{"collection":"philosophy-ethics","full_text_available":true,"graph_url":"https://unchartedknowledge.5gfusion.net/v2/api/page/gutenberg_72099/graph","html_url":"https://unchartedknowledge.5gfusion.net/v2/page/gutenberg_72099","id":"gutenberg_72099","license":"Public Domain (US)","rights_basis":"gutenberg_metadata_copyright_false","source":"gutenberg","source_url":"https://www.gutenberg.org/ebooks/72099","summary":null,"tags":["Category: History - American","Category: Philosophy & Ethics","Category: Politics","Constitutional history -- United States","United States -- Politics and government","United States. Constitution. 18th Amendment"],"text":"CITIZEN OR SUBJECT?\n\n                                   BY\n                          FRANCIS X. HENNESSY\n                          OF THE NEW YORK BAR\n\n                             [Illustration]\n\n\n          \u201c... _that this nation, under God, shall have a new\n          birth of freedom; and that government of the people,\n          by the people, for the people, shall not perish from\n                              the earth._\u201d\n\n\n                                NEW YORK\n                         E. P. DUTTON & COMPANY\n                            681 FIFTH AVENUE\n\n\n\n\n                            Copyright, 1923\n                       By E. P. Dutton & Company\n\n                         _All Rights Reserved_\n\n\n                         PRINTED IN THE UNITED\n                           STATES OF AMERICA\n\n\n\n\n                             AUTHOR\u2019S NOTE\n\n\nQuotations from the Constitution of the United States are from the\n\u201cLiteral Print,\u201d Government Printing Office, Washington, D. C., 1920.\n\nThe abbreviation \u201cEll. Deb.\u201d refers to Elliot\u2019s Debates, 2nd Edition, 5\nvols., J. B. Lippincott & Co., Philadelphia, 1866.\n\nThe \u201cFederalist\u201d is quoted from the Lodge Edition, G. P. Putnam\u2019s Sons,\nNew York, 1894.\n\nWherever italics or capitals are used in a quotation and not directly\nstated to be those of the original author, they are the italics and\ncapitals of the present writer.\n\nWhere the present writer interpolates his own words in a quotation,\nthey are included in square brackets.\n\n\n\n\n                                PREFACE\n\n\nMany Americans are interested in the Eighteenth Amendment. Millions are\ninterested in the American citizen.\n\nIt seems not to be known that the existence of one flatly denies the\nexistence of the other. This is not theory. It is plain statement of a\nvery simple fact. If there is an American citizen, the Amendment never\nentered the Constitution. On the contrary, if the Amendment is in the\nConstitution, there never has been an America or an American citizen.\n\nThroughout this book the nation of free men is called \u201cAmerica.\u201d This\nis done to distinguish the nation from the federation of states already\nexisting and known as the United States, when the whole American people\ncreated the nation and continued the federation as a subordinate part\nof one system of government. The federation of states was proposed in\n1777 and had complete existence in 1781. The nation of men was created\nin 1788.\n\nOn January 14, 1922, there was opened at Williamsburg, Virginia, the\nMarshall-Wythe School of Government and Citizenship. Judge Alton B.\nParker, former Chief Justice of the New York Court of Appeals and\na former candidate for President, delivered the opening address on\n\u201cAmerican Constitutional Government.\u201d His eloquent address has since\nbeen made a public document and printed in the _Congressional Record_.\nIn it, he warned us of the danger to America from those who do not\nunderstand our form of government and are coming here to destroy it.\n\n\u201cAs people of this class have been coming to us in large numbers\nfrom nearly every quarter of the globe, we must take up the task of\nso educating all classes of our vast population, as that they shall\nfully understand the importance of maintaining, in its integrity, our\nconstitutional plan of government. They should be taught in the first\ninstance, why it was that the people, in the formative period of our\ngovernment, were bound to have, and did at last secure, a government\nwhich the people could control despite their legislatures, whether\nrepresenting the states or the federal government.\u201d\n\nThe existence of the Eighteenth Amendment is based on the sheer\nassumption that we have not a government of that kind. By all who\nhave discussed the Amendment, whether for or against it, one false\nassumption has been made. From that false assumption of all, the\nadvocates of the Amendment have drawn their conclusion. On the\nconclusion is based the existence of the Amendment. The conclusion\nitself is the direct negation of the simplest and most important fact\nin America. Moreover, the conclusion itself means that the Americans,\ntwelve years after they \u201cdid at last secure\u201d the kind of government\nthey \u201cwere bound to have\u201d and of which Judge Parker spoke, voluntarily\ncreated a \u201cgovernment\u201d of the opposite kind and made themselves its\nabsolute \u201csubjects.\u201d\n\nAnd the conclusion is correct, if the premise, which is the false\nassumption of all, be true.\n\nOf course, the assumption is absolutely untrue. But no one has seen its\nsimple and patent untruth. Wherefore, the first step in our education\nis for us to acquire knowledge of the plain fact that it is untrue.\nBecause our leaders do not know the fact, we must go to other teachers.\n\nBy the common false assumption, the early Americans--who \u201cdid at\nlast secure\u201d the kind of government they \u201cwere bound to have\u201d--are\nnow charged with having committed the most monumental blunder in all\nhistory, a blunder which destroyed their entire achievement.\n\nRest assured! They did not commit that blunder. They themselves make\nthat clear herein. In so doing, they teach us what, with Judge Parker,\nwe agree that we all must know, if America and the American citizen\nare to remain. They are the best teachers in the world. They know what\nthey teach because they did it. They do not weary or perplex us with\ntheories or principles. Their teaching is the telling of simple facts.\nBest of all, they tell us in their own simple words, while they are\ntalking to one another and engaged in the very accomplishment of the\nfacts they teach.\n\nIt is a mere incident of their teaching that they settle the plain fact\nthat the supposed Eighteenth Amendment is not in the Constitution.\n\nIt is our own candid belief that very few Americans will be found to\nprefer the existence of the Amendment to the existence of America\nitself. The early Americans make amazingly clear that there is no\nAmerica and no American citizen if the Amendment is in the Constitution.\n\nThe nation of men, which we call America, and the subordinate\nfederation of states, which we call the United States, are bound\ntogether in one dual system. They have a common name, \u201cThe United\nStates of America.\u201d They have a common Constitution, with national\nArticles for the men and federal Articles for the states. They have a\ncommon government, national for the men and federal for the states.\n\nThis is exactly the America of which Judge Parker spoke. We want to\nkeep it. The early Americans, who made it, will enable us to keep\nit, if we listen to their teaching of the simple facts which they\naccomplished. Such a result would be some credit to the supposed\nEighteenth Amendment. Even those most opposed to it would be compelled\nto acknowledge that its brief imaginary existence awoke us all to our\nfirst real concept of what America, the nation of free men, really is.\n\n                                                    FRANCIS X. HENNESSY.\n\n_342 Madison Avenue, New York City. March 17th, 1923._\n\n\n\n\n                               CONTENTS\n\n\nI. SUBJECTS BECOME CITIZENS                                     _Page 1_\n\nThe American must know what a citizen is--Otherwise he will not\nremain a citizen--If the American citizen exists, there is no\nEighteenth Amendment--Americans of 1776 knew distinction between\n\u201ccitizen\u201d and \u201csubject\u201d--While legally \u201csubjects,\u201d they had\ngoverned themselves as \u201ccitizens\u201d--Attempt to govern them as\n\u201csubjects\u201d causes Revolution--Declare American concept, no government\ninterference with human liberty unless \u201ccitizens\u201d grant\ngovernment power--Make thirteen nations, each composed of citizens--Its\n\u201ccitizens,\u201d in \u201cconventions,\u201d constitute each government\nby grant of power to interfere with human liberty--\u201cDemocracy\u201d\nand \u201cRepublic\u201d distinguished--Revolution to make American concept\nAmerican law.\n\n\nII. THE STATE GOVERNMENTS FORM A UNION OF STATES               _Page 17_\n\nRevolution continues--Thirteen nations form league or federation of\nstates--Members of federation act through respective attorneys-in-fact,\nstate legislatures--Legislatures constitute federal government\nand grant its federal powers to govern states--Distinction\nbetween legislatures\u2019 power to make federal Articles and citizens\u2019\npower to make national Articles under which men are governed--Citizens\u2019\npower exercised in 1776 and legislatures\u2019 power in\n1781--Revolution won, establishing American concept as American\nlaw.\n\n\nIII. AMERICANS FIND THE NEED OF A SINGLE NATION                _Page 25_\n\nFederation of states unsatisfactory--General government, with only\nfederal power to govern states, not able to secure what whole\nAmerican people want--They learn need of general government\nwith some enumerated national powers to govern men.\n\n\nIV. THE BIRTH OF THE NATION                                    _Page 29_\n\nPhiladelphia Convention assembles ostensibly to draft and propose\npurely federal Articles--It drafts and proposes a \u201cConstitution\u201d\nwith both national and federal powers--First Article is the constitution\nof American national government because it grants all\nthe enumerated powers to interfere with human liberty of American\ncitizens--Fifth and Seventh Articles relate to the grant of\nnational power, though neither grant it--Other four Articles\nneither grant nor relate to grant of national power--Fifth prescribes\nconstitutional mode for its future grant by American citizens\nin \u201cconventions\u201d--Also prescribes constitutional mode for\nfuture grant of federal power by state legislatures--Philadelphia\nknows and decides that legislatures can never grant national\npower and Articles are sent to \u201cconventions\u201d of \u201ccitizens,\u201d as in\n1776--Whole American people become a nation--American citizen\nfirst exists on June 21, 1788, when American citizens make\ntheir only grant of national powers--States and their citizens and\nconstitutions and governments are made subordinate to citizens\nof America--These facts entirely forgotten in 1917.\n\n\nV. THE CONSENT OF THE GOVERNED                                 _Page 55_\n\nEducation of personal experience, from 1775 to 1790, accurately\ntaught science of government to average American--It taught\nhim that citizens only can grant government power to interfere\nwith human liberty, though legislatures can grant federal power\nto govern states--Modern leaders lack that practical education\nand the accurate knowledge it taught the early American--Modern\naverage American has sensed something curious about making\nof Eighteenth Amendment--That he may understand what\nhe senses and know why there is no such Amendment, must\nbriefly consider the Constitution.\n\n\nVI. THE CONVENTIONS GIVE THE CONSENT                           _Page 64_\n\nIn conventions, whole American people themselves make\nConstitution--\u201cFelt and acknowledged by all\u201d that legislatures could\nnever make First Article because it constitutes government of men--From\nearly American, modern American learns that grant of power\nto govern men is the constitution of the government of men--Because\nFirst Article grants of that kind are enumerated, American\ngovernment known as government of enumerated powers--Primal\nsecurity to human freedom that citizens, not legislatures,\ngrant all power of that kind--Because this primal security\nknown to early Americans, their \u201cconventions\u201d insist that Constitution\n(Tenth Amendment) declare that every power of that\nkind not granted by American citizens remains with American\ncitizens--Our own leaders have not known this security or understood\nthat all ungranted powers of that kind were reserved by\nAmerican citizens to themselves.\n\n\nVII. PEOPLE OR GOVERNMENT?--CONVENTIONS OR LEGISLATURES?       _Page 80_\n\nAmerican nation a society of men like any other society of men--Herein\ncalled America to distinguish it from federation of united states\nwhich can make and are governed by federal parts of Constitution--Like\nany society of men, America created by its original\nhuman members in their \u201cconventions\u201d--Their knowledge of\nthat fact becomes our knowledge--Supreme Court knows and\nstates it--Citizen of America distinct from state citizen, though\nthe same human being--Distinction vitally important, as Supreme\nCourt explains--Only citizens of America can grant new power\nto interfere with their own human freedom--All original American\ncitizens know this--Many explain it to us, Daniel Webster\nvehemently and clearly.\n\n\nVIII. PHILADELPHIA ANSWERS \u201cCONVENTIONS, NOT LEGISLATURES\u201d     _Page 95_\n\nPhiladelphia knowledge and decision that legislatures of states, members\nof the federation, cannot make Articles which create government\npower to interfere with freedom of men, members of\nthe nation--The decision, based on knowledge of basic American\nlaw, is embodied in Seventh Article and proposing Resolution\nat Philadelphia in 1787--Human members of nation described\nas \u201cconventions\u201d in Seventh Article--Story of Seventh\nArticle at Philadelphia--Madison asks searching question of any\nAmerican who thinks possible any other decision than the Philadelphia\ndecision--Now educated with the early Americans, we\ngive the same answer as that of Philadelphia, while our leaders\nhave given the opposite answer.\n\n\nIX. THE FIFTH ARTICLE NAMES ONLY \u201cCONVENTIONS\u201d                _Page 110_\n\nPhiladelphia story of Fifth Article--Relates to future grants of\nnational power by American citizens but makes no grant--Meaning\nto \u201cconventions\u201d must be meaning now--Madison writes it at\nPhiladelphia, and he and many others from Philadelphia are in\n\u201cconventions\u201d who made it--Its Philadelphia story from May 29\nto September 10, 1787, one week before end of Convention.\n\n\nX. ABILITY OF LEGISLATURES REMEMBERED                         _Page 115_\n\nFifth Article in last Philadelphia week--Philadelphia, previously\nconcentrated on its own First Article, has so far forgotten that\nfuture Articles will probably be federal, which legislatures can\nmake--Wherefore, legislatures not yet mentioned in tentative\nFifth Article--Madison and Hamilton recall probability that all\nfuture Articles will be federal and suggest a Fifth Article which\nmentions \u201clegislatures\u201d as well as \u201cconventions\u201d--Full record of\nSeptember 10, 1787, day of that Madison suggestion--Added mention\nno support for modern error that Fifth Article a \u201cgrant\u201d--Moderns\nignore that one supposed grantee is supposed grantor\nand that \u201cgrant\u201d would make Americans \u201csubjects\u201d--In language\nof Fifth Article, Philadelphia finds no suggestion of modern\nerror and the Article, with its added mention of legislatures,\nis passed without discussion--Having no suggestion of a\n\u201cgrant,\u201d it is known at Philadelphia to be constitutional mode of\nfuture exercise of the two existing but different abilities of\n\u201clegislatures\u201d and \u201cconventions\u201d--Madison, Wilson and Marshall\non this fact--Full Philadelphia story of September 15, when\nFifth Article finally considered--Defeat of Gerry\u2019s motion to\nstrike out \u201cby conventions in three-fourths thereof\u201d--Modern\nerror of thinking and acting as if that motion had been carried.\n\n\nXI. CONVENTIONS CREATE GOVERNMENT OF MEN                      _Page 141_\n\n\u201cConventions\u201d of Seventh Article, making Constitution, know same\n\u201cconventions\u201d of Fifth Article to be themselves, the American\ncitizens--Americans, in \u201cconventions,\u201d with American concept\nthat government exists solely to secure individual and his freedom,\nread and make Fifth Article--Madison hits hard modern\nconcept of Bolshevist Russian and Eighteenth Amendment American\nthat human beings are made for kings or legislatures or\npolitical entities--Conventions hear Madison explain Fifth Article\nas prescribing procedure in which \u201cconventions\u201d can again\nassemble constitutionally to exercise their power and in which\n\u201clegislatures\u201d may act constitutionally in making future federal\nArticles--Recognize its constitutional mode as exact Revolutionary\nmode just followed by Madison and others at Philadelphia\nand that future Congress should do exactly what Philadelphia\ndid and no more--Recognize Fifth Article settles how each \u201cconvention\u201d\nvote shall count as one vote of American citizens and\nhow many \u201cconvention\u201d votes shall be necessary and sufficient to\nmake a future Article which \u201cconventions\u201d of American citizens\nalone can make--Recognize words \u201cin three-fourths thereof\u201d after\nword \u201cconventions\u201d most important words in Fifth Article and\na great security to individual liberty--Average American now\nsees why Eighteenth Amendment Tories seek escape from that\nsecurity by asserting Constitution created supreme will independent\nof American citizens, i.e., will of state legislatures.\n\n\nXII. TWO ARTICLES NAME \u201cCONVENTIONS\u201d                          _Page 171_\n\nFrom 1775 to 1789, all Americans aim to secure individual welfare--With\nthis one aim, \u201cconventions\u201d continue to read Fifth Article\nand recognize statements of Fifth and Seventh, as to \u201cconventions,\u201d\nidentical in nature--Recognize both ordain WHEN convention-made\nArticles, granting power to interfere with individual\nfreedom, shall validly constitute government of American\ncitizens--Recognize \u201cconventions\u201d of Seventh and Fifth as whole\nAmerican people of Preamble--Recall ability of legislatures to\nmake federal Articles and know mention of \u201cconventions\u201d and\n\u201clegislatures\u201d grants no power to either--State \u201clegislatures\u201d\nlesser reservee and \u201cconventions\u201d of American citizens most important\nreservee in Tenth Amendment--\u201cConventions\u201d recognize\ntwo exceptions in Fifth Article, not as exceptions from power\ngranted therein, but as intentional refusal to provide a constitutional\nmode in which existing ability may be exercised to do what\nis mentioned in two exceptions--\u201cConventions\u201d finish reading\nFifth Article and, from its clear language, know it is not a grant\nof power but a constitutional mode for the exercise of either of\ntwo existing powers, one limited and the other unlimited.\n\n\nXIII. CONVENTIONS KNOW \u201cCONVENTIONS\u201d ARE \u201cTHE PEOPLE\u201d         _Page 180_\n\nAmericans, in their \u201cconventions,\u201d explain and support and oppose\nthe proposed Articles--Whether for or against the Articles, their\ninvariable and clear statements confirm the \u201cconvention\u201d knowledge\nthat the Fifth is not a grant of power either to themselves,\n\u201cconventions,\u201d or to the state \u201clegislatures\u201d--Conventions\ncheck Fifth Article mention of \u201clegislatures\u201d and \u201cconventions\u201d\nwith statement that proposed constitution is \u201cone federal and\nnational constitution\u201d--Henry insists that proposed Articles make\nthe state legislatures weak, enervated and defenseless--\u201cAbolish\nthe state legislatures at once\u201d--Wilson admits that the Articles\ntake power from the state legislatures and give them no new\npower--\u201cThe diminution is necessary to the safety and prosperity\nof the people\u201d--Madison explains the importance of his\nwords, \u201cin three-fourths thereof,\u201d after the word \u201cconventions,\u201d\nas requiring more than a mere majority of American citizens for\nnew interference with individual liberty--Hamilton states his\nown conviction that amendments will be to the federal and not\nthe national part of the Constitution and emphasizes the legal\nnecessity that grants of national power must come from the people\nand not the legislatures--\u201cConventions\u201d reluctant to give\neven the enumerated national powers of the First Article and\ninsist on the Tenth Amendment declaration that all other power\nof that kind is reserved by themselves to themselves--\u201cIn their\nhands it remains secure. They can delegate it in such proportions,\nto such bodies, at such times, and under such limitations,\nas they think proper\u201d--In 1907, the Supreme Court states, what\nthe \u201cconventions\u201d knew, that all powers not granted in the First\nArticle are reserved to the \u201cconventions\u201d of American citizens\n\u201cand can be exercised only by them or on further grant from\nthem\u201d--The \u201cconventions,\u201d having secured the liberty of American\ncitizens from all government interference except under the\nFirst Article grants, end their great work.\n\n\nXIV. SEVENTEEN ARTICLES RESPECT HUMAN FREEDOM                 _Page 212_\n\nHamilton\u2019s conviction, that all Amendments would be of the federal\nkind which legislatures can make, verified by the seventeen\namendments prior to 1917--As Supreme Court has repeatedly\nheld, the first ten Amendments merely declared what was already\nin Constitution--A relevant and important declaration in the\nTenth is that the entire Constitution gives no power of any kind\nto state legislatures--Amazing modern Tory concept that these\nten Amendments are an American Magna Charta or compact\nbetween a master government and its \u201csubjects\u201d--Madison and\nSupreme Court on the \u201cimpious doctrine\u201d that Americans are\n\u201csubjects\u201d--Eleventh and Twelfth Amendments have naught to\ndo with individual freedom--Thirteenth, Fourteenth and Fifteenth\nneither exercise nor create government power to interfere with\nhuman liberty--On the contrary, their purpose and effect are to\nmake human liberty universal--Sixteenth removes a federal limitation,\nin favor of the states, from a power the \u201cconventions\u201d\ngave to Congress--Seventeenth relates only to the election of\nSenators--When 1917 opens, Congress has no power to interfere\nwith individual liberty of American citizens which Congress did\nnot have in 1790--When 1917 opens, no legislatures, since July\n4, 1776, have dared to interfere with the individual liberty of the\nAmerican citizens outside the First Article grants or have dared\nto attempt to create a new power so to interfere--When 1917\nopens, we have not become \u201csubjects\u201d but still are citizens of\nAmerica.\n\n\nXV. THE EXILED TORY ABOUT TO RETURN                           _Page 231_\n\nWhen 1917 begins, relation of American citizen to all governments\nin America and relations of governments to one another just\nthe same as in 1790--American government can interfere with\nthe American citizen on matters enumerated in the First Article--No\nother governments can interfere with him at all--The government\nof each state can interfere with its own citizens, except\nas the American Constitution forbids, on matters in which the\ncitizens of each state give their own government power to interfere--No\ngovernment, either American government or state government,\ncan get any new power of that kind except directly\nfrom its own citizens--No government can get any power of\nthat kind from other governments--New federal power of American\ngovernment can be granted by members of federation, the\nstates, acting through their respective attorneys-in-fact, the state\nlegislatures--State legislatures are powerless to govern or to\ncreate power to govern American citizen--In these respects, supremacy\nof American citizens over all governments same in 1917\nas in 1790--1917 leaders did not know, what 1790 average American\nknew, that Revolution had ended forever Tory law that\ngovernments are master and Americans are \u201csubjects.\u201d\n\n\nXVI. THE TORY \u201cEIGHTEENTH AMENDMENT\u201d                          _Page 239_\n\nDecember, 1917, closing month of America\u2019s first year in World War\nfor human liberty--American citizens have but one government,\nCongress, which can interfere with their human liberty in any\nmatter--Congress knows it cannot interfere by making the command\nwhich is Section 1 of the Eighteenth Amendment--Amazing\nResolution in Senate that legislative governments of state\ncitizens be asked directly to interfere with human liberty of\nAmerican citizen in matter not enumerated in First Article--Resolution\nasks some state governments to give only American\ngovernment a new enumerated power to interfere with freedom\nof American citizen, the first new power of that kind since June\n21, 1788--Some leaders question \u201cwisdom\u201d of Resolution--No\nleader questions power of any governments (except Congress in\nthe enumerated First Article matters) to interfere with freedom\nof American citizen--No leader questions power of any or all\ngovernments to give a new enumerated power of that kind to\nthe only American government or to any government--No leader\nknows that, in 1917 as in 1787 and in 1790, only the \u201cconventions\u201d\nof American citizens can make the command or the grant\nof power--House of Representatives adds absurdity to absurdity--Adds\nto Resolution that state governments, while interfering\nwith liberty of American citizen and granting only American\ngovernment first new enumerated power so to interfere, should\nalso give themselves (the granting governments) the very power\nthey assume to exercise over American citizens--Webb, explaining\nto the House his proposed change in Section 2 of the Amendment,\nstates this to be the meaning and purpose of the change--Article\nIV contrasted with absurd modern error, as to meaning\nof Article V--That modern error is sole basis of Tory concept\nthat any or all governments could make Articles like First\nArticle or supposed Eighteenth Amendment--Article IV guarantees\nto citizens of each state that their state government shall be\nrepublican, getting from them its every power to interfere with\ntheir individual freedom--Senate Resolution asks state governments,\noutside each state, to give each state government power\nto interfere with the freedom of its own citizens--Congress of\n1917 acted on assumption that Article V meant to enable Congress\nto suggest any desired breach of the guarantee in the\nclosing words of Article IV.\n\n\nXVII. THE TORY IN THE HOUSE                                   _Page 254_\n\nDespite our education with Americans from 1775 to 1790, in 1917,\nwhen Americans are at war for human liberty, the only American\ngovernment recognizes other governments (the state legislatures)\nas an omnipotent Parliament with all American citizens\nas \u201csubjects\u201d--Volstead Act is only statute in America, interfering\nwith individual liberty, which does not even pretend to\nbe founded on direct grant of power from its citizens to the government\nwhich enacted it--Webb, in the House, states, \u201cWe\nthought it wise to give both the Congress and the several states\u201d\nnew power to command the American citizen on this matter not\nenumerated in the First Article--His tribute to the state governments,\nas master governments of American citizen, exactly\nthe tribute paid by Lloyd George to the power of the Westminster\nParliament over its \u201csubjects\u201d--Marshall, Hamilton, Madison,\nthe Virginia Convention of 1788, the Supreme Court repeatedly\nand even in 1907, flatly deny the concept of Webb and the 1917\nCongress--Concept of latter merely repeats mistake of government\ncounsel on which Supreme Court dwelt with emphasis in\n1907--Ignores most important factor in Tenth Amendment, \u201cpeople\u201d\nor \u201cconventions\u201d--From the early Americans, \u201cWho but the\npeople can delegate powers? What have the state governments\nto do with it?\u201d and \u201cHow comes it, sir, that these state governments\ndictate to their superiors--to the majesty of the people?\u201d--Webb\nreads to the House a Fifth Article in which \u201cconventions\u201d\ndoes not appear--Madison tells Webb and all of his Tory\nconcept, \u201cThese gentlemen must here be reminded of their error.\nThey must be told that the ultimate authority resides in the people\nalone, and that it will not depend merely on the comparative\nambition or address of the different governments, whether either,\nor which of them, will be able to enlarge its sphere of jurisdiction\nat the expense of the other\u201d--Webb closes in the House with\nan eloquent appeal to every other follower of Mohammet.\n\n\nXVIII. THE TORY IN THE SENATE                                 _Page 275_\n\nCalm and sound reasoning of Federalist, advocating the real\nConstitution, contrasted with irrelevant personal abuse by those\nsupporting the imaginary new Constitution--Latter, because facts\nand law make their Tory concept absurd, revive \u201cimpious doctrine\nof Old World\u201d that human beings were made for political\nentities and governments--Senator Sheppard and his eloquent\nclaim that American citizens, like other machinery, must be\nkept in good condition for their government owner--His \u201cdiscovery\u201d\nthat the states, political entities, made the Constitution\nof America, the nation of men--Story of America (from May\n29, 1787, to July, 1917) being a sealed book to him, he does\nnot know that our Constitution is both federal and national--Supreme\nCourt, in early days and in 1907, and Webster and\nLincoln tell him his mistake--Not knowing the decision of Gettysburg,\nrecorded at Appomattox, he chooses between Lord North\nof 1775 and Calhoun and summons the latter to prove that the\nAmerican people did not make their Constitution and its grant of\nenumerated power to interfere with their individual freedom--Jefferson,\nPendleton, Webster and many other Americans correct\nSheppard\u2019s error of fact--As the American people of 1776\naccomplished their successful Revolution against government,\nmay it not be the thought of Sheppard and other Tories that the\nEighteenth Amendment has been established by a successful revolution\nof government against the people--Marshall again tells\nus of the American day when the legal necessity \u201cwas felt and\nacknowledged by all,\u201d that every power to interfere with human\nliberty must be derived from the people in their \u201cconventions\u201d--Acting\non the Congress proposal of 1917, governments of state\ncitizens command the American citizen and create a new government\npower to interfere with his individual liberty--But no\nstatesman has yet told us how or when, prior to 1917, we became\n\u201csubjects.\u201d\n\n\nXIX. ARE WE CITIZENS?                                         _Page 298_\n\nHamilton thinks it a prodigy that Americans, in \u201cconventions,\u201d\nvoluntarily constitute the enumerated First Article government powers\nto interfere with their individual liberty--Marshall, in Supreme\nCourt, declares \u201cconventions\u201d to be the only manner in\nwhich they can act \u201csafely, wisely and effectively\u201d in constituting\ngovernment of themselves, by making such grants--When\nproposed 1917 first new grant of that kind is supposedly made,\nAmerican people and their \u201cconventions\u201d are completely ignored--The\nproposers have a Fifth Article which does not mention\n\u201cconventions\u201d--The proposers have the old Tory concept, that\nthe people are the assets of the state and that government is the\nstate--Still trying to find out how and when we became \u201csubjects,\u201d\nwe expect to get information from the litigations of 1920--We\nexpect great counsel, on one side, to urge the facts we\nknow--We fear that other great counsel will urge, in reply,\nsome fact or facts which we have not been able to ascertain--We\nare certain that there is no Eighteenth Amendment, if the\nfacts we have learned are all the facts--That we may listen\nintelligently to all the great counsel, we review some of the facts\nwe have learned.