become part
of the Constitution on January 8, 1798, speaks of the “citizens” or
“subjects” of any foreign state but speaks only of “_citizens_” in
America.
The Twelfth Amendment likewise has naught to do with power of
governments over human liberty. It deals solely with the manner in
which the Chief Executive of America shall be chosen.
The Thirteenth, Fourteenth and Fifteenth Amendments are the famous so
called Slavery Amendments. Even the modern “constitutional thinker”
of 1917 and 1920, no matter how Tory his concept, will hardly dare to
claim that these Amendments give government power to interfere with the
rights which the Creator gave to the human being.
On the most casual examination of the language of these Amendments,
no one can fail to be impressed with the one pervading purpose found
in them all, lying at the foundation of each, and without which none
of them would have been even suggested; we mean the _freedom_ of the
slave race, the security and firm establishment of that _freedom_,
and the protection of the newly-made _freeman_ and _citizen_ from the
oppressions of those who had formerly exercised unlimited dominion
over him. (Slaughter House cases, Supreme Court, 16 _Wall._ 36 at p.
71.)
Of these Amendments, in the Civil Rights Cases, 109 _U. S._ 3, the
Supreme Court again said that “they abolished slavery, and established
_universal freedom_.”
When, therefore, in the year 1920, we shall hear these Amendments,
which establish _universal freedom_, cited as Articles of exactly the
same nature as a supposed new Article, directly interfering with the
freedom of the American citizen on a matter not enumerated in the
First Article, we shall be rather surprised. But we shall be more
than surprised, when we hear the reason of the modern “constitutional
thinker” why _both_ Articles are within the power of the state
governments, who are his clients, to put into our Constitution. Not
knowing that our Constitution is a _federal_ as well as a _national_
Constitution, not knowing that his government clients always had the
ability to make _federal_ Articles and never had and have not now the
ability to make Articles which interfere with human freedom, we shall
find him stating, as axiomatic, that the slavery Amendments, which
_establish_ universal freedom, and the supposed Article of 1917, which
_interferes with_ freedom of the individual, are identical, for the
reason that both affect the individual and his rights and liberties.
On the remarkable nature of this identity, that one _secures_ and the
other _interferes with_ individual _liberty_ and, therefore, both
_affect_ individual liberty, we shall find that he bases the Tory
concept that state governments can do as they please with all liberties
of the American citizens. While his theory will serve only to amuse
us, we commend, to his reading, this extract from a better _American_
lawyer:--“The legislature may not confer powers by law inconsistent
with the rights, safety, and liberties of the people, because no
consent to do this can be implied, but they may pass limitations _in
favor_ of the essential rights of the people.” (Woods appeal, 75 _Pa._
59.)
The Sixteenth Amendment simply removes, from one of the great powers
granted to Congress by the citizens of America in their First Article,
a _federal_ limitation upon its exercise, a limitation entirely for the
benefit of the states which are political entities.
In the “conventions” we have just left, the First Article grant of
power to the new government to impose direct taxation was the object
of incessant attack. No prerogative of government is more cherished
by any government than its ability to exact financial tribute from
human beings by means of taxation. Under the old federation of states,
although the _federal_ government needed money, it was without any
power of taxation. All it could do was to ask the various state
governments to supply it with the money. Article VII of the “Articles
of Confederation” provided that the expenses of the federal government
“shall be defrayed out of a common treasury, which shall be supplied by
the several states, in proportion to the value of all land, within each
state, granted to or surveyed for any person, as such land, and the
buildings and improvements thereon, shall be estimated, according to
such mode as the United States in Congress assembled shall, from time
to time, direct and appoint. The taxes for paying that proportion shall
be laid and levied by the authority and direction of the legislatures
of the several states, etc.”
Section 8 of the First Article of the proposed new Constitution read
that “The Congress shall have power to lay and collect taxes, duties,
etc.” At Philadelphia, in 1787, a tremendous fight was made against the
proposal of this grant by the citizens of America to their government.
Many delegates at Philadelphia, who had the financial welfare of their
particular state government at heart, contended that, if the new
government were given the power of direct taxation of the people, the
new government would leave the people with no money to be collected
by the state governments for their own purposes. The _nationalists_
at Philadelphia, however, knew that a _national_ government without
power of direct taxation over its own citizens would be a helpless
government. Therefore, they insisted that the proposed grant of this
power remain in the First Article. As a concession to the opposition
made on behalf of the state governments, there was added to the
proposed First Article a purely _federal_ limitation on the exercise of
the _national_ power of direct taxation. This federal limitation, on
behalf of the states and their governments, read: “No capitation, or
other direct, tax shall be laid, unless in proportion to the census or
enumeration hereinbefore directed to be taken.”
In the conventions of the citizens of America, the friends of the
respective state governments made every effort to defeat the First
Article grant of national power to impose direct taxation upon the
citizens of America.
In the Virginia convention, from Randolph and from Henry, arguing
respectively for and against the grant, we get our certain knowledge
that the apportionment limitation on the exercise of the granted
power was a purely federal limitation aimed entirely to secure to the
respective state governments the just amount of the moneys which could
be collected by taxation from the Americans living in the respective
states.
Randolph argued: “The difficulty of justly apportioning the taxes among
the states, under the present system, has been complained of; the rule
of apportionment being the value of all lands and improvements within
the states. The inequality between the rich lands of the James River
and the barrens of Massachusetts has been thought to militate against
Virginia. If taxes could be laid according to the real value, no
inconvenience could follow; but, from a variety of reasons, this value
was very difficult to be ascertained; and an error in the estimation
must necessarily have been oppressive to a part of the community.
But, in this new Constitution, there is a more just and equitable
rule fixed--a limitation beyond which they cannot go. Representatives
and taxes go hand in hand; according to the one will the other be
regulated.... At present, before the population is actually numbered,
the number of representatives is 65. Of this number, Virginia has a
right to send ten; consequently she will have to pay ten parts out
of sixty-five parts of any sum that may be necessary to be raised by
Congress. This, sir, is the line.” (Randolph, 3 _Ell. Deb._ 121.)
As to the granted power of direct taxation, Henry argued: “We all agree
that it is the most important part of the body politic. If the power of
raising money be necessary for the general government, it is no less so
for the states.... The general government being paramount to the state
legislatures, if the sheriff is to collect for both--his right hand
for Congress, his left for the state--his right hand being paramount
over the left, his collections will go to Congress. We shall have the
rest. Deficiencies in collections will always operate against the
states.... Congress will have an unlimited, unbounded command over the
soul of this Commonwealth. After satisfying their uncontrolled demands,
what can be left for the states? Not a sufficiency even to defray the
expense of their internal administration. They must therefore glide
imperceptibly and gradually out of existence.” (Henry, 3 _Ell. Deb._
148 _et seq._)
The Sixteenth Amendment merely removed, in one respect, this _federal_
limitation upon the exercise of the national power of direct taxation
granted by the First Article. The Amendment read: “The Congress shall
have power to lay and collect taxes on incomes, from whatever source
derived, without apportionment among the several states, and without
regard to any census or enumeration.” This Amendment, being nothing but
a change in the _federal_ aspect of the Constitution, being a change
in the protection given to each state as a political entity, was an
Amendment which the state legislatures, each acting as attorney in fact
for its own respective state, were entirely competent to make.
The Seventeenth Amendment has no relation to human freedom. It merely
provided that the state governments should no longer elect the august
Senators in the American Congress, some of whom we shall meet later
herein.
This last Amendment, prior to 1917, provided that those Senators should
be thereafter elected in our states by ourselves, the American people.
Curiously enough, it is from the Senate in which they sit that came
the proposal which caused the trouble which is obliging us to educate
ourselves to find our “when” and “how” between 1907 and 1917 we became
“subjects” instead of keeping our status as citizens of America.
Early in our education (p. 26) we were informed that our public
statesmen and constitutional thinkers brought to the year 1917 the
false “knowledge” that legislatures in America, if enough combined,
had the omnipotence over individual freedom, which the early Americans
denied to the British Parliament. Their false “knowledge” was
undoubtedly caused by their failure to appreciate, if they knew or
remembered, that America is a _national_ union of men while there is
also a subordinate and _federal_ union of states. Ignoring this simple
fact, they also ignored the important fact that the Constitution is
both _national_ and _federal_ and contains Articles _of both kinds_.
Blind to both important facts, they acquired their false “knowledge”
from the fact that the “legislatures,” to whom they ascribed
omnipotence over individual freedom, had made the first seventeen
Amendments.
The fallacy of their deduction is mathematically demonstrable.
A constitutional Article which gives to government any power to
interfere with individual human freedom IS the constitution of
government of men. That is why the First Article WAS the constitution
of the government of the nation of men. And, in turn, _that_ is why
the legal necessity of having it made by the men themselves, in their
“conventions,” was “felt and acknowledged by all” Americans.
If one doubts that the First Article WAS the constitution of the
government of men, test the truth of the statement in this way. First,
assume that the “conventions” made no Article save the First. Then ask
yourself if the whole American people would not have constituted their
government with its great enumerated powers to interfere with their
individual liberty. In the second place, make exactly the opposite
assumption. Assume that the “conventions” made all the Articles from
the Second to the Seventh, both inclusive, _but did not make the First
Article_. Then ask yourself whether the whole American people would
have constituted any government with a single power to interfere with
their individual freedom.
Let us now apply exactly the same test to each of the first seventeen
Amendments and then to the supposed Eighteenth Amendment.
Take any one of the first seventeen Amendments and assume that
anything _new_ which it put into the Constitution was the entire
Constitution. Then ask yourself whether, if the Constitution
consisted solely of the new matter in the Amendment, there would be
any government of the whole American people with a single power to
interfere with their individual human liberty. Take _all_ the seventeen
Amendments and assume that any change all of them made was the entire
Constitution. Then ask yourself whether, if any new matter in the
seventeen Amendments composed the entire Constitution, would there be
any government of the whole American people with a single power to
interfere with their individual human liberty.
Now make the same assumption about the supposed Eighteenth Amendment.
Assume that it is the entire Constitution and that there are no other
Articles. Immediately it is seen that, if the Eighteenth Amendment
were the entire Constitution, there would be a government of the whole
American people with an enumerated power to interfere with their
individual human liberty.
Now we see the fallacy of the false “knowledge” which our statesmen
and constitutional thinkers brought to the year 1917. Now we know
the marvelous foresight of Hamilton when he stated his conviction
that Amendments would relate to “the organization of the government,
not to the mass of its powers.” None of the seventeen Amendments did
relate “to the mass of its powers” to interfere with individual human
liberty. That is why state legislatures, representing the federal
members of the union of states, could make the federal or declaratory
seventeen Amendments. The fact that those “legislatures” in 1787 could
make Articles of that kind, as they had made them in 1781, did not
deceive the Americans at Philadelphia into a false “knowledge” that
those “legislatures” _could_ make the First Article with its enumerated
powers to interfere with the individual freedom of the members of
the nation of men. The fact that the same “legislatures,” still
representing the members of the subordinate union of states, still
could make declaratory or federal Articles, _and had made seventeen
Articles of that kind_, not one of which constituted new government
power to interfere with individual liberty, should not have misled the
statesmen and constitutional thinkers of our generation.
But it did.
CHAPTER XV
THE EXILED TORY ABOUT TO RETURN
We have now educated ourselves accurately to know, at the beginning of
1917, what was our own relation to all governments and what was the
relation of those governments to one another. With certainty, we know
that those relations, at the beginning of 1917, were exactly what they
had been at the close of 1790. It is amazingly important that we never
forget that particular knowledge, when reading the story of what has
happened since the beginning of 1917.
With certainty, through our education we know that, _at both times_,
the following was our own relation to all governments and the relation
of each of them to the others.
No individual in America was a “subject” of any government or
governments. Each individual was a “citizen” of the nation which is
America. The citizens of America, as such citizens, had given to
their only government its enumerated powers to interfere with their
individual freedom. Those American citizens had given these enumerated
powers by direct grant from themselves, in the only manner, in which
they can act effectively on such a subject, by assembling in their
“conventions.” Those American citizens had made it the imperative law
of America that no new power _of that kind_ (to interfere with their
freedom) could be created except by the new exercise of their own
ability _in the same manner_.
The very essence of the wisdom and _efficiency_ of the manner of
the first exercise was that the exercise was by “_conventions_” of
themselves, chosen by themselves, _after_ specific grants had been
proposed to them to be made by them. These “conventions,” chosen from
among themselves for the one purpose of saying “Yes” or “No” to the
proposed grants, had made those grants in the only way in which the
American people “can act safely, effectively and wisely” in the making
of such grants. In their Fifth Article, made in the first “convention”
exercise, they had mentioned the very “convention” method in which
they were then assembled to make their First Article grants. Thus,
they made that method CONSTITUTIONAL for future exercise of their own
exclusive power to make grants _of that kind_. Thus they had secured
their liberty against any attempt by government to interfere with
their individual freedom, as American citizens, except in the matters
named in the enumerated powers of the First Article. In this way, they
had secured their liberty, in their capacity of American citizens,
against any attempt by other governments than their only government at
Washington, even in the matters enumerated in the First Article.
Nearly every individual in America was also a citizen of a state. In
each state, _its_ citizens had vested the legislative government of
the state with limited powers to interfere with the individual freedom
of those within the jurisdiction of that state. The limitations upon
the power of each state government to interfere with those within its
own jurisdiction were, firstly, limitations imposed by the citizens
of America in _their_ Constitution upon the power of each state to
govern itself; secondly, the limitations imposed by the citizens of
each state in their own constitution; and, thirdly, the limitations
imposed by the traditional American principle that no government,
without limit, can do what it will with the individual freedom of
its citizens. In each state, subject to those limitations, its own
citizens were exclusively competent to determine the exact quantum of
ability which its own legislative government should have to interfere
with the individual human freedom of those within its jurisdiction.
No government or governments outside each state could interfere with
the individual freedom of its citizens, _as such citizens_, in any
matter. No outside government at all, except Congress, could interfere
with their freedom, as human beings, in any matter. The legislative
governments of the other states, either singly or collectively, on _no_
matter, could either exercise themselves or give to any government a
single power to interfere with the human beings in each particular
state. The one American government, at Washington, could only interfere
with those human beings on the matters enumerated in the First Article.
No new ability in that government so to interfere with them could be
granted except by direct grant from the citizens _of America_ assembled
in their “conventions.” The Fifth Article had been the command of the
citizens of America that only a “Yes” from three fourths of those
“conventions” of _themselves_ should be valid to add a new power over
themselves to those enumerated in their First Article.
From 1776 to 1917 it had been the _obeyed_ fundamental law in America
that no government could acquire, from another government or from other
governments, any power to interfere with the individual freedom of the
human beings within its jurisdiction.
The human beings in each state were members or citizens of the
nation which is America. They were also, in each state, the members
or citizens of the nation which is that state. The states were also
members of their own federation, whose _federal_ government had been
continued by the citizens of America. In its personnel, that _federal_
government was identical with the _national_ government of those
citizens of America. In the Fifth Article, the citizens of America
had recognized and mentioned the existing ability of the states, as
political entities, to make constitutional Articles of a _federal_
nature. For that reason, the Fifth Article had been the command of
the citizens of America that, when the states exercised their limited
ability, a “Yes” from the legislatures of three fourths of the states
should be effective to make a _federal_ Article.
In the matter of interference with individual human freedom, so far as
experience tells the story, there had continued from 1776 to 1917 the
knowledge of the legal fact, made basic American law by the Statute of
’76, that no government could get any _national_ power except by direct
grant from its own citizens, and that no government could exercise any
_national_ power over any but those in its own jurisdiction and then
only by direct grant of that power from its own citizens.
We know that this was the wonderful system of constitutional government
under which Americans had lived from 1790 to 1917. We know that the
Americans, who were our predecessors in 1787, had prescribed that
system as best calculated to protect their human liberty and our
own from outside aggression and from usurpation of power by their
governments and our own. Educated with them, from the day when they
were all subjects of a legislative government, we know much of their
struggle to rid themselves forever of the status of “subject” and to
become free men. In that education, however, we have dwelt but little
so far upon one phase of that struggle. At this point, it is essential
that we educate ourselves briefly but accurately on that one phase.
Whenever government exists, even government limited to those powers
thought by its citizens necessary to secure human liberty, the weakness
of human nature makes it certain that the exercise of granted powers
will not always be for the common benefit of the citizens who grant
them. When the government is the State and human beings are its
“subjects,” that weakness is usually more apparent. As a result, in
every country the rich and powerful largely secure the actual control
of government. That they may entrench themselves in its control
and the exercise of even its lawful powers, they lavish favors on
a class actually large in number but comparatively constituting a
small minority of the people of the country. For this class, it is of
material advantage that government should be the State and command the
people as its “subjects.” When a man is born or educated as a member of
this minority, it is beyond the experience of the human race that his
mental attitude should not regard the relation of “subject” to ruler as
the proper relation of human being to government.
In those earlier days, in whose experience we have just been educated,
the human beings in America, who had that mental attitude, were
distinguished from the Americans by the name “Tories.” Throughout this
book it is that mental attitude which we characterize as “Tory.” It is
those who display that mental attitude whom we call “Tories.”
At the time of our Revolution it is a historical fact that about one
third of our population was Tory in its mental attitude. Many of the
Tories, quite possibly most of them, were actuated by a sincere and
deep conviction that it was better for every one that human beings
should be subjects. That conviction had been the basis of nearly all
science of government for centuries. It is really a remarkable fact
that our history should show, from their recorded statements and
writings, so many men in 1787 accurately grasping the fallacy of that
historical doctrine that men were made for kings or governments.
In our education, we now grasp accurately that the Americans, who
ended forever the status of “subject” in America, in their Revolution,
had not only to contend with their former omnipotent government but
also with one third of their own population, the Tories. When that
Revolution had succeeded, when the Statute of ’76 had actually been
made the basic law of America, many Tories, in the natural course
of events, became citizens of the particular state, now a free
republic, in which they lived. When the Convention of 1787 assembled
at Philadelphia, when the respective “conventions” in each state later
assembled, many delegates were men with a known leaning to the Tory
mental attitude. It is not to be understood that, by reason of this
fact, their loyalty to the new institutions of their country was not
sincere. One of the great liberties secured by those new institutions
was the right of the human being to think and talk as he pleased as to
what is the mode of government best designed to secure the happiness
of men. As a matter of fact, when those “conventions” assembled, many
of our most prominent Americans of the Revolution had begun sincerely
to doubt whether the American people had _yet_ learned enough to profit
most by their legal ability now to dictate to all their governments how
much power each government should have. It is the record of impartial
history that the people’s distribution of all surrendered power of a
_national_ kind, the grant to the new government and reservation to the
old state governments, was dictated by two opposite factors. The wise
and able leaders, whether their mental attitude was American or Tory,
knew that the general government must get a grant of much power of that
kind, if it were successfully to promote the welfare of the American
people. On the other hand, they knew with certainty that such grants
must be specified and enumerated and limited, or the American people
would make no grant at all. It was, as it still is, the basic law of
America that grants _of that kind_ could only be obtained directly from
the people themselves. The American mental attitude, that citizens
and not governments shall define the extent of government power to
interfere with individual freedom, was the controlling factor when the
Constitution made its great distribution of all surrendered powers.
If we go back to the “conventions” of those who established the
system, we find a striking fact. In those “conventions” there were
many men whose personal opinion always had been and still was in
full accord with the Tory concept of what _ought_ to be the relation
of government to human being. But these men, with that Tory concept
of what government ought to be, were just as keenly aware as were
those with the American concept, that the Tory concept had forever
disappeared from American law. Whenever any suggestion was based upon
the Tory concept, these very men were among the quickest to perceive
and the most strenuous to insist that the suggestion could not be met
because the American concept had displaced the Tory concept forever
in America. If our modern leaders, who have the same Tory concept of
what government _ought_ to be, had evinced the same perception and the
same insistence, the story of the last five years would be a different
story. Because these leaders have had no knowledge of what America is,
we average Americans must now come straight from the “conventions” in
which the Americans established the Constitution to secure individual
freedom and we must educate ourselves in the story of the last five
years in which our governments and our leaders have calmly assumed that
citizens are subjects.
CHAPTER XVI
THE TORY “EIGHTEENTH AMENDMENT”
In the closing month of 1917, the American people had been for eight
months participants in the World War. In that winter, under the
direction of their only government, exercising its war power, they
were marshalling all that they had to win that war and to win it
quickly. The mind of the people themselves was concentrated on that one
purpose. The response of the average American citizen to the call of
his government, the assembling of millions of average American citizens
as soldiers for that war, the outpouring of their money by other
millions, should have made it impossible that the government servant of
those American citizens should have entirely forgotten and ignored the
knowledge of the “conventions” of 1787, that the American is a citizen
and not a subject. Even if their personal experience had made them
members of the class which naturally have the Tory mental attitude, the
spirit of 1917 should have awakened our legislators from their wrong
Tory concept of our American basic law. If plain words were needed to
teach them that basic law, only ten years earlier the Supreme Court had
stated that law in words which even a child can understand.
The powers the people have given to the general government are named
in the Constitution, and all not there named ... are reserved to the
people and can be exercised _only by them_, or upon further grant
_from them_. (Justice Brewer, in the Supreme Court, 1907, Turner v.
Williams, 194 _U. S._ 279.)
Yet the statesmen of America, when its citizens were offering their
lives and their all, chose that December of 1917 to propose that
legislative governments, which have never been the governments of the
American citizen, should exercise one of those reserved powers of “the
people” and should give to _the_ legislative government of the American
citizens future ability to exercise that same power, although American
citizens had expressly reserved the power to themselves exclusively.
In December, 1917, as in January, 1790, the American Congress was the
only legislative government of the American people.
All powers _of a national character_ which are not delegated to the
national government by the Constitution are reserved to the _people_
of the United States. (Justice Brewer, in the Supreme Court, Kansas v.
Colorado, 206 _U. S._ 46 at p. 90.)
Outside of _that_ legislature, American citizens have _no_ legislative
government.
Its powers are limited in number, but not in degree. Within the scope
of its powers, as enumerated and defined, it is supreme and above
the states; but beyond, it has no existence. (Justice Waite, in the
Supreme Court, United States v. Cruikshank, 92 _U. S._ 542.)
In the Senate, on April 4, 1917, Senator Sheppard of Texas had
introduced a Resolution, known as Senate Joint Resolution 17. The
Resolution itself, apart from the proposed new constitutional Article
which the senator suggested that legislative governments should make,
read as follows: “_Resolved by the Senate and House of Representatives
of the United States of America in Congress assembled (two thirds of
each House concurring therein), That_ the following amendment to the
Constitution be, and hereby is, proposed to the States, to become valid
as a part of the Constitution when ratified by the legislatures of the
several States as provided by the Constitution:”
The proposed new national Article, which this 1917 Resolution suggested
should be made by legislative _governments_, originally and in April,
1917, read as follows:
* * * * *
“Article--.
“SECTION 1. The manufacture, sale, or transportation of intoxicating
liquors within, the importation thereof into, and the exportation
thereof from the United States and all territory subject to the
jurisdiction thereof for beverage purposes are hereby prohibited,
“SECTION 2. The Congress shall have power to enforce this article by
appropriate legislation, and nothing in this article shall deprive the
several States of their power to enact and enforce laws prohibiting the
traffic in intoxicating liquors.”
By reason of _our_ education in the actual constitution of our only
American government and our respective state governments, we grasp
immediately the startling nature of the suggestion that the state
governments make that Section 1 and that Section 2. We first dwell with
amazement upon the proposed Section 1 and its proposed makers.
It is a general and direct command to all human beings anywhere in
America, directly interfering with their individual freedom, on a
matter not enumerated in the First Article. Since we denied omnipotence
to Parliament, no legislature or legislatures had ever dared to
make any general command to the American people, except the American
Congress and _it_ only since 1789 and on matters enumerated in the
First Article. From 1776 to 1789, no legislature or legislatures had
any power whatever to make a general command to Americans on any
subject whatever. When Americans, in answer to the Philadelphia 1787
proposal, made themselves a nation and constituted its government, they
gave to that government _enumerated_ powers to make general commands
on _some_ subjects. All other power to make general commands _of that
kind_ they withheld from every government and reserved exclusively to
themselves, as they had denied _every_ power of that kind to every
government in the world by their Statute of ’76. For which very clear
reasons, it had been continually repeated in the Supreme Court for a
century that only one government in the world could make a general
command to the citizens of America, and that the Congress itself could
not make any such command on any subject not enumerated in the First
Article.
The Congress _proposal_ of the Eighteenth Amendment was its own
recognition of the truth that the sole government of American citizens
had no power to command them on that subject. It is probable that
nothing ever originated in Congress more remarkable than this proposal
that, because Congress itself was without the power to make the
command, Congress should ask inferior governments of other citizens
to make a command to the American citizens. If it were possible that
this could be done, there would be no American citizen. While no
public leader or renowned lawyer has known this simple fact, the story
of five years has shown how difficult it is to educate _the average
citizen_ away from the “American” mental attitude of 1776. In 1922, our
Chief Executive commented on the fact that the disobedience of American
citizens to the command made by the state governments had become a
public scandal. From 1765 on, similar disobedience of Americans to
commands made by government without authority _from_ Americans was a
public scandal to Tories in America and in the British Parliament.
There can be no mistake about the Tory mental attitude of the supposed
American government which asked the governments of _state_ citizens
to make the 1918 command to the American citizens, interfering with
their individual liberty on a matter outside the First Article. The
request was a frank avowal of the Tory concept that the people are
“subjects” and that government can constitute new government of men “in
all matters whatsoever.” Even in choosing the time for the proposal
and the command, there was sincere and flattering imitation of a Tory
precedent of Revolutionary days. When Americans of New York were away
from their homes and at the battlefields of the Revolution, it was
a Tory who stirred up the House of the Six Nations to make a home
attack upon what was cherished by those Americans. And it cannot be
ignored that it was in 1918, when millions of Americans were away from
their homes either fighting or prepared to fight for human liberty,
the Houses of forty-five distinct nations were stirred up to make a
home attack upon what those Americans cherished, their individual
freedom. And the analogy does not end with this fact. Whenever the Tory
concept of the relation of government to “subject” has prevailed,
government has never recognized any obligation of government to obey
law made by government. In the years which followed 1918, this was
strikingly exemplified by the sole American government which had asked
the governments of _state_ citizens to make a command to the citizens
of America. The command, in simple English, forbade that certain
things be done in “the United States and all territory subject to
the jurisdiction thereof.” The American government insisted that its
citizens must obey the command. But the American government itself
frankly added that, on its own ships which flew the American flag, it
would not pay the slightest attention to the command. And not until
this frank Tory attitude had been given unenviable notoriety did the
American government ask the remarkable information from its Attorney
General whether ships, owned by the American government and flying the
American flag, constituted “territory subject to the jurisdiction”
of America. Then, while the chief champion of the new Article before
the Court of 1920 and his associate government officials waited for
the information from their associate Attorney General, the American
government continued to act on the claimed assumption that its ships
were not “territory subject to the jurisdiction” of America. Facts
speak for themselves. It seems impossible to question the consistent
Tory attitude of the American government in every matter relating to
the supposed Eighteenth Amendment.
Let us now consider the second section of this amazing new Article, as
such second section was originally suggested by the Senator from Texas.
In its _then_ form it was the suggestion that, after or simultaneously
with the state government exercise of an imaginary power to command
the American citizens, those same state governments should vest in the
only government of American citizens a future ability to make commands
on the same subject, a subject not enumerated in the First Article. The
Statute of ’76, the reasoning and the decision at Philadelphia in 1787
that _its_ First Article could only be made by the “conventions,” the
clear and explicit statements in the Supreme Court (from Marshall to
Brewer in 1907) that no valid grant of _national_ power could ever be
made except by the “conventions,” the prescription in the Fifth Article
of the _constitutional_ mode in which a “Yes” from three fourths of
those conventions would validly make grants of _such_ power--all
these things meant nothing whatever to the Senator from Texas or his
colleagues in Congress, to the legislators in the various states,
to government officials or to the “constitutional” lawyers who have
discussed the Eighteenth Amendment. None of them realized the clear
fact that, if government could get new power over human beings _from
government_, the Americans, through whose education _we_ have lived,
had wholly failed to achieve their one purpose, security of human
freedom from any interference by government except under some power of
interference directly granted by themselves to that government.
Many of the colleagues of the Senator from Texas questioned the
_wisdom_ of asking the grant on that subject. We know not one, however,
who questioned the _ability_ of the proposed donors _to make_ the
grant. We know not one who questioned as a fact that a fractional part
of our state governments have the very omnipotence over the individual
people of all America, which those earlier Americans denied to the
British Parliament. Among _our_ “constitutional” lawyers, there were
many who were engaged to combat in court the validity of the new
Article. They questioned its validity on the ground that it took from
the states, which are mere political entities, part of the power which
each state had not surrendered. In this, they ignored the legal fact,
settled by innumerable decisions, that the people of America, not the
states, made the Constitution and all its grants of _national_ power.
They questioned its validity on the ground that the power (to make
constitutional Articles) “granted” (?) in the Fifth Article did not
include the power to make fundamental changes in the Constitution.
In this, they wholly ignored the certain fact that no such power
_is_ granted in the Fifth Article but that two distinct powers, then
existing, one limited and the other unlimited, are _mentioned and not
granted_ in the Fifth Article, and a mode of procedure for the future
exercise of each is prescribed. In all their challenges to the validity
of the new Article, however, we know not one who ever knew or mentioned
the only and the invincible challenge to that validity, that new power
to interfere with the individual freedom of the American citizen could
_only_ be obtained _constitutionally_ by direct action of the American
people themselves, assembled in the “conventions” of the Fifth Article.
It meant nothing to them that the Fifth Article prescribed that _such_
grants should be valid _only_ when there had been a “Yes” evoked from
three fourths of those conventions. If we would realize the amazing
ignorance, during the last five years, shown on these matters, we must
continue the tale of the proposed new Article.
Before the proposed Article had left the Senate for the first time,
what we now call Section 2 read, “The Congress shall have power to
enforce this Article by appropriate legislation.” With the section in
that language, the Joint Resolution was passed and sent to the House of
Representatives on August 1, 1917. (_Congressional Record_, Vol. 55,
p. 5666.) It was reported out of the Judiciary Committee and taken up
by the House on December 17, with the proposed Section 2 reading, “The
Congress and the several states shall have concurrent power to enforce
this Article by appropriate legislation.”