\n\n\nXX. LEST WE FORGET                                            _Page 307_\n\n\u201cThe important distinction so well understood in America, between a\nconstitution established by the people and unalterable by the\ngovernment and a law established by the government and alterable\nby the government\u201d--Our first glance at briefs of 1920 gives\nus hope that some modern leaders have acquired the knowledge\nof Hamilton and his generation--We find, in one brief, in Marshall\u2019s\nwords, the Supreme Court statement of the fact that\n\u201cconventions\u201d of the people, not states or their governments, made\nthe Constitution with its First Article grants of power to interfere\nwith human liberty--But this brief, to our amazement, is that of\nthe foremost champion of the only other grant of that kind, the\nEighteenth Amendment, a grant made entirely by government to\ngovernment--In 1920, seven litigations argued and reported under\nthe one title \u201cThe National Prohibition Cases\u201d--Distinguished\ncounsel appear for many clients, for the claimed omnipotent Parliament\nof America, for the American government which we\nused to know as our supreme government, for a few state governments\nwho did not wish to be part of the omnipotent Parliament,\nfor those engaged in the lawful business of manufacturing,\netc., the commodities named in the Eighteenth Amendment--Like\nthe human right to breathe, such manufacture, etc., was not the\nprivilege of a citizen--Both rights are among the human rights\nmen have before they create nations and give governments power\nto interfere with some or all of their human rights--Citizens of\nAmerica, giving their only American government its enumerated\npowers, gave it no power to interfere with the human right mentioned\nin the new Amendment--Human rights never are privileges\nof citizens--Citizens establish government to protect existing\nhuman rights--Only \u201csubjects\u201d get any rights or privileges from\ngovernment--All early Americans knew these primal truths--Neither\nthe French aristocrats, before French Revolution, nor\nTories of 1776 in England or America knew them--Eighteenth\nAmendment Tories do not know them--Madison (in 1789) and\nSupreme Court (in 1890) knew that commodities named in new\nAmendment are among those in which a human right \u201cof traffic\nexists\u201d--In litigations of 1920, no counsel appear on behalf of\nthe human rights of American citizens--But we know that no\ndecision of our own Supreme Court, established to secure our\nhuman rights, although the decision may settle disputes between\nother litigants, can change us from \u201ccitizens\u201d into \u201csubjects.\u201d\n\n\nXXI. BRIEFS IGNORE THE AMERICAN CITIZEN                       _Page 325_\n\nNo counsel knows all are discussing whether Americans, twelve years\nafter 1776, voluntarily became \u201csubjects\u201d--Common concept of\nall that Fifth Article a \u201cgrant\u201d of power to state governments\n(of state citizens) making them attorneys-in-fact for citizens of\nAmerica--Discussion entirely as to extent of power \u201cgranted\u201d--Eighteenth\nAmendment concept that Fifth Article \u201cgrant\u201d made\nsome governments of state citizens a supreme American Parliament,\nunrestrained master of every human right of all American\ncitizens--Opposing concept that the Fifth Article \u201cgrant\u201d made\nthose state governments a Parliament whose one limit is that it\ncannot interfere with the sovereignty of any political entity which\nis a state--Both concepts ignore supremacy of nation of men over\nfederation of states--Both ignore dual nature of \u201cone national\nand federal Constitution\u201d--Both ignore \u201cconventions\u201d in Seventh\nand Fifth Articles as the citizens of the American nation--Both\nignore that each state \u201clegislature\u201d is attorney-in-fact for the\ncitizens of its own state and that no legislatures are (except\nCongress in enumerated matters) attorneys-in-fact for the citizens\nof America in any matter--Our facts, brought from our education with\nthe early Americans, all ignored by all counsel in the litigations--The\nVirginia Convention itself and Lee, Pinckney, Hamilton,\nMadison, Wilson, Iredell and others state what all counsel\nof 1920 entirely ignore.\n\n\nXXII. NO CHALLENGE TO THE TORY CONCEPT                        _Page 335_\n\nEighteenth Amendment rests on imaginary Fifth Article \u201cgrant\u201d\nmaking the state governments of state citizens attorneys-in-fact\nfor the citizens of America, empowered to give away all human\nrights of the citizens of America--\u201cGrant\u201d assumed in every\nbrief--No brief recognizes that one supposed \u201cgrantee\u201d is supposed\n\u201cgrantor\u201d--Or that each of two supposed \u201cgrantees\u201d was\na competent maker of Articles (as proposed Articles were respectively\nfederal or national) before and when the \u201cconventions\u201d\nmade the Fifth Article--Or that Philadelphia Convention knew\nand held \u201cconventions\u201d existing ability competent to make any\nArticle and state legislatures, existing ability incompetent ever to\nmake Articles like First Article or Eighteenth Amendment--Or\nthat Tenth Amendment declares no power given to state \u201clegislatures,\u201d\nwhile all ability to make national Articles \u201creserved\u201d to\n\u201cconventions\u201d of \u201cthe people\u201d of America--No brief challenges\nsheer assumption of Fifth Article \u201cgrant\u201d or supports assumption\nby any fact--Every brief, for or against Amendment, is based on\nthe sheer assumption--No brief knows that enumerated powers of\nonly American government to interfere with human freedom can\nbe changed by no one save the citizens of America themselves in\ntheir \u201cconventions\u201d--Madison\u2019s tribute to these \u201cconventions\u201d in\nwhich \u201cfree inhabitants\u201d constitute new government power over\nthemselves--Hamilton explains great danger to human liberty if\n\u201clegislatures\u201d or permanent government bodies could create such\nnew government power--That knowledge of his generation confirmed\nby story of government-made supposed Eighteenth Amendment--Our\ngratitude to that generation of men who (1776) made\nit and (1788) left it impossible that governments could create\nnew government power to interfere with American human liberty--Our\nregret that modern leaders have not known this great and\nimmutable protection to American liberty.\n\n\nXXIII. THE CHALLENGES THAT FAILED                             _Page 350_\n\nSupreme Court wisely writes no opinion in \u201cNational Prohibition\nCases\u201d--In each of four numbered paragraphs, Court states its\nown negation of one challenge made to new Amendment--All\nfour challenges are negatived in seventeen lines of statement--First\ntwo challenges trifling and purely technical--Third challenge\nbased on rights of the citizens of some particular state--Fourth\nchallenge to \u201cextent\u201d of Fifth Article \u201cgrant\u201d of power\nby \u201cconventions\u201d to \u201cconventions\u201d and \u201clegislatures\u201d--This challenge\nasserts \u201cgrant\u201d which advocates of Eighteenth Amendment\nmust and cannot prove--Court negative amazingly accurate--All\ncounsel have argued incessantly about \u201cextent\u201d of power \u201cgranted\u201d\nby Fifth Article--Court negatives in statement which speaks of\npower \u201creserved\u201d in Fifth Article--Concept of \u201cgrant\u201d disappears--Court\nknows what \u201cconventions\u201d knew, when they made\nFifth Article, when they insisted on Tenth Amendment Declaration\nexpressly stating the distinct reservees of the two existing\npowers \u201creserved\u201d in Fifth Article--Supreme Court of Marshall\u2019s\nday knows it and Supreme Court of 1907 knows it--\u201cCitizen or\nSubject?\u201d--Eighteenth Amendment answers \u201cSubject\u201d--Real Constitution\nanswers \u201cCitizen\u201d--\u201cConventions\u201d insisted on plain statement\nof correct answer--Counsel of 1920 do not know it--Their\nfour challenges make plain that fact--All challenges based on\nerror that governments of state citizens are attorneys-in-fact for\ncitizens of America--In Virginia Convention and in Supreme\nCourt, Marshall explains that powers of state governments \u201cproceed\nnot from the people of America\u201d but from the citizens of each\nrespective state--No counsel of 1920 knows this important fact.\n\n\nXXIV. GOVERNMENTS CLAIM AMERICANS AS SUBJECTS                 _Page 371_\n\nPatrick Henry, opposing Constitution in the \u201cconventions,\u201d knows that\nit takes power from the state legislatures and gives them no\npower--All modern leaders \u201cknow\u201d that it gives those legislatures\ngreat power as attorneys-in-fact for the citizens of America--Many\nmodern leaders \u201cknow\u201d that it makes those legislatures\nan omnipotent Parliament over the citizens of America--No modern\nleaders remember 1781 and 1787 existing ability of the state\nlegislatures to make federal Articles or Articles not creating\ngovernment power to interfere with human liberty--Common\nmodern concept that Fifth Article is \u201cgrant\u201d to these \u201clegislatures\u201d\nand to the very \u201cconventions\u201d which made the Fifth Article--Leading\nbrief, against Amendment, more than fifty times admits\nor asserts this imaginary and remarkable \u201cgrant\u201d--Some extraordinary\nconcepts of our American institutions in briefs--In a\nfamous opinion, Marshall explains a fact and on it bases the\nentire decision of the Supreme Court--The fact itself is that the\nConstitution granted no power of any kind to the state legislatures--No\nbrief knows or urges this fact or any of the facts we\nlearned in the \u201cconventions,\u201d the facts on which we base our\nchallenge to the Eighteenth Amendment concept that we are\n\u201csubjects\u201d--Briefs for the Amendment examined to find out why\nwe are supposed to be \u201csubjects\u201d--Amazing claim that, when\ngovernments alone change the national part of the Constitution,\nSupreme Court has no power even to consider whether governments\nin America can make a change in the enumerated powers\ngiven to their own government by the citizens of America--Remarkable\nTory concept that the number of Senators from each\nstate is the only thing in America immune from government\ninvasion, if enough governments combine--Indignation of American\ncitizen changes to mirth when he realizes this concept to be\nonly basis of thought that he is a \u201csubject\u201d or that there is an\nEighteenth Amendment--American citizen, seeking to find (in the\nbriefs for the Amendment) what happened, between 1907 and\n1917, to make him a \u201csubject,\u201d startled to hear the answer,\n\u201cNothing\u201d--Citizen\u2019s amusement increased on learning, in same\nbriefs, that whole American people, in Constitution which expressly\ndeclares it gives no power to state governments, made\nthose governments of state citizens irrevocable and omnipotent\nattorneys-in-fact for the citizens of America--Amusement increased\nby finding that main champion of Tory concept quotes\nMarshall\u2019s Supreme Court story of the making of the Constitution,\nbut omits, from the quotation, the paragraph in which Marshall\npoints out that everyone knew why the \u201clegislatures\u201d could not\nmake and only the \u201cconventions\u201d could make the national First\nArticle, with its grant of enumerated power to interfere with\nhuman liberty--Curiosity added to mirth on finding this brief\necho Madison\u2019s own knowledge that his Fifth Article contains\nnothing but \u201cprocedural provisions,\u201d while brief bases its entire\ncontention on mere assertion that Fifth Article is greatest grant\nof power ever made by free men to government.\n\n\nXXV. CITIZEN OR \u201cEIGHTEENTH AMENDMENT\u201d?                       _Page 397_\n\nCongress is only legislature with any power of attorney from the\ncitizens of America--At very beginning and very end of original\nConstitution, citizens of America expressly so state--All briefs of\n1920 based on asserted assumption denying those two statements\nand insisting Fifth Article is \u201cgrant\u201d to governments of state\ncitizens--Briefs for new Amendment assert \u201cgrant\u201d made governments\nof state citizens omnipotent master of everything in America\n(including all human rights) save number of Senators from each\nstate--On this Tory concept depends entirely existence of Eighteenth\nAmendment--Tory concept being absolute myth, Amendment\ndisappears--Amusing to find Tory briefs for Amendment\nwith American citations and quotations which annihilate Tory\nconcept--Unconscious humor of Wheeler surpasses \u201cComic Blackstone\u201d--Tory\nlegions, fighting under crescent of Mohammet, claim\nto be American and Christian crusaders--Americans would have\nremained \u201csubjects\u201d if Parliament, passing the Stamp Act, had\nsaid: \u201cYou subjects must obey this command we make but, making it,\nwe do not legislate\u201d--\u201cStatement\u201d that citizens of America universally\ndemanded this sole Amendment which attempts to change\nthe First Article enumerated powers--\u201cProof\u201d that 4742 Tory\nmembers of governments of state citizens said \u201cYes\u201d to the\nchange--Jefferson and Madison tell us that concentration of all power\nin legislatures \u201cis precisely the definition of despotic government,\u201d\nthat 173 \u201cdespots would surely be as oppressive as\none,\u201d and that \u201can elective despotism was not the government we\nfought for\u201d--Calhoun contended one state might defy supreme\nwill of citizens of America--Tories for Amendment go far beyond\ndoctrine finally repudiated by Gettysburg--On Tory concept that\nwe are \u201csubjects\u201d of omnipotent government, assert that some\ngovernments of state citizens may dictate, in all matters of human\nright, what the citizens of America may and may not do--Echo\nfrom \u201cconventions\u201d which made Fifth Article, \u201cHow comes it,\nsir, that these state governments dictate to their superiors, to the\nmajesty of the people?\u201d\n\n\nXXVI. THE AMERICAN CITIZEN WILL REMAIN                        _Page 416_\n\nSupreme Court holds American people, \u201cfor most important purposes,\u201d\nchose to be one nation, with only one government of the First\nArticle enumerated powers to interfere with human liberty--America,\nthe nation of men, and United States, the subordinate\nfederation of states--Tories for new Amendment must prove that\nAmerican people, as one \u201cimportant\u201d purpose, meant that governments\nof state citizens could interfere with every human right of\nAmerican citizens--Reserved rights and powers of American citizens\nare entirely at their own direct disposal, for exercise or\ngrant, \u201cdespite their legislatures, whether representing the states\nor the federal government\u201d--American citizen must know this of\nhis own knowledge or his human freedom will disappear--Emmett\nand Webster and their generation knew it--Madison\nwrites Fifth Article and states exactly what it is to the \u201cconventions\u201d\nwhich made it--Hughes unable to begin his Tory argument\nfor new Amendment without adding to that Madison statement\nwhat Madison pointedly did not say--Senate now about to repeat\n1917 blunder that governments of state citizens have aught to do\nwith altering the national part of the American Constitution,\nwhich part is within the exclusive control of the citizens of\nAmerica themselves--\u201cConventions\u201d are the people--\u201cLegislatures\u201d\nare governments--\u201cCitizen or Subject?\u201d--Supreme Court\nanswer certain--Court\u2019s history and traditions show American\nconcept of Hamilton that this Court bulwark of American citizen\nagainst government usurpation of power to interfere with human\nliberty--Webster forecast Court decision on new and Tory\nAmendment, answering \u201cCitizen or Subject?\u201d--All Americans\nonce knew same correct answer to same question by Pendleton in\nVirginia Convention of 1788, \u201cWho but the people can delegate\npower? What have the state governments to do with it?\u201d\n\n\nAPPENDICES\n\nI. THE ORIGINAL CONSTITUTION OF THE UNITED STATES             _Page 445_\n\nII. THE RESOLUTION WHICH PROPOSED THE CONSTITUTION\nTO THE CONVENTIONS OF THE PEOPLE OF AMERICA                   _Page 458_\n\nIII. THE FIRST SEVENTEEN AMENDMENTS TO THE CONSTITUTION       _Page 460_\n\nIV. THE ALLEGED EIGHTEENTH AMENDMENT                          _Page 465_\n\nV. THE NINETEENTH AMENDMENT                                   _Page 466_\n\n\n\n\n                          CITIZEN OR SUBJECT?\n\n\n\n\n                               CHAPTER I\n\n                       SUBJECTS BECOME CITIZENS\n\n\nThe average American of this generation does not understand what it\nmeans to be a citizen of America. He does not know the relation of\nsuch a citizen to all governments _in_ America. He does not know the\nrelations of those governments to one another. If this ignorance should\ncontinue, the citizen of America would disappear. The American would\nbecome again a subject, as he was when the year 1776 opened.\n\nThe supposed Eighteenth Amendment is not in the Constitution unless the\nAmerican already is a subject.\n\nIt is vital to every individual interest of the average American that\nhe _should_ know these things which he does not know. Happily for him,\n_his_ ignorance is not as that of the public leaders of his generation.\n_Their_ concept of the American and his relation to governments in\nAmerica is one which contradicts the most definitely settled and\nclearly stated American law. On the other hand, the average American\nmerely has a mind which is a blank page in these matters. As a result,\nit is the greatest danger to his individual interest that _their_\nconcept largely guides his attitude in public affairs of the utmost\nmoment to him.\n\nThe Americans of an earlier generation, who created the American nation\nof men and all governments _in_ America, accurately knew the status\nof the American citizen and his relation to all governments. Their\naccurate knowledge was an insistent thing which guided their every act\nas a people in the period between 1775 and 1790, in which latter year\nthe last of the Americans became citizens of America. Their knowledge\ncame to them from their own personal experience in those fifteen years.\nThey were a people, born subjects of government, who died citizens\nof a great nation and whose every government, _in_ America, was\ntheir servant. This great miracle they themselves had wrought in the\nfifteen years between 1775 and 1790. Their greatest achievement, as\nthe discerning mind has always realized, is what they did in the last\nfour of those momentous years. They brought to its doing their valuable\nexperience and training of the previous eleven years. That is why they\nsucceeded, so far as human effort can secure human liberty by means\nof written constitutions of government, in securing to themselves and\ntheir posterity the utmost measure of protected enjoyment of human life\nand happiness. That we, their posterity, may keep their legacy intact\nand transmit it to the generations to come, it is necessary that we,\nthe average Americans, should share somewhat with them their amazingly\naccurate knowledge of the simple but vital facts which enabled them\nto create a nation and, by its American Constitution, to secure to\nthemselves, its citizens, protected enjoyment of life, liberty and\nhappiness.\n\nWhen they were actually engaged in this work of creation, it was\ntruthfully said of them that \u201cThe American people are better acquainted\nwith the science of government than any other people in the world.\u201d\nFor over a hundred years the history of America attested the truth of\nthat statement. As they were a simple people, their knowledge of the\nscience of government was derived from their accurate understanding of\na few simple facts. It is a certainty that we can keep their legacy\nby learning those same facts. Let us quickly learn them. The accurate\nknowledge of them may best be acquired by briefly living again, with\nthose simple Americans of an earlier generation, through their days\nfrom 1775 to 1790.\n\nThe individual Americans of that generation were all born subjects\nof the British government. We do not understand the meaning of that\nstatement until we accurately grasp the vital distinction between a\n\u201csubject\u201d of a government and a \u201ccitizen\u201d of a nation.\n\nIt is hardly necessary to point out, but it is amazingly important\nto remember, that a \u201csubject,\u201d as well as a \u201ccitizen,\u201d is first of\nall a human being, created by an omnipotent Creator and endowed with\nhuman rights. All would be well with the world, if each human being\nalways accurately knew the difference between right and wrong and if\nhis accurate knowledge invariably controlled his exercise of his human\nfreedom of will. In that case, no human government would be needed to\nprescribe and to enforce rules of personal conduct for the individual.\nAs such is not the case, human government must exist. Its sole reason\nfor existence, therefore, is that it may prescribe and enforce rules\nfor those whom it can compel to obey its commands and that it may thus\nsecure the utmost measure of protected enjoyment of human rights for\nthose human beings whose government it is.\n\nTime does not permit and necessity does not require that we dwell upon\nthe various types of government which have existed or which have been\ncreated supposedly to meet this human need. It is sufficient to grasp\nthe simple and important fact that government ability to say what men\nmay or may not do, in any matter which is exercise of human freedom,\nis the very essence of government. Where a government has no ability\n_of that kind, except_ what the men of its nation grant to it, where\nthose men limit and determine the extent of that ability in their\ngovernment, the men themselves are citizens. Where a government claims\nor exercises any ability _of that kind_, and has not received the grant\nof it directly from the men of the nation, where a government claims\nor exercises any ability _of that kind_, without any grant of it, or\nby grant _from_ government _to_ government, the men of that nation are\nsubjects.\n\nIn the year 1775, under the British law, the Parliament at Westminster\nclaimed the unqualified right to determine in what matters and to\nwhat extent laws should be made which would interfere with individual\nfreedom. From such decision of the legislative part of the British\nGovernment there was no appeal save by force or revolution. For this\nreason, that every human being under that Government must submit to any\ninterference with individual freedom commanded by that Legislature,\nall British human beings were \u201csubjects.\u201d And, as all Americans were\nthen under that British Government, all Americans were then \u201csubjects.\u201d\nSuch was their legal status under the so-called British Constitution.\nCuriously enough, however, until a comparatively short time prior to\n1775, such had _not_ been the _actual_ status of the Americans. In this\nsharp contrast between their legal and their actual status, there will\nbe found both the cause of their Revolution and the source of their\ngreat and accurate knowledge of the sound principles of republican\ngovernment which they later made the fundamental law of America.\n\nFrom the day their ancestors had first been British colonists in\nAmerica their legal status had been that of subjects of the British\nGovernment. But, so long as they remained merely a few widely scattered\nsets of human beings in a new world, struggling to get a bare existence\nfrom day to day, they offered no temptation to the omnipotent British\nGovernment to oppress them, its subjects. They still had to show the\nsigns of acquiring that community wealth which has always been the\ntemptation of government to unjust exaction from the human beings it\ngoverns. For that reason, their legal government concerned itself very\nlittle about them or their welfare. It thus became their necessity to\ngovern themselves for all the purposes for which they locally needed\ngovernment as security to their individual welfare.\n\nOnly thirteen years after the first permanent English settlement in\nVirginia, \u201cSir George Yeardley, then the Governor of the colony, in\n1619 called a general assembly, composed of representatives from\nthe various plantations in the colony, and permitted them to assume\nand exercise the high functions of legislation. Thus was formed and\nestablished the first representative legislature that ever sat in\nAmerica. And this example of a domestic parliament, to regulate all the\ninternal concerns of the country, was never lost sight of, but was ever\nafterwards cherished [until 1917] throughout America, as the dearest\nbirthright of freemen.\u201d (1 _Ell. Deb._ 22.)\n\n\u201cOn the 11th of November, 1620, those humble but fearless adventurers,\nthe Plymouth colonists, before their landing, drew up and signed an\noriginal compact, in which, after acknowledging themselves subjects\nof the crown of England, they proceed to declare: \u2018Having undertaken,\nfor the glory of God, and the advancement of the Christian faith, and\nthe honor of our king and country, a voyage to plant the first colony\nin the northern parts of Virginia, we do, by these presents, solemnly\nand mutually, in the presence of God and of one another, covenant and\ncombine ourselves together into a civil body politic, for our better\nordering and preservation, and furtherance of the ends aforesaid. And\nby virtue hereof do enact, constitute, and frame, such just and equal\nlaws, ordinances, acts, constitutions, and officers, from time to time,\nas shall be thought most meet and convenient for the general good of\nthe colony; unto which we promise all due submission and obedience.\u2019\nThis is the whole of the compact, and it was signed by forty-one\npersons.\n\n\u201cIt is, in its very essence, a pure democracy; and, in pursuance of\nit, the colonists proceeded soon afterwards to organize the colonial\ngovernment, under the name of the Colony of New Plymouth, to appoint\na Governor and other officers and to enact laws. The Governor was\nchosen annually by the freemen, and had at first one assistant to aid\nhim in the discharge of his trust. Four others were soon afterwards\nadded, and finally the number was increased to seven. The supreme\nlegislative power resided in, and was exercised by, the whole body of\nthe male inhabitants, every freeman, who was a member of the church,\nbeing admitted to vote in all public affairs. The number of settlements\nhaving increased, and being at a considerable distance from each other,\na house of representatives was established in 1639, the members of\nwhich, as well as all other officers, were annually chosen.\u201d (1 _Ell.\nDeb._ 25.)\n\nThese are two examples typical of the way in which the English\ncolonists, for the first hundred years, largely governed themselves by\nlegislators chosen from among themselves. In this manner, while legally\n\u201csubjects\u201d of their European government, these Americans were actually\n\u201ccitizens\u201d of their respective communities, actually governed in their\nindividual lives and liberties by governments which derived all their\npowers of government from these \u201ccitizens.\u201d In this manner, through\nthe best teacher in the world, personal experience, they learned the\nvital difference between the relation of \u201csubject\u201d and \u201ccitizen\u201d to\ngovernments. Later, the echo of that education was heard from Lincoln\nwhen he pleaded that government _of_ the people, _by_ the people and\n_for_ them should not perish from the earth.\n\nAs early as 1754 these Americans began to feel the first real burden\nof their legal status as \u201csubjects.\u201d Their community wealth was\nbeginning to attract the attention of the world. As a result, the\nlegal Government awoke to the fact of their existence and of its own\nomnipotent ability to levy upon that wealth. The Americans, for more\nthan a century educated in actual self-government, quickly showed the\nresult of that education to the accurate knowledge that no government\ncan have any just power except by the consent or grant of those to be\ngoverned by the exercise of such power. As far back as 1754, deputies\nof the various American colonies, where human beings had educated\nthemselves to be free men, assembled at Albany in an endeavor to\npropose some compromise by which the American people would be enabled\nto preserve their human freedom against unjust interference by the\nWestminster Legislature. We are all familiar with the failure of\nthat endeavor. We are all familiar with the successive steps of the\ncontinuing struggle between \u201csubjects,\u201d educated to be \u201ccitizens,\u201d and\nan omnipotent government, unshaken in its purpose to make their actual\nstatus the same as their legal one.\n\nWhen the year 1776 dawned, these Americans were still \u201csubjects\u201d under\nthe law of the British Empire. They were, however, \u201csubjects\u201d in open\nrebellion against their government, justifying their rebellion on\nthe basic American legal principle that every just power, even of a\nlawful government, must be derived from the consent or grant of the\nhuman beings themselves who are to be governed. On the memorable day\nin July of that year, despairing of any success in getting the British\nGovernment to recognize that basic principle, and asserting, for the\nfirst time in history, that they themselves were collectively the\npossessors of the supreme human will in and for America, they enacted\nthe immortal Statute which we know as the Declaration of Independence.\n\n The Declaration of Independence, _which was the first political act\n of the American people in their independent sovereign capacity_, lays\n the foundation of our national existence upon this broad proposition:\n \u201cThat all men are created equal; that they are endowed by their\n Creator with certain inalienable rights; that among these are life,\n liberty, and the pursuit of happiness.\u201d (Justice Bradley\u2019s opinion in\n Slaughter House Cases, 16 _Wall._ 36, at page 115.)\n\nIn this Statute, the American people clearly stated and definitely\nsettled for all time the basic legal principle on which rests the\nvalidity of every constitutional article or statute law, which either\ndirectly interferes or vests ability in governments to interfere with\nan American in the exercise of his human freedom. There is nothing\nvague or ambiguous in their statement. The legal principle, so clearly\nstated and so definitely settled, is that no government in America can\nhave any just power of direct interference with individual freedom\nunless such power be derived by direct grant from the Americans to be\ngoverned by the exercise of that power.\n\nThat Statute has never been repealed. The Americans of that generation,\nthroughout all the momentous political battles of the next thirteen\nyears, when they were making and unmaking nations and creating a\nfederation of nations, and later subordinating it to a union of\nhuman beings, never failed to obey that Statute and to act in strict\nconformity to its basic American principle.\n\nFrom the moment when that Statute was enacted by the supreme will\nin America, every American ceased forever to be a \u201csubject\u201d of any\ngovernment or governments in the world. It was not until 1917 that any\ngovernment or governments dared to act as if the American were still a\n\u201csubject.