Somewhat educated with those Americans whose experience made them
better acquainted with the science of government than any other people
in the world, we realize that only Mark Twain could do full justice
to the nature of _this_ alteration to the proposed Section 2. It was
not enough that Congress, because it did not have the power to make a
certain command to its own citizens, should ask inferior governments,
which are not the government of the American citizens, to make that
command. It was not enough that the American Congress, when asking
these inferior governments to make that command, should ask them
to give Congress a future ability to make commands on that subject
on which the citizens of America had never given any government or
governments ability to make any commands to the citizens of America.
The House alteration in the second suggestion from the Senate would
indicate that the House became jealous of the Senate ignorance of
fundamentals in the relations of governments to one another in America
and in the relation of all governments in America to the individual
American. It is difficult otherwise to explain the House alteration
in the Section 2 of the Amendment which came from the Senate. As the
House reported the two sections back to the Senate, this is what the
two sections proposed. Section 1 embodied a command (to be made by
the inferior state legislatures) which directly interferes with the
individual freedom of the American citizens on a subject not enumerated
in their First Article. Section 2 embodied a grant of future ability
to make similar commands on the same subject, and the grant was to be
from the state legislatures to the Congress and _to the very state
legislatures_ who were supposed to make the grant itself and the
command of the First Section.
This is exactly the form in which the Second Section of the supposed
new Amendment was later ratified by these very state legislatures.
That Second Section has been the subject of unlimited discussion for
the past five years. Every one seems to have given it whatever meaning
pleased him at some particular moment. When the House Chairman of the
Judiciary Committee reported this Section to the House he frankly
stated that “We thought it wise to give both the Congress and the
several states concurrent power to enforce this Article and let that
power be set forth and granted in the Article we propose to submit.”
(_Congressional Record_, Vol. 56, p. 424.) But when Wheeler, counsel
for a political organization which dictated that governments constitute
this new government of men, wrote his briefs to uphold the validity of
the new Article which Webb championed in the House, he explained that
this Webb Second Section “does not add to the power already conferred
upon Congress by Section 1” but that “it does, however, make clear that
the power is _reserved_ to the states to pass legislation in aid of the
acts of Congress.” As in most matters, the various champions of the
supposed Eighteenth Amendment are unable to understand and agree upon
the meaning of plain English. From time to time, in our education, it
will be clear that they do not know and understand what the American
people did in 1788 in their “conventions” but that, while flatly
contradicting one another, they are all satisfied that the American
citizens did give the state legislatures unlimited ability to interfere
with individual freedom of the American citizen. It seems natural,
therefore, to find Webb and Wheeler flatly contradicting one another as
to the plain meaning of Section 2 of the Eighteenth Amendment. Despite
the absurdity of the concept, Section 2 means exactly what Webb stated
it to mean when he brought it from the House Judiciary Committee which
had written it. It means, in the plainest English, that the state
legislatures grant to themselves (as well as to Congress) ability to
make commands of the very same kind as the same state legislatures
make, without the grant, in the First Section. And it is a remarkable
fact that, in all the comment on that Section 2 for five years, no
word has been spoken about this ridiculous proposal that the state
legislatures make a certain command and then grant themselves the power
to make such commands. However, the absence of such comment has been
quite in keeping with the fact that our modern leaders and lawyers,
during the same five years, have never known or commented upon the
fact that the Eighteenth Amendment depends for its existence upon the
similar and equally absurd concept that the Fifth Article is a grant
from the “conventions” to the “conventions” as well as to the state
legislatures.
By reason of _our_ education, we have many natural questions to ask
about that Section 2 and the unique House addition to its supposed
grant. While some of those questions may be academic, inasmuch as we
know that the new Article is not in the Constitution, the thoughts
which suggest the questions are strikingly pertinent to our general
query, “Citizen or Subject?”
_In the first place_, we recall the opening words of Section 4 of
the Fourth Article of the Constitution. Those words are, “The United
States shall guarantee to every State in this Union a Republican Form
of Government.” These words immediately precede the Fifth Article.
Moreover, the Supreme Court has decided that it is the particular duty
of Congress to see that this particular guarantee of the Fourth Article
is strictly fulfilled. (Luther v. Borden, 7 _How._ 1; Pacific Telephone
Company v. Oregon, 223 _U.S._ 118.) In the light of these facts, we
wish to know whether the Congress, which proposed the change in Section
2, so that state governments outside a particular state might give
to the state government of that state new power to interfere with
_its_ citizens, understood that the Fifth Article was meant to enable
Congress to originate any desired breach of the guarantee in the Fourth
Article. From our education, we know that, so long as any state has a
republican form of government, its legislature can have no power to
interfere with the individual freedom of the citizens of a state except
by the grant _and continued consent_ of those citizens themselves. We
know that the citizens of each state, in 1776, gave its legislature
power to interfere with their freedom in the matter which is the
subject of the Eighteenth Amendment. We know that, then or at any time
since then and now, the citizens of each state could take back _that_
power so given. But, if the governments of thirty-six states outside
any given state, by the Second Section of the Eighteenth Amendment,
have granted the legislature of that particular state a new and second
power to interfere with the individual freedom of the citizens of that
state, in the matter which is the subject of the Eighteenth Amendment,
what has become of the republican form of government in that state? No
republican form of government ever exists where governments, outside
a state, give to its legislature any power to interfere with the
individual freedom of its citizens.
The case of Rhode Island or Connecticut makes our point clear, although
the question is equally apt for _any_ state, _if_ the Eighteenth
Amendment is in the Constitution. Neither the American citizens in
Rhode Island nor the legislature of Rhode Island, which speaks only
for _its_ citizens and not for any citizens of America, have ever said
“Yes” to the grant to the legislature of Rhode Island of this new
power to interfere with the individual human freedom of the citizens
of Rhode Island. The other power to interfere with that freedom, on
the same subject, which the citizens of Rhode Island gave to _their_
legislature, is a power which the citizens of Rhode Island can take
back from that legislature at any time. But, _if_ the Eighteenth
Amendment is in the Constitution, the legislature of Rhode Island has
a power to interfere with the citizens of Rhode Island in the exercise
of their human freedom, which power has been granted by governments
_outside_ of Rhode Island, and which power cannot be taken away from
that legislature by the citizens of Rhode Island.
We average Americans again ask whether the Congress, chosen to fulfill
the guarantee of the Fourth Article, understood the meaning of the
Fifth Article to be that it could suggest and originate any desired
breach of that guarantee?
_In the second place_, we would like to ask another question of the
Congress which proposed that Second Section and of all who uphold
the validity and the sanity of the Eighteenth Amendment. This other
question is about the two distinct powers, in relation to Prohibition,
which the legislature of every state must have, _if_ the Amendment is
in the Constitution? The question is simple. When such legislature
passes an act like the Mullan-Gage Law in New York, _who_ determines
which of the two distinct powers the state legislature exercises? Is
it the power granted by the citizens of that state and revocable by
them? Or is it the power granted by _governments_ outside that state,
over which the citizens of that state have not the slightest control?
The query is a pertinent one. It is not beyond reasonable assumption
that the citizens of New York may amend their state constitution and
forbid their legislature to enact any statutes interfering with the
freedom of the citizens of New York, in any way, on the matter which
is the subject of the Eighteenth Amendment. Such a step on the part
of the citizens of New York would be absolutely valid. It is not
forbidden even by the remarkable Eighteenth Amendment. Such a step
would immediately deprive the legislature of the State of New York of
any power from New York citizens to pass such law. Moreover, it would
end that Law itself, _if_ that Law was passed in the exercise of the
power, in such matters, granted by the citizens of New York. If it
were determined, however, that the Mullan-Gage Law had been passed
by the New York legislature in the exercise of power delegated to it
by governments outside of New York, the Mullan-Gage Law would still
remain a valid statute. This would mean, of course, that the republican
form of government guaranteed to the citizens of New York, by the
Fourth Article, had come absolutely to an end. Our particular query, at
this point, is obviously one of considerable importance to us American
citizens, each of whom happens to be also a citizen of some state to
which the citizens of America made the guarantee of the Fourth Article
and imposed on the very Congress, which originated the Eighteenth
Amendment, the duty of having that guarantee fulfilled.
There are other equally pertinent questions which we might ask about
this unique Section 2 of the Eighteenth Amendment. We will leave them
for the present, so that we may continue the story of the travel of
the proposed new Article through the two Houses of the Congress which
suggested that governments exercise and give government ability to
exercise this new power over American citizens, not enumerated in
the First Article. We come now to the days on which the House of
Representatives and the Senate discussed the Joint Resolution. In the
recorded eloquence of the advocates of the proposal, we shall find
much to remind us of the prevailing attitude in the British Parliament
toward us in 1775. But, in that eloquence, we shall look in vain for
any echo of the Philadelphia of 1787 or of the “conventions” in which
Americans once assembled and gave their only government its only
enumerated powers to interfere with their individual freedom.
CHAPTER XVII
THE TORY IN THE HOUSE
“Let facts be submitted to a candid world.” _They_ have “combined with
others to subject us to a jurisdiction foreign to our Constitution and
unacknowledged by our laws; giving” _their_ “assent to their acts of
pretended legislation;. .. For. .. declaring themselves invested with
power to legislate for us in all cases whatsoever.”
It is doubtful if our Congress of 1917 ever read the above language.
It is certain that such Congress, reading those words, would heed them
just as little as all advocates of the supposed Eighteenth Amendment
have heeded the express commands of the Americans who uttered those
words.
For the information of those who think that governments in America
_can_ validly make grants of _national_ power, like those in the First
Article and the Eighteenth Amendment, we state that the quoted words
are from the complaint of the American people against their British
Government on July 4, 1776. For their information, we also state
that, on that famous July day, all Americans ceased forever to be
“subjects” of any government or governments in the world. For their
information, we also state that it will require more than a combination
of our American government and the state governments to subject us
American citizens to a jurisdiction foreign to _our_ Constitution and
unacknowledged by our laws, the jurisdiction of the state governments,
none of which has aught to do with the citizens of America.
It is a known legal fact, decisively settled in the Supreme Court, that
the jurisdiction of the American government over the American citizen
and the jurisdiction of the state government over the state citizen are
as distinct and foreign to each other as if the two citizens were two
human beings and the territory of the state were outside of America.
We have in our political system a government of the United States
and a government of each of the several states. Each one of these
governments is distinct from the other and has citizens of its own who
owe it allegiance and whose rights, within its jurisdiction, it must
protect. The same person may be, at the same time, a citizen of the
United States and a citizen of a state, but his rights of citizenship
under one of these governments will be different from those he has
under the other. (Justice Waite in United States v. Cruikshank, 92 _U.
S._ 542.)
The two governments in each state stand in their respective spheres
of action, in the same independent relation to each other, except in
one particular, that they would if their authority embraced distinct
territory. That particular consists in the supremacy of the authority
of the United States where any conflict arises between the two
governments. (Justice Field in Tarble’s Case, 13 _Wall._ 397.)
In our Constitution all power ever granted to interfere with the
individual freedom of American citizens is vested in _our_ only
legislature, the Congress. That is the opening statement of that
Constitution in its First Article, which enumerates all powers _of that
kind_ ever validly granted to that legislature.
In _our_ Constitution no power whatever over the citizens of America
was ever granted to the states singly or collectively, or to the
governments of the states singly or collectively. That all governments
in America, including the Congress of 1917, might know that settled
fact, it was stated with the utmost clarity in the Tenth Amendment to
that Constitution. That Amendment, repeatedly held by the Supreme Court
to be part of the original Constitution, is the clear declaration that
no power of any kind over us, the citizens of America, is granted in
that Constitution to any government save the government of America, and
to it only the enumerated powers _of that kind_ in the First Article.
It is also the clear declaration that all powers to interfere with
individual freedom, except the powers _granted_ in the First Article to
the _American_ government and powers _reserved_ to the citizens of each
state respectively, to govern themselves, are reserved to the American
citizens.
Wherefore, now educated in the experience of the Americans who insisted
on that declaration, we make exactly the same charge, against the
Congress of 1917 and all advocates of the Eighteenth Amendment, that
was made by those Americans against their king who insisted that they
were “subjects” of an omnipotent legislature.
In December, 1917, the Congress knew that it could not make, to the
citizens of America, the command which is Section 1 of the Eighteenth
Amendment. By reason of that knowledge, that legislature--the only
_American_ one--paid its tribute to the state legislative governments
as collectively a supreme American Parliament with exactly the same
omnipotence over all Americans “as subjects” which the Americans of
1776 denied to the British Parliament.
Congress ought to have known that no government except Congress can
make any command on any subject to American citizens. It did know that
Congress could not make the command of the new article to the American
citizen. Therefore it paid its tribute to the state governments. It
asked them, as competent grantors, to give it a new enumerated power to
interfere with the individual freedom of the American citizen.
It is history that those state governments, each with no jurisdiction
whatever except over the citizens of its own state, went through the
farce of signing the requested grant in the name of the citizens of
America. It is law that those state governments are not the attorneys
in fact of the citizens in America for any purpose whatever. It is
law that no governments have any power of attorney from the citizens
of America to grant to any government a new enumerated ability to
interfere with the individual freedom of the American citizens. For
which simple legal reason, the supposed grant of such a power, by
government to government, in Section 2 of the Eighteenth Amendment, is
a forgery.
The supposed Volstead Act was enacted under this grant. It has met
with the severest criticism. No one, however, has yet pointed out
one particular fact to the careful thought of every average citizen
of America. There are thousands of laws, interfering with individual
freedom, in the statute books of the American nation and of the
respective states. In one respect, however, this Volstead Act is
absolutely unique among statutes in America. It is the one law in
America _of that kind_, the kind interfering with individual freedom,
which does not even pretend to be founded on a grant of authority
directly from its citizens to the government which passed it. It is the
only law in America, directly interfering with human freedom, which
was enacted under a grant of power made _by_ government to government.
It does not detract from this unique distinction that the American
government requested the grant, and the state governments made it,
and the American government acted under it, by passing the Volstead
Act, all being carefully planned and accomplished while millions
of Americans were preparing to give and thousands of them did give
their lives for the avowed purpose of securing human liberty from the
oppression of government.
When, in 1787, Americans at Philadelphia had worded our Constitution,
Gerry, opening the short discussion of its Fifth Article, made this
important and accurate statement of fact: “This constitution is to
be paramount to the state constitutions.” All American citizens know
that each state legislature is the creature of its state constitution
and absolutely subject to that constitution. We thus have clearly
established that the American Constitution is paramount to all the
state constitutions and that each state constitution is respectively
paramount to the state legislature which it creates and controls. It
remained for the Congress of 1917 and all advocates of the Eighteenth
Amendment to acquire and state and act upon the remarkable “knowledge”
that those same state legislatures are paramount to everything in
America, including the American Constitution, which is paramount to the
state constitutions which created these very legislatures. That such
was the unique knowledge of the Congress of 1917 is made clear by its
request to those state governments to make the command of Section 1 to
the citizens of America and to make the grant of Section 2 of power
over the citizens of America.
“We thought it wise to give both the Congress and the several states
concurrent power to enforce this Article and let that power be set
forth and granted in the Article we propose to submit.”
So spoke Congressman Webb, introducing the proposed Eighteenth
Amendment, exactly as it now reads, to the House of Representatives, on
December 17, 1917. This was the day on which that House discussed and
passed the Senate Joint Resolution 17, which proposed that Amendment
and submitted it to _governments_ to make it. Webb was a lawyer of
renown and chairman of the Judiciary Committee and had entire charge of
the passage of the Resolution in the House on behalf of those who had
ordered the American Congress to pass that Resolution.
From one instance alone, we may immediately glean how clearly Webb
and all leading supporters of the Eighteenth Amendment, in and out of
Congress during the past five years, have shown an accurate “knowledge”
of the basic principles of all government in America. We realize that
such knowledge, if human liberty is to remain secure, is an essential
qualification of leaders of a people once “better acquainted with the
science of government than any other people in the world.”
No sooner had Webb read the Section 2 and made his quoted statement of
its purpose than he was asked a pertinent and important question. The
query was whether, if Congress and a state government each passed a
law and they flatly conflicted, which law would control? Webb had made
long preparation to carry out his purpose that the Eighteenth Amendment
be inserted in the Constitution _by government_. He was prepared with
his immediate response to that ignorant question. His prompt answer
was: “The one getting jurisdiction first, because both powers would
be supreme and one supreme power would have no right to take the case
away from another supreme power.” (_Congressional Record_, Vol. 56, p.
424.) It is sad to relate that this lucid explanation of the manner
in which _two_ distinct supreme powers dictate to one “subject,” the
American citizen, elicited the next query, “Does the gentleman say
that as a lawyer?” With the charity that real intelligence displays to
ignorance, Webb again explained the simple proposition of two distinct
_and supreme_ powers to command on exactly the same matter. We commend
Webb’s American mental attitude, without the slightest Tory taint, and
his mastery of American law, to all who ever wish to dictate to human
beings as “subjects.”
Fresh from our education in the experience of the earlier real
Americans, we deem it proper to dwell for a moment further on that
opening statement of Webb: “We thought it wise to give both the
Congress and the several states concurrent power to enforce this
Article and let that power be set forth and granted in the Article we
propose to submit” to the state governments.
We recall vividly the statement of Lloyd George made only last year in
the British Legislature. He was speaking of the proposed treaty with
Ireland, then before that Legislature, and this is what he said, in
substance. “The Parliament at Westminster [legislative government, not
the people of the British Empire] is the source of every power in the
British Empire.” It is our just tribute to Webb and every American who
believes that the Eighteenth Amendment is in the Constitution, that
they understand that the American nation is founded and exists on
exactly the same principle. They have all acted upon the one conviction
that the state governments collectively are exactly the same as the
Parliament at Westminster, are above the American Constitution and need
obey no command in it, and are the legitimate source of any power to
interfere with the individual freedom of the American citizen, on any
matter whatsoever.
On our part, probably blinded by our own education with the earlier
Americans, we still believe that Webb and all who think with him are
hopelessly ignorant of American law. We believe that they do not
understand in the least the vital change in the status of the American
individual, from “subject” to “citizen,” on July 4, 1776.
We remember Marshall’s clear statement, in the Supreme Court, that, in
the days when Americans “were better acquainted with the science of
government than any other people in the world” and the First Article
grants of power over them were requested, the legal “necessity of
deriving those powers from _them_ was felt and acknowledged by all.”
We know that _they_ made no change in the imperative nature of that
necessity. We do not understand how that legal necessity, during the
past five years, has not been known to Webb and those of his Tory faith.
We remember Marshall’s equally clear statement, again in the Supreme
Court, that, when new grants of such power are wanted from its citizens
by the American government, there is only one way, in which those
grants can be validly or “effectively” made, namely, by those citizens
themselves, assembled in their “conventions.” It is true, the American
citizens assembled in those conventions in their several states. “No
political dreamer was ever wild enough to think of breaking down the
lines which separate the states, and of compounding the American people
into one common mass” and of compelling them to assemble in _one_
“convention,” when it is necessary for them to act, as possessors of
exclusive ability to vest national power over them.
Of consequence, when they act, they act in their states. But the
measures _they_ adopt do not, on that account, cease to be measures
_of the people themselves_, or become the measures of the state
governments. (M’Culloch v. Maryland, 4 _Wheat._ 316.)
We do not understand how Webb and those of his Tory faith have
forgotten this legal fact, possibly the most important in America to
the liberty of its citizens.
We remember how well this legal fact was once known to all Americans,
how clearly the Americans in Virginia expressed it as the then
knowledge of all Americans and their leaders. “The powers granted under
the proposed Constitution are the gift of the people, and every power
not granted thereby remains with them, and at their will.” (Resolution
of the Americans in Virginia, ratifying the Constitution and making the
grants of its First Article, 3 _Ell. Deb._ 653.) We do not understand
how Webb and those of his Tory faith, speaking the language of Lord
North in 1775 and of Lloyd George in 1922 as to the British Government
of “subjects,” should translate the quoted accurate statement of
American law into, “The powers granted under the proposed Constitution
are the gift of the people, but every power not granted therein remains
with the collective state legislative governments and can be granted
by those governments, without any action by the citizens of America
themselves.”
We know that the Supreme Court, in 1907, did not so understand.
The powers the people have given to the General Government are named
in the Constitution, [all in the First Article] and all not there
named, either expressly or by implication, are reserved _to the
people_ and can be exercised only by _them_, or upon _further grant_
from _them_. (Justice Brewer in Turner v. Williams, 194 _U. S._ 279.)
We do not understand how Webb and those of his Tory faith could believe
that one of those reserved powers could be exercised by the collective
state governments, Section 1 of the new Amendment, or could be granted
by those governments, Section 2.
We remember that Madison, who worded the Fifth Article, and Hamilton,
who seconded it at Philadelphia, did not so believe but knew that
such belief came in direct conflict with basic American law. “As the
people are the only legitimate fountain of power, and it is from them
that the constitutional charter, under which the several branches of
government hold their power, is derived, it seems strictly consonant
to the republican theory, to recur to _the same original authority_
[the people themselves in “conventions”] whenever it may be necessary
to enlarge, diminish, or new-model the powers of the government.”
(Hamilton in _The Federalist_, No. 49.) “The fabric of American Empire
ought to rest on the solid basis of the _consent of the people_. The
streams of _national_ power ought to flow _immediately_ from that pure,
original fountain of all legitimate authority.” (Hamilton in _The
Federalist_, No. 22.) “The express authority of the people alone could
give due validity to the Constitution.” (Madison in _The Federalist_,
No. 43.) “It is indispensable that the new Constitution should be
ratified in the most unexceptionable form, by the supreme authority of
the people themselves.” (Madison, at Philadelphia, 5 _Ell. Deb._ 158.)
“The genius of republican liberty seems to demand on one side, not only
that all power should be derived from the people, etc.” (Madison in
_The Federalist_, No. 37.) and “There is certainly great force in this
reasoning, and it must be allowed to prove that a constitutional road
to the decision of the people ought to be marked out and kept open, for
certain great and extraordinary occasions.” (Madison or Hamilton in
_The Federalist_, No. 49.)
We average Americans know that, in the Fifth Article, there is “marked
out and kept open, for certain great and extraordinary occasions a
_constitutional_ road to the decision of the _people_” when their own
exclusive ability is alone competent to do what is deemed wise to be
done. We know that the direct command to American citizens, interfering
with their individual freedom and contained in Section 1 of the new
Amendment, was the first direct command _of that kind_ ever attempted
to be put in our Constitution. We know that the grant of power to
make such commands, which is the grant of the second section of that
Amendment, is the first and only grant _of that kind_ ever supposedly
made since 1788. Knowing these undoubted facts, we cannot understand
why Webb and those of his Tory faith did not know that the request for
the command of Section 1 and for the grant of Section 2 was “a great
and extraordinary” event, and that only through the “_constitutional_
road for the decision of the _people_” themselves, “marked and kept
open” in the Fifth Article, the assembling of the people themselves
in their “conventions,” could a valid command and a valid grant be
achieved.
The more we average Americans consider, however, the Congressional
record of 1917 and the story of the subsequent five years, the more
do we understand the curious mental attitude which has led Webb and
those of his Tory faith, who believe that the new Amendment is in the
Constitution, to think that governments could make that command to and
that grant of power over the citizens of America. Our consideration
leads us to think that none of these men have ever read or grasped
the meaning of the words expressing a knowledge so often shown by our
Supreme Court:
The people who adopted the Constitution knew that in the nature of
things they could not foresee all the questions which might arise in
the future, all the circumstances which might call for the exercise
of further _national_ powers than those granted to the United States,
and after making provision for an Amendment to the Constitution by
which any needed additional powers would be granted, they reserved to
_themselves_ all powers not so delegated. (Justice Brewer, Kansas v.
Colorado, 206, _U. S._ 46 at p. 90.)
We are sorely afraid that Webb and the Congress of 1917 and all
upholders of the new Amendment have made exactly the same vital mistake
which had been made, in that reported case, by the counsel who there
represented the very same government which repeated the mistake in 1917.
That counsel had contended for the proposition that there are
“legislative powers affecting the nation as a whole [the citizens
of America] which belong to, although not expressed in the grant of
powers” in the First Article. The answer of the Supreme Court was
decisive on the mistake of that counsel and the mistake of the 1917
request from Congress to the state governments. The answer was that the
proposition
is in direct conflict with the doctrine that this is a government of
enumerated powers. That this is such a government clearly appears
from the Constitution, independently of the Amendments, for otherwise
there would be an instrument granting certain specified things
made operative to grant other and distinct things. This natural
construction of the original body of the Constitution is made
absolutely certain by the Tenth Amendment. This Amendment, which was
seemingly adopted with prescience of just such contention as the
present, disclosed the wide-spread fear that the National Government
might, under the pressure of a supposed general welfare, attempt to
exercise powers _which had not been granted_. With equal determination
the framers intended that no such assumption should ever find
justification in the organic act, and that if in the future further
powers seemed necessary, they should be granted _by the people_ in the
manner they had provided for amending that act. It reads: “The powers
not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to
the people.” _The argument of counsel ignores the principal factor in
this Article_, to wit, “THE PEOPLE.” Its principal purpose was not a
distribution of power between the United States and the States, but a
reservation _to the people_ of all powers _not_ granted. The preamble
of the Constitution declares who framed it,--“We, the people of the
United States,” not the people of one State, but the people of all the
States; and Article X reserves to the people of all the States the
powers not delegated to the United States. The powers affecting the
internal affairs of the States not granted to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the
_States respectively_, and all powers of a national character which
are not delegated to the National Government by the Constitution are
reserved to the _people of the United States_. (206 _U. S._ at p. 89.)
We average Americans know, and Webb and those of his Tory faith cannot
deny, that the power to make the command of Section 1, the power
purported to be granted in Section 2, are among the powers of which the
Supreme Court speaks as reserved, not to the states, but to the people
of America. We also know, and again _they_ cannot deny, that only
those, who have, can give, or grant. For which reason, _we_ ask that
_they_ answer this question: How can the state governments exercise or
grant a power which was not reserved to the states but was reserved by
the citizens of America to themselves?
In asking this question we but echo the learned Pendleton’s question,
in the Virginia convention of 1788: “Who but the people can delegate
powers?... What have the state governments to do with it?” (3 _Ell.
Deb._ 37.) And we also but echo the question of Wilson, in the
Pennsylvania convention of 1787: “How comes it, sir, that these state
governments dictate to their superiors--to the majesty of the people?”
(2 _Ell. Deb._ 444.)
But we, the citizens of America, have a further charge, at this point,
to make against Webb and all who claim that the new Amendment is in
the Constitution or that any governments could put it there. In the
case of Kansas v. Colorado, supra, counsel for the government of
America made a monumental error by displaying his ignorance of the
most important factor in the Tenth Amendment, “the people” of America.
By reason of that particular ignorance, he assumed that all power to
interfere with the individual freedom of Americans, on every subject,
must be vested in some government or governments. This was the Tory
concept, accurately rebuked by the supreme judicial tribunal, knowing
only American law based on the American concept of the relation of
“citizens” to their servant government and not on the Tory concept
of the relation of the master government to its “subjects.” He did
not know what Cooley knew when he made his accurate statement that
“There never was a written republican constitution which delegated
to functionaries all the latent powers which lie dormant in every
nation and are boundless in extent and incapable of definition,”
(_Constitutional Limitations_, 7th Ed., 1903, p. 69.) By reason of
his ignorance, he contended that government could command American
citizens by interfering with their individual freedom on a matter not
enumerated in the First Article. His particular error, in that respect,
is repeated by Webb and all who uphold the validity of the command made
in Section 1 of the new supposed Amendment.
But they were not content with repeating his one monumental error. They
have not only ignored the most important factor in the Tenth Amendment,
“the people.” They have also wholly ignored the most important factor
in the Fifth Article, the mention of the _way_ in which the citizens
of America made their only valid grants of power to interfere with
their individual human freedom, the mention of the only way in which
new grants _of power of that kind_ can ever be _constitutionally_ made,
the assembling of _those_ citizens in their “conventions” in their
several states. So assembled in such “conventions,” they made all their
grants in the First Article and then, in their Fifth Article, mentioned
their own assembling in exactly similar conventions in the future and
prescribed that a “Yes” from three fourths of those conventions would
be the only valid signature of the citizens of America to any new
grant of a further enumerated power to interfere with their individual
freedom.
There never has been any other possible meaning to those words in the
Fifth Article, “or by conventions in three fourths thereof.” To the
Americans who worded that Article at Philadelphia and to the Americans
who made that Article, assembled in just such “conventions” as are
mentioned in words therein, that quoted phrase was the most important
factor in the Fifth Article. To them, those quoted words therein were
the complement of their most important factor in the Tenth Amendment,
the reservation to themselves (“the people” or citizens of America) of
every _national_ power not delegated in the First Article. Together,
the two important factors were the command of the citizens of America
that all _national_ powers so reserved to themselves could be delegated
only by themselves, assembled in their “conventions” --“by conventions
in three fourths of” their states. We, who have lived through their
education with them, realize this with certainty. Webb and those who
believe with him know nothing about it.
Recognizing that Congress had been given no power to make the command
which is Section 1 of the new Amendment, they first asked the state
governments to make that command to the citizens of America. This was
an exact repetition of the error made by counsel in Kansas v. Colorado,
supra. This was their ignoring of the most important factor in the
Tenth Amendment. Then, that the display of their own ignorance should
contain something original, they ignored the most important factor
in the Fifth Article and requested that a new power, reserved by the
citizens of America to themselves, should be granted by the state
governments. Everything that they have said or done, during the last
five years, is based on that ignoring of that most important factor in
that particular Article.
Indeed Webb himself made this very clear at the very opening of his
appeal that Senate Resolution Number 17 be passed in the House on
December 17, 1917. He merely paused to make the lucid explanation
of how _two_ supreme powers act, and then went on to read the Fifth
Article as it appears in his expurgated edition of our Constitution.
This is the Fifth Article he read to our only legislature:
“that Congress, whenever two thirds of both houses shall deem it
necessary, shall propose amendments to this Constitution ... which
... shall be valid to all intents and purposes as part of this
Constitution, when ratified by the legislatures of three fourths of
the several states.”
It is clear to us, who have followed the framing of that Article in
Philadelphia in 1787, that the Americans who framed it there and
the Americans who made it, in their later “conventions,” would not
recognize _their_ Fifth Article. In the expurgated edition, the most
important factor in the real Fifth Article is not only ignored but is
entirely missing. It has been stricken from the Article. We do not know
who ordered that it be stricken out. We recall with interest that, on
September 15, 1787, at Philadelphia, Gerry, always a consistent Tory
in mental attitude, moved that it be stricken out of the Article. We
recall that his motion was defeated by a vote of 10 to 1. Nevertheless,
when we come to read that Article, as Webb and his colleagues for the
new Amendment know it, we find that they must have some other record
of the vote on that old September 15, 1787, and of the later votes in
the “conventions” of the citizens of America. We find that in the
Fifth Article, as Webb and his colleagues know it, there are no words
“by conventions in three fourths of” the several states. We realize
that this reading of _his_ Fifth Article and the absence of those
important words from it was no mere inadvertence on the part of Webb.
Clearly those words are not in _his_ Fifth Article. Only a few moments
after his reading of it, on December 17, 1917, he quoted with approval
a statement, by some former Senator, that the American people have
a “right to be heard in the forum of the state legislatures, where
_alone_ the question can be decided whether the _national_ Constitution
shall be amended.”
In view of these facts, we educated citizens of America have no
difficulty in grasping the Tory mental attitude of Webb (and his
colleagues _for_ the new Amendment) that all constitutional protection
for our individual freedom may be legally dispensed with at any time
_by government_, if governments only get together and act jointly, as
in the proposal and supposed adoption of the new Amendment entirely
by governments. For the edification of Webb and those of his faith
in that respect, we would like to inform them that all who believe
that the new Amendment has been or can be put in the Constitution by
governments, “seem to have lost sight of the people altogether in
their reasonings on this subject; and to have viewed” our national
and state governments, “not only as mutual rivals and enemies, but
as uncontrolled by any common superior in their efforts to usurp the
authorities of each other. These gentlemen must be here reminded of
their error. They must be told that the ultimate authority, wherever
the derivative may be found, resides in the people alone, and that it
will not depend merely on the comparative ambition or address of the
different governments, whether either, or which of them, will be able
to enlarge its sphere of jurisdiction at the expense of the other.”
(_Fed._ No. 46.) It contributes not a little to the importance of the
quoted statements that they were written by Madison, who also wrote
the real Fifth Article. They are his warning to the then “adversaries
of the Constitution.” They serve well as our warning to the present
adversaries of our Constitution, who assume and have acted on the
assumption that they can ignore its most important factors whenever
government desires to exercise or to grant a new power to interfere
with our individual freedom, although we have not granted it but have
reserved it to ourselves.
We might continue somewhat indefinitely the story of Senate Joint
Resolution 17 in the House of Representatives on that December day
of its passage therein. We would find, however, what we have already
seen of Webb and his colleagues there to be typical of all they have
said and all that they knew of basic American law. We cannot leave
that House on that day, however, without some comment upon the final
eloquent appeal made by Webb at the close of his arduous labor to
secure the passage of the Resolution.
To those, who have any knowledge in the matter, it is well known
that Christ preached the doctrine of free will and temperance, while
Mohammed laid down the law of prohibition. With great curiosity,
therefore, we have listened for years and still listen to the ceaseless
tirade coming from Christian churches where men style themselves
American “Crusaders” and denounce, in no temperate language, all
Americans who do not align themselves under the “Crescent” flag of
Mohammed and respect his Mohammedan command embodied in the First
Section of the Eighteenth Amendment. Our curiosity is not lessened by
the fact that their denunciation of those, who flatly deny that the
command itself is Christian, is always accompanied with an equally
temperate denunciation of those who dare to question their Tory concept
that governments in America can constitute new government of men.
We have seen Webb, with a candor only equalled by ignorance, frankly
array himself with those who believe the Tory concept, that the
legislatures of the state citizens are “the only tribunal” in which
the _national_ part of the Constitution of the American citizens can
be changed. To his credit, therefore, we find it a matter of record
that, with equal candor, he frankly arrays himself under the “Crescent”
flag of Mohammed and eloquently appeals to all other devotees “of the
great Mohammed” in support of the Mohammedan and un-Christian precept
embodied in the Eighteenth Amendment. That full justice may be done
his eloquence and his candor, these are his own words on his immortal
December 17, 1917: “During one of the great battles fought by Mohammed,
the flag was shot from the ramparts. A daring and devoted soldier
immediately seized it with his right hand and held it back on the
rampart. Immediately his right arm was shot off, but, never faltering,
he seized the flag with his left hand and that, too, was instantly shot
away whereupon with his bleeding stubs he held the emblem in its place
until victory came.
“With a zeal and a determination akin to that which animated _this_
devotee of the great Mahomet, let us wage a ceaseless battle and
never sheathe our swords until our constitutional amendment is firmly
adopted and the white banner of real effective prohibition proudly
floats over every courthouse and city hall throughout this, the
greatest nation upon earth.” (_Congressional Record_, Vol. 56, p. 469.)
CHAPTER XVIII
THE TORY IN THE SENATE
When our present Constitution was before the people of America, waiting
their approval or rejection, Madison and Hamilton published their
series of essays, now known as _The Federalist_. It is not our intent
to dwell upon the knowledge of American basic law shown by these two
men. Elsewhere our Supreme Court has paid its deserved tribute to _The
Federalist_ as an authority of the greatest weight in the meaning of
our Constitution. At this moment, we desire to mention one remarkable
quality which makes those essays unique among arguments written in the
heat of a great political controversy. They were written to urge that
human beings create a great nation and grant some enumerated powers
to interfere with their own freedom. They were written when other
great leaders were opposing that project with the utmost ability and
eloquence. These opponents, as is the custom with men in any heated
controversy, denounced the project and its advocates. The abuse of both
project and advocates has probably never been exceeded in America. Yet
it is one remarkable quality of the arguments of Madison and Hamilton,
in _The Federalist_, that they themselves never leave the realm of
reason and fact and law, or descend to irrelevant abuse of those who
differ in opinion with them.
We, who have lived through the last five years in America, can
truthfully say that the advocates of the new constitution of
government, the Eighteenth Amendment, have made their essays and
speeches and arguments notable for the same quality, by its utter
absence.
Because fact would interfere with the making of their new Constitution,
they have changed fact. Because law meant that government could not
constitute their government of the people, they have stated law which
has never been law in America since 1776. Because reason would prevent
the achievement of their purpose, they have appealed to irrelevant
abuse of those who dared to differ in opinion with them.
In view of these known facts, we average Americans shall not be
surprised when we read the record of the Senate on its own proposal
that government should exercise a power not delegated to interfere with
individual freedom. Fresh from the reading of the record in the House,
we shall not be surprised to find that the Senate also ignored the most
important factors in the Tenth Amendment and the Fifth Article, “the
people” in the one, and the mention of the people’s exclusive ability
to make _national_ Articles in the other.
When his proposing Resolution came before the Senate on July 30,
1917, Senator Sheppard quickly made clear his mental attitude on the
relation of government to human beings. Whenever a sincere Tory has
voiced himself on that matter, it has always been inevitable that he
betray the thought that human beings are the assets of the State and
not its constituent members. As Madison said, “We have all known the
impious doctrine of the Old World, that people were made for kings and
not kings for the people.” In the country _or in the mind_ where that
doctrine prevails, it is held to be the right and the privilege of
government to see that the people, like the other assets of the State,
are kept in good condition so that all property of the State may have
its greatest economic value in the market of the world.
And so we find Sheppard, through all his opening support of the new
constitution of government based on the Tory doctrine, making clear the
necessity that our government keep that asset, which is the citizens of
America, in good physical condition like any other machine that may be
in America.
“In an age of machinery and of business transactions on a scale more
enormous and complicated than ever before, the clear eye, the quick
brain and the steady nerve are imperatively demanded. Society today is
more dependent upon the man at the machine than at any previous period.
We are coming to understand that the engine of the body must have the
same care as the engine of the aeroplane, the battleship, the railway
train, the steamship or the automobile; that the trade in alcohol is a
form of sabotage which the human machine cannot endure; that it is no
more to be tolerated than would be the business of making and selling
scrap iron to be dropped into the delicate and complex machinery of
modern manufacture, transportation and commerce.” (_Congressional
Record_, Vol. 55, p. 5550.)
After this admirably accurate appreciation of the relation of our
American government to the asset which is ourselves, Sheppard then
proceeded to teach us (who have just lived through the education of the
American human beings who made the Constitution) the real facts of that
making, _as he knows them_.
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_.
The Constitution of the United States was ordained and established,
not by the states in their sovereign capacities, but emphatically,
as the Preamble of the Constitution declares, by the “people of the
United States.”
So declared Justice Story, from the Bench of the Supreme Court, as far
back as the decision of Martin v. Hunter’s Lessee, 1 _Wheat._ 324. As
Story was an associate of Marshall on that Supreme Court, and as he is
recognized as one of the greatest exponents of our Constitution, we
average Americans prefer his knowledge to that of Sheppard even when
the latter does quote from Calhoun. Furthermore, in an unbroken line of
decisions, extending over the entire period of more than a century of
whose history Sheppard knows naught, the Supreme Court has insistently
proclaimed the same fact, namely, that the people of America--not the
states--made our Constitution.
“It is no longer open to question that by the Constitution a nation
was brought into being, and that that instrument was not merely
operative to establish a closer union or league of States.” (Justice
Brewer, in the Supreme Court, Kansas v. Colorado, 206 _U. S._ 46.)
Indeed, many men before Sheppard have attempted to deny that fact.
History, however, records no successful denial. As Sheppard states, the
words of Calhoun were from his reply to Webster in 1833. In the history
of a century, all a sealed book to Sheppard, Haine also asserted,
against Webster, the belief of Calhoun and Sheppard as to what were the
facts of the making of our Constitution. We average Americans, in an
earlier chapter herein, have read Webster’s statement as to what were
the facts of that making. Having lived, ourselves, through the days
when the Americans did make their own Constitution, we agree wholly
with Webster and the Supreme Court and know that the states had no
part whatever in its actual making. Over fifty years ago, however, it
became absolutely immaterial, except for academic purposes, what might
be the personal beliefs of ourselves or Calhoun or Haine or Sheppard
or Webster. Shortly after the middle of the last century, the Southern
States, just as unwilling as Sheppard in 1917 to accept the unalterable
decision of the Supreme Court that our Constitution is not a compact
between states, appealed to the only tribunal to which there is any
appeal from that Court, the tribunal of civil war. Even Sheppard must
know the result of Gettysburg, the surrender forever of any claim that
the Constitution is a compact between the states. Even Sheppard must
some time have heard the echo of Lincoln’s appeal, at Gettysburg, that
government of the people, by them and for them, should not perish from
the earth. Even Sheppard must recognize, whether or not he wish to do
so, how successfully the American people, whose predecessors made the
Constitution, answered that appeal of Lincoln and intend to keep our
government a government of the people, by them and for them, instead of
a Sheppard government of the people, by governments without authority
from the people.
We average Americans, however, do not question the wisdom of Sheppard
in quoting the repudiated claim of Calhoun, so long as Sheppard and
his colleagues intended to continue their effort to impose upon us the
new constitution of a new kind of American government, which is their
Eighteenth Amendment. If he and they were to find anywhere citations
in support of the ability of governments in America to exercise and
to grant undelegated power to interfere with human freedom, to what
source could he or they go for such citations? Their proposition
depended wholly for its validity upon the Tory concept of the relation
of government to its assets and subjects, the people. And, in the
five volumes of the records of the conventions of the Americans, in
the two volumes of _The Federalist_, and in over two hundred volumes
of American decisions in the Supreme Court, he and they knew that no
single citation of authority could be found to support the idea that
we Americans are “subjects” and not citizens. In the face of such a
situation, he and they had but a choice between the repudiated claims
of Calhoun and Haine or the concepts of Lord North and his associates
in the British Parliament of 1775. We average Americans know what
choice we would have made, _under such circumstances_. For which reason
we are not surprised to find Sheppard, after his remarkable quotation
from Calhoun, continuing on to say that the states “by reserving to
themselves the unqualified and exclusive right of amendment kept intact
their sovereign capacity in so far as the organic law of the nation was
concerned.” (_Congressional Record_, Vol. 55, p. 5553.)
With the Supreme Court, we have always known and we still know, despite
Sheppard, that the people of America did all the reserving that was
done and which the Tenth Amendment merely declared had been done. We
note, with intent to remember, how clearly Sheppard demonstrated his
total ignorance of the most important factor in that Tenth Amendment,
“the people,” and of the most important factor in the Fifth Article,
the mention of the reserved exclusive ability of the people themselves,
assembled in their “conventions,” to amend or change or add any
_national_ Article in their Constitution.
As we go on with his oration of that July day, we find him insisting,
as we found the House insisting on a later day, that the states and
their legislative governments are all the protection to our individual
liberties which the American people were able to attain by the efforts
of those remarkable years from 1775 to 1790. Curiously enough, that
insistence is mentioned in the same breath in which he suggests that
we, the citizens of America, have some rights, evidently in the nature
of privileges which a government confers on its subjects. This is what
he has to say: “In refusing the people the right to appeal to the only
tribunal having power of amending, the tribunal of the states, for the
redress of what they consider one of the most terrible grievances in
the republic, Congress would deny to them one of the most sacred of all
rights, the right of petition.”
Why should the supreme legislature not deny that right of petition to
us, if the inferior state legislatures, who are not governments of the
citizens of America, claim power to deny us any right they please, as
they do by their supposed Eighteenth Amendment to our Constitution?
But we waste time on this Sheppard. Let him say his own farewell to
us; the citizens of America, in his closing words of July 30, 1917.
As Webb, in the House, closed with his eloquent appeal to every true
Mohammedan, we naturally find Sheppard closing with his appeal to
whatever Tory sentiment believes that the same most important factor in
the Tenth Amendment and the Fifth Article should be equally ignored.
“At the close of this debate we will have an opportunity to enable the
states to exercise their highest function--the right to shape, alter,
and develop the federal Constitution. They are the proper tribunal to
decide the fate of this Amendment. They compose the mightiest array
of free commonwealths united in a federated whole the world has ever
seen.... If there is anything in the Amendment subversive of _their_
liberties and _their_ welfare, _they_ can be trusted to condemn it.
Let not Congress assume to judge for them. Let Congress discharge its
preliminary task of submission and stand aside. Let it put in motion
the referendum provided by the national organic law--the method of
amendment the states themselves established when they created the
Constitution. Let the states perform the duty which remains the sole
instance of their sovereignty over the federal government itself.”
(_Congressional Record_, Vol. 55, p. 5554.)
If it were still 1833, if there never had been a Gettysburg or an
Appomattox, could Calhoun himself have done better? If there never had
been the Statute of 1776 or an American Revolution to make it the basic
law of America, could any Tory peer in the Westminster Parliament of
1775 have been more zealous to see that the states themselves--which
are mere political entities--should determine whether there was
anything in the Eighteenth Amendment “subversive of _their_ liberties
and _their_ welfare?” If there is, “_they_ can be trusted to condemn
it.” Let _our_ “Congress discharge its preliminary task of submission
and stand aside.” What if there is anything in the Amendment subversive
of _our_ liberties and _our_ welfare? Why should _we_ be trusted with
the opportunity to condemn it, the opportunity which we reserved
exclusively to ourselves by the most important factors in the Tenth
Amendment and the Fifth Article?
Why should we remember that Jefferson, also from a Southern State,
penned the Statute of 1776 in which the American people commanded that
no government acquire power over people except from people and not
from governments? Why should we remember that Pendleton, also from the
South, while actually engaged with all the rest of the American people
in making the First Article, referred to it and asked, “Who but the
people can delegate powers? What have the state governments to do with
it?” Why should we remember that Wilson, in the previous December, that
of 1787, said of our Constitution, “Upon what principle is it contended
that the sovereign powers reside in the state governments? The proposed
system sets out with a declaration that its existence depends upon
the supreme authority of the people alone? How comes it, sir, that
these state governments dictate to their superiors--to the majesty of
the people?” Why should we remember that Webster, answering Hayne and
Calhoun, said, also speaking of our Constitution, “While the people
choose to maintain it as it is--while they are satisfied with it, and
refuse to change it--who has given, or who can give, to the state
legislatures a right to alter it, either by interference, construction,
OR OTHERWISE?... Sir, the people have not trusted _their_ safety, in
regard to the general constitution, to these hands. They have required
other security and taken other bonds.” (4 _Ell. Deb._ 508.)
It is true that these earlier Americans have clearly in mind the most
important factor in both the Tenth Amendment and the Fifth Article. But
it must not be forgotten that Pendleton and Wilson and the Americans of
that day, in making our Constitution, in constituting a new government
and giving to it some powers over the freedom of human beings, were
acting entirely outside any written law except the Statute of ’76. Is
not their example a sound precedent for those who are now constituting
a new government of Americans and giving it power over their freedom,
for those who made the Eighteenth Amendment and those who upheld its
validity? What if the makers of the new government are themselves
government? If governments choose to act outside of all written law
and to ignore that part thereof which is the important factor of the
Tenth Amendment and the Fifth Article, are these governments not
emulating the example of the American people in 1787? True, these
American people did act in strict conformity to the Statute of 1776,
and this modern constitution of new government by government is not
in conformity with that Statute. But was not that Statute itself
the revolt of human beings against government? If human beings, by
successful revolt against government, could change themselves from
subjects to citizens, why cannot government, by successful revolt
against human beings, change them from citizens to subjects?
If, however, Sheppard and Webb and those of their Tory faith insist
that the new constitution of government is in _our_ Constitution, and
put there validly, under claimed grant from us to state governments of
omnipotence over American citizens, we, on our part, know that their
claim is without the slightest support. Moreover, our knowledge in
that respect is knowledge of indisputable legal fact. That the fact
would be equally indisputable, even if our Constitution was a compact
between states, as Calhoun did claim, and as Sheppard does claim, we
can clearly demonstrate even to Sheppard himself. Our education with
the earlier Americans, who changed their status from that of subject to
citizen, has taught us all we need for that demonstration.
Let us assume, what Sheppard asserts, that the states made the
Constitution, that it _is_ a compact between states. Sheppard is a
Texan. If our Constitution is a compact between states, the State
of Texas is one of the parties to that compact. We ask Sheppard
whether he and the other Texans _are_ the State of Texas or whether
the legislative government in Texas is the State of Texas? If he
answers that the Texas legislature is the State of Texas, we proceed
no further. That answer will be his frank confession that the Texan is
a subject of the Texas government and not a citizen or member of the
Texas State.
On the other hand, if he answers that the human beings of Texas are
the State of Texas, we do proceed further. We proceed along the most
definitely settled legal principle in America. If the human beings in
Texas are its citizens and constitute its State, the constitution of
Texas is their creation and the legislature of Texas is the creature
of that constitution. From the Texans, through the creation which is
their constitution, that legislature derives its every power over
the human beings in Texas and cannot have any _such_ power except by
grant from those human beings themselves. That is the law of Texas,
settled by hundreds of decisions in Texas and America. Now, if our
American Constitution is a compact between the State of Texas--the
human beings in Texas--and the other states--the human beings in the
other states--how comes it that the mere creature of the Texans,
without power over them except from them, can, by combination with
other servant legislatures outside Texas, give to itself and to other
governments outside Texas a new power to interfere with the freedom of
the human beings in Texas?
We are rather afraid that Sheppard and those of his faith, even
assuming that our Constitution is a compact between states, have
entirely overlooked the legal fact that a government is not the State
in America. We are rather afraid that they have reverted to what
Madison called “the impious doctrine of the Old World,” namely, that
the government is the State and the human beings are its asset and its
property. We are rather afraid that they agreed with the concept of
Louis of France, expressed in his famous “I am the State.”
On no other basis can we explain their complete ignorance of the one
important factor in the Tenth Amendment and the Fifth Article, “the
people” of America, who, assembled in their “conventions,” as mentioned
in the Fifth Article, are the citizens of America and compose the State
or Nation of America.
We average Americans, in the light of our education, reading the record
of that July 30 in our Senate, would have thought, _were it not for
one fact_, that every senator was using the expurgated edition of the
Constitution, which Webb later used in the House, and which omits
entirely from the Fifth Article the words, “by conventions in three
fourths of” the states. Were it not for that one fact our thought
would have been justified. We know that the proposition of Sheppard,
embodied in his Senate Resolution No. 17, was that the proposed new
Article should be referred to the tribunal of the state legislative
governments. We know, and we have quoted his own statement, which is
the basis of that knowledge, that he held that legislative tribunal to
be “the only tribunal having power of amending” our Constitution. We
know that he held this legislative tribunal to be “the proper tribunal
to decide the fate of this Amendment.” We know his confidence that this
legislative and government tribunal has “the right to shape, alter, and
develop” our Constitution, ordained and established by the citizens of
America. His conviction, in this respect, is stamped indelibly on our
mind, because it came in such sharp conflict with our knowledge that
_all_ Americans of an earlier day held that every _national_ Article,
like the First Article and the supposed Eighteenth Amendment, must be
referred to that other tribunal, the only tribunal competent to make
_such_ Articles where men are citizens and not subjects, the tribunal
of the American citizens themselves, the tribunal mentioned in the
Fifth Article in the words “by conventions in three fourths of” the
states in America.
We know, therefore, inasmuch as neither Sheppard nor any senator but
one apparently knew of the existence of that other and supreme tribunal
or of the presence of those words in the Fifth Article, that all
senators save that one must have been using an expurgated edition of
the Fifth Article.
On that July 30 we find Senator Ashurst making plain that he has our
edition of our Constitution. He said, “When our federal Constitution
was written in 1787, two methods of amending were provided; and, unless
I am mistaken, it was the first written constitution in history which
provides for two methods of amendment.” This brief and simple mention
of that significant fact, in relation to the Fifth Article, seems to
have been the only cognizance of the fact itself, in the Senate of that
day or in the entire subsequent history of the Eighteenth Amendment,
even in the great litigations about it in which were arrayed against
one another the most renowned “constitutional” lawyers in America.
So far as would appear from the Senate record, no knowledge of the
amazingly important effect of that Fifth Article _mention_ of two
distinct powers (one limited and then existing in government and the
other unlimited and then and now existing in the American people) to
make future Articles was acquired in the Senate or afterward, from the
fact itself or from Ashurst’s allusion to the fact.
Back at Philadelphia in 1787, Gerry, always Tory in his mental attitude
to government and human being, realized fully the amazing importance
of this Fifth Article mention of the two then existing powers to
make Articles, the limited power of legislative governments to make
_federal_ Articles (which had made all the federal Articles of 1781)
and the unlimited and _exclusive_ power of the people themselves
to make _national_ Articles, which had been exercised to make the
national Articles in each existing state constitution, and which the
Philadelphia Convention had already ascertained and held was the _only_
power competent to make such Articles as their own proposed First
Article and the Eighteenth Amendment. While the Philadelphia Convention
had been discussing and deciding that their proposed Constitution,
because of its First Article, the real constitution of government, must
be referred to the people, Gerry had always opposed that decision. He
had always fought to have that First Article sent to government, to
have its grants of power over the freedom of men made by government
to government. When, therefore, the closing business day of that
Convention was reached on September 15, 1787, he made his final and
consistent Tory effort that citizens should be asked to make a Fifth
Article which would change them back again to the subjects they had
been in 1775. That effort was his motion of September 15 to strike
from the Fifth Article, as we know it, the words “or by conventions in
three fourths of” the states. He knew, as we know, by reason of our
education with the Americans who defeated his effort, that those words
are the Fifth Article _mention_ of the then existing only ability in
America which then could or now can make such Articles as the original
First Article or as the supposed Eighteenth Amendment. He knew, as
we average Americans now know, that, only _if_ such mention _were_
stricken from that Fifth Article, could any future possible claim
be made that legislative governments have ability to exercise or to
grant undelegated power to interfere with individual freedom. With the
important object in mind, that he secure _some_ foundation for such
claim in the future, he made his motion to strike that mention of our
exclusive power from that Fifth Article. As we average Americans know,
his effort to have a convention even propose such a Fifth Article to “a
people better acquainted with the science of government than any other
people in the world” was beaten by the decisive vote of 10 to 1.
The proposal of the Eighteenth Amendment by government to government
was the attempt of our servant American government to reverse the
result of that vote of September 15, 1787. The action of the state
legislative governments in America upon that proposed Eighteenth
Amendment was an action depending _entirely_ for its validity upon a
recount of that vote and the assumption that the convention did strike
out that mention of our exclusive power to make national Articles and
that the Fifth Article went to the American people and was made by
them _without that mention in it_. For which very obvious reasons, we
average Americans do not understand how the fact, to which Ashurst made
brief allusion on July 30, 1917, was not the basis of every attack made
in the Supreme Court by many of the most renowned “constitutional”
lawyers in America, when they did assail the validity of that
Eighteenth Amendment.
It is difficult to pick out the one most remarkable thing in the
complete story of the last five years. Yet we are inclined to believe
that, from a certain point of view, the one most remarkable thing
is the absolute failure of even one of those renowned lawyers to
appreciate or know or mention the fact and its _decisive_ effect
upon the alleged validity of the Amendment they challenged, the fact
that the Fifth Article does name two future makers of Articles, the
governments which could and did make the federal Articles of 1781,
but which neither could nor did make the First Article of 1787 or the
Eighteenth Amendment of 1917, and the citizens of America, who could
and did make the First Article of 1787 and who alone can make but have
not made the Eighteenth Amendment.
Even Ashurst seems to have known that it was remarkable, unique in
history, for the Fifth Article to name two different makers of future
Articles. It is amazing that the imperative reason for this naming
of two makers, distinct and different in their ability to make,
never suggested itself to any of the renowned lawyers of 1920, even
though they knew the dual nature, _national_ and _federal_, of our
Constitution. It is amazing when we realize that the Supreme Court, in
1819, had stated, as an obvious thing, that, when the First Article
(granting power to interfere with the freedom of men) was proposed,
the legal “necessity of referring it to the people, and of deriving
its powers _directly from them_, was felt and acknowledged by all.” It
is amazing when the same Supreme Court in 1907 had authoritatively
repeated that statement: “The powers the people have given to the
general government are named in the Constitution, and all not there
named, either expressly or by implication, are reserved to the people
and can be exercised only by them or upon further grant from them.”
However, we average Americans, still pursuing the history of America
to learn when we again became “subjects,” will later herein consider
the litigation about the Eighteenth Amendment. So far as the Senate
is concerned, we leave it on December 18, 1917, the day on which it
finally proposed that legislative governments make the Eighteenth
Amendment, whose Second Section was exactly of the same nature as the
First Article, namely, an Article of the kind which the Philadelphia
Convention of 1787 had known never could be made by legislative
governments in America. In that Senate, as in the House, the public
record discloses no American who did not ignore the most important
factor in the Tenth Amendment and the Fifth Article, no American
who knew the legal necessity of deriving, directly from the people
themselves, every power to interfere with the individual freedom of the
people.
So far as history tells the tale, in the legislatures of the states,
that legal necessity was “known and acknowledged” by none. There were
many therein, as there were many in the later court litigations, who
opposed the making on the ground of its unwisdom. There were also many,
again as in the later litigations, who contended that there should be
no interference with the freedom of American citizens, as such, except
on the matters enumerated in the First Article. But, neither in our own
American legislature nor in these state legislatures, as in the later
litigations, was there one who knew the only legal and maintainable
ground for that belief, the legal fact, as the Philadelphia Convention
found it, that only the American people could validly grant government
power to interfere with their individual freedom, and the legal fact
that the American people, constituting their government, kept the legal
situation, in that respect, exactly as the Philadelphia Convention
found it, by the most important factors in the Tenth Amendment and the
Fifth Article.
The amazing haste with which the ratifying legislatures exercised, for
the first time in America, this imaginary power to interfere with the
individual freedom of the American citizens is a matter of history. The
manner in which that legislative exercise of imaginary government power
over subjects was secured in many states is something with which we are
all familiar. We desire, however, to emulate the example set by Madison
and Hamilton in _The Federalist_, so far as judgment can restrain the
honest indignation of citizens, when government undertakes to make
them “subjects.” Therefore we leave it entirely to those who uphold
the validity of the supposed new Amendment to substitute irrelevant
matter, mostly personal abuse that is harmless in view of its source,
for the sound legal arguments in support of validity, which they can
never find until the Statute of ’76 is repealed and our constitutions
of government are so changed that we cease to be citizens and become
the subjects our ancestors were in 1775.
For those who would like to look upon all American governments as
model exemplars of American respect for American law and American
constitutions, the date of the proposal in December, 1917, and the
quickness of ratification and the manner in which ratification was
largely secured, are all matters most unpleasant to contemplate. Even
now the most sincere advocate of the new Amendment never speaks of
it without unwittingly showing his chagrin at the general knowledge
that it _was_ proposed and passed by governments when millions of the
citizens of those governments were fighting and were armed to fight for
human liberty, and that even governments would never have dared to pass
it except at that particular time.
These facts, however, reflect only on the virtue of the Amendment. They
have no bearing upon its validity. We average Americans are interested
now only in that claimed validity. We know that, if it is valid, we
have become subjects, that we are no longer citizens. We are seeking
to find out when and how that change was made in our relation to all
governments in America. Beginning on July 4, 1776, we have come down
to December 18, 1917. We have found ourselves, on that day, still
citizens. We know that our servant legislature at Washington made a
proposal on that day, which was legally absurd, unless we had already
become subjects. We have listened carefully to what they had to say,
in support of that proposal, and have ascertained that they neither
knew nor understood the most important factor in our Tenth Amendment
and Fifth Article, by which our ancestors kept their own and our status
as citizens. We know that the state legislatures could not change that
status. Therefore we now simply note the fact that, in 1918, some of
them ratified the proposal on the basis that all of us were their
subjects. We know that our own government at Washington has acted,
whenever it felt disposed to enforce the supposed new command against
us and not to disobey it openly itself, as if we _were_ the subjects of
those ratifying legislatures.
We know also that in 1920, after more than a year of exhaustive
study of our history and our Constitution and our laws by hundreds
of our most eminent lawyers, all working for one object, the legal
demonstration of the invalidity of the new Amendment, a chosen
number of the most renowned “constitutional” lawyers in America
appeared in the Supreme Court and orally argued against validity
and filed the briefs against validity which were the result of this
concentrated effort. We know also that, in that court, on behalf of
our own government and on behalf of those other governments which
that government has proclaimed to be the supreme dictator in America,
there also appeared another chosen array of the most renowned
“constitutional” lawyers, in the forefront being a former justice of
that court, now the American Secretary of State. This latter array
appeared to demonstrate how and when, since 1790, our own status was
changed from citizen to subject and the collective legislatures of
some of the states were substituted for ourselves as possessors of the
supreme constitutional will in America.