\u201d\n\nIn that summer of 1776, as the Americans were engaged with their\nformer Government in a bitter and protracted war, they had little\ntime or thought to give, as one people, to the constitution of a\ngovernment best designed to secure to themselves the utmost possible\nmeasure of protected enjoyment of individual human freedom. In their\nrebellion, they had delegated the management of their common interests\nto a committee of deputies from each former colony, which committee\nwas called the Congress. By the declared supreme will of the whole\nAmerican people, the Americans in each former colony now constituted\nan independent nation, whose human members were now the \u201ccitizens\u201d of\nthat nation. Under the declared basic American legal principle, it was\nimperative that any government should get its every valid power from\nits own citizens. Knowing this, the Congress, almost immediately after\nthe Declaration of July, made the formal suggestion to the citizens\nin each nation that they constitute a government for themselves and\nthat they grant to such government ability to interfere with their\nown human freedom in such matters and to such extent as they deemed\nwise. The manner in which the citizens of each nation acted upon this\nsuggestion should have stamped itself so irrevocably upon the mind of\nAmerica as never to have been forgotten by any later generation of\nAmericans. The citizens of those nations were of the \u201cpeople who were\nbetter acquainted with the science of government than any other people\nin the world.\u201d In each nation they were creating the very essence of\nsecurity for a free people, namely, a government with limited ability\nto interfere with individual freedom, in some matters, so as to secure\nthe greatest possible protected enjoyment of human liberty. They knew,\nas only human beings _could_ know who were then offering their very\nlives to uphold the basic law of America, that such ability could\nnever be validly given to any government by government itself, acting\nin any manner, but only by direct action and grant of those later to\nbe governed by the exercise of that ability. What method did those\ncitizens, so thoroughly educated in the basic principles of republican\ngovernment, employ to secure the direct action of the human beings\nthemselves in giving that ability _of that kind_ to their respective\ngovernments? They acted upon the suggestion from the Congress of\n1776, as Marshall later expressed it from the Bench of the Supreme\nCourt, \u201cin the only manner in which they can act safely, _effectively_\nand wisely _on such a subject_, by assembling in convention\u201d in their\nrespective states. Long before Marshall voiced judicial approval of\nthis _American_ method of direct action by the people themselves, in\nmatters in which only _the people_ themselves can validly act at all,\nMadison, in the famous Virginia convention of 1788, paid his tribute to\nthese conventions of the people in each of the thirteen nations. This\nwas the tribute of Madison: \u201cMr. Chairman, nothing has excited more\nadmiration in the world than the manner in which free governments have\nbeen established in America; for it was the first instance, from the\ncreation of the world to the American Revolution, that free inhabitants\nhave been seen deliberating on a form of government, and selecting such\nof their citizens as possessed their confidence, to determine upon and\ngive effect to it.\u201d (3 _Ell. Deb._ 616.)\n\nLater herein there will be occasion to speak at greater length of this\nAmerican method of direct action by the people themselves, through the\ndeliberative conventions of deputies chosen by the people and from the\npeople for that one purpose, giving to governments a limited ability\nto interfere with individual freedom. At this point, it is sufficient\nto say that, since 1789 and until 1917, no government in America ever\nclaimed to have acquired ability _of that kind_ except through the\naction of such a convention or conventions or through the direct voting\nof its citizens themselves for or against the grant of such ability.\n\nIf we again turn our minds upon those later days of 1776, we find\nthat the Americans, through the direct action of the people in each\nindependent nation, had become respectively citizens of what we now\nknow as their respective states, each of which was then a free nation.\nThose thirteen nations were then allied in war. There did not yet exist\neven that political entity, later created and known as a federation\nof those nations. At that time and until quite some years after the\nRevolution had ended, there was no such thing as a \u201ccitizen\u201d of\nAmerica, because the America we know, the organized human membership\nsociety which is the American nation, did not yet exist. At that time\nand until the American nation did actually exist, as a political\nentity, there was no government in the world and no collection of\ngovernments in the world, which, on any subject or to any extent, could\ninterfere _generally_ with the individual freedom of Americans, _as_\nAmericans. In each of the thirteen American nations, the citizens of\nthat nation had vested their own government with some ability _of that\nkind_.\n\nAt this point, it is well to digress for a moment in order that we may\nwell understand that in none of these thirteen nations did its citizens\nvest in its government an _unlimited_ ability to interfere with\nindividual freedom. All the citizens of those respective nations were\nthen battling with a mighty Government which claimed such unlimited\nability over all of them, as subjects, and they were battling to\nestablish forever in America the basic doctrine that no government of\nfree men could ever have unlimited ability of that kind. In each of the\nthirteen nations, its citizens vested its government with ability _of\nthat kind only_ to a limited extent. They did this in strict conformity\nto republican principles.\n\nFor the many who do not know, it is well to state clearly the\ndistinction between a pure democracy and a republic. In both, the human\nbeings constitute the nation or the state and are its citizens. In\nboth, the citizens _themselves_ limit the matters and the extent in\nwhich they shall be governed at all in restraint of their individual\nfreedom. In both, therefore, it is accurate and truthful to state\nthat the people govern themselves. The actual difference lies in one\nfact. In a democracy the people _themselves_ assemble and themselves\nenact each specific rule of conduct or law interfering with individual\nfreedom. In a republic, it is always possible that the citizens _may_\nassemble, as in a pure democracy, and enact any specific rule of\nconduct or law. But, in a republic, its citizens generally prefer to\nact, in such matters, through attorneys in fact or representatives,\nchosen by themselves for the special purpose of exercising a wise\ndiscretion in making _such_ laws. In a true republic, however, where\nthe citizens are to remain free men, they secure to themselves absolute\ncontrol of their representative lawmakers through two most effective\nmeans. _In the first place_, they ordain that their attorneys in fact\nfor the purpose of law-making, generally called their legislators,\nshall be selected by themselves from time to time, at comparatively\nshort intervals. This precaution enables the people, through new\nattorneys in fact, quickly to repeal a law of which they do not\napprove. _In the second place_, the people, in constituting their\ngovernment, limit the law-making ability of these temporary attorneys\nin fact or legislators. This is the most important fact in a free\nrepublic. Later herein there will be explained the marvelous and\neffective manner in which this particular security for human freedom\nwas later achieved by the citizens of the Republic which we know as\nAmerica, when _they_ constituted _their_ government. At present, there\nis to be mentioned the general method which the citizens of each of\nthose thirteen nations, in 1776, employed to achieve this particular\nsecurity.\n\nIn each nation the citizens constituted a legislature to be their\nonly attorney in fact for the purpose of making valid laws. In this\nlegislative department they did not vest enumerated powers to interfere\nwith individual freedom. But in it they did vest whatever ability\n_of that kind_, under the American doctrine of human liberty, they\nthought a government of free men or citizens ought to have. They did\nnot, however, grant unlimited ability to make laws interfering with\nindividual freedom. When constituting their government they named many\nmatters in which no laws could be made, such as laws abridging the\nright of free speech, laws suspending the privilege of habeas corpus,\netc. Outside these named matters, they granted law-making ability _of\nthat kind_ to whatever extent American principles of human liberty\ndetermined a government ought to have. The extent of that ability, so\nto be determined, they left to the legislature to ascertain in the\nfirst instance. But to the judicial department they gave the right\nfinally to ascertain and decide whether, in any particular law, the\nlegislative department had exceeded its granted ability.\n\nIn living again the education days of the Americans, who later created\nand constituted the republican nation which is America, we have come\nnow to the close of the eventful year 1776. We find ourselves, at that\ntime, viewing this status of the American human being and his relation\nto all governments.\n\nWith his fellow Americans, he has declared that they are not the\nsubjects of any government or governments in the world. With his\nfellow Americans, on many battlefields, he is fighting their former\nGovernment, which still claims that they are its subjects. If he is\na Virginian, he and his fellow Virginians, with the consent of their\nfellow Americans, have constituted themselves a free and independent\nnation of human beings and have given to _their_ law-making attorney\nin fact, the legislature of Virginia, some ability to make laws in\nrestraint of the individual freedom of Virginians, in such matter and\nto such extent, as the citizens of Virginia have deemed wise. In each\nof the other twelve nations the situation is the same. In no nation,\nin America, has any government servant and attorney in fact of the\npeople any ability whatever to interfere with human freedom in any\nmatter or to any extent, except such ability of that kind as has been\ngiven to that government by direct grant from its citizens. Nowhere, in\nAmerica, has _any_ government _any_ power whatever, in _any_ matter or\nto _any_ extent, to make a valid command restraining the human freedom\nof the individual _American_ as an American. All Americans are fighting\nthroughout America with the armies of the only government in the world\nwhich claims such ability. All Americans everywhere are determined to\nwin that war and keep it the basic law of America that no government\never _shall_ have ability _of that kind_ unless the whole American\npeople, by direct grant from themselves, shall give it to a general\nAmerican government. There is yet no republic of America. There are yet\nno citizens of America. There are only citizens of thirteen respective\nnations, which nations are allied in an existing war. The affairs of\nthe allied nations are being directed by a committee of delegates\nfrom the different nations, called the Congress. The first Committee\nor Congress of that kind, known in history as the First Continental\nCongress, had met at Philadelphia from September 5 to October 26, 1774,\nand \u201crecommended peaceful concerted action against British taxation\nand coercion.\u201d The second Committee, known as the Second Continental\nCongress, had assembled, also at Philadelphia, on May 10, 1775, and had\nassumed direction of the war.\n\n\n\n\n                              CHAPTER II\n\n             THE STATE GOVERNMENTS FORM A UNION OF STATES\n\n\nWe have now lived with the American of an earlier generation through\nthe days in which he ceased to be a subject of any government, and\nin which he established forever in America the basic law that no\ngovernment can exercise or possess any ability to interfere with his\nindividual freedom except by direct grant from its citizens. We have\nseen him, in each of the former colonies, create a nation, become one\nof its citizens and, with his fellow citizens of that nation, give to\nits government _some_ ability _of that kind_.\n\nWhen we recall it to be the tribute of history that _these_ Americans\nwere better acquainted with the science of government than any other\npeople in the world, it is well to reflect for a moment upon the\nsignificant exhibition of that knowledge during the days through which\nwe have just lived with them.\n\nWhen the suggestion came from Philadelphia, in the summer of 1776,\nthat the Americans in each former colony constitute a government for\ntheir own nation and give to it a limited ability to govern themselves\nin restraint of their individual freedom, it is recorded history that\nAmericans generally knew that a gift _of that kind_ to government could\nnever be validly made by governments. It \u201cwas felt and acknowledged by\nall\u201d that only its own citizens ever could grant ability _of that kind_\nto any government.\n\nAs the people of New England had been the most thoroughly trained in\nthe actual experience of self government, we naturally find them acting\nupon and clearly stating the American legal principle that legislatures\nnever can give ability _of that kind_ to government. The records\nof Concord, Massachusetts, for October 21, 1776, show how clearly\nthis was understood by the Americans of that generation. After the\nPhiladelphia suggestion had been made, the Massachusetts legislature\nframed a constitution and sent it to the Massachusetts townships for\napproval. On that October 21, 1776, the people of Concord refused to\nact upon it. Their reason was that government ability to interfere with\nhuman freedom could never come from legislatures but must always come\n_directly_ from the citizens themselves. Let the Americans of Concord,\nin their own words, impart some of their knowledge to the Americans of\nthis generation.\n\n\u201cResolved secondly, that the supreme Legislative, either in their\nproper capacity or in joint committee, are by no means a body proper\nto form and establish a Constitution or form of government for reasons\nfollowing, viz.: First, because we conceive that Constitution in its\nproper idea intends a system of principles established to secure\nthe subject in the possession of and enjoyment of their Rights and\nPrivileges against any encroachment of the Governing Part. Secondly,\nbecause the same body that forms a Constitution have of consequence a\npower to alter it. Thirdly, because a Constitution alterable by the\nSupreme Legislative is no security at all to the subject against the\nencroachment of the Governing Part on any or on all their Rights and\nPrivileges.\u201d\n\n(See _Constitutional Review_, April, 1918, p. 97.)\n\nThe people of Concord or New England were not alone in this knowledge.\nOn this we have the later testimony of Marshall from the Bench of the\nSupreme Court. Speaking of that day, a few years after 1776, when the\nwhole American people created _their_ nation and gave enumerated powers\n_of that kind_ to _its_ government, he said:\n\n But when, \u201cin order to form a more perfect Union,\u201d it was deemed\n necessary to change this alliance into an effective government,\n possessing great and sovereign powers, and acting directly on the\n people, the necessity of referring it to the people, and of deriving\n its powers _directly_ from them, was felt and acknowledged by all.\n (M\u2019Culloch v. Maryland, 4 _Wheat._ 316.)\n\nFixing this knowledge of that day firmly in our mind, let us go on with\nthe remarkable Americans of that generation through the next period in\nwhich the relation of government to government and of nation to nation\nwas changed, but in which the status of the citizen of each nation and\nhis relation to all governments remained exactly what he and his fellow\ncitizens of that nation had made it.\n\nOn November 15, 1777, there came from the Congress at Philadelphia\nanother suggestion, this time a proposal to the thirteen nations that\nthey, already allied in an existing war, should form a permanent union\nor federation of nations. With that proposal went a drafted set of\nconstitutional Articles, having for their purpose the establishment of\na government (to be called a Congress) for the proposed federation,\nsome of which Articles would give to that government ability to govern\nthe members of the union, the thirteen nations. The proposal and the\nconstitutional Articles were sent, for ratification or rejection,\nto the legislature of each nation as its proper attorney in fact in\ncreating a _federal_ union of nations and in giving _federal_ ability\nto govern, which _federal_ ability never directly interferes with\nindividual freedom.\n\nLet us reflect upon the accurate knowledge of the science of government\nagain shown by the Americans of that generation in that proposal.\nOnly a few short months earlier there had come, from the same men at\nPhiladelphia, the proposal that _national_ government be established\nin each nation. These men at Philadelphia had been subjects of the\nBritish Government until July, 1776. All government ability to\ninterfere with human freedom, then as now, under British law, had its\nsource in a legislature, the Westminster Parliament. And yet these men\nat Philadelphia, in the summer of 1776, had accurately known that,\nunder basic American law, _such_ government ability could only have\none valid source, direct action by the citizens themselves assembled\nin conventions. Acting on this knowledge in the summer of 1776, the\nsuggestion that government in each state be given _national_ power to\ngovern, namely, ability directly to interfere with individual freedom,\nhad come as a suggestion to the citizens of each nation for their own\ndirect action. That suggestion had been followed, and thus had been\nexercised, for the first time since Americans ceased to be subjects,\nthe inherent and inalienable and always existing ability of the\ncitizens of a free nation to make any kind of constitutional Articles\nof government, including the _national_ kind which give government any\npower to interfere with individual freedom.\n\nWhen, therefore, these same men at Philadelphia made their proposal of\nNovember, 1777, that other constitutional Articles of government be\nmade in America, the proposed Articles of Union between nations, it\nmight have been natural that this proposal also should have suggested\nratification of _these_ Articles by the people themselves. It would\nhave seemed all the more natural, when we remember that one of the\nleaders at Philadelphia in that time was Jefferson, the historic\nchampion of human individual freedom against all governments. But the\nAmericans of that generation and their leaders were not as the leaders\nof our own time. They knew very accurately the difference between a\n_national_ Article of government, which gave ability to interfere with\nhuman freedom, and a _federal_ Article, which gave no ability _of\nthat kind_ but only ability to govern nations or states, as political\nentities. With this accurate knowledge of the vital distinction\nbetween a _national_ and a _federal_ Article, they naturally knew\nthat either the people themselves or the legislative attorney in fact\nof the nation, which makes all agreements for the nation with other\nnations, may validly make a _federal_ Article. Therefore, they sent the\nproposed Articles of Confederation between nations (not one of which\ngave _national_ power to the proposed _federal_ government) to the\nlegislatures of the respective nations for ratification or rejection on\nbehalf of the nations. As Marshall later summed up the knowledge which\nprompted that sending of those _federal_ articles to the legislatures:\n\n To the formation of a league, such as was the Confederation, the State\n sovereignties were certainly competent. (M\u2019Culloch v. Maryland, 4\n _Wheat._ 316.)\n\nEach state legislature acted favorably upon the proposed articles and\nratified them. By July 9, 1778, the legislatures of ten states had\nratified. The legislatures of New Jersey and Delaware followed before\nthe end of February, 1779. The legislature of Maryland did not ratify\nuntil March 1, 1781.\n\nIt is well for the average American of the present generation, at this\npoint, to fix firmly in his mind that this _legislative_ ratification\nof these _federal_ Articles was the important exercise of an existing\nand recognized ability of state legislatures to make all constitutional\narticles of a _federal_ nature, which never confer any government\nability directly to interfere with human freedom. It is well for the\nsame American also to fix firmly in his mind that it was the exercise\nof an ability to make constitutional articles entirely distinct from\nthe other existing ability to make them, which had been exercised, in\neach nation, directly by the citizens themselves, in \u201cconventions,\u201d\nin the preceding year of 1776. In that year, there had been exercised\nthe inherent and inalienable and always existing ability of citizens\nof a nation, assembled in conventions of deputies chosen for that\nexpress purpose, to make _any_ kind of constitutional article, whether\nit confers _federal_ or _national_ power on government. In the years\n1777 to 1781, there had been exercised the recognized and existing _but\nlimited_ ability of state legislatures to make _federal_ articles, an\nability clearly then known not to include the ability to confer upon\ngovernment _national_ power to interfere with individual freedom.\n\nLiving with those Americans through their great days, we have now\nreached the day in 1781 when they were all citizens of _some_ nation\nbut were not all citizens of the same nation. The great Republic,\nAmerica, had not yet been born. The legal status of the American as\nan individual, and his relation to all governments was exactly the\nsame as it had been since 1776. Each American was the citizen of some\nnation. His individual freedom could be directly interfered with\nonly by some law of the legislature of that single nation under a\nvalid grant, from him and his fellow citizens, of power to enact that\nlaw on that subject. Neither the legislature of any other nation in\nAmerica, nor the legislatures of all other nations in America, nor the\ngovernment of nations which those legislatures had created and endowed\nwith _federal_ powers, the Congress of the Federation, could singly or\ncollectively issue a single command to him, interfering in any manner\nwith his human freedom, or could give to any government or governments\na power to issue such a command.\n\nThere were existing and recognized by all in America two distinct\nand different abilities--one limited and the other unlimited--to\nmake constitutional articles. One was the limited ability of state\nlegislatures. They could give _federal_ power to a government, but they\ncould not give any _national_ power or power directly to interfere with\nhuman freedom. The other was the unlimited ability of the citizens of\nany nation. They could give _any_ kind of power, federal or national,\nto their own government. Each ability, at a different time, had been\nevoked to exercise by a distinct proposal from the same Americans at\nPhiladelphia, the Second Continental Congress, which had under its\ndirection the conduct of the Revolutionary War.\n\nDormant for the time being, but existing over all other ability in\nAmerica, was the supreme will of the collective people of America, who\nhad not yet created their own great Republic or become its citizens or\ngiven to its government its enumerated powers to interfere with their\nindividual freedom.\n\nThis was the legal status of the American, and his relation to all\ngovernments, and the relation of governments in America to one another,\nwhen the Treaty of Peace was concluded with England on September 3,\n1783, and was later ratified by the Federal Congress on January 14,\n1784.\n\n\n\n\n                              CHAPTER III\n\n              AMERICANS FIND THE NEED OF A SINGLE NATION\n\n\nLiving over the great days of our forefathers, we now approach the\ngreatest of all. It comes four years after the end of the Revolution.\nNot satisfied with a mere union of their states, the whole American\npeople, in 1787, proposed to form the great nation of men, America.\nOn June 21, 1788, it is created by them. On March 4, 1789, its only\ngovernment, now also the government of the continued union of states,\nbegins to function.\n\nBetween May 29, 1787, and March 4, 1789, the whole American people did\ntheir greatest work for individual liberty. That was their greatest\nday. Most Americans of this generation know nothing about that period.\nStill more is it to be regretted that our leaders in public life, even\nour most renowned lawyers, do not understand what was achieved therein\nfor human freedom. It is of vital importance to the average American\nthat _he_ always know and understand and realize that achievement.\nThat he do so, it is not in the slightest degree essential that he be\nlearned in the law. It is only necessary that he know and understand a\nfew simple facts. The experience of five years since 1917 teaches one\nlesson. It is that Americans, who have not the conviction that they are\ngreat constitutional thinkers, far more quickly than those who have\nthat conviction, can grasp the full meaning of the greatest event in\nAmerican history.\n\nThe reason is plain. Back in the ages, there was a time when scientific\nmen \u201c_knew_\u201d that the earth was flat. Because _they_ \u201cknew\u201d it, the\nrest of men assumed that it was so. And, because _they_ \u201cknew\u201d it,\nit was most difficult to convince _them_ that their \u201cknowledge\u201d was\n_false_ \u201cknowledge.\u201d\n\nIn a similar way, our statesmen and constitutional thinkers came to\nthe year 1917 with the \u201cknowledge\u201d that legislatures in America,\nif enough of them combined, had exactly the omnipotence over the\nindividual freedom of the American which had been denied to the British\nParliament by the early Americans. Naturally, it is difficult for\n_them_ to understand that their \u201cknowledge\u201d is _false_ \u201cknowledge.\u201d\nFor us who have no false knowledge to overcome, it is comparatively\nsimple to grasp what those other plain Americans of 1787 and 1788\nmeant to accomplish and did accomplish. Why should it not be simple\nfor us? With those other plain Americans, we have just been through\ntheir strenuous years which immediately preceded their greatest days of\n1787 and 1788. They were a simple people as are we average Americans\nof this generation. From living with them through those earlier days,\nwe have come to know their dominant purpose. They sought to secure to\nthemselves and to their posterity the greatest measure of protected\nenjoyment of human life, liberty and happiness against interference\nfrom outside America and against usurpation of power by any governments\nin America. Certainly, it ought not to be difficult for us to grasp\naccurately and quickly what they meant to do and what they did do in\ntheir last and greatest achievement in the quest of that protected\nenjoyment of human freedom. But, with all our happy predisposition\naccurately to understand the meaning of the facts in 1787 and 1788,\nthat understanding cannot come until we know the facts themselves.\nLet us, therefore, live through those years with those other plain\nAmericans of whom we _are_ the posterity. Only then can we understand\ntheir legacy of secured liberty to us _and keep it against usurpation\nby those who do not understand_.\n\nSo long as the former subjects continued their Revolution, it was\nonly natural that Americans should not realize how inadequately a\nmere federation of states would serve really to secure the protected\nenjoyment of individual human freedom. But, as soon as that war had\nended, discerning men began quickly to realize that fact. Jealousies\nbetween nations, jealousies in abeyance while those nations were\nfighting a common war for independence, quickly had their marked\neffect upon the relations of these nations to one another and upon the\nrespect which they showed to the commands of the government of the\nfederation of which all those nations were members. As a matter of\nfact, those commands, because the governing powers of that government\nwere wholly _federal_, were tantamount to nothing but requisitions.\nThose requisitions were honored largely by ignoring them. There was no\nway of enforcing respect for them or compelling observance of them.\nThe plan of a purely _federal_ union of nations permitted no method\nof enforcement save that of war upon whatever nation or nations might\nrefuse obedience to a requisition. Such a war would have been repugnant\nto the mind of every patriotic American.\n\nThis was only one of the many defects coming from the fact that\nAmericans, in spirit one people or nation, had no political existence\nas one nation and had no general _national_ government, with general\npowers over all Americans, to command respect at home and abroad for\nthe individual freedom of the American.\n\nThere is neither time nor necessity for dwelling further upon the\nfact, quickly brought home to the American people after the close of\ntheir Revolution, that a purely _federal_ government of the states was\nno adequate security for their own freedom. Let the words of one of\nthemselves, apologizing for the inadequacy of that government, attest\ntheir quick recognition that it was inadequate. They are the words of\nJay in _The Federalist_ of 1787. This is what he said: \u201cA strong sense\nof the value and blessings of union induced the people, at a very early\nperiod, to institute a federal government to preserve and perpetuate\nit. They formed it almost as soon as they had a political existence;\nnay, at a time when their habitations were in flames, when many of\ntheir citizens were bleeding, and when the progress of hostility\nand desolation left little room for those calm and mature inquiries\nand reflections which must ever precede the formation of a wise and\nwell-balanced government for a free people. It is not to be wondered\nat, that a government instituted in times so inauspicious, should on\nexperiment be found greatly deficient and inadequate to the purpose it\nwas intended to answer.\u201d (_Fed._, No. 2.)\n\n\n\n\n                              CHAPTER IV\n\n                        THE BIRTH OF THE NATION\n\n\nLiving through those old days, immediately after the peace with England\nof 1783, we find that public and official recognition of a fatal defect\nin the _federal_ form of union came from the inability of its _federal_\ngovernment, which had no power over commerce, to establish a uniform\nregulation of trade among the thirteen American nations themselves\nand between them and foreign nations. Discerning men, such as Madison\nand Washington and others, already recognized other incurable defects\nin any form of union which was solely a union of nations and not\na union of the American people themselves, in one nation, with a\ngovernment which should have _national_, as well as _federal_, powers.\nTaking advantage of the general recognition that some central power\nover commerce was needed, the legislature of the nation of Virginia\nappointed James Madison, Edmund Randolph and others, as commissioners\nto meet similar commissioners to be appointed by the twelve other\nnations. The instructions to these commissioners were to examine into\nthe trade situation and report to their respective nations as to how\nfar a uniform system of commerce regulations was necessary. The meeting\nof these commissioners was at Annapolis in September, 1786. Only\ncommissioners from the nations of Virginia, Delaware, Pennsylvania,\nNew Jersey and New York attended. The other eight nations were not\nrepresented.