We average Americans, therefore, to complete our education, now turn to
the arguments of these lawyers and to their briefs, with somewhat of
chagrin at our own unaided ability to ascertain the “when” and “how”
_we_ became subjects and _our_ Constitution, in its _national_ Articles
and aspect, became the creature of legislative governments, although
the American people originally created it to be the master of all
governments.
CHAPTER XIX
ARE WE CITIZENS?
“The establishment of a Constitution, in time of profound peace, by the
voluntary consent of a whole people, is a prodigy.” (_Fed._ No. 85).
Those were the words of Hamilton, in a final appeal to the people of
America, as they were about to assemble in their “conventions.”
As he thought it a prodigy that their voluntary consent should be
secured to that constitution of government contained in the First
Article, he frankly added that he looked forward “with trembling
anxiety” to their own determination as to whether or not _they_ would
give that _necessary_ consent to the enumerated grants in that First
Article. We know how the patriotic efforts of himself and Madison and
his other colleagues were later rewarded by the giving of that consent.
We know _where_ those average Americans of that day gave that consent,
_where_ they made that constitution of their _national_ government
which is that First Article. “It is true, they assembled in their
several states--and where else should they have assembled? No political
dreamer was ever wild enough to think of breaking down the lines which
separate the states, and of compounding the _American_ people into
one common mass. Of consequence, when _they_ act, they act _in_ their
states. But the measures _they_ adopt do not, on that account, cease to
be the measures of the people _themselves_, or become the measures of
the state _governments_.”
In the many other Supreme Court decisions, telling the tale of the
completion of the “prodigy” and all stating the same legal fact, is
there a more apt and accurate expression of the knowledge of the
American people, who were better acquainted “with the science of
government than any other people in the world,” that the “conventions”
in the respective states, assembled to constitute their American
government by grants like those in the First Article and the
Eighteenth Amendment, are the Americans themselves and that the state
_governments_ never are the American people themselves and never
represent _those_ people for _national_ purposes. It was natural that
such apt and accurate expression of that concept should have been
voiced by Marshall in the Supreme Court. He had been one of those
people, fighting on the battle-field with them to wrest from all
governments in the world any ability to constitute government by making
grants like those in the First Article or the Eighteenth Amendment. He
had been one of those people in one of those “conventions,” in their
respective states, where _they_ made the only Article _of that kind_
which ever entered their and our _national_ American Constitution.
Later it became his privilege and duty (_and our great good fortune_)
to explain _who_ alone could make and did make that First Article and
_who_ alone can ever validly make Articles like it or the Eighteenth
Amendment, namely, the American people themselves, assembled in
convention in their respective states.
When, therefore, we read the Fifth Article, made by him and his fellow
Americans in those “conventions,” we recognize at once and we will
never forget or ignore _their_ mention of _themselves_, in the very
word by which he and they then described _themselves_, “conventions” in
their respective states.
In making the Eighteenth Amendment grant of power to interfere with
American freedom, we--the American citizens and “conventions” of this
generation--have been ignored as completely as if we were not named in
the Fifth Article.
We have been trying to ascertain “when” and “how” the American human
beings, now ourselves, ceased to be “citizens of America” and again
became “subjects” of governments. We have gone to the record of our
Congress on those days in 1917, in which it acted on the assumption
that the “when” and “how” were already history. We have found no
Senator or Congressman who vouchsafed any information or displayed any
knowledge of this matter, so vitally important to us who were born
citizens and free men. We have seen the leader of the House advocates
of the new constitution of government, the Eighteenth Amendment,
read a Fifth Article in which the “conventions” of those who made it
and the First Article are not mentioned. We have seen the leader of
the same advocates in the Senate complacently assert the repudiated
thought that the states made the First Article, our constitution of
_our_ government. We have seen him follow up this error with the Tory
mistake of assuming that the government of the state is the state. We
have seen him point out, to our American amazement, the remarkable
and hitherto unknown fact, never mentioned by the people who made the
Fifth Article, that the state governments are the only tribunal in
which our _national_ constitution of government can be changed, that
those governments are a tribunal in which new enumerated power can be
given by government to government to interfere with our own individual
freedom.
Fresh from our education with the Americans who made that Fifth
Article in “conventions” of the very kind mentioned therein, we see
that those legislators of 1917 know naught of American history or law
or constitution of government of men, that from them we cannot learn
“when” or “how” we ceased to be “citizens” and became “subjects.” But,
there assembled in the Supreme Court in March, 1920, many renowned
“constitutional” lawyers. Some came to challenge, some to uphold the
new Amendment, the new government-made constitution of government right
to interfere with individual human freedom.
To the reading of all their briefs and arguments we bring our knowledge
that the new Amendment never entered our Constitution _unless_ we were
“subjects” before 1917 or _unless_ the new Amendment was itself a
revolution (by government against citizens) which made us “subjects.”
We expect the lawyers _against_ the new Amendment to challenge its
existence with the facts and knowledge we bring from our education with
the Americans who made themselves free men and citizens.
We expect the lawyers _for_ the new Amendment to point out the day and
the manner in which they claim that government of the American people
by the American people _did_ disappear from America.
Unless these lawyers for the Amendment do point out that day and manner
and sustain their claim as to both, we know that the existence of the
new Amendment is successfully challenged by the facts which we have
acquired in our education. Before we listen to the expositions of
these facts by the lawyers against the new Amendment, let us briefly
review the facts themselves as they bear upon the supposed existence of
the new Amendment.
When 1776 opened, the American people were subjects in rebellion
against their omnipotent government. By direct action of themselves, in
July, 1776, they made themselves free men, made their former colonies
independent states and made each of themselves a citizen of some one of
those states. Almost immediately, the Statute of ’76 having declared
the actual fact that the supreme will in America was possessed by the
American people, at _their_ suggestion and with _their_ permission,
the citizens of each state constituted their own government with its
_national_ powers to interfere with the individual freedom of its own
citizens. In strict conformity to the Statute of ’76 and to the sole
American concept of the relation between government and human being,
those grants of power to interfere with individual freedom, like every
other grant _of that kind_ until the Eighteenth Amendment, were made by
the respective citizens to their respective governments.
In 1777 the committee of the American people known as the Second
Continental Congress proposed a union of states or political entities
and a general government to govern states but not to interfere directly
with the human freedom of the individual. Because there is a vital
distinction between the ability to govern states and the ability to
interfere with individual freedom, those Americans knew that states or
political entities could make _federal_ Articles but that only citizens
could ever validly make _national_ Articles. It was impossible for
these Americans not to know this difference between the respective
abilities of states and citizens of America. Their Statute of ’76
had declared this sole American concept of the law controlling the
relation of government to human being. They were actually engaged in
their Revolutionary War for the very purpose of making it forever
American law that no governments could ever grant _national_ power in
any matter. Because, therefore, the proposed Articles of 1777 were
only _federal_ Articles with grants of _federal_ power, it was “felt
and acknowledged by all” that the state legislatures were competent
to make _those_ Articles. So we recall, with intent to remember, that
those _federal_ Articles were made in the exercise of that legislative
government ability to make _federal_ Articles, which is mentioned in
our own Fifth Article.
In 1787, from the same Philadelphia, there came the proposal that
the American people, collectively the possessors of the supreme will
in America, create a new nation, with themselves as its members or
citizens and, as its members, constitute its government with _national_
powers to interfere with their own individual freedom. Because the
legal necessity of deriving powers _of that kind_ from the people
themselves was “felt and acknowledged by all,” the inevitable legal
decision was reached at Philadelphia that the existing ability of
legislative governments to make _federal_ Articles neither then did
nor ever could include the ability to make _national_ Articles like
the First Article and the supposed Eighteenth Amendment. By reason of
that legal necessity and its then recognition by all, because the First
Article contained grants of _national_ power, “by the convention, by
Congress, and by the state legislatures, the instrument was submitted
to the people. They acted upon it in the only manner in which they can
act safely, effectively, and wisely on such a subject, by assembling
in convention.” The reasoning and the decision itself were embodied in
Article VII and in the Resolution which went from Philadelphia with the
proposed seven Articles, including the Fifth Article.
As the Supreme Court has definitely settled, the Tenth Amendment
merely declares what was in that original proposed Constitution.
Therefore the Constitution gave no new government ability anywhere
except to the government at Washington. It gave to that government only
specific ability to govern human beings, in certain matters. It merely
_reserved_ to _each_ state government some of its former ability to
govern its own citizens. It gave neither to any state government nor
to all state governments collectively any new ability to govern. And
it reserved to the American people themselves all ability to exercise
or to grant any _national_ power to interfere with the freedom of
American citizens except those enumerated powers in the First Article.
The Supreme Court has definitely settled that this reservation of such
power exclusively to themselves, by the makers of the Fifth Article, is
the most important factor in our constitutional distribution of that
kind of power among our American government, our state governments
and, most important of all, ourselves, the citizens of America. For
which reason, until this generation, it has always been axiomatic that
the mention of that exclusive ability of our own, “conventions” of
_Americans_ in their respective states, is the most important factor in
the Fifth Article.
In strict conformity with the Statute of ’76 and without usurping
the reserved powers of the most important factor in both the Tenth
Amendment and the Fifth Article, seventeen _federal_ changes were made,
between 1789 and 1917, in the _federal_ part of our Constitution, which
is both a _federal_ and a _national_ Constitution. The situation in
1917 was exactly the same as it had been since July 4, 1776, when it
was known even to the humble townsmen of Concord that governments could
not make _national_ Articles in American constitutions. Or rather, the
situation in 1917 was the same _unless_, somewhere prior to 1917, the
Statute of ’76 had been repealed and the most important factor in both
Articles had been eliminated from the Fifth Article and Tenth Amendment
of the American Constitution, which is the security of the American
citizen against usurpation of power even by governments in America.
We know that Gerry moved to strike that important factor from the Fifth
Article in September, 1789, and that he failed in his effort. We know
that Webb and the legislative advocates of the new Eighteenth Amendment
had a Fifth Article in which that most important factor was not
present. Apparently they based their government proposal and government
ratification of the Eighteenth Amendment upon a Fifth Article which did
not contain that most important factor, the reference of the makers of
the Fifth Article to themselves as the makers of all future Articles
of a _national_ kind, the reference of those makers to themselves in
the words “conventions” of the American people, assembled in their
respective states.
Keeping all these settled facts clearly in our minds, we now take
up the arguments and the briefs in which, in March, 1920, the
constitutional lawyers of America, who disputed the presence of
the new Amendment in our Constitution, should have presented these
irresistible facts. Then we shall take up the arguments and briefs of
those other renowned lawyers in which _they_ presented those other
facts (still unknown to us average Americans) which can alone refute
our knowledge that the new Amendment never went into our Constitution,
because we are still citizens and governments are yet unable to create
government power to interfere with our individual freedom.
CHAPTER XX
LEST WE FORGET
“The important distinction so well understood in America, between
a _Constitution_ established by the people and _unalterable by the
government_, and a _law_ established by the government and alterable by
the government, seems to have been little understood and less observed
in any other country.... Even in Great Britain, where the principles
of political and civil liberty have been most discussed, and where we
hear most of the rights of the Constitution, it is maintained that the
authority of the Parliament is transcendent and uncontrollable, as well
with regard to the Constitution, as the ordinary objects of legislative
provision. _They_ [the legislature] have accordingly, in several
instances, _actually changed_, by legislative acts, some of the most
fundamental Articles of the government.” (_Fed._ No. 53.)
Coming from Madison or Hamilton, this is the best kind of testimony
that the earlier Americans, who established that constitution of
government which is the First Article, knew that it was “unalterable
by government.” And it is the best kind of testimony that the same
American makers of the Madison Fifth Article knew that it did not grant
to state governments any ability to add to or subtract from the First
Article enumerated and constituted powers in government to interfere
with the freedom of American citizens. If Madison and Hamilton had
been with us in our Congress of 1917, their statement would have been
slightly altered. They would have spoken of “the important distinction
so well understood in America” in 1787, as one which “seems to have
been little understood and less observed in any other country” and not
known or observed at all by our Senators or Congressmen of 1917.
The Americans of 1787, who “so well understood” the important
distinction, made their knowledge a noticeable thing in the
language of their Statute of ’76 and of their Constitution. With
their knowledge of the important distinction, they permitted the
respective states, through the respective legislatures thereof, to
constitute the government of states, to make the _federal_ Articles
of 1781. With their knowledge of the important distinction and in
deference to their own clear Statute of ’76, these intelligent
Americans refused to permit the states or the legislatures of the
states to establish the government of men, to make the _national_
Article--the First Article--which is the constitution of government
power to interfere with individual human freedom. Moreover, by their
knowledge of the important distinction and of the Statute, they knew
_that_ Constitution, that enumerated grant of national power over
themselves, to be “unalterable by government.” And that we and _all_
later Americans might also know it, _they_, the American people or
“conventions” of that day, insisted that the Tenth Amendment expressly
declare that they, those “conventions” of the American people, reserved
to themselves and their posterity, the “conventions” of any later day,
exclusive ability to alter that constitution of _national_ power, the
First Article. And, for the same purpose, _they_, the “conventions,”
mentioned themselves, the particular reservee of the exclusive ability
to alter that grant of national power, in one particular earlier part
of the Articles they made, the part we know as the Fifth Article.
Naturally, the two men, who worded that Article at Philadelphia and who
paid its later makers the deserved tribute to their knowledge of the
important distinction, mentioned those makers, “conventions,” in that
Fifth Article as future makers of all grants of _national_ power and
mentioned the legislatures, in the Fifth Article, as competent future
makers of Articles that do not constitute new _national_ government.
Because we have lived through the experience of the Americans to whom
the tribute was paid, we know the distinction between a constitution
of _national_ government, “unalterable by government,” and Articles
constituting government of political entities or states, alterable by
the states or the legislatures of the states. Moreover, by reason of
our experience, we sense the clear recognition of the distinction in
the Fifth Article distinct mention of the people or “conventions,”
as _sole_ makers of _national_ Articles, and the similar mention of
the “legislatures” as competent makers of _federal_ Articles. To our
regret, we have found that our Congress, in 1917, knew naught of the
distinction and naught of its recognition in the language of the Tenth
Amendment and the Fifth Article. It is with relief, therefore, that we
turn to the great litigations in the Supreme Court of 1920, in which
the lawyers of the America, where the important distinction was _once_
so clearly known, attacked and defended the proposal from the Congress
of 1917 and the action of the state legislatures on that proposal.
Fresh from the utter legislative ignorance of that distinction, it is
with relief that, in our first glance at the briefs of those lawyers,
we find what seems the clear echo of the accurate knowledge we have
acquired in the company of those earlier Americans.
“There is only one great muniment of our liberty which can never be
amended, revoked or withdrawn--the Declaration of Independence. In this
regard, it ranks with the Magna Charta.”
The clear tribute to the unrepealed Statute of ’76 excuses, while it
does not explain, the error of the allusion to Magna Charta. Graduate
students of the history of the advance of Americans from subjects to
free men, we average citizens grasp the error of the statement, “in
this regard [that neither can ever be revoked] the Statute of ’76 ranks
with the Magna Charta.” We know that the Statute _was_ the revocation
of the basic doctrine on which Magna Charta rested. Magna Charta was
the grant of privilege from an omnipotent government to its subjects.
All that subjects ever have are the revocable privileges granted by
the master government. The Statute of ’76 states the basic American
law that there are no subjects in America, that the human members of
any political society or state or nation, except as they directly
grant power over some of their human rights to secure enjoyment of the
rest, need obey the command of no one except Him who gave them their
human rights. In a free nation, such as the earlier Americans made of
themselves, no man has any privileges _granted_ by a master government.
In a free nation, citizens or members of the society (and the supreme
will therein) have their servant governments to which those citizens
give whatever _national_ powers those governments ever have. Except
for the grants of _such_ power which those citizens so make, the human
beings retain, not as a gift or privilege of government but as the gift
of Him Who created them, all human freedom of action. As _citizens_,
they also possess the particular privileges which arise from membership
in that particular society of men; but even those privileges are not
the gift of government but the creation and effect of the society
itself, just as every power of the government is also the gift of the
society.
We pardon the error of the reference to Magna Charta, however, when
we read on in the brief and find it immediately quoting from our
Statute: “We hold these truths to be self-evident, that all men are
created equal; that they are endowed by their Creator with certain
unalienable Rights; that among these are Life, Liberty and the pursuit
of Happiness. That to secure these Rights, Governments are instituted
among men, deriving their just powers from the consent of the Governed.
That whenever any Form of Government becomes destructive of these ends,
it is the Right of the _People_ to alter or to abolish it, and to
institute new Government, laying its foundation on such principles and
organizing its powers on such form, as to _them_ shall seem most likely
to effect _their_ Safety and Happiness.”
At last, in this brief, we are getting the clear echo of our own
knowledge that, _until this Statute is revoked_, it is not the right
of “_government or governments_” to institute new government, laying
its foundation on such principles and organizing its powers in such
form as to “governments” shall seem most likely to effect the safety
and happiness “of governments.” Moreover, in this brief, we are getting
the clear echo of our own knowledge that this Statute can _never_ be
revoked, while we remain free men and citizens instead of the subjects
we were until that Statute was enacted.
And when we turn to another brief for a moment, we are cheered to find
the refutation of the Sheppard ignorance of the identity of those who
made _our_ Constitution, “We, the people of” America, in its Preamble
and its most important factor of the Tenth Amendment, the “conventions”
of ourselves in its Seventh and its Fifth Articles. With gratification
that some “constitutional” lawyers still know and observe the important
distinction between the ability of ourselves, the “conventions”
of the Seventh and Fifth Articles, and the lack of ability in the
“legislatures” of the Fifth Article to give to government _national_
powers, we average Americans recognize, in the following challenge
of _this_ brief, the challenge we would have made to the Sheppard
proposition that legislatures attempt to constitute such new government
over us. This is the challenge of the brief to Sheppard: “The
Constitution is not a compact between states. It proceeds _directly_
from the people. As was said by Mr. Chief Justice Marshall in McCulloch
v. Maryland, 4 _Wheat._ 316, etc.” Then follows the Marshall clear
exposition of how the people themselves, the “conventions,” made
the constitution which is the First Article and how, if any other
constitution of that kind, such as the Eighteenth Amendment, is ever
to be made “safely, _effectively_, and wisely” it must be made by
ourselves, assembled in the “conventions” named in the Fifth Article.
The full extract from Marshall has been set out already herein at page
98.
In a second brief, in a different case, the same distinguished lawyer
of 1920 is found bringing into bold relief another part of our
knowledge so intimately connected with the supposed new constitution of
government, the Eighteenth Amendment. And it is a part of our knowledge
which challenges a new constitution made entirely by governments
without any action by ourselves, the people or the “conventions” named
repeatedly in the Constitution made by themselves. In that other brief,
we find him stating as one of the propositions on which he bases his
argument, “What the expression ‘legislatures of the several states’
meant as used in Article V, when that Article was adopted as a part
of the Constitution, it means now.” The statement being undeniably
true, he immediately proceeds to urge, with equal truth, that “however
popular approval or disapproval [i.e., the _direct_ action of the
people themselves, as, for example, in the ‘conventions’ whence, as
he already stated, _our_ Constitution proceeded ‘directly from the
people’] may be invoked, the people do not become a ‘legislature.’...
As well confound the creator and the creature--the principal and the
agent through which he acts.”
This is the echo of Marshall’s clear statement of the vital distinction
between the same “legislatures” (who never are the people and
never have the reserved ability of the people) and the “people” or
“conventions” (which are the people and have the exclusive ability
of the people). We recall the tribute paid to this distinction at
Philadelphia. We recall the legal decision there, a decision based
squarely on that distinction, that the legislative ability to make
_federal_ Articles could not constitute new government of men, as
did the First Article, and that all Articles like it or the new
Eighteenth Amendment must go to the “people” of the Tenth Amendment,
the “conventions” of the Seventh and Fifth Articles. We recall
Marshall’s appreciation of the accuracy of that legal decision, when
he mentioned that the ability of the state governments or legislatures
had been competent to make the _federal_ Articles of 1781 but, when it
was proposed to constitute government of men, to vest the _national_
powers of the _national_ First Article, “the necessity of deriving
those powers directly from the people [the “conventions” of the
Seventh Article] was known and recognized by all.” We remember that
the “people” or “conventions,” so recognizing and knowing, mentioned
themselves in the Fifth Article so that no one ever should forget the
similar legal necessity that every Article like the First, such as the
new Article, must always be made by those “conventions” so mentioned.
It is, therefore, with considerable satisfaction that we read, in this
brief of 1920, the clear echo of all these settled facts, the knowledge
that “legislatures” never are the people and never become the people.
“As well confound the creator and the creature--the principal and the
agent.”
In our gratitude for such remembrance, we ignore the inaccuracy of a
suggestion that the “legislatures” of the Fifth Article are the agent
of the principal therein mentioned, the “people” of America, the
“conventions” which made the Constitution. Each of those “legislatures”
is an agent of one particular reservee among those named collectively
in the reservation of the Tenth Amendment in the words “to the states
_respectively_,” while the “conventions” in the Fifth Article is the
one most important reservee in that Tenth Amendment, “the people”
of America, the most important factor in that Tenth Amendment and
in America. For the purpose of making any Articles, whether federal
or national, that important reservee has no legislative agents. For
any purpose, it has but one legislative agent, the Congress; and
to that one legislative agent it has given no power to _make_ any
constitutional Articles; but it has, in the Fifth Article, _left_ with
that agent the mere ability to _draft_ and _propose_ a new Article of
either kind and, as did the Philadelphia Convention, from the nature of
the Article it drafts, whether within the ability of “legislatures” or
within the exclusive unlimited ability of the people or “conventions,”
to _ascertain_ and _propose_ which shall make the drafted Article.
That the state legislatures are not agents of the American citizens,
in that capacity, is self-evident. Each legislature is chosen by the
citizens of a state. Moreover, the Constitution itself distinctly
states that the “conventions” of the American citizens grant no power
of any kind therein to the state “legislatures.”
When the American people created a national legislature, with certain
enumerated powers, it was neither necessary nor proper to define the
powers retained by the states. These powers proceed, _not from the
people of America_, but from the people of the several states; and
remain, after the adoption of the Constitution, what they were before,
except so far as they may be abridged by that instrument. (Marshall in
Sturges v. Crowinshield, 4 _Wheat._ 122.)
That is why anything which _these_ “legislatures” do, when it comes
in conflict with a valid action of _our_ legislature, the Congress,
must always yield. We have the supreme will in America, and when
_our_ agent, the Congress, speaks with authority from us, it speaks
for us, while the inferior agents of other lesser wills never speak
for us. That clear distinction does not detract from the ability of
those legislatures to make _federal_ Articles in our Constitution.
They do not get that ability from us, the citizens of America. They
had that ability from those respective inferior wills, when we made
our Constitution. By its exercise, they had made the federation of
states and the _federal_ Articles of its government. When we made our
national Constitution, we continued that federation and the ability of
its component members to make its federal Articles and put them in our
Constitution, which is both our national Constitution and their federal
Constitution. The ability to make those _federal_ Articles is one of
the powers reserved to those inferior wills by the reservation of the
Tenth Amendment which reads “to the states respectively”; and it is not
an ability to make Articles which is granted in the Fifth Article. No
ability to make Articles is _granted_ in that Fifth Article.
Inasmuch, however, as the writer of the brief in 1920 has known that
“legislatures” do not ever become “the people,” it is quite probable
that his reference did not intend to suggest that the legislatures of
which he spoke and who are the agents respectively of other citizens,
were the agents, for any purpose, of the citizens of America. With
his recognition that legislatures never are the people and with the
other quoted extracts of those briefs of 1920 before us, echoing the
knowledge we have acquired, we feel at least that in the court of 1920,
from the debate of men who know, we will learn whether and “when” and
“how,” we, between 1907 and 1917, became subjects instead of the free
men and citizens which we clearly were up to 1907.
At least such was the thought of one American citizen, when he read
this quotation, in one of the briefs of 1920, “that the people do
not become a legislature.... As well confound the creator and the
creature--the principal and the agent through which he acts.” It was
almost incredible to this particular American citizen that he found
this statement and the statement that--“The Constitution is not a
compact between states. It proceeds directly from the people.”--both
in the briefs of the foremost champion of the new Amendment. And it
seemed equally incredible to him to find the quotation about the
Statute of ’76 being “one great muniment of our liberty which can never
be amended, revoked or withdrawn” in the brief of the counsel for the
political organization which dictated the new state government command
to the citizens of America.
An unusual method had been adopted for the hearing of what were later
reported under the one title the “National Prohibition Cases,” 253
_U.S._ 350. In that hearing, which continued for days, seven different
litigations were argued because all dealt either with the validity of
the Eighteenth Amendment or with the meaning of its remarkable second
section or with the statute enacted under that section and known as
the Volstead Act. For the same reason, the briefs on both sides of
the various litigations were clearly the result of conference and
collaboration. Nearly all of the briefs, challenging the new Article,
made their challenge on the same two main points and in the expression
of those two challenges, made constant reference to the different
expression thereof in the other briefs.
In the litigation and argument of that March, appeared many of the
best known lawyers in America. Among them were distinguished counsel,
appearing on behalf of those legislative governments who claim and, in
the new Article, have attempted to exercise the omnipotent supremacy
over the citizens of America which was denied by the people of America
to the British Parliament. Among them were other distinguished
counsel, appearing on behalf of what had always been known as the
supreme legislative government in America, _our government_ with
its _enumerated_ powers and without omnipotence over us. Among them
were still other distinguished counsel, appearing on behalf of some
separate states or political entities to contend that there existed
no _constitutional_ ability anywhere, even in ourselves, to take
from their particular state any more of its sovereignty than it had
surrendered in those early days when the states made the Constitution,
as Sheppard claimed in the Congress of 1917. Among them were still
other distinguished counsel, some of them the most distinguished of
all, appearing to oppose, as best they knew how, the total destruction
of all _legitimate_ industry in a business in which it was the _human_
right of Americans to engage even before Americans wrote their Statute
of ’76 and consequently not a privilege of the citizen of America or
the citizen of any state.
As this fact has been the basis of many errors in that comedy and
tragedy of errors, which is the five-year tale of the Eighteenth
Amendment, we average Americans may well dwell for a moment upon the
certainty of that fact. It is the natural mistake of those, who have
the Tory concept of the relation of men to government, that they should
first confuse the meaning of the words “privilege of a citizen” with
the words “privilege of a subject” and thus believe that the nature of
both privileges, and the source of each are the same. That mistake is
but the echo of the error which confuses the nature of Magna Charta
with that of the Statute of ’76. Magna Charta is the declaration of
certain privileges which government will permit its subjects to keep as
long as the government pleases. The Statute of ’76 is the declaration
that destroys the relation of government to subjects, creates the
relation of citizens to their servant governments, and states that the
servants shall have no power to interfere with the human rights of
the masters, given by their Creator, except such power as the masters
choose to give, and that the servants shall keep that power only so
long as the masters will. To the Tory concept, always concentrated
on the relation of subject to master government, it is difficult of
apprehension that the human being is born with the right to use his
human freedom as he himself wills, so long as he does not interfere
with the similar exercise of human freedom by the rest of us human
beings. If men, in the exercise of their free will, would always obey
the defined law of Him who created them, the exercise of human freedom
by one individual would never interfere with the exercise of human
freedom by all other individuals, and no human government need ever be
constituted.
Among the human rights of Americans, as of all human beings, when
they come into the world, is the human right to do everything which
is forbidden in the first section of the Eighteenth Amendment. It is
true, as we frequently hear stated, that the Supreme Court has decided
that the right to do any of those things is not the “privilege” of
American citizens or of the citizens of any state. It is also equally
true, although the Supreme Court has never been called upon to
decide that very obvious fact, that the right to breathe is not the
“privilege” of an American citizen or of the citizen of a state. Both
rights are among the rights of human beings, _as such_, and they are
each of them among the rights of themselves, which we, “the people”
of America, established and ordained our Constitution to secure. When
we established that Constitution for that purpose, we admittedly gave
our only American government no power to make the command of the first
section of the Eighteenth Amendment. That is why the governments of
_other_ citizens were asked to make the command to ourselves, the
citizens of America.
Each of the Americans, who created the nation that is America, already
lived as a member and citizen of a state. In that state, when they had
constituted it, the citizens _thereof_ had subjected their human right
(to do what the new Amendment says shall not be done) to a power in the
government of that state (a power which _they_ gave it and can take
back from it) to make that kind of a command _to them_ in that matter.
We thus have clearly in our minds that the individual in America has
the human right (with which the new Amendment interferes) and that it
is subject to the interference of no government, except as the citizens
of that particular government have given it power so to interfere with
it. The undoubted fact that the right itself is not the privilege of
the citizen of America or the citizen of the state is simply another
way of saying that the original human right itself is not granted
to the human being by government or governments but by the Creator
Who made him. Without the Tory concept, no man would even make the
mistake of believing that a citizen gets any of his privileges from
any government. The privileges of a citizen are the things which
he acquires by his voluntary association with the other citizens as
the members of a political society which is the nation. The human
rights of the same individual are the rights which he brings into that
association and subjects to whatever powers of its government are
granted by himself and those other citizens with whom he associates as
the nation.
Of course, the early Americans, with whom we have now been educated,
not only knew these things clearly and accurately, but on their
knowledge of them based everything that they did in the fifteen years
which we have lived with them. The Americans of today, who uphold
the new constitution of government made entirely by government, do
not know them at all or understand them when they hear them. Neither
would the aristocrats of France, before the French Revolution, nor the
Tories of England, even at the time of our Revolution, have known or
understood them. That is why the Americans continued their Revolution
and won it, so that these things might be the basis of every government
interference with any human right. Later they made the American
Constitution solely to secure the greatest possible protected enjoyment
of all individual human rights. That security is one of the privileges
acquired by citizenship in the society which that Constitution created.
Wherefore, it is of interest for us to know how clearly Madison, who
largely planned that Constitution and who worded its Fifth Article, did
know and understand these facts in relation even to the very things
forbidden in the new constitution of government made entirely by
government.