\n\nMadison and Hamilton were both present at Annapolis and figured\nlargely in what was done there. It is an interesting and important\nfact that these two played a large part from its very inception in the\npeaceful Revolution which brought to an end the independent existence\nof thirteen nations--a Revolution which subordinated these nations,\ntheir respective national governments, and their federation to a new\nnation of the whole American People, and to the Constitution and the\ngovernment of that new nation.\n\nAt every stage of _that_ Revolution, these two men were among its\nforemost leaders. Recorded history has made it plain that Madison,\nmore than any other man in America, participated in planning what was\naccomplished in that Revolution. He drafted the substance of most of\nthe Articles in what later became the Constitution of the new nation.\nBy the famous essays (nearly all of which were written by himself or\nHamilton) in _The Federalist_, explaining and showing the necessity\nof each of those Articles, he contributed most effectively to their\nmaking by the people of America, assembled in their conventions. He\nactually drew, probably in conference with Hamilton, what we know as\nthe Fifth Article, which will later herein be largely the subject of\nour exclusive interest.\n\nThe Annapolis commissioners made a written report of their\nrecommendations. This report was sent to the respective legislatures\nof the five nations, which had commissioners at Annapolis. Copies\nwere also sent to the Federal Congress and to the Executives of the\nother eight nations in the federation. The report explained that the\ncommissioners had become convinced that there were many important\ndefects in the federal system, in addition to its lack of any power\nover commerce. The report recommended that the thirteen nations appoint\n\u201ccommissioners, to meet at Philadelphia on the second Monday in May\nnext, to take into consideration the situation of the United States;\nto devise such further provisions as shall seem to them necessary to\nrender the constitution of the federal government adequate to the\nexigencies of the Union; and to report such an act for that purpose,\nto the United States in Congress assembled as, when agreed to by them,\nand afterwards confirmed by the legislature of every state, will\neffectually provide for the same.\u201d\n\nThe Annapolis recommendation was acted upon by the legislatures of\ntwelve nations. Each nation, except Rhode Island, appointed delegates\nto attend the Philadelphia Convention to begin in May, 1787. Madison\nhimself, in his introduction to his report of the debates of the\nPhiladelphia Convention, gives his own explanation of why Rhode\nIsland did not send delegates. \u201cRhode Island was the only exception\nto a compliance with the recommendation from Annapolis, well known to\nhave been swayed by an obdurate adherence to an advantage, which her\nposition gave her, of taxing her neighbors through their consumption\nof imported supplies--an advantage which it was foreseen would be\ntaken from her by a revisal of the Articles of Confederation.\u201d This\nis mentioned herein merely to bring home to the minds of Americans\nof the present generation the reality of the fact, now so difficult\nto realize, that there were _then_ actually in America thirteen\nindependent nations, each having its powerful jealousies of the other\nnations and particularly of its own immediate neighbors. The actual\nreality of this fact is something which the reader should not forget.\nIt is important to a correct understanding of much that is said later\nherein. It is often mentioned in the arguments that accompanied the\nmaking of our Constitution, that the nation of New Jersey was suffering\nfrom exactly the same trouble as the nation of Rhode Island was causing\nto its neighbors. Almost all imported supplies consumed by the citizens\nof New Jersey came through the ports of New York and Philadelphia and\nwere taxed by the nations of New York and Pennsylvania.\n\nInteresting though it would be, it is impossible herein to give\nin detail the remarkable story of the four months\u2019 Convention at\nPhiladelphia in 1787. It began on May 14 and its last day was September\n17. It is recommended to every American, who desires any real knowledge\nof what his nation really is, that he read, in preference to any other\nstory of that Convention, the actual report of its debates by Madison,\nwhich he himself states were \u201cwritten out from my notes, aided by the\nfreshness of my recollections.\u201d It is possible only to refer briefly\nbut accurately to those actual facts, in the history of those four\nmonths, which are pertinent to the object of this book.\n\nAt the very outset, it is well for us Americans to know and to remember\nthe extraordinary nature of the recommendation which had come from\nAnnapolis and of the very assembling of that Philadelphia Convention.\nThe suggestion and the Convention were entirely outside any written law\nin America. Every one of the thirteen colonies was then an independent\nnation. These nations were united in a federation. Each nation had\nits own constitution. The federation had its federal constitution.\nIn none of those constitutions was there any provision whatever under\nwhich any such convention as that of Philadelphia could be suggested\nor held. The federal Constitution provided the specific mode in which\nability to amend any of its federal Articles could be exercised. Such\nprovision neither suggested nor contemplated any such convention as\nthat to be held at Philadelphia. For these reasons, Madison and Wilson\nof Pennsylvania and other leading delegates at that Convention stoutly\ninsisted that the Philadelphia Convention had not exercised any power\nwhatever in making a proposal.\n\n\u201cThe fact is, they have exercised no power at all; and, in point of\nvalidity, this Constitution, _proposed_ by them for the government of\nthe United States, claims no more than a production of the same nature\nwould claim, flowing from a private pen.\u201d (Wilson, Pennsylvania State\nConvention in 1787, 2 _Ell. Deb._ 470.)\n\n\u201cIt is therefore essential that such changes [in government] be\ninstituted by some _informal and unauthorized propositions_, made\nby some patriotic and respectable citizen or number of citizens.\u201d\n(Madison, _Fed._ No. 40.)\n\nBut there was a development even more remarkable on the second day of\nthis unauthorized Convention.\n\nThe Convention was presided over by Washington. Among the other\ndelegates were Hamilton of New York, Madison and Randolph and Mason\nof Virginia, Franklin and Wilson and Robert Morris and Gouverneur\nMorris of Pennsylvania, and the two Pinckneys of South Carolina.\nMadison himself, speaking of the delegates in his Introduction to his\nreport of the Debates, says that they were selected in each state\n\u201cfrom the most experienced and highest standing citizens.\u201d The reader\nwill not forget that each of these men came under a commission from\nthe independent government of a sovereign and independent nation,\ntwelve such independent governments and nations being represented in\nthat Convention. In the face of this important fact, it is amazing to\nrealize the startling proposition offered for consideration, on May 30,\n1787. On that day, the Convention having gone into a Committee of the\nWhole, Randolph, commissioned delegate from the independent government\nand nation of Virginia, moved, on the suggestion of Gouverneur Morris,\ncommissioned delegate from another independent government and nation,\nthat the assembled delegates consider the three following resolutions:\n\n\u201c1. That a union of the states merely federal will not accomplish the\nobjects proposed by the Articles of Confederation--namely, common\ndefense, security of liberty, and general welfare.\n\n\u201c2. That no treaty or treaties among the whole or part of the states,\nas individual sovereignties, would be sufficient.\n\n\u201c3. That a _national_ government ought to be established, consisting of\na _supreme_ legislative, executive, and judiciary.\u201d (5 _Ell. Deb._ 132.)\n\nIf we wish to realize the sensational nature of those resolutions, let\nus assume for a moment a similar convention of delegates assembled\nin the City of New York. Let us assume that the delegates have been\ncommissioned respectively by the governments of America, Great Britain,\nIreland, Canada, Australia, New Zealand, France, Belgium and other\nnations. Let us assume that the ostensible and proclaimed purpose of\nthe convention, stated in the commissions of the delegates, is that\nit frame a set of _federal_ Articles for a league or federation of\nthe independent nations represented and report the drafted Articles\nto the respective governments for ratification or rejection. Let us\nthen assume that, on the second day of the convention, Lloyd George,\non the suggestion of Charles E. Hughes, calmly proposes that the\nconvention, as a Committee of the Whole, consider three resolutions,\nexactly similar to those proposed by Randolph on May 30, 1787. Imagine\nthe amazement of the world when it found that the resolutions were to\nthe effect that the convention should draft and propose a constitution\nof government which would create an entirely new nation out of the\nhuman beings in all the assembled nations, and create a new national\ngovernment for the new nation, and destroy forever the independence\nand sovereignty of each represented nation and its government and\nsubordinate them to the new national and supreme government.\n\nThis was exactly the nature of the startling resolutions of\nRandolph. Moreover, before that one day closed, the Committee of\nthe Whole actually did resolve \u201cthat a national government ought to\nbe established consisting of a supreme legislative, executive and\njudiciary.\u201d The vote was six to one. Massachusetts, Pennsylvania,\nDelaware, North Carolina, Virginia and South Carolina voted \u201caye.\u201d From\nthat day on, the Convention continued to prepare a proposal involving\nthe destruction of the complete independence of the existing nations\nand of the governments which respectively commissioned the delegates\nto the Convention. From that day on, the Convention concerned itself\nentirely with the drafting of constitutional Articles which would\ncreate a new nation, America, the members thereof to be all the\nAmerican people, and would constitute a national government for them,\nand give to it _national_ powers over them, and make it supreme, in its\nown sphere, over all the existing nations and governments.\n\nIt is interesting and instructive to know that all this startling\npurpose, later completely achieved by appeal to the existing ability of\nthe possessors of the supreme will in America, the people, assembled in\ntheir conventions, had not been the conception of a moment.\n\nWe find Madison, by many credited with the most logical mind of his\nremarkable generation, carefully planning, _long before_ the meeting of\nthe Convention, a quite detailed conception of the startling proposal\nof Randolph. In a letter from Madison to Randolph, dated April 8, 1787\n(5 _Ell. Deb._ 107), he speaks of \u201cthe business of May next,\u201d and of\nthe fact \u201cthat some leading propositions at least would be expected\nfrom Virginia,\u201d and says, \u201cI will just hint the ideas that have\noccurred, leaving explanations for our interview.\u201d When we remember the\nremarkable manner, entirely novel in the history of political science,\nin which our Constitution creates a new nation and its supreme national\ngovernment and yet keeps alive the former independent nations and their\nfederation, the next sentence of that letter is of absorbing interest.\nIt reads, \u201cI think, with you, that it will be well to retain as much as\npossible of the old Confederation, though I doubt whether it may not\nbe best to work the valuable articles into the new system, instead of\nengrafting the latter on the former.\u201d When we read the detailed story\nof the Philadelphia Convention and study its product, our Constitution,\nthere worded and later made by the people, we realize that Madison\u2019s\nidea, expressed in the quoted sentence, was accurately carried out\nlargely through his own efforts.\n\nTurning now to a later paragraph in that same April letter, we\nmarvel at the foresight, the logical mind and the effective ability\nof the writer in later securing almost the exact execution of his\nidea by the entire people of a continent, even though that idea was\nthe destruction of the independence of their respective nations and\nof their existing respective governments. That paragraph reads: \u201cI\nhold it for a fundamental point, that an individual independence of\nthe states is utterly irreconcilable with the idea of an aggregate\nsovereignty. I think, at the same time, that a consolidation of the\nstates into one simple republic is not less unattainable than it would\nbe inexpedient. Let it be tried, then, whether any middle ground can\nbe taken, which will at once support a due supremacy of the national\nauthority, and leave in force the local authorities so far as they can\nbe subordinately useful.\u201d\n\nThis remarkable letter then goes on, paragraph by paragraph, to suggest\nthat, in the new Articles, the principle of representation be changed,\nso as not to be the same for every state; the new government be given\n\u201cpositive and complete\u201d _national_ power \u201cin all cases where uniform\nmeasures are necessary\u201d; the new government keep all the federal\npowers already granted; the judicial department of the new government\nbe nationally supreme; the legislative department be divided into two\nbranches; the new government have an executive department; there be an\nArticle guaranteeing each state against internal as well as external\ndangers. In other words, the letter reads like a synopsis of the\nprincipal provisions of our present Constitution, although the letter\nwas written over a month before the Philadelphia Convention began to\ndraft that Constitution.\n\nOne paragraph in that remarkable letter is very important as the\nfirst of many similar statements, with the reasons therefor, made by\nMadison in the Philadelphia Convention, in the Virginia convention\nwhich ratified the Constitution and in _The Federalist_ which urged its\nratification. Madison was writing his letter within a few short years\nafter the American people had made their famous Statute of 1776. He\nknew its basic law that every ability in government to interfere with\nindividual freedom must be derived directly by grant from those to be\ngoverned. He knew that governments could give to government _federal_\npower to prescribe rules of conduct for nations. He also knew that\ngovernments could not give to government any power to prescribe rules\nof personal conduct which interfered with the exercise of individual\nhuman freedom. In other words, he knew the existing and limited ability\nof legislatures to make _federal_ Articles and that such limited\nlegislative ability was not and never could be, in America, competent\nto make _national_ Articles. He also knew the existing ability of\nAmericans themselves, assembled in their conventions, to make any kind\nof constitutional Article, whether it were federal or national. He knew\nthat the limited ability had been exercised in making the _federal_\nArticles of the existing federation and that the unlimited ability\nhad been exercised, in each existing nation, in making its _national_\nArticles.\n\nWith this accurate knowledge always present in his mind and repeatedly\nfinding expression by him in the ensuing two years, it is natural that\nwe find in his remarkable letter of 1787, after his summary of what\nArticles the new Constitution ought to contain and nearly every one\nof which it does contain, the following significant statement: \u201cTo\ngive the new system its proper energy, it will be desirable to have\nit ratified by the authority of the people, and not merely by that of\nthe legislatures.\u201d From such a logical American, it is expected that\nwe should find accurate echo again and again of this deference to\nbasic American law in such later expressions as his statement in _The\nFederalist_, Number 37, \u201cThe genius of republican liberty seems to\ndemand ... that all power should be derived from the people.\u201d\n\nHaving thus grown well aware of the tremendous part played by Madison\nin shaping the substance of the Constitution of government under which\nwe Americans live, let us return to the Philadelphia Convention in\nwhich he figured so prominently and which worded and proposed the\nArticles of that Constitution.\n\nIn the seven Articles, which were finally worded by that Convention,\nthere are but three which concern themselves at all with the vesting\nof national power in government. They are the First, the Fifth and the\nSeventh.\n\nThe First Article purports to give, in relation to enumerated matters,\n_all_ the _national_ power which the Constitution purports anywhere to\ngrant to its only donee of power to make laws interfering with human\nfreedom, the national Legislature or Congress. Indeed, the opening\nwords of that First Article explicitly state that, \u201cAll legislative\nPowers herein granted shall be vested in a Congress of the United\nStates, which shall consist of a Senate and House of Representatives.\u201d\nThen the remaining sections of that Article go on to enumerate all the\npowers of that kind, the _national_ powers, which are granted in the\nConstitution by the donors, the American people or citizens, assembled\nin their conventions.\n\nIf there be any doubt in the mind of any American that the First\nArticle contains the enumeration of _all national_ powers granted\nby the Constitution, the statements of the Supreme Court, voiced by\nMarshall, ought to dispel that doubt.\n\n This instrument contains an enumeration of powers expressly granted\n by the people to their government.... In the _last_ of the enumerated\n powers, that which grants, expressly, the means for carrying all\n others into execution, Congress is authorized \u201cto make all laws which\n shall be necessary and proper\u201d for the purpose. (Gibbons v. Ogden, 9\n _Wheat._ 1.)\n\nThis \u201c_last_\u201d of the enumerated powers, as Marshall accurately terms\nit, is that granted in the last paragraph of Section 8 of the First\nArticle.\n\nIt is _because_ the First Article IS the constitution of government of\nthe American citizen that his government has received its tribute as a\ngovernment of enumerated powers. This fact is clearly explained in the\nSupreme Court in Kansas v. Colorado, 206 U. S. 46.\n\nIndeed, we need no Marshall to make us fully understand that when human\nbeings constitute a government, the one important thing which they do\nis to grant government power to interfere, within a limited discretion,\nwith their own individual freedom by issuing commands in restraint of\nthe exercise of that freedom. Anything else that the government is\nauthorized to do is a mere incident of its existence as a government.\nThe power to issue commands interfering with human freedom is the\nsubstance and essence of government. That is why all the _national_\npowers of any American government are included in whatever ability its\nlegislature has to make valid commands _of that kind_. The letter which\nwent from the Philadelphia Convention, with the proposed Constitution,\naccurately expresses this fact in the words, \u201cIndividuals entering into\nsociety must give up a share of liberty to preserve the rest.\u201d (1 _Ell.\nDeb._ 17.) By surrender of some of their liberties is meant their grant\nof power to make commands or laws interfering with those surrendered\nliberties. Whenever government is constituted, \u201cthe people must cede\nto it some of their natural rights, in order to vest it with requisite\npowers.\u201d (Jay, _Fed._ No. 2.)\n\nWe thus know for a certainty that the First Article of our Constitution\nis the only one which purports to vest in government any _national_\npowers.\n\nThe Second Article deals entirely with the executive department, the\nauthority of the president and that department to enforce valid laws,\nthe election of the president and vice-president, etc. The Third\nArticle deals with the authority of the judicial department [including\nauthority to declare what laws have been validly passed, etc.] and with\nthe manner of the appointment of the members of that department, etc.\nThe Fourth Article contains miscellaneous declaratory statements of\ncertain things which the citizens of America make the fundamental law\nof America. The Sixth Article contains other declaratory statements of\nwhat is also made the fundamental law of America.\n\nThis leaves to be considered only the Fifth and the Seventh Articles.\nLike the First Article, they _relate_ to the vesting of _national_\npower in our American _national_ government; but, unlike the First\nArticle, neither of them purports to grant any such power to any\ngovernment. They deal with the _manner_ of its grant by the only\ncompetent grantors of power of _that kind_, the \u201cconventions\u201d of the\nAmerican people, called by that name, \u201cconventions,\u201d in the Fifth and\nSeventh Articles. As the Seventh Article was intended by those who\nworded it to accomplish its purpose simultaneously with and by reason\nof its ratification, and as its purpose was the main object of the\nConvention which framed all the Articles, we will consider it before\nthe Fifth.\n\nThe Seventh is merely the explicit declaratory statement of those\nwhose \u201cexpressed authority ... alone could give due validity to the\nConstitution,\u201d the Americans themselves assembled in their conventions,\nthat when the Americans, assembled in nine of those thirteen\nconventions, have answered \u201cYes\u201d to the entire proposed Constitution,\nthe American nation shall instantly exist, all Americans in those\nformer nations where those nine conventions assembled shall instantly\nbe the citizens of the new nation, and all the grants of _national_\npower, expressed in the First Article of that Constitution, shall\nhave been validly made as the first important act of that collective\ncitizenship.\n\nWe now consider for a moment the Fifth Article, the only remaining one\nwhich relates to grant of _national_ power. That Fifth Article does not\nrelate to grant of _national_ power alone. It also relates to grant of\n_federal_ power. It relates to the _future_ grant of either of those\nvitally distinct kinds of power. It is further proof of the logical\nmind of the man who wrote that extraordinary letter of April, 1787, and\nwho largely, in substance, planned the entire system of a constitution\nof government, both federal and national, which is embodied in our\nConstitution. Madison and his associates, in _The Federalist_ and in\nthe Philadelphia Convention and in the various ratifying conventions,\nrepeatedly stated their knowledge that the proposed Constitution could\nnot possibly be perfect. With the utmost frankness, they expressed the\nsane conviction that it would be contrary to all human experience,\nif it were found perfect in the working out of an entirely new and\nremarkable dual system of government of a free people by themselves,\nFor this reason, the Fifth Article was worded so as to prescribe a\n_constitutional mode of procedure_ in which the _existing_ ability\nof the _American_ citizens to make _any_ kind of Article, whether\n_national_ or _federal_, could thereafter be invoked to exercise and be\nexercised. It was also worded so as to provide a _constitutional mode\nof procedure_ in which there could be likewise invoked to exercise and\nbe exercised the existing limited ability of the state legislatures to\nmake articles which were not _national_. As a matter of fact, it was\nonly at the last moment, in the Convention, that Madison and Hamilton,\nremembering this _limited_ ability of those legislatures, wrote into\nArticle V any mention of it and its future constitutional exercise. As\nthe story of the First, Fifth and Seventh Articles, at Philadelphia\nin 1787, will be more fully treated hereinafter, we leave them now to\ncontinue the brief story of the voluntary and direct action of the\nAmericans themselves, by which they created the nation that is America,\nbecame _its_ citizens and, _as such_, vested its only government with\nits enumerated _national_ powers.\n\nWhen the Philadelphia Convention, on September 17, 1787, had completed\nits voluntary task of wording the proposed Constitution of a nation and\nits supreme government of enumerated powers, the proposed Constitution\nwas referred to the American people, for their own approval or\nrejection, assembled in their conventions.\n\nIn many respects, the Philadelphia ascertainment of the legal necessity\nthat it _must_ be referred to those people themselves and the\nPhiladelphia decision to that effect, following that ascertainment,\nconstitute the most important and authoritative legal reasoning and\ndecision ever made in America since July 4, 1776. Both reasoning\nand decision were naturally based upon the fact that the First\nArticle purports to give _national_ powers to Congress to make laws,\ninterfering with the individual freedom of the citizens of America. In\nthe face of that decisive fact, it was impossible for the Americans at\nPhiladelphia, who had worded that proposed Article with its grant of\nenumerated powers _of that kind_, to have made any other legal decision\nthan a reference of such an Article to the American people themselves\nassembled in their conventions, as the only competent grantors of any\n_national_ power.\n\nThe Americans at Philadelphia were human beings of exactly the same\ntype as all of us. They had their human ambitions and differences of\nopinion and jealousies. They were not supermen any more than we are.\nThey were grappling with tremendous problems along an uncharted way\nin the comparatively new science of self government by a free people,\nsparsely settled along the extensive easterly coast of a continent and,\nat the time, citizens of thirteen distinct and independent nations.\nTheir personal ambitions and differences of opinion and jealousies, for\nthemselves and their respective nations, made the problem, which they\nset themselves to solve, one almost unparalleled in history. If they\nhad wholly failed in their effort, as men with any other training and\ndominant purpose in life would certainly have failed, no just historian\nwould ever have attributed such failure to any lack of intelligence or\nability or patriotism on their part.\n\nIt was, however, their fortune _and our own_ that their training and\ndominant purpose in life had been unique in history. Among them were\nmen, who only eleven years earlier, at that same Philadelphia, in the\nname and on behalf of the American people, had enacted the Statute of\n1776. As their presiding officer, in their effort of 1787, sat the man\nwho had led the same American people in their successful effort, by the\nsacrifices of a Valley Forge and the battlefields of the Revolution, to\nmake the declarations of that Statute the basic principle of American\nlaw. Prominent in the Convention was Hamilton, who had left college\nat seventeen to become a trusted lieutenant of the leader in that\nwar which _did_ make that Statute our basic law. Among the delegates\nwere quite a few others who had played similar parts in that same war\nfor that same purpose. Most of the delegates had played some part,\nentailing personal sacrifice and effort, in that same war and for that\nsame purpose. With such an education in the school whose training\nmen find it impossible to ignore, the school of actual life, it was\nmentally impossible that this body of men could either forget or ignore\nor disobey the basic American law, which then commanded them and still\ncommands us, that no government in America can ever have or exercise\nany valid national power to interfere with human freedom except by\ndirect grant from its citizens themselves. If the education of the\nleaders of the present generation had been the same, American history\nof the last five years could have been differently written in a later\nchapter herein.\n\nBecause the Convention was educated to know the Statute of \u201976, the\nproposed grant of enumerated _national_ powers in the First Article\nwas necessarily referred to the only competent grantors, the American\npeople themselves, assembled in their conventions.\n\nFamiliar as we are with the result of their effort to solve their great\nproblem, a result told in the history of the ensuing one hundred and\nthirty-five years in America, it seems fitting here to have Madison\ndescribe the closing moment of that Philadelphia Convention, in his\nown words: \u201cWhilst the last members were signing, Dr. Franklin,\nlooking toward the president\u2019s chair, at the back of which a rising\nsun happened to be painted, observed to a few members near him, that\npainters had found it difficult to distinguish, in their art, a rising\nfrom a setting sun. \u2018I have,\u2019 said he, \u2018often and often, in the course\nof the session, and the vicissitudes of my hopes and fears as to its\nissue, looked at that behind the president, without being able to\ntell whether it was rising or setting; but now, at length, I have the\nhappiness to know that it is a rising, and not a setting sun.\u2019\u201d (5\n_Ell. Deb._ 565.)\n\nThe story of the actual making of that Constitution by the people\nof America, assembled in their conventions, is a marvelous story.\nNo American can fully grasp what an American really is unless he\npersonally reads that story, not as told even by the most gifted\nwriter, but as told by the recorded debates in the very conventions\nthemselves of the very Americans who created the nation which is\nAmerica, made themselves its citizens and, as _its_ citizens, made the\nonly _valid_ grants of enumerated _national_ power, the grants in the\nFirst Article. In a later chapter, somewhat of that story will be told,\nmostly in the very words of those who made those grants. At this point,\nwe are concerned only to set out the hour and the moment when American\nhuman beings, as such, in their _greatest_ Revolution, exercised their\n_exclusive_ ability to give their one government some _national_ power\nto interfere with individual freedom.\n\nEach of them was already a citizen of one of the existing nations.\nIt was, however, as American human beings, always collectively the\npossessors of the supreme will in America, and not as citizens of any\nnation, that they assembled in the conventions and, in the exercise of\nthat supreme will, created a new and one American nation, by becoming\nits charter members and citizens. That was the first and immediate\neffect of the signing of that Constitution in the ninth convention\nof the American people, the convention in New Hampshire, on June 21,\n1788. That is the actual day of the birth of the American nation as a\npolitical entity. It is the day on which the American citizen, member\nof the American nation, first existed. While it is true that there\nyet was no actual government of the new nation, it cannot be denied\nthat legally, from that June 21, 1788, there did exist an American\nnation, as a political society of human beings, and that its members\nwere the human beings in the former nations of Delaware, Pennsylvania,\nNew Jersey, Georgia, Connecticut, Massachusetts, Maryland, South\nCarolina, and New Hampshire. The very moment the Americans in those\nnine former nations had signed that Constitution of government, they\nhad constituted themselves a nation and had become its citizens.