In the House of Representatives, in the first session of the new
Congress with the enumerated powers of the First Article, on May 15,
there came up for discussion “a proposed bill laying duties on goods.”
Madison “moved to lay an impost of eight cents on all beer imported. He
did not think this would be a monopoly, but he hoped it would be such
an encouragement so as to induce the manufacture to take deep root in
every state of the Union.” (4 _Ell. Deb._ 345.)
That the knowledge of Madison was not unknown to the Supreme Court a
century later, in 1890, is a matter of record.
That ardent spirits, distilled liquors, ale, and beer are subjects of
exchange, barter, and traffic, like any other commodity _in which a
right of traffic exists_, and are so recognized by the usages of the
commercial world, the laws of Congress, and the decisions of courts,
is not denied. (Leisy v. Hardin, 135 _U. S._ 100.)
Returning to the courtroom of 1920, therefore, we are sincerely glad to
note the appearance of quite an array of eminent counsel on behalf of
those legitimately engaged in a business which is just as legitimate
an exercise of human right, as it was when Madison hoped that it would
take deep root in every state of the America he loved so well, a
business which will continue free from _unlawful_ usurpation of power
by government so long as the Constitution planned by Madison is obeyed
by governments in America. It is too bad that the eminent counsel, who
shared Madison’s views in relation to that legitimate business, did
not also have Madison’s accurate knowledge of the only way in which
legitimate government power can be created to interfere with that or
any other human right, the way which Madison so clearly stated in the
Fifth Article--by grant from the “conventions” of American citizens.
When we average Americans look over the great array of counsel and
the respective clients whose causes they champion, one fact lends no
encouragement to our hope that we may learn the merits of the claim
that, somehow between 1907 and 1917 we became subjects and lost our
status as free men. Although each client is represented by his own
distinguished attorneys and although eminent counsel argue and file
briefs, as _amici curiæ_, on behalf of the state governments which
claim that we are subjects and on behalf of some of the litigating
other states and individuals, no _amicus curiæ_ files any brief on
behalf of us, the citizens of America, the reservees of the Tenth
Amendment, the “conventions” of the Seventh and the Fifth Articles.
There is, however, this comfort. If, _because_ the counsel in
opposition to the new Amendment do not know and urge our legal
protection against any new constitution of _national_ government except
by ourselves, the citizens of America, the “conventions” of the Fifth
Article, and if, _because_ of such ignorance on the part of counsel,
the Court should not be called upon either to consider or pass upon
our protection, no decision of the Court will be intended to have--as
no decision of the Court could have--any effect upon our protection.
If counsel fail to bring before the Court the legal facts which
demonstrate that the new Amendment is not in the Constitution unless
we Americans are “subjects,” our day in Court is merely postponed.
And when that day shall come, when that Court is addressed by counsel
who do represent the citizens of America and who accurately know the
constitutional protection which we have for all our rights, there is
not the slightest danger that the Court, established and maintained
by us for the sole purpose of protecting our individual rights against
usurpation by government, will decide that we are subjects and that
governments can create new government power to interfere with the
freedom of the individual American citizen.
Meanwhile, let us examine the briefs of March, 1920. In them, despite
our regret that not one of them was written in our behalf, it may be
possible, it ought to be a certainty, that we will hear something about
the “when” and the “how,” _after_ 1907, we are supposed to have lost
our status as free men and citizens of America.
CHAPTER XXI
BRIEFS IGNORE THE AMERICAN CITIZEN
There is one man whose skill as an artist could do justice to the
atmosphere in which all the briefs of that March must have been
written. Unfortunately, the reports of the death of that man are no
longer greatly exaggerated. It is unfortunate that the man who pictured
the sensations of a Yankee in King Arthur’s Court could not have lived
to reverse the feat. Only his genius could picture one of the Americans
of 1790 living in the atmosphere of the briefs of 1920 _for_ the new
Amendment and learning therein that the Americans of his own day never
became citizens of America. Only the unique word-artist, who defined
a cauliflower as a cabbage with a college education, could adequately
state the startling fact that not one of the briefers knew that all
were assembled in the court room of March, 1920, seriously to debate
whether the Americans in 1788 voluntarily surrendered their status
as free men and, repealing their Statute of ’76, declared themselves
and their posterity subject to a legislative government superior to
what they called their supreme legislature, a legislative government
“invested with power to legislate for us in all cases whatsoever.”
Because Mark Twain is dead, we must get from those briefs, without
his aid, the knowledge that the new Article depends entirely on the
extraordinary concept that the Fifth Article constituted a hitherto
unknown government of all American citizens, not our government
of enumerated First Article powers but an entirely distinct
government--not a member of it chosen by American citizens--“invested
with power to legislate for us in all cases whatsoever.”
In other words, we are to learn from the briefs _for_ the new Article
that our supposed only and supreme American government is, and that
all American citizens are, subject to the omnipotence of a still more
supreme legislative government, consisting of the state legislative
governments on whose behalf some of the most distinguished lawyers
of 1920 appeared. It is the clear concept of those lawyers that upon
the _will_ of the governments they represented, a will subject to
the restraint of no Constitution in America, depends entirely what
measure of human freedom we individual American citizens may enjoy.
This concept stands out clear and sharply defined in their briefs,
although neither they nor their opponent lawyers grasp the fact. On
the fact that the Fifth Article _mentions_ their client governments,
the state legislatures, they base the entire claim that the Eighteenth
Amendment is in our Constitution. On this _mention_ rests their
extraordinary assumption that the Fifth Article is a _“grant”_ of power
to those governments--and to the very “conventions” which made the
Fifth Article--to make new Articles of every kind, whether _federal_
to govern states or _national_ to interfere with the freedom of the
individual.
Furthermore, we are to learn, from the briefs of the lawyers _against_
the new Article, that they all assert, like their opponents, that the
Fifth Article _is_ a _grant_ of power to the grantors and to the state
governments. To our amazement, in the briefs of the lawyers _against_
the new Article, we shall find no knowledge of or insistence upon
the important fact that the Constitution is both a _federal_ and a
_national_ Constitution. Most amazing of all, in no brief of any
lawyer, shall we find the faintest recognition of the _decisive_ fact
that the “conventions” of the Fifth Article are the American citizens
themselves, while the state “legislatures” of the Fifth Article are
respectively the attorneys in fact for respective citizens of other
political entities than the nation which is America. Most briefs, _for_
the new Amendment, will dwell upon the fact that the people of America,
not the states, made the Constitution. Yet, although it is equally
true to say that the whole people of America or the “conventions” of
the Seventh Article made the Constitution, no briefer will know that
the “conventions” of the Fifth Article are also the whole people of
America, while the state “legislatures” never are the attorneys in fact
for the citizens of America, who never chose a single member of those
“legislatures.”
That all those lawyers, who debated the _extent_ of the imaginary
“grant” of power in the Fifth Article, may do themselves strict
justice, let us accurately state a few indisputable facts before we
consider their briefs.
It _is_ a fact that the subject matter of the first section command and
the second section grant, in the Eighteenth Amendment, is the exercise
of a human right, not the privilege of a citizen of America or the
citizen of any state.
It _is_ a fact that the Americans in each former colony, in 1776,
constituted a state for themselves and a government of that state
and subjected that particular right, as all _their_ individual human
rights, to the general welfare state power of _that_ government, the
power which is now known as the police power.
It _is_ a fact that, from 1776 to 1787, that particular individual
right, as _all_ the human rights of the citizens of any state, was
subject to no interference by any government or governments in the
world except the one legislative government of that particular state.
It _is_ a fact that all the legislative governments of the other states
and the government of the federation of states could neither exercise
nor grant, as some of them have attempted to do in the Eighteenth
Amendment, any power to interfere with that particular individual
freedom or any other individual freedom of the citizens in that
particular state.
It _is_ a fact that, on June 21, 1788, the Americans in the nine states
became collectively one political entity, the citizens of America,
composing the nation which is America. It _is_ a fact, _and a fact
which flatly denies the existence of the Eighteenth Amendment_, that,
on June 21, 1788, the existing state legislatures did not become an
omnipotent legislative body of the new nation “invested with power
to legislate” for American citizens “in all cases whatsoever” in
interference with our individual freedom. It _is_ a fact that those
legislatures did not then become any government for the citizens of
America on any subject whatsoever.
It _is_ a fact that not one of those state legislatures received any
new power to interfere with human freedom anywhere by any grant of
_such_ power in the seven Articles of our Constitution. The opening
words of the First Article expressly so declare. They are, “All
legislative powers herein granted shall be vested in a Congress of
the United States, which shall consist of a Senate and a House of
Representatives.” Moreover, the Tenth Amendment, the declaration
insisted upon by the whole “people” of America in their “conventions,”
expressly so declares. Its declaration is that the entire Constitution
gives no new power to any government except the new government of
America, the government constituted by the First Article.
It _is_ a fact, again a fact which denies the existence of the
Eighteenth Amendment, that the _general constitutional restrictions
upon government power to interfere with individual freedom_ are
restraints upon the exercise of every grant of such power in the
Constitution, and that they do not restrain the state governments
_because those governments are the donee of no power of that kind in
that Constitution_. This fact, a patent fact hardly needing settlement,
was decisively settled in 1833 by the decision of the Supreme Court,
announced by Marshall, in Barron v. Mayor of Baltimore, 7 _Peters_, 43.
Barron contended that the Fifth Amendment restrained the power of the
state governments. Marshall said:
The question thus presented is, we think, of great importance, _but
not of much difficulty_. The Constitution was ordained and established
by the people of the United States for themselves, for their own
government, and not for the government of the individual states. Each
state established a constitution for itself, and in that constitution
provided such limitations and restrictions on the powers of its
particular government as its judgment dictated. The people of the
_United States_ framed _such_ a government for the United States as
_they_ supposed best adapted to _their_ situation, and best calculated
to promote _their_ interests. The powers _they_ conferred on this
government were to be exercised by _itself;_ and the limitations on
power, if expressed in general terms, are naturally, and, we think,
necessarily, applicable to the _government created by the instrument._
They are limitations of power _granted in the instrument itself;_ not
of distinct governments, framed by different persons and for different
purposes.
The decision settled that the entire Constitution vested in the state
governments not a single power to interfere with individual freedom
in any respect. The decision is based on that one fact. The fact and
decision expose the absurdity of the thought that the Fifth Article is
a “_grant_” of any _such_ power to the state governments, much less a
grant of _every_ such power to those governments. This absurd thought,
however, is the assumption on which every advocate of the Eighteenth
Amendment based his argument in March, 1920: and it is the assumption
upon which wholly depends the existence of the Amendment.
It _is_ a fact that the state legislatures, before the Constitution
was even proposed, had existing ability to make _federal_ Articles. It
_is_ a fact, as the Tenth Amendment declares, that the “conventions” of
the Seventh Article _reserved_ that _federal_ ability to those state
governments and that the Fifth Article did not “_grant_” it to them. It
_is_ a fact, that the “conventions” of ourselves, the American citizens
assembled in their respective states, the “conventions” of the Seventh
_and_ the Fifth Article, even before the Constitution was worded
or proposed, had _exclusive_ ability to make _national_ Articles,
which either directly interfere or grant ability to interfere with
individual freedom. It _is_ a fact that this power of the “conventions”
included the ability to make any kind of Article, either _federal_ or
_national_. It _is_ a fact, therefore, as the “conventions” of the
American citizens had this omnipotent power before the Fifth Article
was even drafted, and as the Tenth Amendment states that _they_
reserved it to _themselves_, that they did not grant _all of it_ (as
the advocates of the new Amendment claimed in March, 1920), or _part
of it_ (as the opponents of the new Amendment claimed in March, 1920)
to themselves in their own Fifth Article. It _is_ a fact, therefore,
that the _mention_ of the two existing abilities (the existing
omnipotent ability of the “conventions” and the existing _limited_
ability of the “state legislatures”) does _not_ make the Fifth Article
any “_grant_” of power either to the “conventions” (who made the
Article) or to the state “legislatures.”
It _is_ a fact that the very “conventions” named in the Fifth
Article and the American citizens assembled therein, while they
were making that Article, accurately knew that it was nothing but
a _constitutional_ mode of procedure for two distinct and existing
powers, and that it did not “_grant_” any power whatever to the state
governments.
Speaking of the Constitution, with its Fifth Article, the entire
convention in Virginia declared that all the powers granted in the
Constitution were being granted by the people _of America_ “and that
every power, not granted thereby, remains with _them_, and at _their_
will.” Nothing could more clearly express the knowledge that the Fifth
Article was not a grant of any power by the “conventions” to the
“conventions” or to the state governments. In the Virginia convention,
Lee stated: “This new system shows, in stronger terms than words could
declare, that the liberties of the people are secure. It goes on
the principle that all power is in the people, and that rulers have
no powers but what are _enumerated_ [in the First Article] in that
paper.... Candor must confess that it is infinitely more attentive to
the liberties of the people than any state government.” (3 _Ell. Deb._
186.)
In the South Carolina convention, Pinckney said: “With us, the
sovereignty of the Union is in the people” (4. _Ell. Deb._ 328), and
again “I conceive it as _indispensable_, in a republic, that all
authority should flow from the people.” (4 _Ell. Deb._ 326.)
Hamilton, one of the people assembled in the New York convention, said:
“As the people are the only legitimate fountain of power, and it is
from them that the constitutional charter, under which the several
branches of government hold their power, is derived, it seems strictly
consonant to the republican theory, to recur to the same original
authority,” the people themselves, the “conventions” of the Fifth
Article and the Seventh, “whenever it may be necessary to enlarge,
diminish, or new-model the powers of government.” (_Fed._ No. 49.) He
could hardly have made more clear his knowledge that the Fifth Article
was not a “grant” of power to the state governments. As Madison and
Hamilton proposed and seconded the only Fifth Article, at Philadelphia,
which ever mentioned the state legislatures, their own words have great
weight in the interpretation of its language. For which reason, it is
well to recall again that Madison, in _Federalist_ Number 37, clearly
said that “the genius of republican liberty seems to demand ... not
only that all power should be derived from the people.” And either
Madison or Hamilton said in _The Federalist_, Number 49, the reference
to the Fifth Article being unmistakable from what they said, “There
is certainly great force in this reasoning, and it must be allowed to
prove that a constitutional road to the decision of the people ought
to be marked out and kept open, for certain great and extraordinary
occasions.” As they both maintained, at the Philadelphia Convention
and thereafter, that the ability of state governments was incompetent
to constitute government with national powers to interfere with human
freedom, and as they both repeatedly stated that it would be contrary
to the genius of republican liberty that _any_ governments should
have that ability, they have made unmistakable _their_ knowledge that
the Fifth Article, which they proposed and seconded and which Madison
probably worded, did not grant any such ability to governments.
In the Pennsylvania convention, Wilson clearly expressed the knowledge
which reads the new Eighteenth Amendment out of our Constitution, when
he said: “In this Constitution, the _citizens_ of the United States
appear dispensing a part of their original power in what manner and
what proportion _they_ think fit. They never part with the whole; and
they retain the right of recalling what they part with.” (2 _Ell. Deb._
437.) Can any man, even a modern “constitutional” lawyer, reconcile
that knowledge with the thought that the Fifth Article is a grant of
power to the state governments? Again in the same convention, he said,
speaking of our Constitution: “Here, sir, the fee simple of power
remains in the people _at large_ and by this Constitution _they_ do not
part with it.” (2 _Ell. Deb._ 435.) In the North Carolina convention,
Iredell, later on the Supreme Court Bench, said: “No man, let his
ingenuity be what it will, could enumerate all the individual rights
not relinquished by this Constitution.” (4 _Ell. Deb._ 149.)
All these facts should be dwelt upon and emphasized in the briefs of
the lawyers _against_ the new Article in which government attempts
to exercise ungranted power and to grant new power to interfere with
the individual freedom of the American citizen. And against all _our_
education in the “conventions,” it must be the burden of the briefs of
the lawyers _for_ the new Amendment to uphold the amazing proposition
that all the individual rights of the American citizens were, by the
Fifth Article, made subject to a supposed omnipotence granted to the
state governments, not a member of which is chosen by the citizens of
America.
CHAPTER XXII
NO CHALLENGE TO THE TORY CONCEPT
We average Americans, therefore, come to the courtroom of 1920
with some knowledge that is a mathematical certainty. We know that
everything done at Philadelphia by the “conventions” named in the
Seventh Article was done with one dominant purpose--the security of
individual human freedom. We know that, at Philadelphia and in those
“conventions,” the old states and their governments, the _federal_
government and its continuation in the new Constitution, the new
nation and its Constitution and its government were only important as
the American citizens considered that each or all would contribute to
the security of American _individual_ freedom. We know that, only in
rare instances, such as that of Gerry, did a Tory mental attitude lead
a man into the error (for any American after ’76) of thinking that
political entities (such as states or nations or their governments)
have the slightest importance except in so far as they contribute to
the individual freedom of the citizens who create them and _must_
control them, if an American is to remain a citizen. We know that
every American, in those “conventions,” discussed and voted upon
every mention of these political entities, with insistent realization
that nothing anywhere in the Constitution was intended to disturb
or did disturb the legal fact that only the citizens of America,
in “conventions,” ever could say _how much national power_ the new
government should have, _how much_ each old state should be allowed
to retain over its own citizens and _how much_ the citizens of America
should reserve from all governments in America. We also know this legal
fact to have been the most important legal fact in America to the
Americans in those “conventions.” We know that it was the legal fact
whose denial by the British Parliament caused the Revolution. We know
that, from July 4, 1776, everything which the Americans did was solely
to make it impossible that any one could ever deny this legal fact in
America.
And we also know, something that has been entirely ignored since 1917,
that these “conventions” knew that the “conventions” of the Seventh and
the Fifth Articles were identically the same thing and were the most
important reservee in the Tenth Amendment, “the people” of America, in
their aggregate and collective capacity as Henry accurately put it.
With this simple and amazingly important knowledge of facts, a
knowledge acquired by our education with the Americans who made
themselves and their posterity free men instead of “subjects,” we come
to the arguments and briefs of 1920. There we expect to learn how the
opponents of the Eighteenth Amendment presented and its supporters
answered these facts. Because these facts we do know, if they are _all_
the facts, flatly deny the existence of that new _national_ Article,
made by governments alone.
If forbearance were the sole rule for conduct, if conscience permitted
us to ignore the great danger to our own _individual_ freedom in
_every_ matter, we would be absolutely silent as to the contents of all
those briefs. But, that the _supposed_ presence of the new _national_
Article in the _national_ Constitution of a free people may never be a
precedent for other _government_ making of _national_ Articles, it is
our duty to learn and state what those briefs all disclose.
Not one of them recognizes the identity of the “conventions” of the
Fifth Article with the “conventions” of the Seventh. And all ignore the
identity of the Fifth Article “conventions” with “We, the people” of
America, in the Preamble, and with the most important reservee of the
Tenth Amendment, “the people” of America.
Every argument, whether for or against the new _national_ article,
is based upon the sheer and absurd assumption that the “conventions”
in their Fifth Article _did_ make a _grant_ to themselves, the
“conventions,” and to the state governments. The advocates of the new
Article assume that the “conventions” _granted_ to themselves and to
the state governments _all_ the inalienable omnipotence of the American
people themselves, in their aggregate capacity as the citizens of
America, the very omnipotence the supposed grantors were exercising
when they made the Fifth Article. The opponents of the new _national_
Article assert the absurd assumption of a “_grant_,” but contend for
diverse reasons--remarkable by reason of the fallacy of a “_grant_”
on which each rests--that the “conventions” grant to themselves _only
a part_ of the omnipotence which they already had and were exercising
when they made the supposed “grant.” On which theory, they urge that
the supposed “grant” to the state governments, being identical with
the supposed “grant” to the grantors themselves, is _only part_ of the
omnipotence which the grantors already had and does not include ability
to make Articles like the Eighteenth Amendment.
Not one of these briefs recognizes or urges that the Fifth Article
is not a “grant” of ability _to make_ Articles whether _federal_
or _national_. No brief knows the Fifth Article to be simply the
ratification, by the whole American people, of a hitherto revolutionary
mode of procedure as the future CONSTITUTIONAL mode in which may be
exercised either the existing and limited ability of state legislatures
to make _federal_ Articles or the existing and unlimited ability of the
“people” (the “conventions”) to make _any_ Articles. No brief either
recognizes or urges the absurdity of the thought that the “conventions”
intended to grant or did grant to themselves, the “conventions,” any
part of the omnipotence which the supposed grantors were actually
exercising when making the supposed grant.
No brief recognizes that one of the supposed grantees _is_ the
supposed grantor. No brief seems to know that the supposed grantees
were respectively competent makers of certain kinds of Articles even
before the Fifth Article was written at Philadelphia. No brief seems
to know--or to sense the decisive effect of the fact--that, within the
twelve years which immediately preceded the supposed “grant,” each
of the two respective makers of Articles, who are mentioned in the
Fifth Article, had exercised its respective ability to make Articles
_of a certain kind_. No brief seems to know that one of the supposed
grantees, the “conventions,” at the very moment of the supposed
“grant,” was exercising its own unlimited ability to make Articles of
every kind. For all that the briefs disclose, in the decisive effect of
the two facts upon the supposed validity of the Eighteenth Amendment,
the “state legislatures” might never have made the _federal_ Articles
of 1781 and the “conventions” might never have made the _federal_ and
_national_ Articles of 1788.
No brief urges the greatest legal decision made at Philadelphia in 1787
as binding legal authority that the state “legislatures” of the Fifth
Article _never_ can, while the Fifth Article “conventions” _always_
can, make a _national_ Article like the First Article or the Eighteenth
Amendment. One brief does suggest that decision as authority for the
absurd proposition that the Fifth Article mentions no CONSTITUTIONAL
mode in which even the exclusive ability of the “conventions” of the
American citizens can be again exercised to make Articles like the
First Article and the Eighteenth Amendment. In urging that absurd
proposition, the briefer wholly ignores the fact that the Philadelphia
Convention, which made that legal decision, reached its conclusion by
ascertaining what were and still are the _respective_ abilities (to
make Articles) of the state “legislatures” and the “conventions,” both
of which are named as future makers in the Fifth Article.
No brief recognizes the fact (or urges any argument based upon it) that
the Constitution _is_ both a _federal_ and a _national_ Constitution.
For which reason, no brief points out that the Tenth Amendment
expressly reserves the ability to make _federal_ Articles to the state
“legislatures” and the exclusive ability to make _national_ Articles
to the “conventions.” For which reason, no brief points out that each
of the two reservees, named in the Tenth Amendment, is mentioned
separately in the Fifth Article as a possible maker of future articles,
whenever a proposed future Article is of the kind which the existing
ability of the proposed maker is competent to make.
No brief, _against_ the new Amendment, challenges the sheer and absurd
assumption that the Fifth Article _is_ a “grant.” No brief, _for_ the
new Amendment, offers or suggests the slightest fact in support of that
sheer assumption.
Every brief _for_ the new Amendment, on the fallacy of the _sheer
assumption_ that the Fifth Article _is_ a grant, contends that the
Article makes a fractional part of the state legislatures an omnipotent
Parliament for the American people, a Parliament not restrained by any
constitutional limitations in state or national constitutions but a
Parliament which can do what it will with every individual right of
every human being in America. These briefs neither know nor care that
their concept of the Fifth Article means that the “conventions” of the
American citizens, twelve years after the Declaration of Independence,
intended to make and did make themselves absolute “subjects” of
governments, not one of whose legislators was to be elected by
Americans in their capacity as American citizens. The foremost of
these briefs were written by eminent “constitutional” lawyers who had,
as clients, the very governments which claimed this omnipotence over
individual Americans as their “subjects.”
Every brief, _against_ the new Amendment, not only admitted but
asserted the absurd assumption that the Fifth Article is a “grant”
to the grantors and to the state governments. In the foremost brief
against the new Amendment, that absurd assumption is asserted or
mentioned over fifty times. On this absurd assumption, every argument,
in _these_ briefs, as well as in the opposing briefs, is based. In
this respect, there was but one difference between any brief and
another. That difference was in reference to the _extent_ of the
supposed “grant” which the grantors made to themselves and to the state
governments.
Not one brief, presented in these litigations of 1920, knew or urged
the undoubted fact that, _because_ our government is both federal
and national, if it wants new power to interfere with the freedom of
the American citizen, that government can get that power in only one
CONSTITUTIONAL mode, through the “conventions” named in the Fifth
Article. No briefer knew the legal necessity that all power _of that
kind_ must be obtained directly from the citizens of America, assembled
in their “conventions.” We ourselves know that there was a day in
America when that legal necessity “was felt and acknowledged by all.”
It is almost impossible for us, therefore, educated as we are in the
experience of the Americans who did know, to believe these statements
about these briefs. Yet the briefs speak for themselves.
Before, however, we turn to verify the statements by the briefs
themselves, it is well that we recall one amazing question and answer,
during the arguments of 1920 in the Supreme Court, which question and
answer overwhelmingly demonstrate that none of these “constitutional”
lawyers knew or cared about the facts we know.
The Supreme Court had listened, for several days, to many clever
arguments against the new _national_ Article. The arguments had
challenged validity on the ground that the new Article infringed upon
the political freedom of some political entity, such as a state or its
government. Sometimes the arguments had challenged validity on the
ground that the new Article infringed upon the liberty of the citizens
_of some particular state_. No argument had challenged validity on the
one patent and unanswerable ground that the “conventions” of 1788 had
provided that no _national_ Article, which (like the First Article and
the Eighteenth Amendment) directly interferes with or grants power to
interfere with individual liberty of the American citizen, could ever
be CONSTITUTIONALLY made, except in the one CONSTITUTIONAL mode of
procedure, in which the _only_ competent makers of _national_ Articles
can make _such_ Articles, the “conventions in three fourths of” the
states, mentioned in the Fifth Article.
Rice of Rhode Island, one of the many prominent lawyers _against_
validity, was urging his particular argument. Ignoring the citizens
of America in the “conventions” of the Fifth Article, he claimed that
no power in America could interfere with individuals in Rhode Island,
outside the First Article matters, without the consent of Rhode Island
itself. He was interrupted by the Court. In substance, this is the
question and answer that followed: Justice Brandeis: “The court is
now fully acquainted with the nature of the arguments of the various
counsel as to why the new Article has _not_ been validly made. The
Court would like to know, In what way do counsel think that the new
Article _could_ be _constitutionally_ made?” And the answer of Rice,
undoubtedly voicing the conviction of all his colleagues, for none of
them had any other answer to volunteer, was: “_In no way._”
Fresh from the “conventions,” which knew that _they_ could have made
what is supposed to be the Eighteenth Amendment, we could make the
correct answer to that question. Our answer is that the “conventions”
of the whole American people could have made this new Article in 1788
just as they did make the First Article of exactly the same kind. They
could have made it, not because any Constitution gave them the power
to make it. They could have made it because, in its making, they would
have exercised exactly the same existing ability which they exercised
when they destroyed the power of the British Government over themselves
in 1776, which they exercised when they ended the complete independence
of each state in 1788 and which they exercised when they made _all_
the Articles of 1788. When they did each of these things, they had
prescribed no “constitutional” mode of procedure in which they might
_constitutionally_ exercise that exclusive ability of their own. By
the declaration of the Tenth Amendment, they reserved that exclusive
ability to themselves. And, in the Fifth Article, they prescribed,
for the first time, exactly the same mode, in which they were then
exercising that exclusive ability, as the future CONSTITUTIONAL
mode for its further exercise. As Marshall stated, in the Supreme
Court, there is but one way in which they can exercise it, “safely,
effectively, and wisely,” by assembling in their “conventions” in their
respective states.
If the accuracy and truth of this sole possible correct answer to the
question of 1920 is so well known to us, certainly it should have
been known to at least one of the “constitutional” lawyers of 1920.
Moreover, _every_ “constitutional” lawyer of 1920 should have known
that the mention of state governments in the Fifth Article was not
intended to make them omnipotent over the individual rights of the
American citizen or to provide an unsafe, ineffectual and unwise way
or any way in which government in America could create new government
power to interfere with individual freedom.
Madison wrote the Fifth Article. Immediately after he had secured
its proposal from Philadelphia, in the Virginia convention he paid
his famous tribute to the “conventions”--but not to the “state
legislatures”--which he mentions in his Fifth Article. “Mr. Chairman,
nothing has excited more admiration in the world than the manner in
which free governments have been established in America; for it was
the first instance, from the creation of the world to the American
Revolution, that free inhabitants have been seen deliberating on the
form of government, and selecting such of their citizens as possessed
their confidence, to determine upon and give effect to it.” (3 _Ell.
Deb._ 616.)
But, whatever the ignorance of our constitutional lawyers, _we_ know
why Madison, in his Fifth Article, mentions these “conventions”
in which free inhabitants are seen deliberating on new grants or
constitutions of government power to interfere with individual
freedom. When future grants of such power are suggested, there is
to be a CONSTITUTIONAL mode prescribed for the reassembling of such
“conventions” to make or refuse the grants.
Our experience with Madison and his colleagues would educate these
“constitutional” lawyers to keen realization that the Americans of old
knew the vital distinction, so important to individual liberty, between
permanent and existing state legislatures and these “conventions” of
the American people themselves, chosen for the one purpose of answering
“Yes” or “No” to a particular question previously carefully considered
by all the American citizens.
Let these “constitutional” lawyers spend a moment with Hamilton, on
Friday, March 14, 1788, when he was urging the American people to
adopt the Constitution with that Fifth Article.
He was discussing the mode which that Constitution provided for the
election of the Chief Executive of the new nation. The mode was that
the _American_ citizens, in each state, should elect a temporary
convention of delegates to deliberate upon and cast the votes of
Americans in that state for some American as President. We sense, at
once, the striking similarity between the temporary body, thus to
be chosen for _that_ purpose, and the temporary body or convention
also to be chosen to pass upon the _other_ single question, a “Yes”
or “No” to some particular proposed new grant of government power to
interfere with individual freedom. The danger to individual liberty
would necessarily be much less in having a permanent government body,
the legislature, cast the vote of the Americans in its state _for
an Executive_, than in having the same permanent government body or
legislature say the “Yes” or “No” of the Americans in that state _to a
new grant of government power_ to interfere with the individual liberty
of all Americans. Therefore, if we find Hamilton dwelling upon the
danger of state legislatures casting American votes for the American
Executive, we can be quite certain that neither Madison nor Hamilton
nor their colleagues _mentioned_ the existing ability of legislatures
to make _federal_ Articles (when these men worded and made their Fifth
Article) in order that their words might be twisted away from any
possible English meaning and say that the citizens of America appointed
these state governments, not a member of which is chosen by the
citizens of America, to be their omnipotent attorney in fact for every
purpose in the world, forever.