\n\nSimultaneously therewith, as _its_ citizens, they had made their\ngrant of enumerated national powers to interfere with their own human\nfreedom. Simultaneously therewith, they had destroyed forever the\nabsolute independence of their nine nations; they had kept alive those\nnations, as partially independent political societies, each to serve\ncertain purposes of its members who still remained citizens of that\npolitical society as well as citizens of the new nation; they had taken\nfrom the government of each of those nations much of its _national_\npower, had given to each such government no new power whatever, but had\nleft with it much of its former _national_ power over its own citizens;\nthey had kept alive the federation of nations, now a federation of\npartially independent states; they had made their own new _national_\ngovernment also the _federal_ government of that continuing federation\nand their own _national_ Constitution also the _federal_ Constitution\nof that continued federation; they had subordinated all those nine\nstates and the government of each and of the federation to their own\nsupreme will, as the citizens of the new nation, expressed in its\nConstitution. This was the meaning of the second section of the Sixth\nArticle in the document, which they had signed, which reads: \u201cThis\nConstitution, and the Laws of the United States which shall be made\nin pursuance thereof; and all Treaties made, or which shall be made,\nunder the Authority of the United States, shall be the supreme Law\nof the Land; and the Judges in every State shall be bound thereby,\nany Thing in the Constitution or Laws of any State to the Contrary\nnotwithstanding.\u201d\n\nThe makers of the new nation are identified by the opening words of\nthe document: \u201cWe the People of the United States, in Order to form a\nmore perfect Union, establish Justice, insure domestic Tranquillity,\nprovide for the common defence, promote the general Welfare, and secure\nthe Blessings of Liberty to ourselves and our Posterity, do ordain and\nestablish this Constitution for the United States of America.\u201d\n\nIt would be diverting, were it not somewhat pathetic, to hear that the\nConstitution was made by the states. From that quoted Preamble alone,\nvolumes might be written to show the absurdity of such thought. It\nidentifies the makers as \u201cpeople\u201d and not as political entities. It\nexpressly says that its makers, \u201cthe people,\u201d ordain it \u201cin order to\nform a more perfect Union.\u201d The states already had a perfect union of\nstates. But the human beings or \u201cpeople\u201d of all America had no union\nof themselves. The only \u201cpeople\u201d in America, who had no union of\nthemselves, identify themselves unmistakably when they say, \u201cWe the\n_people_ of the United States, in Order to form a more perfect Union,\netc.\u201d They are the \u201cpeople\u201d or human beings of America, the whole\npeople of America, the collective possessors of the supreme will which\nhad enacted the Statute of \u201976.\n\nIf this fact had been kept clearly in mind by our modern leaders\nand lawyers, the history of the supposed Eighteenth Amendment would\nnever have been written. When the whole American people assembled in\ntheir conventions in their respective geographic states, they did not\nassemble therein as the citizens of their respective states. It is\ntrue that the Americans, who assembled in any particular convention,\nhappened to be citizens of a particular state. But they were also\npart of the whole American people, _whose act as a whole people_ had\nfreed all the colonies and had permitted the Americans in each colony\nto constitute a nation for themselves. And, when the Americans in\neach convention assembled, it was to decide whether that part of the\nAmerican people, which resided in that state, would agree with the\nAmerican people residing in other states to become members and citizens\nof an entirely different society of men and grant to the government of\nthe new society power to interfere with the individual rights of the\nmembers of the new society.\n\nHow could the \u201ccitizens\u201d of an independent nation, in their capacity\nas such citizens, become \u201ccitizens\u201d of an entirely different nation,\nwith an entirely different human membership or citizenry? If the\nindividual members of a large athletic club in the City of New York\nshould assemble in its club house to determine whether they, as\nindividual human beings, should join with the human members of a number\nof other athletic clubs and create a large golf club, with a large\nhuman membership, and become members of that large golf club, would any\nof them entertain the absurd thought that he was becoming a member of\nthe golf club in his capacity as a member of his existing and smaller\nathletic club? This is exactly what happened when the American people\nas a whole assembled in their conventions and decided to become members\nor citizens of the new and larger political society of men, while still\nremaining members and citizens of their respective smaller societies of\nmen.\n\nThe vital distinction between the citizen of America and the citizen of\na state, although oftentimes one is the same human being, is probably\nknown to many of the modern leaders and lawyers who have considered\nand argued about the supposed Eighteenth Amendment. But it has been\nwholly ignored in every argument for or against the existence of that\nAmendment. As a matter of fact, that vital distinction has always\nbeen so important a part of our American institutions that it has been\nthe subject-matter of repeated decisions in the Supreme Court. It is a\ndistinction amazingly important, in substance, to individual freedom\nin America. So true is this that one of the most important Amendments\never made to the _federal_ part of our Constitution was primarily\nintended to require that every state must extend to the \u201cprivileges or\nimmunities of citizens\u201d of _America_ the same respect and protection\nwhich the American Constitution had previously only required that each\nstate must extend to the citizens of the _other states_.\n\nWhen the conventions made the original constitution, Section 2 of\nArticle IV commanded that \u201cThe Citizens of each State shall be entitled\nto all Privileges and Immunities of Citizens in the several States.\u201d\nAfter the Civil War had closed, it quickly was realized that this\nfederal command of the Constitution did not protect the citizens of\n_America_ in any state. And so this command was added to the _federal_\npart of the Constitution by the Fourteenth Amendment, namely, that \u201cNo\nState shall make or enforce any law which shall abridge the privileges\nor immunities of citizens\u201d _of America_.\n\nIt would be idle to repeat here the famous Supreme Court decisions\nin which that Court has been obliged to dwell upon the important\nresult accomplished by this vital change in the federal part of our\nConstitution. In such cases as the Slaughter House Cases, 16 _Wall._\n36, Paul v. Virginia, 8 _Wall._ 168, Re Kemmler, 136 _U.S._ 436, U.S.\nv. Cruikshank, 92 _U.S._ 542, Blake v. McClung, 172 _U.S._ 239, Maxwell\nv. Sow, 176 _U.S._ 581 and numerous other cases the important decisions\nhave turned entirely upon the vital distinction between a citizen\nof America and a citizen of a particular state, even though the same\nman had the two capacities. Each decision turned upon the fact that\nthe protection given to him in one capacity, by some constitutional\nprovision, did not extend to him in the other capacity.\n\nIf all this had not been forgotten and ignored during the five years\nwhich began in 1917, the story of that five years would have been\nentirely different. Everyone would have known that the respective\nattorneys in fact for societies or states could not grant new power to\ninterfere with the individual freedom of the members of an entirely\ndifferent society, America.\n\nThere never was a day at Philadelphia in 1787 when the clear-minded\nAmericans did not remember and realize this vital distinction between\nAmericans, in their capacity as members of their respective existing\nsocieties, and Americans, in their capacity as members of the\nprospective society of the whole American people. There never was a\nday when they did not realize that the members of the proposed new and\nsupreme society of men would never have but one attorney in fact for\nany purpose, the government at Washington, while the members of each\nsmall and inferior society would still have, as they already had, in\ntheir capacity as such members, their own attorney in fact, their own\ngovernment.\n\nOne instance alone is sufficient to show how that Philadelphia\nConvention never forgot these important things. When the Committee of\nDetail, on August 6, 1787, reported to the Convention the first draft\never made of our Constitution, the Preamble read: \u201cWe, the people of\nthe states of New Hampshire, Massachusetts, etc.\u201d (enumerating all the\nstates), \u201cdo ordain, declare, and establish, the following constitution\nfor the government of ourselves and our posterity.\u201d (5 _Ell. Deb._\n376.) But, so that future generations, like our own, should not ignore\nthe fact that it was not the people of the respective states but the\nwhole people of America who made the Constitution, before the proposal\nwas made from Philadelphia, the Preamble, identifying the makers of\nthe Constitution, was changed to read, \u201cWe, the people of the United\nStates,\u201d--the whole people of the new nation, America.\n\nIn the Virginia convention, Patrick Henry put the clear fact all in\none pithy statement. He made that statement in one of his eloquent\narguments against ratification of the Constitution. Many Americans\ntoday do not know that Patrick Henry was the most zealous opponent of\nthe proposed Constitution. He was a citizen of the nation of Virginia.\nHis human liberty as an individual could not be interfered with by any\ngovernment or governments in the world except the Virginia government\nand only by it, under grant of _national_ power to it from him and his\nfellow citizens of Virginia. That is exactly the status which he wished\nto retain for himself and which he insisted was the best security for\nindividual freedom of all Americans in Virginia. \u201cThis is an American\ngovernment, not a Virginia government!\u201d he exclaimed. Nothing could\nmore clearly express his knowledge, the common knowledge of all in that\nday, that he and his fellow Americans in that convention were being\nasked as Americans, not as citizens of Virginia, to constitute a new\nnation of the American people and a national government for that people.\n\nThat is why the Tenth Amendment, responsive to the demand of that\nVirginia convention and other similar conventions of the American\npeople, names the citizens of the respective states as one class of\nreservees and the citizens of America as the great reservee and \u201cmost\nimportant factor\u201d in the Tenth Amendment. This is the plain meaning of\nthe language of that Tenth Amendment, to those who know what America\nis, where that language reads \u201cto the states respectively, or to the\npeople.\u201d The word \u201crespectively\u201d is pointedly present after the word\n\u201cstates\u201d and it is pointedly absent after the word \u201cpeople.\u201d Nothing\ncould make more clear, to those who do not forget that the citizens\nof each state were the state itself, that the words \u201cto the states\nrespectively\u201d mean to the respective peoples or citizens of each state\nand that the words \u201cor to the people\u201d mean to the people or citizens of\n_America_, in that capacity.\n\n\n\n\n                               CHAPTER V\n\n                      THE CONSENT OF THE GOVERNED\n\n\nWe average Americans have now lived with those earlier Americans\nthrough the years in which they were educated to their making of the\nAmerican nation, to their constitution of its only general government\nwith _national_ powers.\n\nWe have been with them in those early days when _legally_ they were\nsubjects, inasmuch as their British Legislature at London had unlimited\nability, _not delegated by them_, to interfere with the individual\nhuman freedom of each of them and all of them. We have realized that,\nin those very early days, despite their _legal_ status, those Americans\nwere _actually_ and in substance citizens of their own respective\ncommunities, inasmuch as the legislatures which _actually_ did\ninterfere with such freedom were the legislatures of their own choosing\nto which they themselves delegated such powers of interference.\n\nWe have been with them when their British Government began its attempt\nto exercise its omnipotent ability. We have seen the inevitable\nresult, the American Revolution, by a people, educated through actual\nexperience in self government, against the attempt of any government\nto exercise a _national_ power not directly granted by its citizens.\nWe have seen their invincible determination, in an eight year war of\nsacrifice, that no government in America shall ever have any _national_\npower except by direct grant from its citizens. We have seen them, in\ntheir Statute of \u201976--never repealed--declare this principle to be the\nbasic law of America.\n\nWe have been with them when the Americans in _each_ former colony\nconstituted for themselves a government and gave it limited ability\nto interfere with their individual freedom. Living with them at that\ntime, we have realized how accurately they then grasped the vital fact\nthat the granting of such _national_ ability _is_ the constitution of\ngovernment and that no people ever are free or self-governing unless\nevery grant _of that kind_ is made directly by the citizens of the\nnation themselves.\n\nWe have realized that, in constituting their respective national\ngovernments, the citizens of each of those nations withheld from its\ngovernment many possible national powers, such, for example, as those\nmentioned in the various Bills of Rights or Declarations of human\nliberty in the different written constitutions of those nations.\nWe have realized--a vital legal fact never to be forgotten--how\naccurately those Americans _and their governments_ knew that not all\nof those sovereign legislatures of those independent nations could,\neven together, exercise or grant a single one of those possible\nnational powers reserved by the people to themselves. We have also\nrealized--again a legal fact which should have sunk deep into our\nsouls--that the very national powers, which the citizens of each of\nthose nations _had_ granted to _its_ legislative government, were\nto be exercised only by _that_ legislative government and could not\nbe delegated by it to any other government or governments. \u201cThe\npowers delegated to the state sovereignties were to be exercised by\nthemselves, not by a distinct and independent sovereignty created by\nthemselves.\u201d (Marshall, M\u2019Culloch v. Maryland, 4 _Wheat._ 316.)\n\nWe have lived with those Americans in those Revolutionary days when\nthe legislative governments of their thirteen nations created \u201ca\ndistinct and independent sovereignty\u201d to govern a _federal_ union of\nthose nations but not to govern, by the exercise of _national_ powers,\nthe human beings who were the American people. We have seen those\nlegislative governments then aware of their existing ability, each\nas the representative or attorney in fact of its own nation for all\n_federal_ purposes, to vest _federal_ powers in a _federal_ government.\n\u201cTo the formation of a league, such as was the Confederation, the\nstate sovereignties were certainly competent.\u201d (Marshall, M\u2019Culloch v.\nMaryland, 4 _Wheat._ 316.) But those legislative governments knew that\nthey could not delegate to any government even those limited _national_\npowers \u201cdelegated to the state sovereignties\u201d by their respective\ncitizens. \u201cThe powers delegated to the state sovereignties were to be\nexercised by themselves, not by a distinct and independent sovereignty\ncreated by themselves.\u201d (Marshall, _supra_.) As to the national powers\nnot delegated but reserved by the people to themselves, the legislative\ngovernments of that day (as well as the American people) knew what the\nSupreme Court still knew in 1907 as to _national_ powers similarly\nwithheld from the later _national_ government of America:\n\n The powers the people have given to the General Government are named\n in the Constitution, and all not there named, either expressly or by\n implication, are reserved _to the people_ and can be exercised only by\n _them_, or upon _further grant from them_. (Justice Brewer in Turner\n v. Williams, 194 _U. S._ 279.)\n\nWe have been with those Americans in the few short years in which\nthey learned that the maximum of protected enjoyment of individual\nfreedom could never be obtained through a general government possessing\nnaught but _federal_ powers, the only kind of power which any American\ngovernment can ever obtain through grants made by governments or, in\nany way, except by direct grant from its citizens themselves.\n\nWe have been with those Americans through the greatest Revolution of\nall, when their leaders and the average Americans themselves, still\ndetermined to obtain that maximum protected enjoyment of individual\nhuman liberty and awake to the knowledge that it could not be obtained\nthrough a general government with naught but _federal_ powers, rose\nagain to the great occasion. We have been with them when, outside of\nall then existing constitutions and outside of all written American\nlaw _except the Statute of \u201976_, those Americans, at the suggestion\nof their _American_ leaders, made themselves the members of one great\npolitical society of human beings, the nation which is America. We\nhave been with them when they gave the government of America, by\ndirect grant from themselves, such enumerated _national_ powers\nto command them, the citizens of America, as they--_not the state\ngovernments_--deemed wise and necessary to protect their human liberty\nagainst all oppressors, _including all governments_. We have been with\nthem--_and we have marveled_--while they themselves actually made,\nby their own action, their amazingly effective distribution of all\ndelegated powers to interfere with individual freedom.\n\nWe have seen that they gave to the new government, the only government\nof the citizens of America, naught but enumerated _national_ powers,\nwith the ability to make all laws necessary for the proper execution\nof those enumerated powers, and reserved to themselves alone--not to\nany government or governments in the world--all other possible national\npowers over the self-governing people, the citizens of America.\n\nWe have seen how they, the citizens of America, the possessors of the\nsupreme will in America, then ended the complete independence of each\nof the thirteen nations but reserved to the citizens of each nation\nmuch of their former ability to exercise their own national powers of\ngovernment over themselves, through their own delegation of such power\nto their only attorney in fact for such purpose, their own legislature.\n\nWe have seen those American citizens, while destroying the complete\nindependence of those former nations, incorporate the former federation\nof states into their own system of a society or nation of all the human\nbeings of America. We have seen them, in the constitution of their own\n_national_ government, make it also the _federal_ government of that\nfederation and leave with it such _federal_ powers as they themselves\ndeemed wise. We know, therefore, as they knew in 1790 when their\ngreat distribution of power had become effective, that no legislature\nin America could exercise a _national_ power not granted by its own\ncitizens, and that no legislature or legislatures in America could give\nany _national_ power to any government.\n\nWe average American citizens of this present generation must now feel\nqualified to understand the Constitution and its settled distribution\nof all _national_ powers to interfere with individual freedom. If these\nAmericans could use their knowledge intelligently to make that amazing\nConstitution to protect our human liberty and their own, it cannot\nbe beyond us, now also taught by their experience, to understand the\nprotection which that Constitution gave to them and gives to us against\neven the usurpation of our own governments. Only by that understanding\nmay we hope to keep that legacy of protection. No longer, now that we\nhave acquired that understanding, can we make the great mistake of\nbelieving that the public leaders or lawyers of this generation are\nqualified to teach us anything about that protection.\n\nThe experience of our leaders and lawyers has given them an entirely\ndifferent education, in the science of government, than was the\neducation of these earlier average Americans and _their_ leaders, than\nis our own education in having lived over again the days in which all\nvalid grants of national power in constitutions of American government\nwere made by the people themselves _because_ people and governments\nalike knew that _such_ grants could never be made by governments. The\nexperience of public leaders and lawyers in America, for the past\nthirty years, has been almost exclusively concerned with property and\nwith law and Constitutions in relation to property.\n\nIn the Supreme Court, in the Slaughter House Cases, 16 _Wall._ 36\nat page 116, Justice Bradley points out that the Declaration of\nIndependence was the first political act of the American people in\ntheir independent sovereign capacity and that therein they laid the\nfoundation of _national_ existence on the basic principle that men are\ncreated with equal and inalienable rights to \u201clife, liberty and the\npursuit of happiness.\u201d He then goes on to state that \u201cRights to life,\nliberty, and the pursuit of happiness are equivalent to the rights of\nlife, liberty, and property.\u201d We thus realize that the education of\nthe Americans, who made all our constitutions, trained them to make\nArticles of government which would secure protected enjoyment of these\nthree human rights. And we have learned that to those Americans, life\nand liberty came before property in importance.\n\nOn the other hand, the leaders and lawyers of the present generation\nhave been educated to think that _property_ is the one important\nright which constitutions are made to protect. Wherefore it would be\nextraordinary if any of them knew that the American people constituted\nall their governments, and made their distribution of _national_\npowers among those governments and reserved to themselves many\n_national_ powers, all for the main purpose of securing individual\nlife and liberty, and _then_, the enjoyment of property. That these\nleaders and lawyers, so educated by experience, have not known these\nthings or understood at all the constitutional Articles, an accurate\nunderstanding of whose meaning depends upon a knowledge which their\neducation has withheld from them, the story of the last five years\namply demonstrates. In its detail, that story and that demonstration\nwill be later dwelt upon herein.\n\nFortunately, we average Americans of this generation have not received\nany _wrong_ education in the relative importance of human life and\nliberty to property in the eyes of the American people who constituted\nall governments in America, and in the constitutions which those people\nmade to secure all three human rights against even the usurpations of\ndelegated power by the very governments which those constitutions\ncreated. Our wrong education in that respect has undoubtedly been\nattempted. The events of the last five years, however, while\ndemonstrating the thoroughly wrong education of our leaders, have also\nshown that the average Americans still sense something extraordinary\nabout governments exercising undelegated power over citizens of which\nthey are not the governments and about governments claiming ability\nto give to themselves and to other governments undelegated _national_\npowers to interfere with individual human freedom. It has been entirely\nthe result of the wrong education of our leaders and \u201cconstitutional\u201d\nlawyers that we have not been told the legal fact _that_, and the\nconstitutional reason _why_, these extraordinary performances on the\npart of governments in America have been just as void as they are\nextraordinary.\n\nNow that we have turned from the unsound teaching of those wrongly\neducated leaders and lawyers and have educated ourselves by living with\nthe earlier Americans through their making of all our constitutions\nof government, we are ready to approach, with clear and understanding\nminds, a brief consideration of the great Constitution proposed at\nPhiladelphia and made by the citizens of America. Only by such brief\nbut accurate consideration can we ever realize the distribution of\ndelegated _national_ powers between a supreme government--legislating\nfor all American citizens--and lesser governments, each legislating\nonly for its own citizens and without any power to legislate for\nAmerican citizens. Only by such consideration can we realize the\nimportance to us of the legal fact that the citizens of America,\nwhen making that distribution of granted national powers, reserved\nto themselves alone all other _national_ powers to legislate for\n_American_ citizens except those national powers granted and enumerated\nin Article I of our Constitution to the only national government of the\ncitizens of America.\n\n\n\n\n                              CHAPTER VI\n\n                   THE CONVENTIONS GIVE THE CONSENT\n\n\nThe proposal which came from Philadelphia in 1787 was absolutely\nwithout precedent in history. Simply stated it was that, outside of all\nwritten law save the Statute of \u201976, the entire American people, who\nwere not one nation or its citizens, should make themselves one nation\nand the supreme nation in America; that, simultaneously with the birth\nof this new nation, they should destroy the complete independence of\neach existing society or nation, in some one of which each American\nwas a member or citizen, but keep alive each such society or former\nnation, subject to the supreme will of the citizens of the new nation;\nthat they should keep alive the federation of those old nations also\nsubject to the supreme will of the citizens of the new nation; that\nthey should leave with each former nation (now to be a subordinate\nstate) and to its citizens much of its own and their own national power\nto govern themselves on many matters without interference from any\ngovernment or governments outside of that state; that they should leave\nwith those continuing states and _their_ governments their existing\nand limited ability to give _federal_ power to government by making\n_federal_ Articles in the Constitution of _federal_ government; that\nthey should, as the citizens of America, give to no state or states\nor _their_ respective governments any new power of any kind, leaving\nto the citizens of each state to determine (within the limits fixed\nby the Constitution of the American citizens) how much power its own\nnational government should have to interfere with the individual\nfreedom of its own citizens; that--most unique and marvelous conception\nof all--these citizens of America, simultaneously with the birth of the\nnew nation and in their capacity as its citizens, should grant to its\ngovernment, the only government of those citizens of America, definite\nand enumerated _national_ powers to interfere with their individual\nfreedom; and that--probably the most important and the least remembered\nfeature of the whole proposal--all other possible national powers over\nthemselves, as citizens of America, should be reserved exclusively\nto themselves and be exercised or granted by them alone, \u201cin the\nonly manner in which they can act safely, _effectively_, and wisely,\n_on such a subject_, by assembling in Convention.\u201d (Marshall, in the\nSupreme Court, M\u2019Culloch v. Maryland, 4 _Wheat._ 316.)\n\nWe have not forgotten that these Americans, to whom that proposal was\nmade, did act upon it in that only _effective_ way, by assembling in\ntheir conventions.\n\n To the formation of a league, such as was the Confederation, the state\n sovereignties were certainly competent. But when, \u201cin order to form a\n more perfect Union,\u201d it was deemed necessary to change this alliance\n into an effective government, possessing great and sovereign powers,\n and acting directly on the people, the necessity of referring it to\n the people, _and of deriving its powers directly from them_, was felt\n and acknowledged by all. The government of the Union, then, (whatever\n may be the influence of this fact on the case,) is, emphatically,\n and truly, a government of the people. In form and in substance it\n emanates from them. _Its powers are granted by them_, and are to\n be exercised directly on them, and for their benefit. (Marshall,\n M\u2019Culloch v. Maryland, 4 _Wheat._ 316.)\n\nIn view of the startling fact that _our_ leaders and \u201cconstitutional\u201d\nlawyers have neither felt nor acknowledged the necessity that _new_\nnational powers of that government, new powers to interfere directly\nwith the individual freedom of _its_ citizens, must be derived\n\u201cdirectly\u201d from those citizens, in the only effective way in which\nthey can act, on such a subject, by assembling in their conventions,\nit is the duty of ourselves, the average American citizens of this\ngeneration, to insist that _they_ learn this legal fact. When _they_\nshall have learned what all Americans once knew, the freedom of\nthe American individual will be as secure as it was in 1790. No\nlegislature, no matter whence comes a suggestion to the contrary,\nwill dare to issue any command except to its own citizens, and only\nto them in matters on which those citizens have granted power to that\nlegislature to command them.\n\nThat we may intelligently so insist, and that our insistence may\nbe made in the proper place and at the proper time, let us briefly\nconsider on what subjects, in the making of our Constitution,\nour predecessors, as American citizens, granted their enumerated\nnational powers to our only government of all Americans. Like those\npredecessors, assembled in their conventions, we find all those\nenumerated powers in the First Article of the Constitution proposed\nfrom Philadelphia.\n\nIn substance they are the war power; the power of making treaties; the\npower of regulating commerce between ourselves and all people outside\nof America and between the citizens of the different states; the\npower of taxation; and all other incidental and supplementary powers\nnecessary to make laws in the execution of these enumerated and granted\npowers.\n\nNoticeably absent from these enumerated powers granted to the only\ngeneral government of the citizens of America is that power, then\nexisting and still in the national government of each nation or\nstate, known (rather inaccurately) as the police power or the power\nto pass any law, in restraint of individual human freedom, reasonably\ndesigned, _in the judgment of that particular legislature_, to promote\nthe general welfare of its own citizens. It seems hardly necessary,\nat this moment, to refer to the innumerable decisions of the Supreme\nCourt that such power was not among those enumerated and granted to the\nAmerican government by _its_ citizens. It was solely because such power\nhad definitely not been granted by them to it that _the_ government of\nthe American citizens made its famous proposal that a portion of such\npower, in relation to one subject, be granted to it in the supposed\nEighteenth Amendment of our Constitution.\n\nAs a matter of fact, the police power of any government is really\nall its power to pass any laws which interfere with the exercise of\nindividual freedom. In that respect, the American people made a marked\ndistinction between the quantum _of that kind_ of power which they\n_granted_ to their one general national government and the quantum they\n_left_ in the national government of the citizens of each state. The\nquantum they granted to their own government was definitely enumerated\nin the First Article. On the other hand, except for the limitations\nwhich they themselves imposed upon the respective governments of each\nstate, they left the citizens of each state to determine what quantum\nthe government of that state should have.\n\nIn other words, the police power of the American Congress is strictly\nlimited to the enumerated powers _of that kind_ granted by the\ncitizens of America. And, although the fact does not seem to be\ngenerally known, it is _because_ the First Article vests in the sole\nLegislature of the whole American people nothing but _enumerated_\npowers to interfere with the freedom of the individual American that\nour American government has received its universal tribute as a\ngovernment of nothing but enumerated powers over a free people, who are\nits citizens.\n\n In the Constitution are provisions in separate Articles for the\n three great departments of government,--legislative, executive, and\n judicial. But there is this significant difference in the grants\n of powers to these departments: the First Article, treating of\n legislative powers, does not make a general grant of legislative\n power. It reads: \u201cArticle one, section one. All legislative powers\n herein granted shall be vested in a Congress,\u201d etc.; and then, in\n Article 8, mentions and defines the legislative powers that are\n granted. By reason of the fact that there is no general grant of\n legislative power it has become an accepted constitutional rule that\n this is a government of enumerated powers. (Justice Brewer, in the\n Supreme Court, Kansas v. Colorado, 206 _U. S._ 46.)\n\nAmong the _national_ powers, which _are_ enumerated in the First\nArticle, there is one which (_whenever operative_) approximates the\nextensive police power of a state government to interfere with the\nfreedom of its citizens. That is the war power of the Government of\nAmerica. As the purpose of the Constitution of the American Government\nis to protect the freedom of the American and as such freedom needs\neffective protection from foreign attack, the Americans of that\nearlier generation made the war power of their government almost as\nunlimited as that of a despotic government. All history and their own\nhuman experience had taught them that the war power, if it was to\nbe effective for their protection, must be practically unlimited. If\nwe grasp this extent of the _American_ war power, we realize why our\nsole American government, without the grant of a new _national_ power\nto it, could validly enact what we know as the War Time Prohibition\nStatute, although without such a new grant, it was powerless to\nenact what we know as the Volstead Act or National Prohibition for\ntime of peace. It is because the citizens of each state, in _their_\nConstitution of _their_ national government, had given to it a general\n(although specifically limited) ability to interfere with their own\nhuman freedom in most matters, that each state government could\nvalidly make prohibition laws for its own citizens. It is because\nthe _American_ citizens had not given to _their_ government any such\ngeneral ability to interfere with _their_ freedom, that the _American_\nGovernment, for any time except that of war, could not validly enact\nNational Prohibition for the American people without a new grant of\na new _national_ power directly from its own citizens. In the days\nof those earlier Americans, the _legal_ necessity of deriving _such_\npower _directly_ from the _American_ citizens themselves was \u201cfelt\nand acknowledged by all.\u201d In our day, among our leaders and our\n\u201cconstitutional\u201d lawyers, there was none so humble as to know or honor\nthis basic legal necessity.\n\nThe other enumerated _national_ powers, which American citizens _ever_\ngave their national government, are few in number, although they vested\na vast and necessary ability in that government to protect the freedom\nof its citizens and promote their happiness and welfare by laws in\ncertain matters. For our present purpose, they need only be mentioned.\nThey require no present explanation. They are the power to make all\ntreaties with foreign nations or governments; the power to regulate\ncommerce, except the commerce within any one particular state; and the\npower of taxation.\n\nHaving now some accurate conception of the limited and specific quantum\nof _national_ power which American citizens consented to grant in\nthose earlier days, it is pertinent to our inquiry, as to whether we\n(their posterity) have again become subjects, to dwell briefly upon\nthe reluctance with which they made even those grants. In considering\nthat attitude, it is essential always to keep in mind the status\nof the citizens of each state, at that time, and their relation to\ntheir own _national_ government and the relation of each state to the\n_federal_ government of all the states. Under the existing system\nof governments, the citizens of each state were subject to no valid\ninterference whatever with their own individual freedom except by laws\nof a legislature, _every_ member of which they themselves elected and\nto which they themselves granted every power of _such_ interference\nwhich that legislature could validly exercise. To those free men in\nthose free states, men educated in the knowledge of what is real\nrepublican self-government, these two facts meant the utmost security\nof their human rights. No government or governments in the world,\nexcept their own one state government could interfere at all directly\nwith those rights, and they _had given to_, and they could take from,\nthat government _any_ power of that kind. As for the respective states\nand the relation of each to the federal government of all, each state\nhad an _equal_ voice in the giving to or taking from that government\nany _federal_ power and each had an equal voice, in the _federal_\nlegislature, in exercising each valid _federal_ power. These existing\nfacts, respectively of vast importance to the citizens of each state\nand to its government, influenced, more than any other facts, the\nframing of the new Articles, particularly the First Article, at\nPhiladelphia and the opposition to those Articles in the conventions in\nwhich the people of America assembled.\n\nThe First Article, as we know it, starts with the explicit statement\nthat all _national_ powers, which are granted by Americans in that\nConstitution, are granted _to_ the only _American_ legislature,\nCongress. It then provides how the members of each of the two bodies\nin that legislature shall be elected. It then enumerates the granted\npowers, confining them to specific subjects of interference with the\nhuman freedom of the American citizen. It then, for the particular\nsecurity of that human freedom, imposes specific restraints upon that\nlegislature even in the exercise of its granted national powers.\nFinally, it prohibits the further exercise of specific powers by any\nstate government.\n\nNo American, who reads the debates of the Philadelphia Convention\nof 1787, can fail to realize that the grant of any _national_\npower,--power to interfere with human freedom--_is_ the constitution\nof government. The First Article was the subject of almost all the\ndiscussion of those four months at Philadelphia. Seemingly invincible\ndifferences of desire and opinion, as to who should elect and the\nproportion (for citizens of the new nation and for states of the\ncontinuing federation) in which there should be elected the members of\nthe legislature which was to exercise the granted _national_ powers,\nalmost ended the effort of that Convention. This was in the early part\nof July. For exhausting days patriotic men had struggled to reconcile\nthe conflict of desire and opinion in that respect. One element, mainly\nfrom the larger states, insisted that the members (from each state)\nof both branches of the new legislature should be proportioned to the\nnumber of Americans in that state. The other element, mainly from the\nsmaller states, insisted that the Americans in each state should have\nan equal representation in each branch of the new legislature. Each\nelement was further divided as to who should choose the members of that\nlegislature. Some held that the people should choose every member.\nOthers held that the state legislatures should choose every member.\nStill others held that each state should, by its legislature, choose\nthe members of one branch, so that those members might speak for that\nstate, and that the American people themselves, divided into districts,\nshould choose the members of the other branch, so that those members\nmight speak for the general citizens of America.\n\nMason of Virginia, later one of the great opponents of the adoption of\nall the Articles, insisted that election by the people was \u201cthe only\nsecurity for the rights of the people.\u201d (5 _Ell. Deb._ 223.)\n\nMadison \u201cconsidered an election of one branch, at least of the\nlegislature by the people immediately, as a clear principle of free\ngovernment.\u201d (5 _Ell. Deb._ 161.)\n\nWilson of Pennsylvania \u201cwished for vigor in the government, but he\nwished that vigorous authority to flow immediately from the legitimate\nsource of all authority.\u201d (5 _Ell. Deb._ 160.) Later he said, \u201cIf we\nare to establish a _national_ government, that government ought to flow\nfrom the people at large. If one branch of it should be chosen by the\nlegislatures, and the other by the people, the two branches will rest\non different foundations, and dissensions will naturally arise between\nthem.\u201d (5 _Ell. Deb._ 167.)\n\nDickenson of Delaware \u201cconsidered it _essential_ that one branch of\nthe legislature should be drawn immediately from the people, and\n_expedient_ that the other should be chosen by the legislatures of the\nstates.\u201d (5 _Ell. Deb._ 163.)\n\nGerry of Massachusetts, consistent Tory in his mental attitude toward\nthe relation of government to people, insisted that \u201cthe commercial\nand moneyed interest would be more secure in the hands of the state\nlegislatures than of the people at large. The former have more sense\nof character, and will be restrained by that from injustice.\u201d (5 _Ell.\nDeb._ 169.)\n\nOn June 25, Wilson, at some length, opposed the election of senators by\nthe state legislatures. He stated that: \u201cHe was opposed to an election\nby state legislatures. In explaining his reasons, it was necessary to\nobserve the two-fold relation in which the people would stand--first,\nas citizens of the general government; and, secondly, as citizens of\ntheir particular state. The general government was meant for them\nin the first capacity; the state governments in the second. Both\ngovernments were derived from the people; both meant for the people;\nboth therefore ought to be regulated on the same principles.... The\ngeneral government is not an assemblage of states, but of individuals,\nfor certain political purposes. It is not meant for the states, but for\nthe individuals composing them; the _individuals_, therefore, not the\n_states_, ought to be represented in it.\u201d (5 _Ell. Deb._ 239.)\n\nThere came a day, early in that memorable July, when all hope of\ncontinuing the Convention was almost abandoned, by reason of the\ndifference of desire and opinion on this one subject. Let us average\nAmericans of this generation remember that this one subject was merely\nthe decision whether the people were to choose all the members of the\nlegislature which was to exercise granted national powers to interfere\nwith the human freedom of the citizens of America. Happily for all of\nus, there were many patriotic as well as able leaders at Philadelphia.\nFrom their patriotism and ability they evolved the compromise, on\nthat question, which is expressed in their First Article. When it\ncame from Philadelphia, it provided that each state should have equal\nrepresentation in the Senate, senators to be chosen by the state\nlegislatures, and that the House of Representatives should consist\nof members chosen directly by the citizens of America, in districts\nproportioned to the number of those citizens in it.\n\nNo one has read the recorded debates of the Convention which proposed\nand the conventions which adopted our Constitution without learning\nthat the Americans in those conventions knew that the grant of\nenumerated _national_ powers in the First Article WAS the constitution\nof the _American_ government of men. In and out of the Philadelphia\nConvention, the greatest and most persistent attack upon its proposal\nwas the insistent claim that it had acted wholly without authority in\nproposing an Article which purported to grant _any_ such _national_\npower to interfere with the human freedom of all Americans. Since July\n4, 1776, no legislature or legislatures in the world had possessed _any\nnational_ powers over all Americans. The Americans in each existing\nnation elected every member of the one legislature which had any\nsuch power over them. It was felt and stated at Philadelphia, it was\nfelt and urged and insisted upon, sometimes with decency and reason,\nsometimes with bitterness and rancor and hatred, between the closing\nday at Philadelphia and the assembling of various Americans in each\nstate, that the Americans in each state would be unwilling to give\n_any_ such _national_ power over themselves to any legislature whose\nmembers were not all elected by the people in that state. In all the\nconventions which adopted the Constitution, the one great object of\nattack was the grant even of _enumerated_ powers of a _national_\nkind to a legislature whose members would not all be chosen by the\nAmericans in the state in which the convention was held. The record of\nthe Virginia convention fills one entire volume of Elliot\u2019s Debates.\nAlmost one-half of the pages of that volume are claimed by the eloquent\nattacks of Patrick Henry upon those grants of enumerated powers in\nthat First Article. The basis of all his argument was the fact that\nthis grant of national power in the First Article would make him and\nall his fellow Virginians, for the first time since the Declaration of\nIndependence, citizens of a nation--_not Virginia_--who must obey the\nlaws of a legislature only some of whose members Virginians would elect.\n\n\u201cSuppose,\u201d he says, \u201cthe people of Virginia should wish to alter\u201d this\nnew government which governs them. \u201cCan a majority of them do it?\nNo; because they are connected with other men, or, in other words,\nconsolidated with other states. When the people of Virginia, at a\nfuture day, shall wish to alter their government, though they should\nbe unanimous in this desire, yet they may be prevented therefrom by a\ndespicable minority at the extremity of the United States. The founders\nof your own Constitution made your government changeable: but the power\nof changing it is gone from you. Whither is it gone? It is placed in\nthe same hands that hold the rights of twelve other states; and those\nwho hold those rights have right and power to keep them. It is not\nthe particular government of Virginia: one of the leading features of\nthat government is, that a majority can alter it, when necessary for\nthe public good. This government is not a Virginian, but an American\ngovernment.\u201d (3 _Ell. Deb._ 55.)\n\nHow forceful and effective was this objection, we average Americans of\nthis generation may well realize when we know that the Constitution was\nratified in Virginia by the scant majority of ten votes. In New York\nand Massachusetts and other states, the adoption was secured by similar\nsmall majorities. In North Carolina, the first convention refused to\nadopt at all.\n\nFurthermore, it is recorded history that, in Massachusetts, in\nVirginia, in New York, and elsewhere, the vote of the people would\nhave been against the adoption of the Constitution, if a promise had\nnot been made to them by the advocates of the Constitution. It was\nthe historic promise that Congress, under the _mode of procedure_\nprescribed in Article V, would propose new _declaratory_ Articles,\nsuggested by the various conventions and specifically securing certain\n_reserved_ rights and powers of all Americans from all ability of\n_government_ to interfere therewith. This historic promise was\nfulfilled, when the first Congress of the new nation proposed the\nsuggested declaratory Articles and ten of them were adopted. These\nare the Articles now known as the first ten Amendments. It has been\nsettled beyond dispute, in the Supreme Court, that every one of the\ndeclarations in these ten Articles was already in the Constitution when\nit was originally adopted by the citizens of America.\n\nThe most important declaration in those amazingly important ten\ndeclarations, which secured the adoption of our Constitution, is the\nplain statement that every _national_ power to interfere with the\nhuman freedom of Americans, not granted in Article I, was reserved to\nthe American people themselves in their capacity as the citizens of\nAmerica. That is the explicit statement of what we know as the Tenth\nAmendment. In itself, that statement was but the plain and accurate\necho of what was stated by the American people (who made the enumerated\ngrants of such powers in Article I) in the conventions where they made\nthose grants. Their statement was nowhere more accurately expressed, in\nthat respect, than in the resolution of the Virginia Convention, which\nratified the Constitution. That resolution began, \u201cWhereas the powers\ngranted under the proposed constitution are the gift of the PEOPLE, and\nevery power NOT GRANTED thereby remains with THEM, and at THEIR will,\netc.\u201d (3 _Ell. Deb._ 653.)\n\nAfter the same statement had been expressly made (with authoritative\neffect as part of the original Constitution) in that Article which we\nknow as the Tenth Amendment, it was again and again echoed, in the\nplainest language, from the Bench of the Supreme Court.\n\nAs far back as 1795, in the case of Vanhorne\u2019s Lessee vs. Dorrance, 2\n_Dall._ 304, Justice Patterson stated that the Constitution of England\nis at the mercy of Parliament, but \u201cin America, the case is widely\ndifferent.\u201d... A Constitution \u201cis the form of government, delineated\nby the mighty hand of the people, in which certain first principles\nof fundamental laws are established. The Constitution is certain and\nfixed; it contains the permanent will of the people, and is the supreme\nlaw of the land; it is paramount to the power of the legislature, and\ncan be revoked or altered only by the authority that made it. The\nlife-giving principle and the death-dealing stroke must proceed from\nthe same hand.... The Constitution fixes limits to the exercise of\nlegislative authority, and prescribes the orbit within which it must\nmove.... Whatever may be the case in other countries, yet in this there\ncan be no doubt, that every act of the legislature, repugnant to the\nConstitution, is absolutely void.\u201d\n\nTo us average Americans, who have lived with those earlier Americans\nthrough the days in which they constituted their nation and distributed\nall _granted_ national powers between governments _in_ America and\n_reserved_ all other _general_ American national powers exclusively\nto themselves, the Virginia Resolution, the Tenth Amendment, and the\nquoted language of the Circuit Court are in strict conformity with the\neducation _we_ have received.\n\nWhat, however, are we to think of the Tory education of so many of\n_our_ leaders and \u201cconstitutional\u201d lawyers, who have calmly accepted\nand acted upon the amazing assumption that state governments in America\ncan exercise and can grant to other governments any or all _general_\nnational powers to interfere with the human freedom of American\ncitizens, including even the national powers expressly reserved by\nthose citizens to _themselves_ in the Tenth Amendment?\n\nIf they adopt their familiar mental attitude that all these statements\nwere made more than a hundred years ago and have no meaning or weight\nnow, we refer them to the Supreme Court, in 1907, when it stated:\n\n The powers the people have given to the General Government are named\n in the Constitution, and all not there named, either expressly or by\n implication, are reserved to THE PEOPLE and can be exercised only by\n THEM, or UPON FURTHER grant from them. (Justice Brewer in Turner v.\n Williams, 194, _U. S._ 279.)\n\nFor ourselves, we average Americans turn now to examine in detail how\nclearly the Americans at Philadelphia in 1787 _did_ know and obey the\nbasic law of America that all _national_ powers to interfere with\nindividual freedom are the powers of the people themselves and can\nbe exercised only by them or upon direct grant from them. We find\ntheir knowledge, in that respect, evidenced by an examination of the\nreasoning by which they reached the correct legal conclusion that their\nproposed grants of general national powers, in their First Article,\ncould only be made by the citizens of America themselves, assembled in\ntheir \u201cconventions\u201d--that grants of _such_ powers could not be made\neven by all the legislatures of the then independent states.\n\n\n\n\n                              CHAPTER VII\n\n          PEOPLE OR GOVERNMENT?--CONVENTIONS OR LEGISLATURES?\n\n It is no longer open to question that by the Constitution a nation was\n brought into being, and that that instrument was not merely operative\n to establish a closer union or league of states. (Justice Brewer, in\n Supreme Court, Kansas v. Colorado, 206 _U. S._ 46 at page 80.)\n\n\nInstructed by living through the education of the earlier Americans\nto their making of that Constitution, we accurately know that they\nthemselves, _by their own direct action_, brought that new nation into\nbeing. Through _our_ course in _their_ education, we have _their_\nknowledge that only the men, who are to be its first members, can\ncreate a new political society of men, which is exactly what any\nAmerican nation is. \u201cIndividuals entering into society must give up\na share of liberty to preserve the rest.\u201d So said the letter which\nwent from Philadelphia with the proposed Articles whose later adoption\ncreated the new nation and vested the delegated and enumerated national\npowers of its government to interfere with the liberty of its citizens,\n(1 _Ell. Deb._ 17.)\n\nFurthermore, through our own personal experience, we understand how\nall societies of men are brought into being. There are few of us who\nhave not participated in the creation of at least one society of men.\nMost of us have personally participated in the creation of many\nsuch societies. For which reason, we are quite well acquainted with\nthe manner in which all societies of men are brought into being. We\nknow that ourselves, the prospective members of the proposed society,\nassemble and organize it and become its first members and constitute\nthe powers of its government to command us, its members, for the\nachievement of the purpose for which we create it.\n\nFor one simple reason, the Americans, through whose education we have\njust lived, were \u201cbetter acquainted with the science of government\nthan any other people in the world.\u201d That reason was their accurate\nknowledge that a free nation, like any other society of individuals,\ncan be created only in the same manner and by its prospective members\nand that the gift of any _national_ powers to its government can only\nbe by direct grant from its human members. This is the surrender \u201cof a\nshare of their liberty, to preserve the rest.\u201d\n\nThe knowledge of those Americans is now our knowledge. For which\nreason, we know that they _themselves_ created that new nation and\nimmediately became its citizens and, _as such_, gave to its government\nall the valid and enumerated national powers of that government to\ninterfere with their and our human freedom. We know that they did all\nthese things, by their own direct action, \u201cin the only manner, in which\nthey can act safely, _effectively_ or wisely, on such a subject, by\nassembling in conventions.\u201d\n\nThus, whatever may have been the lack of knowledge on the part of\nour leaders and \u201cconstitutional\u201d lawyers for the last five years, we\nourselves know, with knowledge that is a certainty, that the ratifying\nconventions of 1787 and 1788 WERE the American people themselves or\nthe citizens of the new nation, America, assembled in their respective\nstates.\n\nOur Supreme Court has always had the same knowledge and acted upon it.\n\n The Constitution of the United States was ordained and established,\n not by the states in their sovereign capacities [the respective\n peoples or citizens of each State] but emphatically, as the preamble\n of the Constitution declares, by \u201cthe people of the United States\u201d\n [namely the one people of America].... It was competent to the people\n to invest the general government with all the powers which _they_\n might deem proper and necessary; to extend or restrain these powers\n according to their own good pleasure, and to give them a paramount\n and supreme authority.... The people had a right to prohibit to the\n states the exercise of any powers which were, in _their_ judgment,\n incompatible with the objects of the general compact [between the\n citizens or members of the new nation], to make the powers of the\n state governments, in given cases, subordinate to those of the nation,\n or to reserve to _themselves_ those sovereign authorities which _they_\n might not choose to delegate to either. (Supreme Court, Martin v.\n Hunter\u2019s Lessee, 1 _Wheat._ 304, at p. 324.)\n\n Instructed by experience, the _American people_, in the conventions\n of their respective states, adopted the present Constitution.... The\n _people_ made the Constitution and the people can unmake it. It is\n the creature of _their_ will, and lives only by _their_ will. But\n this supreme and irresistible power to make or to unmake resides only\n in the _whole_ body of the people, not in any subdivisions of them.\n (Marshall, in Supreme Court, Cohens v. Virginia, 6 _Wheat._ 264.)\n\n The Constitution was ordained and established _by the people_ of\n the United States for themselves, for their own government, and not\n for the government of the individual states. Each state established\n a constitution for itself, and in that constitution provided such\n limitations and restrictions on the powers of its particular\n government as its judgment dictated. _The people of the United States_\n framed _such_ a government for the United States as _they_ supposed\n best adapted to _their_ situation, and best calculated to promote\n _their_ interests. The powers _they_ conferred on this government\n were to be exercised by itself; and the limitations on power, if\n expressed in general terms, are naturally, and, we think, necessarily,\n applicable to the government created by the instrument. They are\n limitations of power granted in the instrument itself; not of distinct\n governments, framed by _different persons_ and for different purposes.\n (Marshall, in Supreme Court, Barron v. Mayor of Baltimore, 7 _Peters_,\n 243.)\n\n When the _American people_ created a _national_ legislature, with\n certain enumerated powers, it was neither necessary nor proper to\n define the powers retained by the states. These powers proceed, not\n from the people of America, _but from the people of the several\n states_; and remain, after the adoption of the Constitution, what they\n were before, except so far as they may be abridged by that instrument.\n (Marshall, in the Supreme Court, Sturges v. Crowninshield, 4 _Wheat._\n 122.)\n\nWe average Americans know _and will remember_ the clear distinction,\nthe _substantial_ distinction, recognized by the great jurist, between\n\u201cthe people of America\u201d and \u201cthe people of the several states,\u201d\nalthough they happen to be the same human beings acting in different\ncapacities, as members of different political societies of men. It is\na matter of constant mention in the Supreme Court that we ourselves,\nin addition to our capacity as human beings, have two other distinct\ncapacities, that of citizen of America and that of citizen of our\nrespective state; that, as citizens of America, we alone validly give\nto _its_ government any power to command us, and, as citizens of our\nparticular state, we alone validly give to _its_ government all its\nnational power to command us. The decisions of the Supreme Court, in\nthat respect, are mentioned elsewhere herein. Meanwhile, we average\nAmericans understand these matters perfectly _and will not forget\nthem_. We are quite accustomed, while retaining our status as free\nhuman beings, to be members of many different societies of men and,\nas the members of some particular society, to give to its government\ncertain powers to interfere with our freedom.\n\n We have in our political system a government of the United States\n and a government of each of the several states. Each one of these\n governments is distinct from the others, and each has citizens of its\n own who owe it allegiance, and whose rights, within its jurisdiction,\n it must protect. The same person may be at the same time a citizen\n of the United States and a citizen of a state, but his rights of\n citizenship under one of these governments will be different from\n those he has under the other.... Experience made the fact known to\n _the people of the United States_ that _they_ required a national\n government for national purposes.... For this reason, the people of\n the United States ... ordained and established the government of\n the United States, and defined its powers by a Constitution, which\n they adopted as its fundamental law, and made its rules of action.\n The government thus established and defined is to some extent a\n government of the states in their political capacity. It is also,\n for certain purposes, a government of the people. Its powers are\n limited in number, but not in degree. Within the scope of its powers,\n as enumerated and defined, it is supreme and above the states; but\n beyond, it has no existence. It was erected for special purposes and\n endowed with all the powers necessary for its own preservation and\n the accomplishment of the ends its people had in view.... The people\n of the United States resident within any state are subject to two\n governments, one state, and the other _national_; but there need be no\n conflict between the two. Powers which one possesses, the other does\n not. They are established for different purposes, and have separate\n jurisdictions. Together they make one whole, and furnish the people of\n the United States with a complete government, ample for the protection\n of all their rights at home and abroad. (Justice Waite, in Supreme\n Court, United States v. Cruikshank, 92 _U. S._ 542.)\n\nIt must seem remarkable to us average Americans, with the education\nwe have acquired at this point, to realize that _our_ leaders and\n\u201cconstitutional\u201d lawyers have not known _why_ only we ourselves, in\nour capacity as citizens of America, can give any new national power\nto interfere with our freedom and that we, for such new giving, must\nact, in the only way in which the citizens of America \u201c_can_ act\nsafely, EFFECTIVELY, or wisely, on such a subject, by assembling in\nconvention,\u201d in our respective states, the very \u201cconventions\u201d mentioned\nfor valid grant of such _national_ power in the Fifth Article of the\nConstitution made by the citizens of America, so assembled in such\n\u201cconventions.\u201d Before dwelling briefly upon the accurate appreciation\nof that legal fact displayed by those first citizens in everything\nconnected with the making of that Constitution and that Fifth Article,\nlet us realize how well the leaders and great constitutional lawyers of\nother American generations between that day and our own _did_ know this\nsettled legal fact.\n\nAfter the Americans _in_ nine states had created the new nation and had\nbecome its citizens and had (in that capacity) granted the _national_\npowers of its First Article, the Americans in Virginia assembled to\ndetermine whether they also would become citizens of the new nation. As\nthe president of the convention, in which they assembled, they chose\nEdmund Pendleton, then Chancellor of Virginia.