This is what Hamilton had to say on the danger to liberty, if permanent
state legislative governments, instead of special American delegates
chosen for that purpose, should even elect the American President:
“The mode of appointment of the Chief Magistrate of the United States
is almost the only part of the system, of any consequence, which has
escaped without severe censure, or which has received the slightest
mark of approbation from its opponents.”
(Incidentally we recall that the mode of procedure, which is the Fifth
Article, never received one word of censure from any opponent on any
ground, except that it left _to government_ the ability to reassemble
the “conventions” of the people. It was claimed that, even if the
people found the First Article power oppressive to their individual
freedom, government would never reassemble their “conventions” for the
purpose of permitting them to withdraw any of those grants.)
Hamilton proceeded as follows: “It was desirable that the sense of the
people should operate in the choice of the person to whom so important
a trust was to be confided.”
(We average Americans remember that the trust of making or refusing new
power to interfere with individual freedom would always be infinitely
more important.)
“This end will be answered by committing the right of making it,
not to any preestablished body, but to men chosen by the people for
the special purpose, and at the particular conjuncture.... A small
number of persons, selected by their fellow citizens from the general
mass, will be most likely to possess the information and discernment
requisite to such complicated investigations. It was also peculiarly
desirable to afford as little opportunity as possible to tumult and
disorder.... The precautions which have been so happily concerted in
the system under consideration, promise an effectual security against
this mischief.... And, as the electors,” like the conventions for
granting or refusing national power, “chosen in each State, are to
assemble and vote in the State in which they are chosen, this detached
and divided situation will expose them much less to heats and ferments,
which might be communicated from them to the people, than if they were
all to be convened at one time, in one place.”
(We recall Marshall’s echo of this in his later statement, speaking of
the Fifth and Seventh Article “conventions,” “No political dreamer was
ever wild enough to think of breaking down the lines which separate
the states, and of compounding the American people into one common
mass. Of consequence, when they act, they act _in_ their states. But
the measures they adopt do not, on that account, cease to be the
measures of the people themselves, or become the measures of the state
governments.”)
Hamilton went on: “Nothing was more to be desired than that every
practicable obstacle should be opposed to cabal, intrigue, and
corruption. These most deadly adversaries of republican government
might naturally have been expected to make their approaches from more
than one quarter.... But the convention have guarded against all
danger of this sort, with the most provident and judicious attention.
They have not made the appointment of the President [or any grant
of new power to interfere with individual freedom] to depend on any
preexisting bodies of men, who might be tampered with beforehand
to prostitute their votes; but they have referred it, in the first
instance to an immediate act of the people of America, to be exerted
in the choice of persons for the temporary and sole purpose of making
the appointment,” or a proposed grant of new power to interfere with
individual liberty.... “Thus without corrupting the body of the people,
the immediate agents in the election [or the grant] will at least enter
upon the task free from any sinister bias. Their transient existence,
and their detached situation, already taken notice of, afford a
satisfactory prospect of their continuing so, to the conclusion of it.
The business of corruption, when it is to embrace so considerable a
number of men, requires time as well as means. Nor would it be found
easy suddenly to embark them, dispersed as they would be over thirteen
States [now forty-eight States] in any combinations founded upon
motives, which though they could not properly be denominated corrupt,
might yet be of a nature to mislead them from their duty.” (_Fed._ No.
68.)
If Hamilton had been alive to watch the supposed legislative making
of the Eighteenth Amendment, he would have seen the manner of that
supposed making justify everything he said about the danger of letting
permanent government bodies have anything to do with individual
liberty, except the proper duty of each legislature to make laws for
its own citizens on matters committed to that legislature by those
citizens. And, from what we have just quoted, the “constitutional”
lawyers of 1920 certainly should have known that, when Hamilton
was alive, he and his associates, by their _mention_ of those
“legislatures” in the Fifth Article, never subjected themselves and
their posterity, ourselves, to an omnipotent ability to do what those
governments might will with our individual rights, “in all matters
whatsoever.”
It has been our custom, as average American citizens, to rely upon
our leaders to know and urge, at the proper time and place, our
protection under our American Constitution. We have seen the danger
of such reliance in the record of our Congress of 1917. As many of
our leaders are most renowned lawyers, the danger of that reliance is
emphasized, if the briefs of those leaders and lawyers in 1920 disclose
that they did not and do not know all these legal facts which are so
clear and also so essential to our protection as American citizens.
That we may ascertain whether these briefs do disclose this ignorance
and do emphasize the danger of such reliance, we must later examine
the briefs themselves. But, that we may come to such an examination,
properly prepared, it is necessary that we should know the nature of
the litigations before the Court and what were the arguments against
validity upon which the Court was asked to pass. In no other way, can
we acquire our own knowledge that the Supreme Court has yet to hear
and consider the real challenge to the supposed new Article in which
governments attempt to exercise ungranted power and to grant new power
to interfere with the individual freedom of the American citizen. As we
well know, that one real challenge is that the new Article was not made
by those who alone _can_ make it, that it was not made as it _can_ be
CONSTITUTIONALLY made, by the makers _of that kind of Article_ named
in the Fifth Article, the “conventions” of the Seventh _and the Fifth_
Articles, the “We, the people” of the Preamble and “the people” of the
Tenth Amendment.
CHAPTER XXIII
THE CHALLENGES THAT FAILED
The validity of the Eighteenth Amendment (seven litigations being heard
together) was argued on March 8, 1920, and for several days thereafter.
As we are not concerned with the meaning of the second section of the
Amendment or with the validity of the Volstead Act (passed by Congress
under the grant of said section) except as the validity of the Act
depends upon the validity of the Amendment, we shall make no mention of
either.
The Court announced its decision, in all the litigations, on June 7,
1920. Somewhat to the amazement of the country, but (in our humble
opinion even at the time) very wisely, the Court refused to write any
opinion whatever. Nothing could more certainly settle that the Court
determined no question except the specific questions presented by those
who challenged validity. That we may be certain that the Court neither
heard nor considered nor passed upon the real and the invincible
challenge to the existence of the supposed new _national_ Article, we
will let the Court, in its own words, state exactly just what were the
four propositions, advanced against validity, and state the simple
fact that it negatived each of those four propositions. Thus, in an
impressive manner, we shall acquire our own knowledge that the fifth
conclusion, which later we shall state, is but the conclusion of fact
that nothing, in the four propositions negatived, impairs the validity
of the supposed Article.
Mr. Justice Van Devanter announced the conclusions of the Court.
Power to amend the Constitution was _reserved_ by Article V, which
reads:...
(As we have been in the conventions which made it, we know it.)
The text of the Eighteenth Amendment, proposed by Congress in 1917 and
proclaimed as ratified in 1919, 40 Stat. 1050, 1941, is as follows:...
(The text of the first two sections is quoted on page 465 herein.)
We are here concerned with seven cases involving the validity of that
Amendment and of certain general features of the National Prohibition
Law, known as the Volstead Act, c. 83, 41 _Stat._ 305, which was
adopted to enforce the Amendment. The relief sought in each case is an
injunction against the execution of that act.... The cases have been
elaborately argued at the bar and in printed briefs; and the arguments
have been attentively considered, with the result that we reach and
announce the following conclusions _on the questions involved_:
1. The adoption by both houses of Congress, each by a two thirds vote,
of a joint resolution proposing an amendment to the Constitution
sufficiently shows that the proposal was deemed necessary by all
who voted for it. An express declaration that they regarded it as
necessary is not essential. None of the resolutions whereby prior
amendments were proposed contained such a declaration.
2. The two thirds vote in each house which is required in proposing
an amendment is a vote of two thirds of the members present--assuming
the presence of a quorum--and not a vote of two thirds of the entire
membership, present and absent. Missouri Pacific Ry. Co. v. Kansas,
248 _U. S._ 276.
3. The referendum provisions of state constitutions and statutes
cannot be applied, consistently with the Constitution of the United
States, in the ratification or rejection of amendments to it. Hawke v.
Smith, ante, 221.
4. The prohibition of the manufacture, sale, transportation,
importation and exportation of intoxicating liquors for beverage
purposes, as embodied in the Eighteenth Amendment, is within the
power to amend _reserved_ by Article V of the Constitution. (National
Prohibition Cases, 253, _U. S._ 350, 384.)
We are not interested in the first two propositions which the Court
negatived. They were that the Congress resolution should have _said_
that two thirds of Congress deemed it necessary to propose the
Amendment and that the proposals should have been made by two thirds of
the entire membership of the House instead of two thirds of a quorum in
each House. These are trifling and unimportant matters when over one
hundred million Americans seek to learn when they ceased to be citizens
of America and became absolute “subjects” of governments in America.
The third proposition negatived has naught to do with ourselves, the
citizens _of America_. It deals only with the rights of some _state_
citizens _as such_, where their _state_ constitution has a referendum
provision. For our protection against usurpation by any government
of our own reserved rights or powers, we look to our own _American_
Constitution. We have lived through its making with the Americans who
made it to secure individual liberty of themselves and their posterity,
ourselves, the citizens of America.
The clear statement of simple fact, expressed in the Court’s fourth
conclusion, tells us something, which, with Madison, we have known
since he wrote and suggested his Fifth Article, at Philadelphia, on
September 10, 1787. Our stay in the “conventions,” which made the
Fifth Article, has taught us that the Americans in them, even Henry
and the opponents of the Constitution, were fully aware of the fact
that the Fifth Article provided the CONSTITUTIONAL mode in which the
“conventions” could thereafter exercise the existing omnipotence of
the citizens of America themselves to make any kind of an Article of
government. The same stay fixed firmly in our minds that every one in
them knew that the Fifth Article is not a grant of any ability from
themselves to themselves, from the “conventions” named in the Seventh
Article to the same “conventions” named in the Fifth Article, all being
the “conventions” of the American citizens assembled to exercise their
own omnipotence.
And so, coming from the only “conventions” of that kind yet held,
we grasp at once the absolute accuracy of the statement in the
fourth conclusion of the Court in 1920. The _mention_ of the same
“conventions” in the Fifth Article, a mention made by the “conventions”
of the Seventh Article, is the sound basis for our knowledge that, as
the Tenth Amendment expressly declares, those “conventions” of the
Seventh expressly _reserved_ to themselves (the same “conventions”
named in the Fifth, “the people” of America in the Tenth Amendment)
their own exclusive ability to make _national_ Articles, like the
First Article and the Eighteenth Amendment. For which reason, we
know the truth of the Court statement in its fourth conclusion, that
the power to make the Eighteenth Amendment “is within the power
to amend _reserved_ by Article V.” The _exclusive_ ability of the
“conventions” of 1787 and 1788--to make the Article which is that new
Amendment--is something known to all who were in those “conventions.”
That the ability--to make Articles like the First Article and the new
Amendment--_remained_ exclusively in such “conventions” of the American
citizens, because such Articles are _national_ and either directly
interfere with or are the basis for direct interference with individual
freedom of the American citizen, was also known to every one in those
“conventions.” That is why the Americans in those early “conventions”
insisted that the Tenth Amendment expressly declare that such exclusive
ability _was_ reserved to them, “the people” of that Amendment, and why
the same “conventions” mentioned themselves, the “conventions,” in the
Fifth Article and provided therein the CONSTITUTIONAL mode of procedure
in which that exclusive ability could thereafter be exercised by those
who had it, the “conventions” of the American citizens.
Even though this knowledge, which we bring straight from the
“conventions” which made the Fifth Article, be not shared at all by
the lawyers of 1920, we are aware that it is also the knowledge of the
Supreme Court. That is why Marshall long ago pointed out that, when
individual welfare required that government should be granted some
_national_ powers or powers to interfere with individual freedom, “the
necessity of deriving such powers from the people themselves was felt
and acknowledged by all.” That is why in 1907 the Supreme Court again
declared “the powers the people have given to the General Government
are named in the Constitution, and all not there named, ... are
reserved _to the people_ and can be exercised only _by them_, or upon
further grant _from them_.” As the First Section of the new Amendment
is the exercise and the Second Section is the grant of one of those
reserved powers, and as the Fifth Article provides the CONSTITUTIONAL
mode of procedure in which it can be exercised or granted by those,
who alone have it, “the people” of the Tenth Amendment and the
“conventions” of the Fifth Article, it is very natural to read in
the same Supreme Court, in the National Prohibition Cases, that the
ability to make the Eighteenth Amendment “is within the power to amend
_reserved_ by Article V.”
When the Supreme Court of Marshall’s day knew that state “legislatures”
could not make Articles like the First Article and the Eighteenth
Amendment, when the Supreme Court of 1907 still knew that only the
“people” or “conventions” could make Articles _of that kind_, when
the Supreme Court of our own day knows that the Fifth Article deals
only with “_reserved_” power, we Americans feel that we are to remain
free men and citizens. We have come from the “conventions” with our
own accurate knowledge that the power to make the new Amendment or any
other Article like the First Article “is within the power to amend
RESERVED by Article V.” But, for the very reason that our knowledge
is accurate, we know that the power to make _such_ Articles was _not_
reserved to the state legislatures, who did not have it, but _was_
reserved to the “conventions,” who did have it and who were exercising
it (in making the First Article) at the very moment when they made the
Fifth Article.
We have examined the four conclusions of the Supreme Court which deal
with any argument _presented_ against the existence of the Eighteenth
Amendment. Those conclusions negative every such argument that was
presented. But, because every brief assumed and asserted that the
amending power “_reserved_” in the Fifth Article had been “_granted_”
therein, the four conclusions make clear that the Court has yet to hear
and pass upon the challenge which reads the Eighteenth Amendment out of
our Constitution. When that challenge is presented by American lawyers,
who know what American basic law is and how American citizens are
constitutionally protected against usurpation of power by governments
in America, there can be no doubt of the decision of the Supreme Court.
In _that_ decision, there will be no conclusion denying the most
important legal fact in America, namely, that _governments_ cannot
exercise ungranted power or create new government power to interfere
with the individual freedom of the American citizen. In _that_
decision, there will be again the simple statement of the undoubted
fact that the ability to make the Eighteenth Amendment “is within the
power to amend _reserved_ by Article V.” But, in _that_ decision, there
will be _added_ the plain statement of the Tenth Amendment that such
ability was _not reserved_ to the state legislatures who never had it,
but _was_ reserved to the “conventions,” who always had it and still
have it. And, comparing that future decision (which is certain to come
from the Supreme Court) with the decision, which merely negatived the
four unsound challenges which _were_ made to the Eighteenth Amendment,
we know that the first five conclusions of the latter decision--all
the conclusions that have aught to do with the existence and validity
of the Eighteenth Amendment--merely hold that the existence of the new
Amendment is not affected by any of these challenges which _were_ made.
With exceeding wisdom in our humble opinion, the Court carefully
refrains from passing upon or determining any question except the
exact challenges which _were_ presented. That is why no opinion was
written. When any general statement (seeming to bear upon questions
not presented or submitted) might come back to perplex and annoy the
Court in future litigation where protected liberty of the American
citizen was the challenge to the government-made new Article, common
sense and sound reason and the experience of generations dictated that
no general statement should be made. And, as there was but one way to
avoid a single general statement, no opinion was written. This method
of deciding those particular litigations, with their four unsound
challenges, would leave the decision itself without even an apparent
influence upon a litigation in which some _real_ challenge might be
presented.
And so we find the Court merely stating “that we reach and announce the
following conclusions _on the questions involved_.” Nothing could make
more clear that no conclusion is reached or announced on any question
not presented by those who urged invalidity.
The first four conclusions reached and announced are conclusions of
law against the opposite legal conclusions urged by those opponents.
The fifth conclusion is a conclusion of fact that validity of the
Amendment is not affected by any of the four propositions advanced by
the opponents of the Amendment. In other words, the first five numbered
conclusions, all that deal with validity of the Amendment, can be
expressed in our own words, viz: “Although the proposing Resolution
did not _state_ that Congress deemed the proposal necessary, although
only two thirds of a quorum in each House (and not two thirds of the
membership of each House) made the proposal, although the citizens
of each referendum state have not acted as part of their respective
state legislatures, and although it is urged that the Fifth Article
_reserved_ abilities do not include ability to make an Amendment like
the Eighteenth, we decide that none of _these_ things affect the
validity of the new Article.”
And, when we make this accurate statement of what was decided in those
National Prohibition Cases, we average Americans, fresh from our
education with the Americans who found themselves “subjects” and made
themselves and their posterity free men, have some startling facts
brought home to us.
Undoubtedly thousands of lawyers had worked, for more than a year, in
the preparation of the arguments that were made and the briefs that
were filed. When these amazingly important litigations were reached,
the arguments lasted for several days. On the exhaustive briefs filed
against validity, there appear twenty-two lawyers, many of them among
the leaders of the American Bar. On the briefs to support state
government omnipotence over the citizens of America, “in all matters
whatsoever,” thirty-five lawyers, headed by a former member of the
Supreme Court, appear.
We know, with a knowledge that brooks no denial, because it is a
knowledge brought from our experience with those who made themselves
free men and established the Constitution to secure that result to
themselves and to us, that the new Article is not in the Constitution
unless at some time prior to 1917, the free men of America, all the
individual citizens of America, became the “subjects” of _some_ state
governments.
It is clear, therefore, that the existence of the Eighteenth Amendment
has always depended upon the correct answer to the question whether the
American is “Citizen or Subject?”
If we are subjects, the new Article _may_ be in the Constitution not
made by us but made by governments.
If we still are citizens, as once undoubtedly we were, the new Article
_cannot_ be in _our_ Constitution, because we have not made the new
Article, assembled in our “conventions.”
Where men are citizens, _governments_ cannot exercise ungranted power
or create new power to interfere with individual liberty.
In a nation of free men, established by former “subjects” with a
dominant purpose that no American should ever be the “subject” of
any governments, it is amazing that one government should propose
that _governments_ constitute, and it is amazing that forty-six
_governments_ should attempt to constitute, new government of men--new
government power to interfere with individual human freedom.
But most amazing of all, in a nation with the history of America, is
the fact that, when audacious government had so proposed and audacious
governments had so attempted, the prolonged arguments and voluminous
briefs of fifty-seven leading members of the American Bar never
once knew or stated the simple fact which made the proposal and the
attempt a legal and constitutional absurdity. The fact itself, the
one most important legal fact in America, was once known and “felt
and acknowledged by all” Americans. Yet, not once in any brief in the
National Prohibition Cases, was it either known or urged that the
“conventions” of the Fifth Article are the “conventions” of the Seventh
Article and that both are the whole American “people” of the Preamble
and the Tenth Amendment and that, therefore, the Constitution expressly
_reserves_ to the “conventions” _of the Fifth Article_, the citizens
of America, their existing and exclusive ability to create new
government power to interfere with their own individual human liberty.
_Why_ none of these briefs did make this challenge became known to us
when Rice of Rhode Island, with the silence of his colleagues marking
their approval, answered the Court that the new Article could not be
_constitutionally_ made. _Why_ they did not make the challenge will be
emphasized when we read the leading brief against the new Amendment.
Over fifty times it will admit and state that the Fifth Article _is_
a “_grant_” of power to _state_ legislatures from _American_ citizens
and claim the “_granted_” power is a limited power and does not include
ability to make an Amendment like the Eighteenth because such Amendment
takes away the reserved power _of a state or political entity_. Then,
to emphasize what it does not know about the “conventions” of the Fifth
Article and the reserved powers of the citizens of America, this brief
will go on to tell us that there is no _constitutional_ mode in which
can be made an Article which takes more power away from any state;
that such an Article may only be made, outside any _constitutional_
mode, by having the people themselves rescind “the social compact”
which is their American Constitution and having them make “such new
compact as they please”; but that such new compact, such new Article
of that kind, cannot “be validly and legally made to come to pass
against the objection and protest of _any_ state.” All this clearly
explains _why_ none of the briefers were able to answer correctly
the question asked by the Court. How could they tell the Court in
_what_ way the Eighteenth Amendment could be _constitutionally_ made,
when all of them “knew” that there was no _constitutional_ mode
in which the “conventions” of the American citizens could make it,
and when they “knew” that it could not be made, even outside the
Constitution, without the consent of the citizens of _every_ state? The
most important words in the Fifth Article, “in conventions in three
fourths thereof,” did not mean to these briefers what they meant to
the Americans who made the Fifth Article or to Madison and Hamilton
who wrote the Fifth Article and suggested it at Philadelphia. In
the word “conventions,” they did not recognize the Seventh Article
“conventions” of the American citizens describing themselves by exactly
the same word, “conventions,” in the Fifth Article. In the words “in
three fourths thereof” after the word “conventions,” they did not
recognize the great security to human freedom which we have learned
with the Americans who wrote and who made the Fifth Article. They did
not recognize how the American people, by these words, made it _their_
constitutional command that they themselves, again assembled in their
conventions, by a “Yes” from three fourths of their “conventions” _and
without_ the consent of the Americans in the other “conventions,” might
withdraw any power granted in the First Article and might add any new
power to its enumerated grants, whenever _they_ deemed such withdrawal
or such addition would better secure and protect American individual
liberty.
_That_ not one of the briefers _did_ make _our_ challenge is our
certain knowledge when we read the four challenges they did make and
which are negatived in the first four conclusions of the Court.
The first two relate to the manner of the _proposal_ that governments
create government of men in America. Who cares _how_ one government
makes a silly _proposal_? The one important thing is that no
governments shall attempt _to act upon_ a proposal which denies the
most important legal fact in America, that _governments_ cannot
constitute new government ability to interfere with individual liberty.
The fourth challenge that was made is the absurd challenge that the
Fifth Article does not _mention_ a CONSTITUTIONAL mode of procedure in
which the citizens of America may again _directly_ grant to _their_
government new power to interfere with their own individual liberty
and in which--far more important to the “conventions” which named
themselves (the “conventions”) in their Fifth Article--the American
citizens can directly take back any part of the granted power of the
First Article which they find oppressive to their individual liberty.
This challenge neither knows nor makes any distinction between the
state “legislatures” and the “conventions” of the American citizens or
the mention of either in the Fifth Article. It is a challenge which has
not the knowledge we bring from the first “conventions,” the knowledge
that “legislatures” are mentioned on account of their existing ability
to make _federal_ or declaratory Articles and that “conventions” are
mentioned on account of their exclusive ability to make Articles _of
any kind_. It is a challenge which assumes and asserts and is based
wholly upon the absurd assumption that the Fifth Article is a “grant”
of power to make Articles. On this absurd assumption of this patently
absurd “grant,” this fourth challenge, frankly stated in our own words,
is as follows: “In the Fifth Article, the ‘conventions’ grant to the
two grantees--the grantors and the state legislatures--an _identical_
ability to make new Articles. We admit that, if the ‘conventions’
of the Fifth Article could constitutionally make the Eighteenth
Amendment, the state legislatures can also constitutionally make it.
But our challenge is that the ‘grant,’ in the Fifth Article, is limited
in extent and that neither the ‘conventions’ nor the state legislatures
can constitutionally make the Eighteenth Amendment.”
To the “constitutional” lawyers who make this challenge, to all who
support such challenge, we commend many hours’ study of the statements
of Madison, who wrote the Fifth Article; of Hamilton, who supported its
introduction at Philadelphia; of Wilson, Pendleton, Henry, Iredell,
MacLaine, Jarvis, Lee, Mason, and the many others, with whom we have
sat in the “conventions” which made the Fifth Article. Particularly
do we commend a careful reading of the reasoning which led to the
decision at Philadelphia, in 1787, that the First Article, _because it
constituted government of men_, _must_ go to the “conventions” named
alike in the Seventh and the Fifth Articles and could not be validly
made by the state “legislatures” named in the Fifth Article. That
decision was based upon the unrepealed Statute of 1776, a statute well
understood in 1787, only eleven years after the Statute itself had been
enacted as the command of the whole American people. Finally, to those
who support this fourth challenge, we commend a thorough reading of the
law laid down by Marshall in the Supreme Court. If they thus educate
themselves as we have educated ourselves, they will be able to say with
Marshall: “To the formation of a league, such as was the Confederation,
the state sovereignties were certainly competent. But when, ‘in order
to form a more perfect Union,’ it was deemed necessary to change this
alliance into an effective government possessing great and sovereign
power and acting directly on the people, the necessity of referring it
to the people and of deriving its power directly from them, _was felt
and acknowledged by all_.”
And, if all shall complete their education with such men as Webster and
Lincoln, they will never again make the mistake of ignoring the vital
and important distinction in identity between “state legislatures”
and “conventions” of the American citizens, the distinction that the
former are never anything but governments and each the government
agent of the citizens _of one state_, while the “conventions” are the
citizens of America itself assembled in “conventions” to issue their
commands to themselves, to their government, to the states and to the
state governments. The completed education will enable these lawyers to
win future litigation against legislative governments who audaciously
attempt to usurp the exclusive and reserved powers of the “conventions”
of the American citizens.
In any of the three challenges negatived by the first, second and
fourth conclusions of the Supreme Court, we have failed to find any
suggestion of _our_ challenge, namely, that state “legislatures” have
audaciously attempted to usurp the exclusive powers reserved to the
“conventions” which are named in the Fifth Article.
And now we examine the only other challenge that _was_ made, a
challenge negatived by the third conclusion of the Supreme Court. No
challenge could more emphatically ignore the protected individual
liberty of the citizen of America. This challenge does not know
that American citizens have _no_ government save the government of
enumerated powers. This challenge frankly admits that the Fifth
Article is a grant to legislatures, each elected by the citizens _of
some particular state_, and that three fourths of those legislatures
have the omnipotence, which was denied to the British Parliament,
over every individual liberty of the American citizen. Like the other
challenges that _were_ made, like every brief for or against the
Eighteenth Amendment, this challenge knows not that the Constitution
is both a _federal_ and a _national_ Constitution and knows not that
the state “legislatures” never have and never can have aught to do with
the _national_ aspect of that Constitution. Based on this remarkable
ignorance, this is the challenge, frankly stated in our own words:
“The state legislatures _can_ make this Eighteenth Amendment. The state
governments _can_ do what they will, so long as they call their action
a constitutional Amendment, with every reserved right and power of the
citizens of America. But thirty-six state legislatures are necessary to
make anything called a constitutional Amendment. And our challenge is
that thirty-six legislatures have not made this particular Eighteenth
Amendment. In any state, where the referendum exists, the citizens
_of that state_ [we note that even now the citizens _of America_ are
not mentioned] are part of the state legislature. In some of these
referendum states, whose legislatures are included among your claimed
thirty-six ratifiers for the Eighteenth Amendment, the whole of the
state legislature has not yet ratified, because the citizens of the
state, who are part of its legislature, have not yet acted. For this
reason, that you ignore the rights of the citizens _of some states_,
our challenge is that the Eighteenth Amendment has not been ratified by
the legislative governments of thirty-six states.”
This particular challenge, like everything in these litigations and
in the whole history of the supposed new Amendment, brings into bold
relief the one monumental error at the bottom of every thought that the
new Amendment _is_ in the Constitution, at the bottom of the varied
absurdities which constantly appear in every brief, either for or
against validity.
Without a single exception, the fifty-seven lawyers on these briefs
base their every argument, no matter how those arguments may challenge
one another, on the ridiculous sheer assumption that the Fifth Article
is a great power of attorney to the state governments from the citizens
of America. All these fifty-seven lawyers ignore the undeniable
fact--mentioned continually in the “conventions” of the Seventh Article
which wrote their own name, “conventions,” into the Fifth Article--that
the Constitution is both _federal_ and _national_. This first mistake,
this ignoring of that fact, led all of them immediately into the
fatal error of wholly ignoring the vitally important fact that the
Fifth Article distinctly names those who already could make _federal_
Articles, the state governments, and those whose exclusive right it
always was and is to _make national_ Articles, the people assembled
in their “conventions.” Only because of these two mistakes, the next
step comes in the guise of the absurd concept that the Fifth Article
is a grant of _any_ power of attorney, from the citizens of America,
either to the “state legislatures” or the “conventions.” In this patent
absurdity, all fifty-seven lawyers concur. That each of them does not
see its patent absurdity is due entirely to the fact that not one of
them states the proposition, that the Fifth Article _is_ a grant, in
the frankest mode of stating it. That _frankest_ way is to state the
proposition in these words: “In the Fifth Article the citizens of
America, assembled in the ‘conventions’ of 1788, _granted_ to the
state legislatures _and_ to _themselves_, the citizens of America,
assembled in their ‘conventions,’ a quantum of power as attorneys in
fact of the citizens of America. We fifty-seven lawyers only differ
as to the _extent_ of the power which the citizens of America grant
to themselves and to the state governments. We, who _support_ the new
amendment, contend that the citizens of America grant to the state
governments and to the citizens of America _all_ the power of the
citizens of America. On the other hand, we, who _oppose_ validity,
contend that the citizens of America grant to the state governments and
to the citizens of America only _some_ of the unlimited power of the
citizens of America, the very power they were exercising when they made
the grant which is the Fifth Article.”
When the common proposition of all those lawyers, that the Fifth
Article “grants” power to those two grantees, _is_ stated in this frank
way, its patent absurdity is manifest. Every one of those lawyers knows
that a grantor never can or does grant to himself either _all_ or _part
of_ what he already has. Moreover, all those lawyers ought to know that
the Tenth Amendment expressly declares that the entire Constitution,
in which is the Fifth Article, grants no power of any kind except to
the American government at Washington. Alone and unaided, this simple
declaration makes it impossible that the Fifth Article grants any power
to the state governments. Thus, even without the certain knowledge we
bring from the conventions of 1788, the state governments disappear
from the scene as attorneys in fact for the citizens of America in any
matter. Each of those state governments is left with no power it did
not have before the Fifth Article was made. Not one of them even keeps
all of the power which it had before 1788. The citizens of America,
the “conventions” in which they assembled, commanded otherwise. “When
the American people created a national legislature, with certain
enumerated powers, it was neither necessary nor proper to define the
powers retained by the States. These powers proceed, _not from the
people of America_, [the “conventions” named in the Seventh _and the
Fifth_ Articles] _but from the people of the several states_; and
remain, after the adoption of the Constitution, what they were before,
except so far as they may be abridged by that instrument.” So spoke
Marshall from the Supreme Court Bench, in 1819, after he had come from
one of those “conventions” in which he himself had stated: “It could
not be said that the states derived any powers from that system, [the
new Constitution then before the convention in Virginia] but retained
them, though not acknowledged in any part of it.” (3 _Ell. Deb._ 421.)