\n\nVery early in the debates, Henry and Mason, great opponents of the\nConstitution, attacked it on the ground that its Preamble showed that\nit was to be made by the people of America and not by the states,\neach of which was then an independent people. Henry and Mason wanted\nthose peoples to remain independent. They wanted no new nation but\na continuance of a mere union of independent nations. They knew that\na constitution of government ordained and established by the one\npeople of America, assembled in their respective \u201cconventions,\u201d as the\nPreamble of this Constitution showed _it_ to be, created an American\nnation and made the ratifying Americans, in each state, the citizens\nof that new nation. For this reason, the opening thunder of Henry\u2019s\neloquence was on that Preamble. \u201cMy political curiosity, exclusive of\nmy anxious solicitude for the public welfare, leads me to ask, Who\nauthorized them to speak the language of _We, the people_, instead of,\n_We, the states_? States are the characteristics and the soul of a\nconfederation. If the states be not the agents of this compact, it must\nbe one great, consolidated, _national_ government, of the people of all\nthe states.\u201d (Henry, 3 _Ell. Deb._ 22.)\n\nThe learned Pendleton, sound in his knowledge of basic American law\nand quick to grasp the plain meaning of the Fifth Article of the new\nConstitution, quickly answered Henry. \u201cWhere is the cause of alarm?\nWe, the people, _possessing all power_, form a government, such as we\nthink will secure happiness; and suppose, in adopting this plan, we\nshould be mistaken in the end; where is the cause of alarm on that\nquarter? In the same plan we point out an easy and quiet method of\nreforming what may be found amiss. No, but say gentlemen, we have put\nthe _introduction_ of that method in the hands of our servants, who\nwill interrupt it for motives of self-interest. What then?... Who\nshall dare to resist the people? No, we will assemble in convention;\nwholly recall our delegated powers or reform them so as to prevent such\nabuse; and punish those servants who have perverted powers, designed\nfor our happiness, to their own emolument.... But an objection is made\nto the form; the expression, We, the people, is thought improper.\nPermit me to ask the gentlemen who made this objection, WHO BUT THE\nPEOPLE CAN DELEGATE POWERS? Who but the people have the right to form\ngovernment?... _What have the state governments to do with it?_\u201d (3\n_Ell. Deb._ 37.)\n\nWe average Americans know and will remember that this learned American\nlawyer, only twelve years earlier a _subject_ of an omnipotent\nlegislature, already knew the basic American principle to be that the\ndelegation of _national_ power _was_ the constitution of government\nof a free people and that only the people, assembled in convention,\ncould delegate such power and that the state governments, under basic\nAmerican law, never can have the ability to delegate _that kind_ of\npower. We regret that _our_ \u201cconstitutional\u201d lawyers, all born free\ncitizens of a free republic, have not the same accurate knowledge of\nbasic American law.\n\nBut the knowledge of Henry and of Pendleton, that the document\nunder consideration was the Constitution of a nation whose citizens\nalone could give to its government any valid power to interfere\nwith their human freedom, was the knowledge of all in that and the\nother \u201cconventions,\u201d in which the one people of America assembled\nand adopted that Constitution. Let us note another distinct type in\nthat Virginia convention, the famous Light-horse Harry Lee of the\nRevolution. \u201cDescended from one of the oldest and most honorable\nfamilies in the colony, a graduate of Princeton College, one of the\nmost daring, picturesque, and attractive officers of the Revolution, in\nwhich by sheer gallantry and military genius he had become commander\nof a famous cavalry command, the gallant Lee was a perfect contrast\nto the venerable Pendleton.\u201d (Beveridge, _Life of Marshall_, Vol. I,\npage 387.) Lee also replied to Henry\u2019s attack on the expression \u201cWe,\nthe people\u201d and not \u201cWe, the states.\u201d In his reply, there was shown\nthe same accurate knowledge of basic American law. \u201cThis expression\nwas introduced into that paper with great propriety. This system is\nsubmitted _to the people_ for their consideration, because on them it\nis to operate, if adopted. It is not binding on the people until it\nbecomes their act.\u201d (3 _Ell. Deb._ 42.)\n\nIn the Massachusetts convention, General William Heath, another soldier\nof the Revolution, showed his accurate conception of the legal fact\nof which we average Americans have just been reading in the decisions\nof our Supreme Court. \u201cMr. President, I consider myself not as an\ninhabitant of Massachusetts, but as a citizen of the United States.\u201d (2\n_Ell. Deb._ 12.)\n\nIn the North Carolina convention, William Goudy seems to have had some\nprophetic vision of our own immediate day. Speaking of the document\nunder discussion and clearly having in mind its First Article, this\nis the warning he gave us: \u201cIts intent is a concession of power, on\nthe part of the people, to their rulers. We know that private interest\ngoverns mankind generally. Power belongs originally to the people;\nbut if rulers [all governments] be not well guarded, that power may\nbe usurped from them. People ought to be cautious in giving away\npower.... Power is generally taken from the people by imposing on their\nunderstanding, or by fetters.\u201d (4 _Ell. Deb._ 10.)\n\nIn that same North Carolina convention, James Iredell, later a\ndistinguished judge of our Supreme Court, in replying to the common\nattack that the Constitution contained no Bill of Rights, displayed\nclearly the general accurate knowledge that, in America, any grant of\n_national_ power to interfere with human freedom _is_ the constitution\nof government and that the citizens of any nation in America are _not_\ncitizens but subjects, _if_ even a single power _of that kind_ is\nexercised by government without its grant directly from the citizens\nthemselves, assembled in their conventions. \u201cOf what use, therefore,\ncan a Bill of Rights be in _this_ Constitution, where the _people_\nexpressly declare how much power _they_ do give, and consequently\nretain all that they do not? It is a declaration of particular powers\n_by the people_ to their representatives, for particular purposes. It\nmay be considered as a great power of attorney, under which no power\ncan be exercised but what is expressly given.\u201d (4 _Ell. Deb._ 148.)\n\nWhen we average Americans read the debates of those human beings, the\nfirst citizens of America, one thing steadily amazes us, as we contrast\nit with all that we have heard during the past five years. Some of\nthose first citizens were distinguished lawyers or statesmen, quite\nwell known to history. Some of them bore names, then distinguished\nbut now forgotten. Most of them, even at that time, were quite\nunknown outside of the immediate districts whence they came. All of\nthem, twelve years earlier, had been \u201csubjects\u201d in an empire whose\nfundamental law was and is that its legislative government can exercise\nany power whatever to interfere with human freedom and can delegate\nany _such_ power to other governments in that empire. The object of\nthe American Revolution was to change that fundamental law, embodying\nthe Tory concept of the proper relation of government to human being,\ninto the basic law of America, embodying the American concept of that\nrelation declared in the great Statute of \u201976, that no government\ncan have any power _of that kind_ except by direct grant from its\nown citizens. During that Revolution, human beings in America, in\nconformity with their respective beliefs in the Tory or the American\nconcept of the relation of human being to government, had been divided\ninto what history knows as the Tories and the Americans. Many of the\nhuman beings, assembled in those conventions of ten or twelve years\nlater, had been sincere Tories in the days of the Revolution.\n\nYet, if we average Americans pick up any volume of their recorded\ndebates in those \u201cconventions,\u201d we cannot scan a few pages anywhere\nwithout finding the clearest recognition, in the minds of all, that\nthe American concept had become the basic American law, that the Tory\nconcept had disappeared forever from America. All of them knew that,\nso long as the Statute of \u201976 is not repealed and the result of the\nRevolution not reversed, no legislatures in America can exercise any\npower to interfere with human freedom, except powers obtained by direct\ngrant from the human beings over whom they are to be exercised, and\nthat no legislatures can give to themselves or to another legislature\nany _such_ power. It was common in those \u201cconventions\u201d of long ago to\nillustrate some argument by reference to this admitted legal fact and\nthe difference between the fundamental law of Great Britain and of\nAmerica, in these respects. In that North Carolina convention, the same\nIredell, after pointing out that the American concept of the relation\nof citizen to all governments had become basic American law, contrasts\nthat fact with the fundamental law of Great Britain where \u201cMagna Charta\nitself is no constitution, but a solemn instrument ascertaining certain\nrights of individuals, _by the legislature_ for the time being; and\n_every_ article of which the _legislature_ may at any time alter.\u201d (4\n_Ell. Deb._ 148.)\n\nIn the Pennsylvania convention, on December I, 1787, one of the most\ndistinguished lawyers of that generation made a memorable speech,\nexpressing the universal knowledge that the American concept had taken\nforever the place of the Tory concept in fundamental American law. We\ncommend a careful study of that speech to those of our public leaders\nand \u201cconstitutional\u201d lawyers, who for five years have been acting on\nthe assumption that the Tory concept has again become our fundamental\nAmerican law. We average Americans, after living with those earlier\nAmericans, are not surprised to listen to the statements of Wilson.\n\u201cThe secret is now disclosed, and it is discovered to be a dread, that\nthe boasted _state sovereignties_ will, under this system, be disrobed\nof part of their power.... _Upon what principle is it contended that\nthe sovereign power resides in the state governments?_... The proposed\nsystem sets out with a declaration that its existence depends upon the\nsupreme authority of the people alone.... When the principle is once\nsettled that _the people_ are the source of authority, the consequence\nis, that they may take from the _subordinate_ governments powers which\nthey have hitherto trusted them, and place those powers in the general\ngovernment, if it is thought that there they will be productive of more\ngood. They can distribute one portion of power to the more contracted\ncircle, _called state governments_; they can also furnish another\nproportion to the government of the United States. Who will undertake\nto say, as a state officer, that the people may not give to the general\ngovernment what powers, and for what purposes, they please? How comes\nit, sir, that these state governments dictate to their superiors--to\nthe majesty of the people?\u201d (2 _Ell. Deb._ 443.)\n\nWe average Americans, legally bound (as American citizens) by no\ncommand (interfering with our human freedom) except from our _only_\nlegislature at Washington and then only in those matters in which _we\nourselves_, the citizens of America, have directly given it power to\ncommand us, now intend insistently to ask all our governments, the\nsupreme one at Washington and the subordinate ones in the states of\nwhich we are also citizens, exactly the same question which Wilson\nasked.\n\nDaniel Webster asked almost exactly the same question of Hayne and\nhistory does not record any answer deemed satisfactory by the American\npeople. Webster believed implicitly in the concept of American law\nstated by those who made our Constitution. Like them, and unlike _our_\n\u201cconstitutional\u201d lawyers, he knew that the Tory concept of the relation\nof men to their government had disappeared from American basic law.\n\n\u201cThis leads us to inquire into the origin of this government, and the\nsource of its power. Whose agent is it? Is it the creature of the\nstate legislatures, or the creature of the people?... It is, sir, the\npeople\u2019s constitution, the people\u2019s government--made for the people,\nmade by the people, and answerable to the people. The people of the\nUnited States have declared that this Constitution shall be the supreme\nlaw. We must either admit the proposition, or dispute their authority.\nThe states are, unquestionably, sovereign, so far as their sovereignty\nis not affected by this supreme law. But the state legislatures, as\npolitical bodies, however sovereign, are yet not sovereign over the\npeople.... The national government possesses those powers which it\ncan be shown _the people_ have conferred on it, _and no more_.... We\nare here to administer a Constitution emanating immediately from the\npeople, and trusted by them to our administration.... This government,\nsir, is the independent offspring of the popular will. It is not the\ncreature of state legislatures; nay, more, if the whole truth must\nbe told, the people brought it into existence, established it, and\nhave hitherto supported it, for the very purpose, amongst others,\nof imposing certain salutary restraints on state sovereignties....\nThe people, then, sir, erected this government. They gave it a\nconstitution, and in that constitution _they_ have enumerated the\npowers which _they_ bestow upon it.... Sir, the very chief end, the\nmain design for which the whole constitution was framed and adopted,\nwas to establish a government that should not be obliged to act through\nstate agency, depend on state opinion and state discretion.... If\nanything be found in the _national_ constitution, either by original\nprovisions, or subsequent interpretation, which ought not to be in\nit, the people know how to get rid of it. If any construction be\nestablished, unacceptable to them, so as to become practically a part\nof the constitution, _they_ will amend it at their own sovereign\npleasure. But while the _people_ choose to maintain it as it is--while\n_they_ are satisfied with it, and refuse to change it--_who_ has given,\nor who _can_ give, to the state legislatures a right to alter it,\neither by interference, construction, OR OTHERWISE?... Sir, the people\nhave not trusted _their_ safety, in regard to the general constitution,\nto these hands. They have required other security, and taken other\nbonds.\u201d (From Webster\u2019s reply to Hayne, U. S. Senate, January, 1830. 4\n_Ell. Deb._ 498 et seq.)\n\nWe average Americans, now educated in the experience of the average\nAmerican from 1776 to the beginning of 1787, find much merit and\ncomfort in Webster\u2019s understanding of basic American law. He had a\nreasoned and firm conviction that Americans really _are_ citizens and\nnot subjects. His conviction, in that respect, while opposed to the\nconvictions of _our_ leaders and \u201cconstitutional\u201d lawyers, has seemed\nto us quite in accord with the convictions of earlier leaders such as\nIredell and Wilson and the others, and also with the decisions of our\nSupreme Court.\n\nBriefly stated, it has become quite clear to us that the American\npeople, from 1776 to 1787, were fixed in their determination _to make_\nour basic American law what the conviction of Webster and the leaders\nof every generation prior to our own knew it to be. Let us go back,\ntherefore, to the Americans in the Philadelphia convention of 1787,\nwho worded the Constitution which is the supreme law of America, and\nascertain how their knowledge of fundamental American law dictated the\nwording of their proposed Seventh Article.\n\n\n\n\n                             CHAPTER VIII\n\n         PHILADELPHIA ANSWERS \u201cCONVENTIONS, NOT LEGISLATURES\u201d\n\n\nWe recall how clearly the Americans at Philadelphia, in 1787, knew\nthat any grant of _national_ power to interfere with the freedom of\nindividuals _was_ the constitution of government. We recall the bitter\nconflict of opinion, threatening the destruction of the assembly, over\nthe manner of choosing the members of the legislature to exercise\nwhatever powers _of that kind_ the citizens of America might grant. We\nrecall the great opposition to the proposal of a grant of _any_ power\n_of that kind_ and to the particular proposal of each of the enumerated\npowers _of that kind_, all embodied in the First Article.\n\nWe have thus come to know with certainty that the minds of the\nAmericans at Philadelphia, during those strenuous four months, were\nconcentrated mainly upon a proposal to grant some _national_ power to\ninterfere with the human freedom of all Americans. In other words, we\nhave _their_ knowledge that their proposed First Article, by reason\nof its grants of _such_ power, would constitute a new nation and\ngovernment of men, if those grants were validly made by those competent\nto make _such_ grants.\n\nUnder which circumstances, we realize that it became necessary for\nthem to make a great legal decision, in the construction of basic\nAmerican law, and, _before_ making that decision, which was compelled\nto be the result of judgment and not of will, accurately to ascertain\none important legal fact. Indeed, their decision was to be the actual\nconclusion reached in the effort to ascertain that legal fact. This\nwas the single question to which they must find the right answer:\n\u201cUnder our basic American law, can legislatures ever give to government\nany power to interfere with the human freedom of men, or must every\ngovernment in America obtain its only valid powers _of that kind_ by\ndirect grant from its own citizens?\u201d\n\nIt is easy for us to state that they should have known that the answer\nto that question was expressly and authoritatively given in the\nStatute of \u201976. It was there plainly enacted that every just power of\nany government must be derived from the direct grant of those to be\ngoverned by its exercise. Yet our own leaders for the last five years\nhave not even asked the question, much less known the right answer.\n\nAt Philadelphia, in 1787, they _did_ know it. They had no doubt\nwhatever about it. We shall see that quickly in our brief review of\nthe record they made at Philadelphia in ascertaining and deciding,\nas a legal necessity, to whom their First Article and its enumerated\ngrants of _national_ power must be sent and, when we boast of how\nquickly we knew the answer, we should admit that we did not know it\nuntil _after_ we had lived again with them through their experience of\nthe preceding ten or twelve years which had educated them, as it has\njust educated us, to that knowledge. Furthermore, many of us average\nAmericans will be unable to explain, until later herein, why, during\nthe last five years, our own leaders have not known the right answer.\nThe Statute of \u201976 has not been wholly unknown to them. The record of\nthe Philadelphia Convention and the ratifying conventions has not been\nentirely a closed book to them. The important and authentic statements\nof Webster and other leaders of past generations have been read by\nmany of them. If they did not understand and know the correct answer,\nas we now realize they have _not_ known, let us not withhold from the\nAmericans at Philadelphia our just tribute of gratitude that they _did_\naccurately know, when it was amazingly important to us that they should\nknow.\n\nWhen _those_ Americans came to answer that question, there were\nfacts which might have misled them as other similar facts of lesser\nimportance have undoubtedly misled our leaders.\n\nIn 1776, from that same Philadelphia had gone a suggestion that a\nconstitution of government, with Articles granting power to government,\nbe made in each former colony. In 1787, there had gone from that same\nPhiladelphia a proposal that a constitution of a general government for\nAmerica be made, with Articles granting power to that government. The\nproposal of 1776 had suggested that the proposed Articles be made by\nthe people themselves, assembled in conventions. The proposal of 1777\nhad suggested that the proposed Articles be made by the legislative\ngovernments of the states. Both proposals, even as to the makers\nof the respective Articles, had been acted upon. All the Articles,\nalthough some had been made by the people themselves and others by\nlegislatures, had been generally recognized as valid law. Some of the\nmen at Philadelphia in 1787 had been members of the proposing Second\nContinental Congress, when the respective proposals of 1776 and 1777\nhad gone from Philadelphia. When, in 1787, they were called upon to\nfind and state, as their legal decision, the correct answer to their\nimportant question, it was necessary for them to ascertain, as between\nstate \u201clegislatures\u201d and the people themselves, in \u201cconventions,\u201d\n_which_ could validly make the Articles which had been worded and were\nabout to be proposed. It would not, therefore, have been beyond the\npale of our own experience if the earlier proposals had misled them and\nthey had made the wrong answer to the question which confronted them.\nFurthermore, as we have already noted, although we can little realize\nthe influence of such a fact upon men seeking the correct legal answer\nto an important question, their whole proposal was a new adventure\nfor men on an uncharted sea of self-government. Under all of which\ncircumstances, let us again pay them their deserved tribute that they\nwent unerringly to the only correct answer.\n\nWe know that the essence of that answer is expressed in the Seventh\nArticle proposed from Philadelphia. Only one answer was possible to\nAmericans of that generation. They had been \u201csubjects\u201d and had become\n\u201ccitizens.\u201d They knew the vital distinctions between the two relations\nto government.\n\n The Convention which framed the Constitution was, indeed, elected by\n the state legislatures. But the instrument, when it came from their\n hands, was a mere proposal, without obligation, or pretensions to it.\n It was reported to the then existing Congress of the United States,\n with the request that it might \u201cbe submitted to a convention of\n delegates, chosen _in_ each state by the _people_ thereof, under the\n recommendation of its legislature, for their assent and ratification.\u201d\n This mode of proceeding was adopted; and by the Convention, by\n Congress, and by the state legislatures, the instrument was submitted\n to the people. They acted upon it in the only manner in which they\n can act safely, _effectively_, and wisely, on such a subject, by\n assembling in convention. It is true, they assembled in their several\n states; and where else should they have assembled? No political\n dreamer was ever wild enough to think of breaking down the lines which\n separate the states, and of compounding the _American_ people into one\n common mass. Of consequence, when they [the _American_ people] act,\n they act _in_ their states. But the measures _they_ adopt do not, on\n that account, cease to be the measures of the people themselves, or\n become the measures of the state governments. From these conventions\n the Constitution [_the First Article grants of power to interfere\n with individual freedom_] derives its whole authority. The government\n proceeds directly from the people; is \u201cordained and established\u201d in\n the name of the people.... It required not the affirmance, and could\n not be negatived, by the state governments.... To the formation of a\n league, such as was the Confederation, the state sovereignties were\n certainly competent.\n\nBut, when a general government of America was to be given any national\npower to interfere with the individual freedom of its citizens, as in\nthe First Article of 1787 and in the Eighteenth Amendment of 1917,\n\n acting directly on the people, the necessity of referring it to the\n people, and of deriving its powers directly from them, was felt and\n acknowledged by all. The government of the Union, then, (whatever\n may be the influence of this fact on the case,) is, emphatically,\n and truly, a government of the people. In form and _in substance_ it\n emanates from them. _Its powers are granted by them_, and are to be\n exercised directly on them, and for their benefit. (Marshall in the\n Supreme Court, M\u2019Culloch v. Maryland, 4 _Wheat._ 316.)\n\nMarshall was one of the Americans who had been at Valley Forge in\n1778, and at other places whose sacrifices _made_ it the basic law of\nAmerica that all power over American citizens _must_ be derived by\ndirect grant from themselves. Later, he was prominent in the Virginia\nconvention where all Americans in Virginia knew and acted upon this\nbasic law. These facts qualified him to testify, from the Bench of the\nSupreme Court, that _all_ Americans _then_ knew and acknowledged the\nbinding command of that basic law.\n\nUnder such circumstances, it was impossible that the Americans at\nPhiladelphia should not have known and obeyed that law in the drafting\nof their proposed Seventh _and Fifth_ Articles. Both of these Articles,\nthe Seventh wholly, and the Fifth partly, deal with the _then_\nfuture grant of national power over the people and its only _legal_\ngift by direct grant from the people themselves, assembled in their\n\u201cconventions.\u201d Both Articles name the people of America, by the one\nword \u201cconventions.\u201d\n\nThat Philadelphia should not have strayed from the legal road clearly\nmarked by the Statute of \u201976 was certain when we recall how large a\npart Madison played at Philadelphia, and particularly how he personally\nworded and introduced, in the closing hours at Philadelphia, what we\nknow as its Fifth Article. As to his personal knowledge of this basic\nlaw, we recall his letter of April, 1787, where he said, \u201cTo give\nthe new system its proper energy, it will be desirable to have it\nratified by the authority of the people, and not merely by that of the\nlegislatures.\u201d And we recall his later words, when urging Americans to\nadopt the Constitution with its Fifth and Seventh Articles, he said of\nthe Seventh, \u201cThis Article speaks for itself. The express authority of\nthe people _alone_ could give due validity to the Constitution,\u201d to its\ngrants of power over the people in its First Article. (_Fed._ No. 43.)\n\nThat we may fix firmly in our own minds the knowledge which all\nAmericans _then_ had, which _our_ leaders never acquired or have\nentirely forgotten, let us briefly review what the earlier Americans\ndid at Philadelphia in obedience to that knowledge of basic American\nlaw.\n\nOn May 28, Randolph of Virginia \u201copened the main business\u201d of the\nConvention. He proposed fifteen resolutions embodying the suggestion of\nwhat should be in the different Articles. Resolution Number 15 was that\nsuch Articles should be submitted to \u201c_conventions_,\u201d \u201cto be expressly\nchosen by the people, to consider and decide thereon.\u201d (5 _Ell. Deb._\n128.)\n\nThe first short debate on this Resolution took place on June 5. In\nit Madison stated that he \u201cthought this provision _essential_. The\nArticles of Confederation themselves were defective in this respect,\nresting, in many of the states, on the _legislative_ sanction only.\u201d\nThe resolution was then postponed for further consideration. On June\n12, \u201cThe question was taken on the 15th Resolution, to wit, referring\nthe new system to the people of the United States for ratification. It\npassed in the affirmative.\u201d (5 _Ell. Deb._ 183.) This was all in the\nCommittee of the Whole.\n\nOn June 13, that Committee made their full report, in which the\nRandolph Resolution Number 15 was embodied in words as Resolution\nNumber 19 of the report. On June 16, while the Convention was again\nsitting as a Committee of the Whole, the great struggle was on between\nthe conflicting opinions as to how and in what proportion should be\nelected the future legislators who were to exercise the granted powers\nover Americans. On that day, the discussion centered on the relative\nmerits of the Randolph _national_ proposals and a set of _federal_\nArticles amending the existing Federal Constitution. In supporting\nRandolph, Wilson of Pennsylvania stated that \u201che did not fear that the\npeople would not follow us into a _national_ government; and it will\nbe a further recommendation of Mr. Randolph\u2019s plan that it is to be\nsubmitted to _them_, and not to the _legislatures_, for ratification.\u201d\n(5 _Ell. Deb._ 196.)\n\nOn July 23, Resolution Number 19 came up for action. Remembering how\ninsistent many of the delegates were that the _general_ government\nshould be kept a purely _federal_ one, it is not surprising to find\nOliver Ellsworth of Connecticut opening the short debate with a motion\nthat the Constitution \u201cbe referred to the legislatures of the states\nfor ratification.\u201d But it will also be remembered that the powers\nto be granted in the new Articles had not yet been settled. The\n_nationalists_ in the Convention, intent on having some _national_\nArticles, knew that the proposed ratification must be by the people\nthemselves, \u201cfelt and acknowledged by all\u201d to be the only competent\ngrantors of _national_ powers.\n\nColonel Mason of Virginia \u201cconsidered a reference of the plan to the\nauthority of the people as one of the most important and essential\nof the resolutions. _The legislatures have no power to ratify it._\nThey are the mere creatures of the state constitutions, and cannot\nbe greater than their creators.... Whither, then, must we resort? To\nthe people, with whom all power remains that has not been given up in\nthe constitutions derived from them. It was of great moment that this\ndoctrine should be cherished, as the basis of free government.\u201d (5\n_Ell. Deb._ 352.)\n\nRufus King of Massachusetts, influenced undoubtedly by the error\nof thinking that the Convention meant to act within the Articles\nof Confederation, was inclined to agree with Ellsworth \u201cthat the\nlegislatures had a competent authority, the acquiescence of the\npeople of America in the Confederation being equivalent to a formal\nratification by the people.... At the same time, he preferred a\nreference to the authority of the people, expressly delegated to\nconventions, as the most certain means of obviating all disputes and\ndoubts concerning the legitimacy of the new Constitution.\u201d (5 _Ell.\nDeb._ 355.)\n\nMadison \u201cthought it clear that the legislatures were incompetent to the\nproposed changes. These changes would make essential inroads on the\nstate constitutions; and it would be a novel and dangerous doctrine,\nthat a legislature could change the constitution under which it held\nits existence.\u201d (5 _Ell. Deb._ 355.)\n\nEllsworth\u2019s motion to send to the state legislative governments, and\nnot to the people themselves, assembled in \u201cconventions,\u201d was lost by\na vote of seven to three. Resolution Number 19, that the new Articles\nmust be sent to the people themselves was adopted by a vote of nine to\none, Ellsworth and King both voting for it. (5 _Ell. Deb._ 356.)\n\nThis impressive discussion, now continued for over a month of 1787,\nwith its display of accurate knowledge of the distinction between\nsending Articles to legislatures and \u201c_referring_\u201d them to the people,\nmakes quite amusing what we shall hear later in 1917. It will come\nfrom the counsel of the political organization which dictated that\ngovernments should make the supposed Eighteenth Amendment. After he\nkindly tells us that history has proven that these Americans of 1787\n\u201cbuilded more wisely than they knew,\u201d meaning \u201cthan he knew,\u201d he\nshall later impart to us the remarkable information that \u201cthe framers\nin the Constitutional Convention knew very little, if anything, about\nreferendums.