Yet every brief of those fifty-seven lawyers bases its every argument
on the sheer assumption, asserted by all, that the Fifth Article is a
“grant” to the state legislatures which makes them attorneys in fact
for the citizens of America. No brief can offer and no brief does
offer the slightest proof in support of the assumption. But no brief
_asks_ for proof of the assumption or challenges the assumption. On the
contrary, every brief makes the assumption and asserts it and on it
rests every argument.
Because of this monumental error, every brief _for_ the Amendment
insists that the state legislatures, as attorneys in fact for the
citizens of America with _every_ power of the citizens of America,
validly made the Eighteenth Amendment.
Because of this monumental error, every brief against the Amendment
asserts that the state legislatures are attorneys in fact for the
citizens of America but insists that the Fifth Article (the assumed
power of attorney in a Constitution which expressly declares that
_no_ power is given to the state legislatures) grants to the state
legislatures (as well as to the “grantors” themselves) only _limited_
ability on behalf of the principal, the citizens of America. On this
altogether unique argument, it is contended that the limited power
of attorney does not confer ability to make an Amendment like the
Eighteenth.
Because all briefs make the same monumental error, there is no
challenge on the ground that the state legislatures, not a member
of which is elected by the citizens of America, hold _no_ power of
attorney from the citizens of America to interfere in any way, in any
matter, with the individual freedom of the American citizens. Because
all briefs against the Amendment make the same monumental error,
the fourth challenge (which _was_ made and considered by the Court)
is based upon the heretical doctrine--the heresy being clear from
what we have heard in the “conventions” where we sat--that the Fifth
Article does not mention a CONSTITUTIONAL mode in which the citizens
of America, again assembled in their “conventions,” can take back from
their American government any enumerated power of the First Article
which they find oppressive to their individual rights and freedom.
And, perhaps most amazing and amusing fact of all, because all briefs
make the same monumental error, the briefs _for_ the Amendment make
no effort to support and the briefs _against_ the Amendment make no
attempt to challenge the clear paradox, on which the Eighteenth
Amendment depends for its existence, that there never has been a
citizen of America if it be true that the Fifth Article makes the state
governments the attorneys in fact _for_ the citizens of America with
_unlimited_ ability to interfere with the individual freedom of the
citizens of America. Where such unlimited ability _is_ in government,
men are not “citizens” but “subjects.”
But we ourselves come from the “conventions” where the Americans
knew that they entered as free men and left as citizens of America,
not as “subjects” of any governments. Therefore, we need no lawyer
to tell us--and no lawyer can deny our knowledge--that, if the state
governments are the attorneys in fact for the American citizens and
have ability either to interfere with or to grant power to interfere
with the individual liberty of the American citizens, or, if _any_
governments can interfere with that liberty on a matter not enumerated
in the First Article, there never were American citizens and the
early Americans entered their “conventions” free men but left those
“conventions” as “subjects” of an omnipotent government.
CHAPTER XXIV
GOVERNMENTS CLAIM AMERICANS AS SUBJECTS
“Is the government of Virginia a state government after this government
is adopted? I grant that it is a republican government, but for what
purposes? For such trivial _domestic_ considerations as render it
unworthy the name of a legislature.” (3 _Ell. Deb._ 171.) So thundered
Patrick Henry to the Americans assembled in convention in Virginia,
while these Americans still heard the echo of his charge that the
new Constitution made the state legislatures “weak, enervated and
defenseless governments.”
But these are the governments which all lawyers of 1920 “knew” had been
made the attorneys in fact for the citizens of America, possessors
of the supreme will in America. These are the governments to which
all advocates of the Eighteenth Amendment contend that the Americans,
in the “conventions” with Henry, gave the entire omnipotence of the
American people to be exercised by these governments, without any
constitutional restraint.
The real fact is, although all lawyers of 1920 failed to know the
fact, that these state governments were only named in the Fifth
Article, _because_ they already had an existing limited ability to
make _federal_ Articles, an ability _not_ granted by the citizens _of
America_ but possessed by each of those governments as attorney in
fact for the citizens _of its own state_. That it _was_ an ability not
granted by the citizens _of America_, must be apparent when we recall
that it was exercised by those governments in 1781--seven years before
there was such a thing as a citizen of America. That the lawyers of
1920 neither knew nor realized the importance of this fact, is apparent
when we recall that every brief of _those_ lawyers asserted that these
governments get their ability to make Articles by a “grant” in the
Fifth Article.
Our knowledge of the nature of _every_ challenge to the new Amendment,
and our knowledge that each challenge involved the assumption that
the Fifth Article _was_ a “_grant_” to these state governments, is a
knowledge which is certain from our study of the conclusions of the
Supreme Court which negatived each challenge.
The certainty is emphasized by our memory of the reply of Rice in that
Supreme Court, when, without one dissent from the challengers, he
stated his and their conviction that the “conventions” of 1788--the
challengers all forgetting that those “conventions” named _themselves_
in the Fifth Article--provided no CONSTITUTIONAL mode of procedure
in which their own exclusive power could be again exercised to make
Articles like the First Article and the Eighteenth Amendment.
Let us again emphasize our certainty by a few moments with the briefs
of the challengers.
Root was their leader. A distinguished public leader and considered by
many to be the leader of the American Bar, there was special reason why
_he_ should have known the ability of _government_ to _make_ national
Articles in a Constitution, _only_ when men are “subjects,” and the
inability of _governments_ to _make_ such Articles, when men are
“citizens.”
If his brief, or the brief of any challenger, had urged this real and
invincible challenge, we would have found the mention of that challenge
in the decision _and it would not have been a refutation of that
challenge_. That we may confirm our knowledge that the brief of Root,
_like the brief of every challenger_, did not make this challenge, the
challenge that the Fifth Article is _no “grant”_ but a _mention_ of
two existing abilities and a mode of CONSTITUTIONAL procedure for the
respective exercise of each, let us read the brief’s own statements of
the three challenges it does make. “The plaintiff contends that this
attempted amendment to the Constitution of the United States is invalid
(1) because it constitutes mere legislation, and is, therefore, not
authorized by Article V of the Constitution, (2) because it impairs
the reserved police or governmental powers of the several States and
their right to local self-government, and (3) because it has not been
ratified by three fourths of the several States since it has not been
submitted to the electorate of the States in which the initiative, or
the referendum, or both, prevail (assignment of errors Nos. 1-5). These
questions are discussed in points II, III, and IV, respectively. In
point I the prior amendments to the Constitution are considered with
reference to these contentions, and in point V the justiciability of
the contentions is maintained.”
Its first challenge is itself the admission that all CONSTITUTIONAL
ability to change our Constitution is ability “_granted_” in the Fifth
Article. Moreover, it is the flat denial of any CONSTITUTIONAL mode
of procedure in which the citizens of America, by a “Yes” from three
fourths of their assembled “conventions,” can enact the legislation
which is Section One of the supposed Eighteenth Amendment.
Its second challenge is wholly on behalf of the political entities,
which are the states. It not only makes no claim for the rights of
American citizens, but it denies any CONSTITUTIONAL ability in the
American citizens to interfere, by changing the American Constitution,
with what _the American citizens_ reserved to each state and _its
citizens_.
The third challenge again fails to assert any claim on behalf of the
rights of the _American_ citizens. It is the challenge negatived by the
third conclusion of the Supreme Court. It is the challenge that the
citizens _of the State_, in some of the states, are part of the state
legislature.
If we want further confirmation of our knowledge that this brief does
not make the real challenge, namely, that the Fifth Article is no grant
to the supposed grantors and the state governments, we find it in the
fact that the brief itself refers over fifty times to the Fifth Article
_as a “grant”_ of limited ability to make Articles.
If we need further confirmation, we find it in this fact. After the
Supreme Court had negatived every proposition in that brief, its
writers made application for a reargument. The application was based
on one ground as far as concerned the _validity_ of the Amendment.
That one ground was that the Court had written no opinion. From this
one fact, the claim was made that the Court could not have considered
the potency of the three challenges which had been urged in the brief.
Educated with the earlier Americans, we believe that each of these
three challenges, in its very statement, shows why it is unsound, and
that no opinion was needed to explain its refutation. But the nature of
the application shows the continued concept of the Fifth Article as a
“grant.”
If we look at the other briefs against validity, we will find all
arguments based on the same monumental error that the Fifth Article
_is_ a “_grant_” and that the state legislatures are therein named
the attorneys for the citizens of America, although the latter, _as
citizens of America_, never elect a single member in those legislatures
and the Tenth Amendment expressly declares that the Constitution gives
no power of any kind to the states or their legislatures. On the
impossible hypothesis of this monumental error are budded the most
extraordinary arguments.
In more than one brief, it is urged that, in the Fifth Article, the
whole people of America made a certain number of state legislatures
their own attorneys in fact to amend the _American_ Constitution.
But, urges the brief, the _American_ people have no power to change
the state constitutions, and “therefore, the grantees,” the state
legislatures, “cannot exceed the powers of their principal, the people
of the United States.” And, the brief goes on, as the people of America
cannot change a _state_ constitution, neither can the attorneys in fact
of that whole American people, the state legislatures, change it. The
ability of the people or citizens of America and of “_their_” attorneys
in fact, the state legislatures, is only competent to change the
Constitution of the citizens of America. But this Eighteenth Amendment
changes the Constitution of each state. Ergo, that change is clearly
beyond the power of the citizens of America and “_their_” attorneys in
fact, the state legislatures!
It will serve no useful purpose for us to dwell further upon the briefs
against validity. They all show the universal conviction that the Fifth
Article _is_ a “grant” and makes the state legislatures attorneys in
fact for ourselves, the citizens of America, who elect not a single
member in the state legislatures. Naturally, as this fundamental
error is the invincible conviction of all counsel against validity
before any brief is written, none of those briefs mentions such simple
facts as the fact decided by the Supreme Court in Barron v. City of
Baltimore, 7 _Pet._ 243. That decision, by John Marshall, decisively
settled the legal fact that the Fifth Article grants no power to the
state legislatures to make the Eighteenth Amendment. _And_, as it also
decisively settled that the Fifth Article _does not give_ the state
legislatures _any_ power whatever, it destroys the absurd concept
that the Fifth Article makes the state legislatures attorneys in
fact for those who made the Fifth Article, the citizens of America,
the “conventions” of the Fifth Article and the Seventh Article. But
lawyers, who start to write briefs with the certain (although false)
“knowledge” that the Fifth Article _does_ make the state legislatures
attorneys in fact for the citizens of America, neither know the meaning
of that decision nor state the decision and its meaning and its effect
upon the Eighteenth Amendment in the briefs which they write. The
decision is very clear. We have met it earlier in our education herein.
It will bear repetition right now, when we find fifty-seven lawyers all
“knowing” that the Fifth Article (despite the declaration of the Tenth
Amendment) does give power to the state governments and, by giving it,
makes these governments attorneys in fact for the citizens of America.
Barron claimed that a state statute was void because it came in
conflict with the restriction imposed by the Article which is the Fifth
Amendment to the American Constitution. If the restriction applied to
the state legislatures and their powers, the statute was clearly void.
Therefore, as Marshall pointed out, the Court had but one question
to solve, whether the American Constitution (in which is the Fifth
Article) granted _any_ power to the state governments. If it did, then
general restrictions in that Constitution, as they clearly applied
to all powers _granted_ in that Constitution, applied to the state
governments. On the contrary, if the Constitution granted _no_ power to
the state governments, general restrictions in the Constitution would
not apply to the state governments. For which reason, the decision of
the case itself was to depend on one thing alone, whether there _was_
any power granted in the entire Constitution to the state governments.
If there was not, the decision would be against Barron.
The question thus presented is, we think, of great importance, but
not of much difficulty. The Constitution was ordained and established
by the people of the United States for themselves, for their own
government, and not for the government of the individual states. Each
state established a constitution for itself, and in that constitution
provided such limitations and restrictions on the powers of its
particular government as its judgment dictated. The people of the
United States framed such a government for the United States as they
supposed best adapted to their situation, and best calculated to
promote their interests. The powers they conferred on this government
were to be exercised by itself; and the limitations on power, if
expressed in general terms, are naturally, and, we think, necessarily,
applicable to the government created by the instrument. They are
limitations of _power granted in the instrument itself_; not of
distinct governments, framed by different persons and for different
purposes.
It would have been impossible for Marshall to have stated more plainly
that the “instrument,” the Constitution (which contains the Fifth
Article), _grants no powers whatever to the state governments_. On
that fact, the fact being the simple answer to the question “of
great importance but not of much difficulty,” Marshall decided that
the general restrictions (applying only to powers _granted_ in the
Constitution) did not apply at all to the state governments, to whom
the Constitution granted no power whatever.
And so we Americans, trying to find the “when” and “how” (between, 1907
and 1917) we became subjects, cannot find the supposed answer anywhere
in the briefs against validity. All that we do find of interest to us,
in those briefs, is that the briefers, either with or without knowledge
of the fact, are meeting a claim that there never was an American
citizen and that the American people became “subjects” when they made
the Fifth Article on June 21st, 1788.
By reason of our education in the making of the Fifth Article, we
know the answer to the absurd claim. The answer is one that cannot
be denied unless there are facts which we have not learned in our
education. Therefore, we go quickly to the briefs of those who make the
claim, those who upheld the existence of the Eighteenth Amendment, to
ascertain what are the _new_ facts on which they base their claim that
there never was an American citizen and that the Fifth Article made the
American people “subjects.”
These opponents were led by Hughes. In this litigation, _he_ should not
have forgotten that there are limits to the powers of every government
in America. In the following January, he appeared in the same Court,
to prove that there is limit to the power of the _supreme_ legislature
in America, the Congress.
That Congress had passed a statute, known as the “Corrupt Practices
Act.” In it, certain practices, at federal primary and other elections,
were prohibited and made criminal offenses. His client had been
tried and convicted by a jury as guilty of one of these practices in
a primary election for the nomination to the Senate of America. On
the appeal to the Supreme Court, Hughes urged that, as our American
government _is_ a government of _enumerated_ powers, _incidentally
a fact which his claim for the state governments in the National
Prohibition Cases flatly denies_. Congress could not _validly_ pass the
statute, under which his client had been convicted, unless the power to
pass a statute in that particular matter was found in some enumerated
power in the Constitution. The Constitution clearly gave Congress
power to pass laws concerning “elections” for federal officers. But,
urged Hughes, the Americans of 1788, the “conventions” in the Fifth
and Seventh Articles, did not know anything about “primary” elections.
Therefore, urged Hughes, Congress has not the power to make the same
thing a penal offense at “primary” elections, which Congress can make
a penal offense at the regular elections. By a divided Court, this
argument, based on the claim of _limited_ power in the _supreme_
legislature to prohibit what a candidate for Senator may do, was
sustained and the conviction was reversed.
It is amazing, therefore, to turn to the Eighteenth Amendment brief
of the same briefer, a few months earlier, and to find him contending
for his clients therein, twenty-four governments of state citizens, an
absolute omnipotence to interfere with individual freedom of American
citizens on every subject. And it is startling to find, in this brief,
audacious denial of any right in the Supreme Court even to consider
whether these governments of state citizens have that omnipotence over
the American citizen.
In the case of the candidate for Senator, it was his concept and his
claim that the Supreme Court can decide that the _supreme legislature_
in America had not the power to make a certain command to candidates
for seats in the American Senate. This is the doctrine that the only
government of the American citizens is a government of enumerated
powers. In the Eighteenth Amendment litigation, the following is
his contention, that thirty-six governments of state citizens (the
_inferior_ legislatures in America) have unlimited power, without any
constitutional restraint, to make commands to the American citizens on
any matter whatsoever:
“We submit that the conception involved in the bill of complaint, that
an amendment duly submitted by Congress on the vote of two thirds of
each House, and duly ratified by the legislatures of three fourths
of the States, is still subject to judicial review, and may be held
for naught through judicial action by virtue of a process of implied
restrictions upon the amending power--restrictions which thus set up by
judicial decree would be unalterable by any constitutional process--is
a conception of the most extravagant character and opposed to the
fundamental principles of our government. No principle of judicial
action can possibly be invoked for sustaining such an authority. The
propriety and advisability of amendments, which are not prohibited by
the express exceptions in Article V, are necessarily confided to those
through whose action the amendments are to be made.”
We are quite accustomed to have men like Anderson maintain that
governments of state citizens have outlawed _for the citizens of
America_ a traffic which Madison hoped would take deep root everywhere
in America, a rightful traffic by human beings “so recognized by the
usages of the commercial world, the laws of Congress, and the decisions
of courts.” (Leisy v. Harden, 135 _U.S._ 100.)
When Americans were fighting on the battlefields of the Revolution for
human liberty, Walter Butler stirred up the House of the Six Nations to
make a home attack. It was natural, therefore, when Americans in 1918
were fighting on the battlefields of Europe for human liberty, that
Anderson and men of his type should stir up the Houses of thirty-six
nations to make a similar home attack. Americans will probably always
have Butlers and Andersons to stir up home attacks, when Americans are
away on the battlefields.
But it is a grave matter when one who has sat on the Bench of the
Supreme Court later contends that the Court has no ability even to
review an attempted effort of the legislatures of state citizens to
command the citizens of America on a matter not enumerated in the First
Article.
From the “conventions” of the early American citizens, we bring the
knowledge that it is the bounden duty of the Supreme Court to determine
that the governments of state citizens have no power whatever to
interfere with the individual freedom of American citizens in any
matter whatsoever. From those “conventions,” we bring the certain
knowledge that the main purpose of the establishment of the Supreme
Court, as one department of the only and limited government of American
citizens, was that the Supreme Court might protect every individual
liberty of the American citizen from usurpation of power by all
governments in America.
Any concept to the contrary is the most Tory doctrine ever stated
as American law since July 4, 1776. It is blind to the fact that,
by the Constitution, the whole American people, “in their aggregate
capacity,” created a new nation of men and set it above the existing
and continued federation of states; to the fact that the whole American
people made that Constitution one with _national_ Articles, relating
to the government of men, and with _federal_ Articles, relating to
the government of states; and to the fact that the whole American
people knew and settled that only “conventions” of themselves could
make _national_ Articles, although state legislatures, as attorneys in
fact for their respective states, could make _federal_ Articles; and
to the fact that the Tenth Amendment names two distinct reservees of
existing power, “the states respectively,” who are the members of the
subordinate federation, and “the people,” who are the members of the
supreme nation of men; and to the fact that the Fifth Article grants no
power whatever but mentions the “state legislatures,” who act for the
members of the federation, and the “conventions,” who alone can ever
act for the members of the supreme nation, when the latter are to make
a change in _their_ part of the Constitution, the _national_ part.
But we find the brief of Hughes, like the briefs of his associates,
actually challenging any right of review by the Supreme Court, when
the attorneys in fact for the states and state citizens, although
the states have nothing whatever to do with _that_ part of the dual
Constitution which relates _to the nation of men_, actually attempt to
change the quantum of power (to interfere with their own individual
freedom) granted by the nation of men to their only government. His
challenge even goes to the extreme of boldly asserting that the
“propriety and advisability of amendments,” even though they infringe
upon the individual freedom of the members of the nation of men, must
be finally determined by the governments of state citizens, which have
nothing to do with the nation of men which is America. His challenge
is that the Supreme Court is powerless to protect the liberty of the
American citizens if thirty-six governments of state citizens decide
to interfere with that liberty in matters not enumerated in the First
Article.
The challenge is exactly the challenge of Lord North to the Americans
in 1775. It is exactly the challenge which the British Parliament would
make, if we were still its “subjects.” As basic American law, it is
sheer nonsense.
When we remember the doctrine of this briefer, that there _is_ a limit
to the right of our _supreme_ legislature to prohibit what a candidate
for Senator may do, and compare it with this new Tory concept that
three fourths of the _inferior_ state governments can validly interfere
with every personal liberty of ourselves, we have one or two questions
to ask the briefer. Is it his thought that the supposed citizens of
America made their Constitution with the sole intent that the personal
rights of candidates for Senators should be secure and that the number
of Senators from each state should remain the same? Is it his thought
that the American citizens, from whose “conventions” we have just
come, having settled these amazingly important things about Senators,
then voluntarily granted omnipotence over every individual freedom
in America to a fractional part of the inferior state governments,
twenty-four of whom he represented in the litigation of 1920? Is it
his thought that the whole American people have two governments, one
the government of enumerated powers constituted in the First Article
and the other the government of unlimited power constituted in the
Fifth Article? Is it his thought that his inferior state governments,
although all members of all the state governments collectively could
not enact a statute interfering in the slightest degree with the
American citizen, can issue any command whatever to the American
citizen, and that the citizens of America must obey that command so
long as the state governments call it an Amendment of the American
Constitution?
It is our own certain knowledge that, when governments issue any
command to the citizens of America and the command interferes with
individual freedom, the maker of the command must show the grant of
power to make that particular command. It is the Alpha and Omega of
American law that no government has any just power to make any command
to the citizens of America, except in a matter on which those citizens
themselves have given that government the power to make that particular
command. It is in the primer of American constitutional law, that there
is no government _of the citizens of America_, except the government at
Washington, and that it has no power to command the American citizen,
interfering with his individual freedom, _except_ in the matters named
in the First Article. It is admitted by all, even by the writer of
that brief and his colleagues, that the power to make the command which
is the First Section of the Eighteenth Amendment, is not enumerated in
that First Article. When, therefore, this counsel for twenty-four of
the governments which made that command tells us that, after his client
governments (at the suggestion of our government which could not make
the command) have passed upon the propriety and advisability of the
command, we cannot have the Supreme Court even consider the ability of
his client governments to make the command, our indignation is mingled
with our mirth.
Our indignation need not be explained. Our mirth comes when we think of
our needless fear that something might have happened between 1907 and
1917 by which we became “subjects” instead of the citizens we had been.
Throughout our education we have always known that, _if_ the Eighteenth
Amendment (a NATIONAL article made entirely by GOVERNMENTS) is in the
Constitution, we are “subjects.” We have known that no legislative
governments, before 1787 _and after_ 1776, could have made this general
command to the citizens of America, _because_, during those eleven
years, there was no citizen of America and there were no governments
in the world who could make any _general_ command to the American
people, interfering with their individual freedom on any subject. We
have known, with certainty, that, if the Americans in the “conventions”
(where we have sat) knew what they were doing and the Supreme Court,
for a century, has known what they did, there were no governments in
the world, up to the year 1907, who could make that command _to the
American citizens_. We have gone everywhere to find what happened,
between 1907 and 1917, to change the American citizens into “subjects”
of the governments for whom this counsel appears. Now, after the
fruitless search elsewhere, we are reading his brief to find out what
did happen between 1907 and 1917. His plain answer, as we have already
sensed, is--“NOTHING.”
Our mirth entirely dispels our indignation, when we sense his full
concept of the nature of that absurd Fifth Article “grant” to his
government clients. That we may not mistake his concept, the most Tory
concept ever stated as law in America since 1776, he explains it again
and again in his briefs. It is his concept that the absurd supposed
“grant” gives to his client governments, not one member of which is
ever elected by the citizens of America, unlimited and constitutionally
unrestrained power to interfere with the individual freedom of the
American citizen on every matter or, as the Declaration of ’76 put it,
in its complaint against the English King and _his_ legislature, to
legislate for us on all matters whatsoever.
And our mirth is not lessened when we read, in this brief, John
Marshall’s full statement of the making of the Constitution (with the
Fifth Article in it) and John Marshall’s clear decision that it was all
made by the citizens of America, the “conventions” of the Seventh and
the Fifth Articles.
No statement of facts could ever be written, which more absolutely
destroys the concept that the state governments have the omnipotence
denied to the English Parliament, than the quotation from John Marshall
which we read in this brief to support that concept.
Throughout the quotation, with which _we_ are all very familiar,
Marshall points out that there is a vital distinction, amazingly
important to individual freedom, between the ability of the
“conventions” (named by exactly the same name in the Fifth as well as
the Seventh Article) and the limited ability of the same “legislatures”
for which this counsel appeared in 1920. In the quotation Marshall
points out that, when the American citizens are to make a NATIONAL
Article, like the First Article and the Eighteenth Amendment, there
is but one way in which they can make it “safely, EFFECTIVELY and
wisely,” “by assembling in convention.” That all of us, including
that counsel of 1920, may not find any excuse for an assumption that
state governments can ever make Articles _of that kind_, Marshall
dwells at length upon the _inability_ of state governments or any
governments to make them or any Article like them. He tells us that,
when the _American_ people make Articles _of that kind_, in the only
way in which they can ever EFFECTIVELY make Articles _of that kind_,
by assembling in “conventions,” “_they_ act _in_ their states. But
the measures they adopt do not, on that account, cease to be the
measures of the people themselves or become the measures of the state
governments.” “From these conventions the Constitution derives its
whole authority.” “It required not the affirmance, and could not be
negatived, by the state governments. The Constitution, when thus
adopted, was of complete obligation and bound the state sovereignties.”
Up to the last short sentence _we_ have just quoted from the decision
so familiar to us, Hughes quotes at length and without omission. Hughes
is in Court for those “state legislatures” and state sovereignties,
which Marshall’s decision finds to be legislatures and sovereignties
wholly inferior in ability to the “conventions” of the American
people, named in the Fifth and Seventh Articles by exactly the same
name--“conventions.” How does the great lawyer of 1920 find, in this
Marshall decision, support for the unique idea that these state,
governments are omnipotent over every right of the American citizens
who sit in those “conventions”? His remarkable claim is that the
state governments he represents have omnipotent ability to command
or interfere with anything in America, except one thing. It is his
claim that these governments have omnipotent ability to interfere with
the citizens of America, with the Constitution of America, with the
government of America, with anything in America, _except_ that they
cannot interfere with that one thing for which the Revolution was
fought, the Statute of ’76 enacted and the Constitution established.
In the view of Hughes, that one thing apparently is the right of every
state to have the same number of Senators. Our indignation is entirely
dispelled when we realize that he sincerely believes this nonsense. Our
mirth is merely increased when we find him quoting, at some length,
this decision of Marshall, evidently under the impression that the
decision supports the nonsense.
But, we wonder why, at the particular point which we have reached in
the Hughes quotation from Marshall, the former puts “stars” instead of
the next paragraph in the Marshall decision? Certainly, when the great
lawyer of 1920 has such faith in the omnipotence of his government
clients over us their “subjects,” it cannot be that there is anything
in the missing Marshall paragraph to disturb that faith! Yet, as we
read the missing paragraph, with which we are quite familiar, doubt
assails us. _Is_ the great lawyer of 1920 sincere or does he know that
the position of his clients in relation to the Eighteenth Amendment is
nonsense?
What is the missing Marshall paragraph with which we are so familiar?
Lo and behold! it is our constant companion throughout our education
in the days of the early Americans. It is the paragraph in which the
Supreme Court, by Marshall, points out why the Philadelphia Convention
of 1787 found themselves compelled to send their First Article,
with its grant of _national_ power like the grant in the Eighteenth
Amendment, to the “conventions,” named in the Seventh and the Fifth
Articles, _because_ the state governments, the clients of Hughes,
were known and recognized by everybody to be without ability to make
_national_ Articles. In other words, it is the paragraph in which
Marshall announces what we have learned so clearly ourselves, that
“to the formation of a league, such as was the Confederation [to the
making of _federal_ Articles] the state sovereignties were certainly
competent. But when ‘in order to form a more perfect Union,’ it was
deemed necessary to change this alliance into an effective government,
possessing great and sovereign powers and acting directly on the
people, the necessity of referring it to the people [the conventions of
the Fifth and the Seventh Articles] and of deriving its powers directly
from them was felt and acknowledged by all.”
We know this paragraph of Marshall’s, omitted from the Hughes brief, to
be the epitome of everything that we have heard in the “conventions”
which made the Fifth Article. We remember that even Henry, from the
very fact that the “conventions” of the American citizens _were_
assembled, knew that the _then_ proposed Articles did grant power to
interfere with human freedom. And we remember (because he knew the
inability of state governments ever to make such grants) that, on the
fact that “conventions” _were_ assembled, he based his charge that
the proposed Articles _were_ NATIONAL and not _federal_. We remember
that the Tenth Amendment declares that the entire Constitution,
including the Fifth Article, gave no power of any kind to those
state governments. And so we know, what Henry knew, that the state
governments did not _have_, and that _the Fifth Article did not give
them_, any ability to make NATIONAL Articles, like the First Article
and the Eighteenth Amendment.
For which reason, we cannot (looking at the matter purely from the
standpoint of lawyer’s attitude to his government clients) blame Hughes
for putting the stars in his quotation from Marshall.
Eager to remain free citizens, eager to have all governments recognize
that we are not “subjects,” we ourselves commend, to the writer of
that brief and to all who uphold the Eighteenth Amendment, the entire
decision of Marshall in M’Culloch v. Maryland. For instance, we commend
this clear statement of basic American law:
If any one proposition could command the universal assent of mankind
[except those _for_ the validity of the Eighteenth Amendment], we
might expect it would be this:--That the government of the Union,
though limited in its powers, is supreme within its sphere of action.
This would seem to result necessarily from its nature. It is the
government of all; _its powers are delegated by all_; it represents
all, and acts for all. Though any one state may be willing to control
its operations, _no state_ is willing to allow _others_ to control
them. The nation, on those subjects on which it can act, must
necessarily bind its component parts.
Among other things, this statement, itself but a repetition of
everything that we have learned by our experience with early Americans,
emphasizes the important fact that the nation, which is ourselves, has
but one government, the government “limited in its power.” Which fact
clearly demonstrates that the state governments, not being that one
government of “limited powers,” are not the attorneys in fact for the
citizens of _America_, in any matter whatsoever, and cannot command us,
as they attempt to do in the First Section, or grant power to command
us, as they attempt to do in the Second Section of the Eighteenth
Amendment.
Again this same decision of Marshall holds clearly: “In America, the
powers of sovereignty are divided between the governments of the Union
and those of the State.” The claimed ability of the Hughes government
clients, their claimed ability to _make_ the NATIONAL new Article in
our Constitution, rests entirely upon the absurd doctrine that, _above_
the two sovereignties which Marshall names, there is an omnipotent
legislative sovereignty, without any constitutional restraint, the
sovereignty of three fourths of the very state governments which
Marshall mentions.
In the same M’Culloch v. Maryland, Marshall pays a tribute to an
accurate knowledge, which we have acquired in our education with
the early Americans. It is the knowledge that everything in the
Constitution denies any ability in even all the states _as such_, or
in all the state governments, each of which is never anything but a
government of the citizens of _one_ state and _their_ attorney in fact
as _state_ citizens, to alter in any way the NATIONAL part of _our_
Constitution (which Constitution is both _national_ and _federal_)
because the NATIONAL part relates to direct interference with the
individual freedom of the _American_ citizens. This is his tribute to
the truth of the knowledge which we have acquired. He says that there
is “a principle which so entirely pervades the Constitution, is so
intermixed with the materials which compose it, so interwoven with its
web, so blended with its texture, as to be incapable of being separated
from it without rending it into shreds. This great principle is, that
the Constitution and the laws made in pursuance thereof are supreme;
that they control the Constitution and laws of the respective states
and cannot be controlled by them.”
And so we average Americans find naught but encouragement in the brief
of Hughes. From its quotations, from its every statement, we learn that
we have known all the facts, before we read it, and that we are free
citizens and not “subjects.” In that brief of the champion of champions
of the governments that “made” the new NATIONAL Article, we learn that
there are no new facts on which to base the claim that we, the whole
people of America, have another government besides the government
of enumerated powers, the claim that we are “subjects” and that our
new omnipotent Parliament wears the aspect of thirty-six inferior
governments, each elected by the citizens of a nation which is not
America.
In the brief of this champion, we find no pretense that there is
any support for this weird claim. On the contrary we find the whole
claim depending entirely upon the sheer assumption--asserted as if
to state it was to state an axiom--that the Fifth Article _is_ a
“grant,” wherein the “conventions” grant _to the grantors_ and to the
state governments ability to exercise omnipotence over the American
citizens, ability to interfere with their individual freedom, in any
matter whatsoever.
In his brief, Hughes emphatically asserts the truth that “the people
never become a legislature.” Yet, the basis of his whole argument is
that what “the people” of the Tenth Amendment expressly reserved to
themselves may be given away by the “legislatures” of the states,
although the “states” are an entirely different reservee in the Tenth
Amendment. He does not know, what all knew when the Fifth Article
was made, that the “conventions,” who made it and who are named in
it, meant “the people” themselves. He does not know the tribute of
Madison, in the Virginia convention which ratified the Fifth Article,
to the American “conventions” in which the people themselves directly
constituted new government of men; “Mr. Chairman: Nothing has excited
more admiration in the world than the manner in which free governments
have been established in America; for it was the first instance,
from the creation of the world to the American Revolution, that free
inhabitants have been seen deliberating on a form of government, and
selecting such of their citizens as possessed their confidence, to
determine upon and give effect to it.” (3 _Ell. Deb._ p. 616.)
Hughes does not know, as Story did, that the drafter and the makers
of the Fifth Article put into it the lessons of their own experience
in the making of _national_ Articles, by the “conventions” of 1776,
and in the making of _federal_ Articles by the state “legislatures”
between 1777 and 1781. “It is wise, therefore, in every government, and
especially in a Republic, to provide means for altering and improving
the fabric of government as time and experience or the new phases of
human affairs may render proper to promote the happiness and safety of
the people. The great principle to be sought is to make the changes
practicable, but not too easy; to secure due deliberation and caution;
_and to follow experience_, rather than to open a way for experiment
suggested by mere speculation or theory.” (2 Story on the Constitution,
Sec. 1827.)
For all of which reasons, Hughes and his associates, although they
might be certain that the people never became the legislature, were
not aware that, to the Americans who made the Fifth Article, its
“conventions” _were_ “the people” of the Tenth Amendment.
Naturally, we are not surprised to find a briefer who ignores this
fact, possibly the legal fact in America most important to individual
liberty, also indulging in the monumental error of the thought
that these “conventions,” in their Fifth Article, made a grant, to
_themselves_ and to his clients, of equal omnipotence over themselves,
the citizens of America. We recognize that, if the Article was such a
grant to his clients, the grant would have been the greatest grant ever
made in the history of mankind. We recognize that it would have been a
grant by three million free men, four years after the war by which they
had become free men, surrendering to governments absolute control of
every individual liberty and making themselves absolute “subjects.”
We know that Hughes _did_ maintain that the one government created by
or given any power in the Constitution, in which is the Fifth Article,
had not power to forbid a candidate for Senator to do what he did. It
is interesting and instructive to know that the same lawyer holds,
as an axiom which needs no proof, that the same Constitution gave
unlimited ability to his client governments to interfere with every
individual liberty of the Americans who are not candidates for a
Senatorship.
We have the word of the man who wrote the language of that Fifth
Article that it is merely “a mode of procedure” in which may be
exercised either the existing unlimited ability of ourselves in
“conventions” or the limited ability of the state governments to
make _federal_ Articles. _We_ recognize, no one who reads it could
recognize otherwise, that the Fifth Article, outside of two exceptions
to CONSTITUTIONAL exercise of existing abilities to make Articles,
contains nothing but procedural provisions. This knowledge we brought
to the reading of the Hughes brief, after we had acquired the certainty
in our education with the Americans who made the Fifth Article. Then
we read this brief of the champion of champions for the validity of
the supposed new Article and found therein the sheer assumption, as an
axiom which needed no proof, that the Fifth Article, with nothing but
its procedural provisions, was a grant of omnipotence to his government
clients over ourselves!
Imagine, therefore, our amazement _and our amusement_, in the same
brief, to find this clear echo of the statement of Madison and of our
own knowledge, this accurate and complete statement of exactly what the
Fifth Article contains: “Article V, _apart from procedural provisions_,
contains two limitations of the power to amend, as follows: ‘Provided
that no Amendment which may be made prior, etc.’”
If, “_apart from procedural provisions_,” the Article has nothing but
“two limitations” of existing abilities to make Articles, where does
he or anyone find in it the greatest “grant” known to the history of
mankind?
When this briefer made his argument for his client who had been a
candidate for Senator, he had no attack to make upon the _procedure_
in which Congress had passed the Corrupt Practices Act. When he went
to ascertain whether Congress had the power to make that command,
about “elections,” he did not look for the power in any “procedural
provisions,” which prescribe _how_ Congress should exercise its ability
to make commands.
If this briefer or any lawyer were asked, on behalf of a client,
to accept a bill of sale from an _alleged_ attorney in fact of the
owner of a cow, he would not seek, in any procedural provisions which
prescribed _how_ an attorney in fact can execute an instrument for his
principal, to find the authority of the alleged attorney to sell the
cow.
Why then, in an Article with naught but procedural provisions and two
limitations on power to make Articles, do he and all his associates
seek to find, _and assert that they do find_, grant of authority to the
inferior governments of state citizens to give away every liberty which
the citizens of America hold most dear?
CHAPTER XXV
CITIZEN OR “EIGHTEENTH AMENDMENT”?
It is our invincible knowledge that the Fifth Article is not a power
of attorney to any one to act for us, the citizens of America, in
regard to any individual right which the _American_ citizen has. In our
capacity as American citizens and in “conventions” of the very kind
named in that Fifth Article, we gave the only power of attorney, which
we have ever given to any government to act for us in making commands
to interfere with any of our individual rights. That power of attorney
is the First Article. We made it in the same “conventions.” In it, we
gave to our Congress our only power of attorney _of that kind_. In
it, with futile effort to keep modern “constitutional thinkers” from
monumental error, we said, at the very beginning of the one Article
which is our only power of attorney, that to our Congress alone the
Constitution gives any powers to make commands that interfere with our
individual rights. “All legislative powers herein granted shall be
vested in a Congress, etc.” (Art. I, Section I. _U.S. Cons._)
In those same “conventions” (named in the Fifth Article) we insisted,
again in futile effort to keep modern “constitutional thinkers” from
monumental error, that there be written the exact declaratory statement
that the entire Constitution gave no power (to act for us, the
citizens of America, in any matter) to any donee except our new general
government, the government of the First Article enumerated powers. And,
in those “conventions,” we insisted that there be written into that
Constitution the accurate declaratory statement that all powers to act
for us in any matter, except the powers _of that kind_ we gave to that
one limited general government, we retained exclusively to ourselves,
the citizens of America, that they might be exercised only _by
ourselves_ or upon further grant _from ourselves_. Those two important
declaratory statements were written into that Constitution in the shape
of the Tenth Amendment.
That we ourselves might have a CONSTITUTIONAL mode of procedure
in which _constitutionally_ we could make that future exercise or
further grant of those powers which we reserved to ourselves, we named
ourselves--the “conventions” of the kind in which we sat--in the Fifth
Article and provided therein the CONSTITUTIONAL mode in which we
_could_ again do exactly what we were then doing in the same kind of
“conventions.” It was impossible for us in those conventions, “being
a people better acquainted with the science of government than any
other people in the world,” to anticipate that modern “constitutional
thinkers” should make the ludicrous mistake of inferring, from that
mention, that we--the “conventions”--granted to ourselves--the
“conventions”--all or some of the very power we were then exercising
in those “conventions.” Nor did we anticipate, inasmuch as _we_ (in
those “conventions”) never forgot that this new Constitution was
to be _federal_ as well as _national_, that modern “constitutional
thinkers” would make another monumental error in assuming that a
similar _mention_ of the existing ability of state legislatures (the
ability to make _federal_ or declaratory Articles) was a _grant_ to
those governments of our own power to make _national_ ones. Even if we
had possessed (in those “conventions”) the vision to see the future
that was 1920, we would have felt that the Statute of ’76, the opening
words of the First Article and the explicit declarations of the Tenth
Amendment made any such error impossible for modern “constitutional
thinkers.”
Yet, one or more of such errors are the basis of every argument in
every brief of the fifty-seven lawyers of 1920.
They are the basis of the Root briefs and the other briefs _against_,
as they are the basis of the Hughes briefs and the other briefs _for_,
the validity of the supposed new Amendment. Not a single one of the
briefs fails to _assume_, without the slightest foundation, that the
state governments, not a member of which is elected by the citizens of
America, _are_ attorneys in fact for the citizens of America. Wherever
one brief differs from another in this respect, it is only in urging
some difference in the extent of the power of attorney made to those
governments by the citizens of America in the Fifth Article.
For which reason, we, who have come from the days of those early
Americans, strong in the knowledge that we are citizens and not
“subjects,” are now satisfied that none of these modern “constitutional
thinkers” can disturb our certain knowledge. It is a matter of no
concern to us that some of them, because they did not have our
knowledge, failed to win their litigations for their clients. It
is, however, a matter of great concern to us that supporters of the
Eighteenth Amendment should be found maintaining, as if it was an
axiom needing no proof, that we are “subjects” of the governments they
represented.
We need spend very little further time in the briefs of those who so
maintain. We have no patience with their Tory concept of the relation
of men to governments. We KNOW that Tory concept never has been
American law since the Statute of ’76. But it would not be proper to
leave their briefs without one glance at some of their heresies, which
are flatly contradicted by everything we have learned in our education.
As a matter of fact, not one of these heresies can stand accurate and
simple statement without exposing its own absurdity.
Some of us are familiar with the book known as “The Comic Blackstone.”
We have thought of it often as we read the briefs of those _for_
validity of the new Amendment--the government constitution of
government power to interfere with the individual freedom of American
citizens. There is, however, a vital difference between the book
and those briefs. The book was a conscious effort to be humorous.
Unconscious humor has never failed to surpass conscious and intended
humor.
We recall our search to know “when” and “how,” between 1907 and
1917, we became subjects. We remember the first glance at the briefs
of 1920. We remember the tribute of one to the simple truth that
“the people do not become a legislature.... As well confound the
creator and the creature--the principal and the agent through which
he acts.” We wonder why the author of this tribute did not challenge
the monumental error of the concept that the Fifth Article (when it
mentions the “conventions” of the American citizens, the greatest
principal in America, and also mentions the state governments, each as
the attorney in fact of another and distinct principal, the citizens
of its own state) is a grant from the great principal to itself and
these mentioned attorneys in fact of others. But we now know why the
author of the tribute made no such challenge. He is Hughes, who rests
his entire argument _on_ the monumental error. We remember, as we
glance at the briefs, that another one challenged the doctrine on which
Sheppard proposed that the Eighteenth Amendment be sent to governments
of state citizens, that such governments might interfere with the
freedom of _American_ citizens. We remember the Sheppard doctrine
as the Calhoun heresy that the states, political entities, made the
Constitution which _we_, the citizens of America, actually made in
our “conventions.” We remember how refreshed we were to find, in our
first glance at the briefs, this statement: “The Constitution is not
a compact between states. It proceeds directly from the people. As
was stated by Mr. Chief Justice Marshall in M’Culloch v. Maryland, 4
_Wheat._ 316, &c.” We remember our thought, when we had just come from
those “conventions,” to find this statement in that brief. We remember
how we anticipated this briefer telling the Court why the states
or _their_ governments, who could not make the First Article, were
incompetent to make the only other supposed grant of power to interfere
with our liberty, the Eighteenth Amendment. Now that we have finished
with the briefs of 1920, we recognize how absurd was our expectation.
The statement that the states, which are mere political entities, did
not make the Constitution, the quotation from Marshall, supporting this
truth and showing that the states did not make it because the states
and their governments cannot make _national_ Articles, are both from
the brief of this same Hughes, the champion of his government clients
and their claimed ability to make _national_ Articles.
We find some considerable amusement in comparing the speech of
Sheppard, proposer of the Eighteenth Amendment, and the brief of
Hughes, champion of the Eighteenth Amendment. If government was to
carry through a successful revolution against free men and acquire
the omnipotence denied to the British Parliament, it would have been
well for the proposers of the Revolution and the champions of it to
have agreed at least upon one fact, whether the states, political
entities, or the citizens of _America_, in _their_ “conventions,” made
the Constitution--which was to secure the American citizen against all
usurpation of power by governments.
But, once we sense the certainty that this revolution of government
against free citizens _cannot_ be successful, once we realize the
certain decision of the Supreme Court when the real challenge is made
to the disguised revolution, we can forget the attempted tragedy of
human liberty. Then we shall know that the entire story of the last
five years is an inexhaustible mine of humor. And, among the briefs of
those who championed this revolution of government against human being,
we shall find no mean rival (in unconscious humor) to any other part of
that story.
We recall, at our first introduction to all the briefs, the epitome
of all the knowledge we had just brought from the early conventions:
“There is only one great muniment of our liberty which can never be
amended, revoked or withdrawn--the Declaration of Independence. In this
regard, it ranks with the Magna Charta.” We recall how pleased we
were to know that the Court must hear another champion of individual
liberty, who also must have come from the “conventions” in which we had
sat. We recall how, in his brief, this truthful tribute to the Statute
of ’76 was immediately followed by the quotation from that Statute,
which includes these words: “That to secure these Rights, [the Rights
of men granted by their Creator] governments are instituted among men,
deriving their just powers from the consent of the governed. That
whenever any Form of Government becomes destructive of these ends,
it is the Right of the _People_ to alter or to abolish it, and to
institute new government, laying its foundation on such principles and
organizing its powers in such form, as to _them_ shall seem most likely
to effect _their_ Safety and Happiness.”
In our eager anticipation to hear his argument and see his brief, how
were we, fresh from the “conventions” in which sat some of the men
who had written that Statute eleven years earlier, to know that the
briefer understood their language to read as follows: “That to secure
these rights of human beings, granted by their Creator, governments are
instituted among men, deriving their just powers from the consent of
_the state governments_. That whenever any Form of Government becomes
destructive of these ends, it is the right of _the state governments_
to alter or abolish it, and to institute new government, laying its
foundation on such principles and organizing its powers in such form as
to _the state governments_ shall seem most likely to effect the welfare
of those who control the state governments.”
That this _is_ the meaning of that Statute to this briefer, we may
realize when we know that the tribute to the Statute and the quotation
from the Statute are in the brief of Wheeler, counsel for the political
organization which managed the new revolution of government against
people and dictated the proposal that governments should constitute
new government of men in America. Now we grasp why this briefer said
that, in the fact that the Declaration of Independence could “never
be amended, revoked or withdrawn,” the Statute of ’76 “ranks with the
Magna Charta.” To this briefer, the Statute of ’76, like the Great
Charter of old, is the ruler government dispensing privileges to its
subjects, the people. That is why this briefer, with his Tory concept
of the relation of government to human beings, does not know that the
Statute of ’76 _is_ the revocation of the principle on which Magna
Charta rested, the doctrine that the government is the State and the
people are its assets.
This briefer, _like all his associates_, does not know the great change
which the American people made in the picture of American government.
We are all familiar with the picture, “His Master’s Voice.” When
those Americans were born, from whose “conventions” we have come, the
listener in that picture was “the people” of the Preamble and the
Tenth Amendment in our Constitution. The voice of the master was the
voice of government. When those Americans died, _they_ had changed
the picture. The listener had become the governments in America, the
voice of the master had become “the people” of America, its citizens.
The new painting of the picture was on July 4, 1776. That the listener
might never deface the truth of the new picture, the Constitution of
1787 was proposed at Philadelphia and later made by the master in the
picture. The proposal of Wheeler and his associates and the action of
governments on that proposal are the unlawful attempt to change the
picture back to what it had been before the Statute of ’76.
If time permitted, our sense of humor would keep us long with the
briefs of Wheeler and his associates. It was their thought that
the doctrine of Christ could be made a better Christianity by a
substitution of the prohibition of Mohammed for the temperance of
Christ. This natural modesty on their part made certain that we would
find, in the Wheeler brief, this tribute to the good _intentions_ of
the Americans of those early “conventions,” accompanied by an humble
tribute to the much greater wisdom of the briefers. “The people, under
this form of government may, of course, do unwise things. This is the
alleged danger of a republican or democratic form of government. If the
electorates are not intelligent, moral and patriotic, our government
will fail. Our forefathers took that chance in choosing a form of
government that was controlled entirely by the people. History proves
that they builded more wisely than they knew. The people have kept
step with advancing civilization under the same construction of our
Constitution. This last advance in the prohibition of the beverage
liquor traffic, which is one of the greatest evils that ever cursed
humanity, is additional evidence of the wisdom of our forebears. It is
generally recognized as the greatest piece of constructive legislation
that was ever adopted by a self-governing people.” The finest passage
in the “Comic Blackstone” does not approach this in its excellence as
unconscious humor.
Educated with “our forefathers” who “took that chance in choosing a
form of government that was controlled entirely _by the people_,” we
call the attention of Wheeler to one of his many mistakes by rewriting
his next sentence, as he should have written it: “History proves that
they builded more wisely than Wheeler or his associates knew or are
able to understand.”
Our forefathers knew that, wherever men are citizens, neither state
governments nor any governments are “the people” or can surrender
rights of “the people” or can constitute new governments of “the
people” interfering with their individual freedom and, therefore,
when those “conventions” of old did choose and establish a form of
government “that was controlled entirely by the people,” they were
not stupid enough to think that the American government would be
_that kind_ of a government if it could be controlled entirely by
legislatures, which never are the people. It is rather ridiculous to
find Hughes, associate champion of Wheeler for the new Amendment,
contending that the people never are the legislature, while Wheeler
contends that a government is controlled entirely by the people when it
is controlled entirely by legislatures. But, it is to be expected, when
men work in association on a common _unsound_ basis, that one champion
should frequently contradict another as to fact, and that even the same
champion should often contradict himself as to fact.
And so we find the Wheeler brief stating that the new Amendment, made
entirely by governments without any authority from the people about
whom he prates, “is generally recognized as the greatest piece of
constructive _legislation_ that was ever adopted by a self-governing
people”; and we turn over the pages of the brief and we find the
remarkable proposition that these state legislatures, when making
the Eighteenth Amendment, were not _legislating_, but were “a body
of representatives sitting in a conventional capacity.” Of course,
we now learn, by this latter statement, that the greatest piece of
“constructive legislation” the world ever knew was not legislation
at all. But we also learn a more important thing. It would have been
of great advantage to the British Parliament in 1765, if it had only
known the Wheeler concept of our American security for human freedom.
Think how remarkable it would have been to have passed a Stamp Act
which would have been universally respected and obeyed by the American
people of that time! All the British Parliament should have done was
to announce: “This is not passed by us as a legislature. In issuing
this command to the American people, we are a ‘body of representatives
sitting in a conventional capacity.’” Having exactly the same attitude
mentally as Lord North in 1775, this Wheeler would have been a better
Minister for the English King. He would have been able to keep for him
the American “subjects” of the British Legislature.
“Article V itself shows that the representative or convention idea was
in the minds of the framers of the Constitution. If the legislatures
of two thirds of the states should apply to Congress, then Congress
would be obliged to call a convention for proposing Amendments to the
Constitution. Then, also, when it came to the matter of ratification,
this question could be considered by conventions in the various states.
A review of the proceedings of the constitutional convention, as well
as a study of the political and governmental bodies at the time at
which the provision providing for amending the federal Constitution
was adopted, revealed the fact that these men thought in terms of
conventions ... _and that the clear intent of the framers was to ratify
proposed amendments by bodies sitting in the capacity of conventions_.
The Court will not find any able exponent of the theories of government
of that time, however, _who even asserted that the people could be
considered as a portion of the legislature_. This can be shown most
clearly by an examination of the proceedings of the constitutional
convention, as reported by Mr. Madison and particularly by examining
the various proposals advanced in that convention for the ratification
of the Constitution.”
We recognize immediately, in this extract from the briefs of 1920,
our own exact knowledge brought from those “conventions.” And, when
this briefer challenges the existence of the Eighteenth Amendment on
the ground that the people who made it showed “in Article V itself”
that “the convention idea was in the minds of the framers” and “when
it came to the matter of ratification,” a “Yes” or “No” was to be
considered by “conventions” in the various states, we are amazed to
find no upholder of the Eighteenth Amendment replying to this attack
upon its validity. The challenge to validity again and again touches on
the monumental error of the Tory concept behind all claim to validity.
The challenge puts its finger at once upon the absurd assumption,
on which the Eighteenth Amendment wholly depends for existence, the
assumption that the Americans we have just left ever considered the
“people” as the “legislature” or the “legislature” as the “people.” The
challenge emphasizes the fact we all know, that the “conventions” knew
that “conventions” _were_ the “people” and that “legislatures” never
were the “people.” But we are mistaken in believing that this clear
challenge was not met by some “constitutional thinker” in his effort to
uphold the new supposed NATIONAL Article, made by the governments or
“legislatures” which the old “conventions” so well knew were not the
“people.” In the brief of one champion of the new NATIONAL Article, we
find this clear reply to the challenge. And we notice how the reply
is not mere assertion. No one can deny the tremendous “support,” in
history and in decision and in the Fifth Article itself, for the full
reply that the Fifth Article states definitely that “the only agency
which is authorized to ratify the Amendment is the state legislatures!”
We have only one comment to make on the challenge itself and the
destructive reply to it, that the state legislatures are the “only
agent” authorized by the Fifth Article to amend our NATIONAL
Constitution. It is an interesting comment. Both the challenge and
the reply are from the brief of Wheeler, counsel for the political
organization which directed that governments make this new national
government of men.
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
The United States [the great political society of men which this book
persistently calls America] form, for many, and for most important
purposes, a single nation.... In war, we are one people. In making
peace, we are one people. In all commercial regulations, we are one
and the same people. In many other respects, the American people are
one; and the government which is alone capable of controlling and
managing their interests in all these respects, is the government of
the Union. It is _their government, and in that character they have
no other_. America has chosen to be, in many respects, and to many
purposes, a nation; and for all these purposes, _her government_
is complete; to all these objects, it is competent. The people
have declared that, in the exercise of all powers given _for these
objects_, it is supreme. It can, then, in effecting these objects,
legitimately control all individuals or governments within the
American territory. (U. S. Supreme Court, Cohens v. Virginia, 6
_Wheat._ 264, at p. 413 et seq.)
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.
It reads: “The powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are reserved to
the states respectively, or to the people.” The argument of counsel
ignores the principal factor in this Article, to wit, “the people.”
Its principal purpose was not the distribution of power between the
United States and the states, but a reservation to the people of all
powers not granted. The Preamble of the Constitution declares who
framed it,--“We the people of the United States,” not the people of
one state, but the people of all the states; and Article X reserves to
the people of all the states the powers not delegated to the United
States. The powers affecting the internal affairs of the states not
granted to the United States by the Constitution, nor prohibited
by it to the states, are reserved to the states respectively, [the
power of each state for that state to its own people or citizens] and
all powers of a _national character_ which are not delegated to the
national government by the Constitution are reserved to the people of
the United States [the one people or citizens of America, that one
American people which Marshall so accurately knew]. The people who
adopted the Constitution, knew that in the nature of things they could
not forsee all the questions which might arise in the future, all the
circumstances which might call for the exercise of further _national_
powers than those granted to the United States, and, after making
provision for an Amendment to the Constitution by which any needed
additional powers would be granted, they reserved to themselves all
powers not so delegated. (Supreme Court, Kansas v. Colorado, 1907, 206
_U. S._ 46 at p. 90.)
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 Constitution is not only the same in words, but the same in
meaning, and delegates the same powers to the government, and reserves
and secures the same rights and privileges to the citizen, and as
long as it continues to exist in its present form, it speaks not only
in the same words, but with the same meaning and intent with which
it spoke when it came from the hands of its framers and was voted on
and adopted _by the people of the United States_. Any other rule of
construction would abrogate the judicial character of the Court, and
make it the mere reflex of the popular opinion or passion of the day.
This Court was not created by the Constitution for such purposes.
Higher and graver trusts have been confided to it, and it must not
falter in the path of duty. (Scott v. Sandford, 19 _How._ 393, at p.
426.)
The high power has been conferred upon this Court of passing judgment
upon the acts of the state sovereignties and of the legislative and
executive branches of the federal government, of determining whether
they are beyond the limits of power marked out for them respectively
by the Constitution of the United States. (Luther v. Borden, 1849, 7
_How._ 1 at p. 47.)
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.
The simple, classical, precise, yet comprehensive language in
which it is couched, leaves, at most, but very little latitude for
construction; and when its intent and meaning is discovered, nothing
remains but to execute the will of those who made it, in the best
manner to effect the purposes intended. The great and paramount
purpose was to unite this mass of wealth and power, for the protection
of the humblest individual; his rights, civil and political, his
interests and prosperity, are the sole _end_; the rest are nothing but
the _means_. (Justice Johnson, Gibbons v. Ogden, 9 _Wheat._ 1, at p.
223.)
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:
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. (Turner v. Williams, 194 _U.
S._ 279 at 296.)
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
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.
Article. I.
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.
Article. II.
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.
Article III.
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.
Article. IV.
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.
Article. V.
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.
Article. VI.
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.
Article. VII.
The Ratification of the Conventions of nine States, shall be sufficient
for the Establishment of this Constitution between the States so
ratifying the Same.
The Word, “the,” being interlined between the seventh and eighth
Lines of the first Page, The Word “Thirty” being partly written on an
Erazure in the fifteenth Line of the first Page, The Words “is tried”
being interlined between the thirty second and thirty third Lines of
the first Page and the Word “the” being interlined between the forty
third and forty fourth Lines of the second Page.
Attest WILLIAM JACKSON Secretary
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
New Hampshire { JOHN LANGDON }
{ NICHOLAS GILMAN }
Massachusetts { NATHANIEL GORHAM
{ RUFUS KING
Connecticut { WM. SAML. JOHNSON
{ ROGER SHERMAN
New York ALEXANDER HAMILTON
{ WIL: LIVINGSTON
{ DAVID BREARLEY.
New Jersey { WM PATERSON.
{ JONA: DAYTON
{ B FRANKLIN
{ THOMAS MIFFLIN
{ ROBT MORRIS
{ GEO. CLYMER
Pennsylvania { THOS FITZSIMONS
{ JARED INGERSOLL
{ JAMES WILSON
{ GOUV MORRIS
{ GEO: READ
{ GUNNING BEDFORD jun
Delaware { JOHN DICKINSON
{ RICHARD BASSETT
{ JACO: BROOM
{ JAMES MCHENRY
Maryland { DAN OF ST THOS JENIFER
{ DAN. CARROLL
{ JOHN BLAIR
Virginia { JAMES MADISON Jr.
{ WM BLOUNT
North Carolina { RICHD DOBBS SPAIGHT.
{ HU WILLIAMSON
{ J. RUTLEDGE
{ CHARLES COTESWORTH PINCKNEY
South Carolina { CHARLES PINCKNEY
{ PIERCE BUTLER.
{ WILLIAM FEW
Georgia { ABR BALDWIN
APPENDIX II
THE RESOLUTION WHICH PROPOSED THE CONSTITUTION TO THE CONVENTIONS OF
THE PEOPLE OF AMERICA
In Convention Monday September 17th 1787.
Present
The States of
New Hampshire, Massachusetts, Connecticut, Mr. Hamilton from New York,
New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina,
South Carolina and Georgia.
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 on which
Electors should be appointed by the States which shall have ratified
the same, and a Day on which the Electors should assemble to vote
for the President, and the Time and Place for commencing Proceedings
under this Constitution. That after such Publication the Electors
should be appointed, and the Senators and Representatives elected:
That the Electors should meet on the Day fixed for the Election of
the President, and should transmit their Votes certified, signed,
sealed and directed, as the Constitution requires, to the Secretary
of the United States in Congress assembled, that the Senators and
Representatives should convene at the Time and Place assigned; that
the Senators should appoint a President of the Senate, for the sole
Purpose of receiving, opening and counting the Votes for President;
and, that after he shall be chosen, the Congress, together with the
President, should, without Delay, proceed to execute this Constitution.
By the Unanimous Order of the Convention
GO WASHINGTON Presidt
W. JACKSON Secretary.
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
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.
Transcriber’s Notes
Minor punctuation errors have been fixed.
Page xvii: “state legislalatures” changed to “state legislatures”
Page 34: “independent governernments” changed to “independent
governments”
Page 76: “This govermnent” changed to “This government”
Page 290: “entire subesquent” changed to “entire subsequent”
Page 432: “the semblence of” changed to “the semblance of”
Page 448: “he appointed” changed to “be appointed”
Page 456: “of the Independance” changed to “of the Independence”
Page 457: “Pensylvania” changed to “Pennsylvania”
Page 458: “the preceeding Constitution” changed to “the preceding
Constitution”
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