\u201d\n\nThe Resolutions, which had now become twenty-three in number,\non July 26, were referred to the Committee of Detail to prepare\nArticles in conformity therewith. On August 6, that Committee made\nits report of twenty-three worded Articles. In Article XXII was\nembodied the requirement that the Constitution should be submitted\n\u201cto a _convention_ chosen in each state, under the recommendation\nof its legislature, in order to receive the ratification of such\n_convention_.\u201d This provision, the Philadelphia answer and always the\nonly legal answer to the question as to who can validly grant power\nto interfere with individual freedom, was later seen not properly to\nbelong in the Constitution itself. For which reason, it was taken out\nof the Constitution and embodied in a separate Resolution which went\nwith the Constitution from Philadelphia.\n\nIn Article XXI, the first draft of our Article VII, it was provided:\n\u201cThe ratification of the _conventions_ of ---- states shall be\nsufficient for organizing this Constitution.\u201d (5 _Ell. Deb._ 381.)\n\nThe month of August was passed in the great debates on the proposed\ngrants of national power and the other proposed Articles. When the\nConvention was drawing to a close on August 30, Articles XXI and XXII\nwere reached.\n\nGouverneur Morris of Pennsylvania \u201cmoved to strike out of Article\nXXI the words, \u2018_conventions_ of the,\u2019 after \u2018ratification,\u2019 leaving\nthe states to pursue their own modes of ratification.\u201d Rufus King\n\u201cthought that striking out \u2018_conventions_,\u2019 as the requisite mode,\nwas equivalent to giving up the business altogether.\u201d Madison pointed\nout that, \u201cThe people were, in fact, the fountain of all power.\u201d The\nmotion of Morris was beaten. An attempt was made to fill the blank in\nArticle XXI with the word \u201cthirteen.\u201d \u201cAll the states were \u2018No\u2019 except\nMaryland.\u201d The blank was then filled by the word \u201cnine\u201d the vote being\neight to three. The two articles were then passed, the vote thereon\nbeing ten to one. (5 _Ell. Deb._ 499-502.)\n\nOn September 10, the beginning of the last business week of the\nConvention, Gerry of Massachusetts moved to reconsider these two\nArticles. The short discussion was not in connection with any matter\nin which we are now interested. His motion was lost. The entire set of\nworded Articles was then referred to a committee for revising the style\nand arrangement of the Articles agreed upon. (5 _Ell. Deb._ 535.)\n\nOn Wednesday, September 12, that Committee reported our Constitution,\nwith its seven Articles, as we know them except for some slight\nchanges made during the discussions of the last three or four days of\nthe Convention. In these seven Articles, the language of the earlier\nArticle XXII did not appear. As it really was the statement of the\ncorrect legal conclusion of the Convention that its proposed Articles,\n_because_ they would grant power to interfere with individual freedom,\n_must_ necessarily be made by the people themselves, its proper place\nwas outside the Constitution itself and in a special Resolution of the\nsame nature as every Congress resolution proposing an amendment to that\nConstitution. That was the view of the Committee and, on Thursday,\nSeptember 13, the Committee reported such special Resolutions, in the\nvery words of the former Article XXII. \u201cThe proceedings on these\nResolutions are not given by Mr. Madison, nor in the Journal of the\nFederal Convention. In the Journal of Congress, September 28, 1787,\nVolume 4, p. 781, they are stated to have been presented to that body,\nas having passed in the Convention on September 17 immediately after\nthe signing of the Constitution.\u201d (5 _Ell. Deb._ 602.)\n\nThis is the Resolution:\n\n\u201cRESOLVED, That the preceding Constitution be laid before the United\nStates in Congress assembled; and that it is the opinion of this\nConvention, that it should afterwards be submitted to a convention\nof delegates chosen in each state by the people thereof, under the\nrecommendation of its legislature, for their assent and ratification;\nand that each convention, assenting to and ratifying the same, should\ngive notice thereof to the United States in Congress assembled.\n\n\u201cRESOLVED, That it is the opinion of this Convention, that, as soon as\nthe conventions of nine states shall have ratified this Constitution,\nthe United States in Congress assembled should fix a day, etc.\u201d (5\n_Ell. Deb._ 541.)\n\nThis Resolution is the most authoritative statement of the legal\nconclusion reached by these leaders of a people _then_ \u201cbetter\nacquainted with the science of government than any other people in the\nworld.\u201d The conclusion _itself_ was compelled by accurate knowledge\nthat the government of \u201ccitizens\u201d can validly obtain only from the\ncitizens themselves, by their direct grant, any power to interfere with\ntheir individual freedom. The expression of that knowledge, in the\nResolution, is, in many respects, one of the most important recorded\nlegal decisions ever made in America. We average Americans, educated\nwith those Americans at Philadelphia through their experience of the\nyears between 1775 and 1787, cannot misunderstand the meaning and\nimportance of that decision. Instructed by our review of their actions\nand their reasoning at Philadelphia in reaching that conclusion and\nmaking that legal decision, we know, with an accurate certainty, that\nit was their declaration to the world and to us that no proposal from\nPhiladelphia suggested that Americans again resume the relation of\n\u201csubjects\u201d to any government or governments.\n\nOur minds impressed with this accurate knowledge that such was not\ntheir purpose, we now prepare to complete our education as American\ncitizens, not subjects, by reading the Philadelphia story and language\nof their Fifth Article, their only other Article which even _partly_\nconcerned the future grant of new government power to interfere with\nindividual American freedom. By reason of _our_ education, we will then\ncome to the reading of the language of this Article, as the Americans\nread it and understood it when they made it in their \u201cconventions\u201d that\nfollowed the proposing convention of Philadelphia.\n\nBeing educated \u201ccitizens\u201d and not \u201csubjects,\u201d we ourselves will no\nlonger, as _our_ leaders have done for five years, mistake the only\ncorrect and legal answer to the indignant outburst of Madison, who\nwrote this Fifth Article at Philadelphia. \u201cWas, then, the American\nRevolution effected, was the American Confederacy formed, was the\nprecious blood of thousands spilt, and the hard-earned substance of\nmillions lavished, not that the people of America should enjoy peace,\nliberty, and safety, but that the governments of the individual states,\nthat particular municipal establishments, might enjoy a certain extent\nof power, and be arrayed with certain dignities and attributes of\nsovereignty? We have heard of the impious doctrine in the Old World,\nthat the people were made for kings, not kings for the people. Is the\nsame doctrine to be revived in the New, in another shape--that the\nsolid happiness of the people is to be sacrificed to the views of\npolitical institutions of a different form?\u201d (_Fed._ No. 45.)\n\nThe American answer, from the people of America assembled in the\nconventions that ratified that Fifth Article, was a clear and emphatic\n\u201cNo.\u201d The Tory answer of the last five years, from _our_ leaders and\nour governments, has been an insistent \u201cYes.\u201d\n\nNo one, however, with any considerable degree of truthfulness, can\nassert that there has come from the American people themselves, during\nthe last five years, any very audible \u201cYes.\u201d To whatever extent\nindividual opinions may differ as to the wisdom or legality of the\nnew constitution of government of men, made entirely by governments,\nno unbiased observer has failed to note one striking fact. By a very\nextensive number of Americans otherwise law-abiding, Americans in all\nclasses of society, the new government edict, the government command to\n\u201csubjects,\u201d has been greeted with a respect and obedience strikingly\nsimilar to the respect and obedience with which an earlier generation\nof Americans received the Stamp Act and the other government edicts\nbetween 1765 and 1776.\n\nWhen the Americans of that earlier generation were denounced by the\ngovernment which had issued those edicts to its \u201csubjects,\u201d one of\nthe latter, five years before Americans ceased to be \u201csubjects\u201d of\nthat government, stated: \u201cIs it a time for us to sleep when our free\ngovernment is essentially changed, and a new one is forming upon a\nquite different system--a government without the least dependence upon\nthe people?\u201d\n\nIt may be but a coincidence that, while our American government was\nannouncing its recognition of the wide-spread American disrespect\nfor the new government edict, it is only a few days since throughout\nAmerica there resounded many eulogies of the Samuel Adams, who made\nthat statement in the Boston _Gazette_ of October 7, 1771. In those\neulogies, there was paid to him the tribute that he largely helped\nto bring about the amazing result of American desire for individual\nfreedom which culminated in the assembling of the Americans in the\n\u201cconventions\u201d which ratified the proposed Constitution.\n\nWe have already sensed that the existence of the supposed Eighteenth\nAmendment depends entirely upon an amazing modern meaning _put into_\nthe Fifth Article made in those conventions. Let _us_, therefore, who\nare Americans now educated in the experience of the Americans who\nassembled in those \u201cconventions,\u201d sit therein with them and there read\nthe story and the language of the Fifth Article as they read it when\nthey made it.\n\n\n\n\nCHAPTER IX\n\nTHE FIFTH ARTICLE NAMES ONLY \u201cCONVENTIONS\u201d\n\n\nIt has been the misfortune of our prominent Americans of this\ngeneration that they read the Fifth Article with _preconceived_\nnotions of its meaning. To the error of that method of reading it,\nwe average Americans will not pay the tribute of imitation. We know\nthat its meaning to those who made it in the \u201cconventions\u201d of the\nearlier century is the meaning which it must have as part of the\nsupreme law of the land. That we may read it as they read it and get\nits clear and only possible meaning, as they got it, we shall briefly\nreview the story of its wording and its proposal at Philadelphia.\nThat Convention immediately preceded the assembling of the people in\ntheir own \u201cconventions.\u201d In each of their \u201c_conventions_,\u201d among the\npeople assembled, were some who had been prominent at Philadelphia,\nsuch as Madison and Randolph and Mason in Virginia, Hamilton in New\nYork, Wilson in Pennsylvania and the Pinckneys in South Carolina.\nMoreover, between the Philadelphia proposal and the assembling of these\nconventions, Madison and Hamilton, proposer and seconder of the Fifth\nArticle _at Philadelphia_, had been publishing their famous essays, now\ncollectively known as _The Federalist_, in the New York newspapers to\nexplain the Articles worded at Philadelphia and to urge their adoption.\nUnder which circumstances, it is clear that, if we want to read and\nknow the meaning of the Fifth Article as it was understood in those\nconventions, the Fifth Article which named those same \u201cconventions,\u201d\nwe must complete our education by an accurate and brief review of\nthe story of that Article at Philadelphia. Only in that way shall\nwe average Americans of today be in the position in which were the\nAmericans who made that Article.\n\nWhen we read that story of Philadelphia, in relation to the Fifth\nArticle, one thing stands out with amazing clarity and importance.\nWe already know how that Convention, until its last days, was\nconcentrated upon the hotly debated question of its own proposed grants\nof _national_ powers in the First Article. In the light of which\ncontinued concentration, it is not surprising to learn that, until\nalmost the very last days, the delegates forgot entirely to mention,\nin their tentative Fifth Article, the existing and limited ability\nof state legislatures to make federal or declaratory Articles, and\nmentioned only \u201cconventions\u201d of the people, who alone could or can make\n_national_ Articles.\n\nThe first suggestion of what we now know as the Fifth Article was on\nthe second day, May 29, when the Randolph Resolution 13 read \u201cthat\nprovision ought to be made for the amendment of the Articles of union\nwhensoever it shall seem necessary.\u201d This wording was the exact\nlanguage of Resolution 17 of the report of the Committee of the Whole.\nIt was adopted by the Convention on July 23. Three days later, with\nthe other Resolutions, it was referred to the Committee of Detail \u201cto\nprepare and report the Constitution.\u201d On August 6, this Committee, in\nthe first draft of our Constitution, reported the following: \u201cArt. XIX.\nOn the Application of the legislatures of two-thirds of the states in\nthe Union, for an amendment of this Constitution, the legislature of\nthe United States shall call a _convention_ for that purpose.\u201d\n\nWe see clearly why the delegates, their minds concentrated on their\nown proposed grants of _national_ powers, mentioned only the people\nthemselves, the \u201cconventions\u201d of the \u201cSeventh\u201d and \u201cFifth\u201d Articles,\nwho alone can make _national_ Articles, and forgot to mention\nlegislatures, because the latter never can make national Articles.\n_That_ kind of Article was the only thing they were _then_ thinking\nabout. Naturally, it then escaped their attention that, if they\nproposed a wise and proper distribution of _national_ power between the\nnew American government and the respective existing state governments,\nalmost every future Article, if not every one, would be of the\n_federal_ kind, which legislatures or governments could validly make,\nas they had made all the Articles of the existing federation. Clearly\n_for that reason_ this Article XIX never even mentioned the existing\nand limited ability of legislatures.\n\nBetween this report of August 6 and August 30, the Convention was again\nentirely occupied with the grants of _national_ power and the election\nof the legislators to exercise it or, in other words, with what is now\nthe First Article. On August 30, Article XIX was adopted without any\ndebate.\n\nWe are now aware that the Convention was within two weeks of its end\nand no one had mentioned, in what is now the Fifth Article, the state\ngovernments or legislatures as possible makers of _federal_ Articles,\nif and when _such_ Articles were to be made in the future.\n\nIt was not until September 10, Monday of the last Convention week, that\nArticle XIX again came up for action, when Gerry of Massachusetts\nmoved to reconsider it. His purpose, as he himself stated it, was to\nobject because it made it possible that, if the people in two-thirds\nof the states called a convention, a majority of the American people\nassembled in that convention \u201ccan bind the Union with innovations that\nmay subordinate the state constitutions altogether.\u201d Hamilton stated\nthat he could see \u201cno greater evil, in subjecting the people in America\nto the major voice than the people of any particular state.\u201d He went on\nto say that he did think the Article should be changed so as to provide\na more desirable \u201cmode for _introducing_ amendments,\u201d namely, drafting\nand proposing them to those who could make them. In this respect he\nsaid: \u201cThe mode proposed was not adequate. The state legislatures\nwill not apply for alterations, but with a view to increase their own\npowers. The national legislature will be the first to perceive, and\nwill be most sensible to, the necessity of amendments; and ought also\nto be empowered, whenever two-thirds of each branch should concur, to\ncall a convention. There could be no danger in giving this power, as\nthe _people_ would finally _decide_ in the case.\u201d (5 _Ell. Deb._ 531.)\n\nRoger Sherman of Connecticut then tried to have the Article provide\nthat the national government might also propose amendments to the\nseveral states, as such; such amendment to be binding if consented to\nby the several states, namely, all the states. For reasons that will\nappear in a moment, this clear attempt to enable the states, mere\npolitical entities, and their legislatures, always governments, to\ndo what they might wish with the individual freedom of the American\ncitizen--thus making him their subject--was never voted upon. It was,\nhowever, seconded by Gerry of Massachusetts. Its probable appeal to\nSherman, always a strong opponent of the _national_ government of\nindividuals instead of the _federal_ government of states, was that it\nwould make it difficult to take away any power from Connecticut, unless\nConnecticut wished to give it up. Its appeal to Gerry, consistently a\nTory in his mental attitude to the relation of government and human\nbeing, was undoubtedly the fact that it would permit government or\ngovernments to do what they might wish with individual freedom. It does\nnot escape the attention of the average American that _our_ governments\nand leaders, during the last five years, have not only displayed the\nmental attitude of Gerry but have also acted as if the proposal, which\nhe urged, _had_ been put into what is our Fifth Article. Only on that\ntheory can we average Americans, with _our_ education, understand\nwhy governments in America have undertaken to exercise and to vest\nin our government a _national_ power over us, which power neither is\nenumerated in the First Article nor was ever granted by the citizens\nof America to their _only_ government; nor can we understand why our\nleaders have assumed that governments _in_ America, which are not even\nthe government of the American citizens, can do either or both of\nthese things. We know, if governments and leaders do not, that neither\nthing can ever be possible in a land where men are \u201ccitizens\u201d and not\n\u201csubjects.\u201d\n\n\n\n\n                               CHAPTER X\n\n                  ABILITY OF LEGISLATURES REMEMBERED\n\n\nLiving through the days of that Convention, we have now seen three\nmonths and ten days of its sincere and able effort to word a\nConstitution which would \u201c_secure_ the Blessings of Liberty\u201d to the\nindividual American. We have seen them spend most of their time in the\npatriotic endeavor to adjust and settle how much, if any, _national_\npower to interfere with individual freedom that Constitution shall give\nto its only donee, the new and general government. In other words,\nwe have seen the mind and thought and will of that Convention almost\nentirely concentrated, for those three months and ten days, upon the\nArticle which _is_ the constitution of government, the First Article,\nwith its enumerated grants of general power to interfere with the human\nrights of the American citizen.\n\nKeeping in mind the object of that intense concentration, the\nFirst Article grants of power _of that kind_, we average Americans\nnote, _with determined intent never to forget_, the effect of that\nconcentration upon the wording of our Fifth Article up to that tenth\nday of September. We note, _with determined intent never to forget_,\nthat, from May 30 to September 10, the _only_ maker of future changes\nmentioned was the \u201cpeople\u201d of America, the most important reservee of\nthe Tenth Amendment, the \u201cconventions\u201d of the American people named in\nboth the Seventh and the Fifth Articles.\n\nAs this fact _and its tremendous meaning_ have never been known or\nmentioned in the sorry tale of the five years from 1917 to 1922, we\naverage Americans are determined to dwell upon it briefly so that we\ncannot escape an accurate appreciation of the short remaining story of\nthe one week at Philadelphia, in 1787, in relation to our Fifth Article.\n\nOnly a week earlier, _because_ the First Article did grant enumerated\npowers to interfere with individual rights, the Convention had known\nthat the seven articles must go to the people directly to say _their_\n\u201cYes\u201d or \u201cNo\u201d to those grants of the First Article. For that reason the\nConvention (considering limited legislative ability to make _federal_\nArticles and omnipotent ability of the \u201cpeople\u201d to make all Articles)\nhad decided that it MUST propose the mode of ratification by the\n\u201cpeople,\u201d the \u201cconventions\u201d of the Seventh and the Fifth Articles. As\nMarshall later authoritatively stated in the Supreme Court, the _legal_\nnecessity of deriving national powers from the people themselves, the\n\u201cconventions,\u201d was _then_ known and acknowledged by all.\n\nIt was natural, therefore, up to that September 10, that a convention,\nconcentrated entirely upon grants _of that kind_, when wording its\nArticle with a mode of procedure for making future changes, should have\nforgotten any changes except _of the kind_ on which its own mind was\nconcentrated and should have mentioned in its amending Article, up to\nSeptember 10, no maker of future changes except the people themselves,\n\u201cconventions\u201d of the Seventh and the Fifth Articles.\n\nAnd, at this point, we average Americans note, _again with intent never\nto forget_, that if the one competent maker of such Articles, the\n\u201cconventions,\u201d had remained the only maker of Articles _mentioned_\nin the Fifth Article, even the great \u201cconstitutional\u201d lawyers of 1920\nwould never have made the monumental error of assuming that the Fifth\nArticle was a grant of power (to those who made it and all the original\nConstitution) to make future Articles. Even _they_ would have noticed\nand _applied_ to their reading of the Fifth Article the well known\nlegal fact that grantors never can and never do grant to themselves\nwhat they already have or a part of it.\n\nTherefore, noting and remembering these significant facts, we turn\nwith interest to the short story of how those able Americans at\nPhiladelphia, their minds no longer exclusively concentrated on their\nown enumerated grants, remembered that there was another maker of\nArticles with _existing_ but limited ability to make _federal_ or\ndeclaratory Articles. And, with interest, we shall learn how this last\nweek thought caused the Convention to change the Fifth Article by\nadding a mention of that existing limited ability and prescribing the\nmode of its future _constitutional_ exercise.\n\nThat we average Americans may never be misled by inaccurate statements\nof the short story of how the mention of that limited ability was\nadded to the mention of the unlimited ability of the \u201cpeople\u201d or\n\u201cconventions\u201d of the Fifth Article, it is fitting that the full record\nof the story be given verbatim. It adds not a little to our amusement\nthat the story is copied from the brief of the leading \u201cconstitutional\u201d\nlawyer of 1920 who championed the validity of the Eighteenth Amendment\non the remarkable assumption and error, common to all his associates\nand his opponents, that the new mention changed the Fifth Article into\na _grant_ of ability to those legislatures instead of what its author,\nMadison, knew and stated that Article to be, a \u201cmode of procedure\u201d for\nthe future _constitutional_ exercise either of that existing limited\nability or the other existing unlimited ability of the \u201cpeople\u201d or\n\u201cconventions\u201d of the Seventh and Fifth Articles. This is the record of\nthat September 10, as copied from that brief, beginning immediately\nafter Hamilton had voiced his opinion that there could be no danger in\nletting Congress _propose_ an Amendment \u201cas the _people_ would finally\ndecide in the case.\u201d\n\n\u201cMr. Madison remarked on the vagueness of the terms, \u2018call a Convention\nfor the purpose\u2019 as sufficient reason for reconsidering the Article.\nHow was a Convention to be formed? by what rule decide? what the force\nof its acts?\n\n\u201cOn the motion of Mr. Gerry to reconsider\n\n\u201cN. H. div. Mas. ay. Ct. ay. N. J. no. Pa. ay. Del. ay. Md. ay. Va. ay.\nN. C. ay. S. C. ay. Geo. ay. (Ayes--9; noes--1; divided--1.)\n\n\u201cMr. Sherman moved to add to the article \u2018or the Legislature may\npropose amendments to the several States for their approbation, but no\namendments shall be binding until consented to by the several States.\u2019\n\n\u201cMr. Gerry 2ded. the motion.\n\n\u201cMr. Wilson moved to insert \u2018two thirds of\u2019 before the words \u2018several\nStates\u2019--on which amendment to the motion of Mr. Sherman\n\n\u201cN. H. ay. Mas. (no). Ct. no. N. J. (no). Pa. ay. Del. ay. Md. ay. Va.\nay. N. C. no. S. C. no. Geo. no. (Ayes--5; noes--6).\n\n\u201cMr. Wilson then moved to insert \u2018three fourths of\u2019 before \u2018the several\nSts.\u2019 which was agreed to nem: con:\n\n\u201cMr. Madison moved to postpone the consideration of the amended\nproposition in order to take up the following,\n\n\u201c\u2018The Legislature of the U.S. whenever two thirds of both Houses shall\ndeem necessary, or on the application of two thirds of the Legislatures\nof the several States, shall propose amendments to this Constitution,\nwhich shall be valid to all intents and purposes as parts thereof, when\nthe same shall have been ratified by three fourths at least of the\nLegislatures of the several States, or by Conventions in three fourths\nthereof, as one or the other mode of ratification may be proposed by\nthe Legislature of the U.S.\u2019\n\n\u201cMr. Hamilton 2ded. the motion.\n\n\u201cMr. Rutlidge said he never could agree to give a power by which\nthe articles relating to slaves might be altered by the States not\ninterested in that property and prejudiced against it. In order to\nobviate this objection, these words were added to the proposition:\n\u2018provided that no amendments which may be made prior to the year 1808,\nshall in any manner affect the 4 & 5 sections of the VII article.\u2019 The\npostponement being agreed to,\n\n\u201cOn the question On the proposition of Mr. Madison & Mr. Hamilton as\namended\n\n\u201cN.H. divd. Mas. ay. Ct. ay. N.J. ay. Pa. ay. Del. no. Md. ay. Va. ay.\nN.C. ay. S.C. ay. Geo. ay. (Ayes--9; noes--1; divided--1.)\u201d\n\n                                                 II _Farrand_, 558, 559.\n\nNo American citizen, now living or in the generations to come, if\nhe values at all the human liberty which the entire Constitution\nwas established to secure, can spend too much time in reading and\nunderstanding that short record. It is the record left by Madison\nhimself, even though it be copied from the brief of the leading\n\u201cconstitutional\u201d lawyer of 1920 who maintained his whole argument for\nthe Eighteenth Amendment on the ground that we have been \u201csubjects\u201d of\nan omnipotent government, his clients, since the day, June 21, 1788,\nwhen that Fifth Article was enacted by the American people to secure\n\u201cthe Blessings of Liberty for themselves and their posterity.\u201d\n\nAs we shall later find herein, it is the claim of all who believe the\nnew Amendment to be in our Constitution, although they have hitherto\nnot understood their own claim, that the words of the Article, which\nappear in that short record, are the words which changed the American\nindividuals, free men from July 4, 1776, into subjects of an omnipotent\ngovernment, composed of the legislative governments of a fractional\npart of the states. Moreover, as we shall also later learn herein,\nthis absurd and amazing claim is based wholly on the monumental error\nof assuming, without the faintest suggestion or proffer of support\nfor such an assumption, that the new wording of the Fifth Article, as\nproposed by Madison on September 10, changed the amending Article into\na grant of ability to make every kind of Article. The monumental error\nfails to see that Madison merely added to the previous mention of the\nunlimited ability of the people or \u201cconventions\u201d a similar mention of\nthe existing limited ability of the state legislative governments to\nmake _federal_ Articles or Articles which neither exercise nor grant\npower to interfere with human freedom. Moreover, as we shall also\nlearn later herein, the extraordinary and unfounded assumption (that\nthe amending Article was changed on September 10 into a _grant_ of\nability to make Articles instead of a recognition and mention of two\nexisting different abilities, one of which had always been mentioned\ntherein) has been hitherto concurred in by every one who has challenged\nthe validity of the Eighteenth Amendment. _They_ have only differed\nfrom the supporters of the new Amendment in contending that the\nimpossible grant, absurdly imagined to have been made by the grantors\nto _themselves_ as well as to state legislatures, _was_ a _grant_ of\nlimited ability but did not include the ability to make an amendment\nsuch as the Eighteenth.\n\nWhen we do come later herein to the briefs and arguments of the\nopponents and supporters of the supposed Eighteenth Amendment, we\nshall look in vain to find therein the faintest suggestion of a\nclaim that there is anything in the record of September 10, 1787, to\njustify their extraordinary and unfounded assumption that the Fifth\nArticle, on that day, was changed so as to make it a grant of power\nfrom the \u201cconventions\u201d of the people to the \u201cconventions\u201d of the whole\nAmerican people and to the state legislatures. On the contrary, we\nshall find every opponent of the supposed new Amendment making easy\nthe way of its supporters by joining in the common assumption of all\nand predicating every argument against the new Amendment on the same\nextraordinary assumption that the Fifth Article _is_ a grant of power\nto the grantors and to the state governments. Not once, in any brief\nor argument of the most renowned lawyers in America, shall we find\neven the faintest knowledge of two facts which must be so _if_ the\nFifth Article _is_ a grant of power to the two supposed grantees. That\neach of the two facts is a patent absurdity will not alter the logic\nthat they must be facts, _if_ the Fifth Article is a grant to those\ntwo grantees. The first patently absurd fact is that, if the Fifth\nArticle is a grant, the \u201cconventions\u201d of 1788 granted to _themselves_,\nthe supposed grantors, exactly the same omnipotent power to make all\nArticles, which the grantors (a supposed grantee) were exercising at\nthe very moment when they made the Fifth Article. The second patently\nabsurd fact, if the Fifth Article is a grant, is that the whole people\nof America, assembled in their \u201cconventions,\u201d after eleven years as\nfree men, voluntarily relinquished that status to become, as the whole\npeople of America, \u201csubjects\u201d of the same legislative governments who\nare one of the supposed donees of the absurd and imaginary grant.\nThis remarkable fact follows as the logical conclusion of the concept\nthat the \u201cconventions\u201d granted to the \u201cconventions\u201d and to the state\ngovernments, with Congress to determine which shall exercise it,\nthe very omnipotent power which the people themselves (the supposed\ngrantors) were then exercising in their \u201cconventions\u201d and which eleven\nyears before they had denied to the British Parliament. When we later\nrealize that none of our modern leaders saw either absurd fact to\nbe the certain result of the concept that the Fifth Article _is_ a\ngrant, we average Americans ought certainly to be convinced that, if\nwe wish to keep our individual rights in any matter, it is going to be\nnecessary for us to understand _for ourselves_ how our Constitution\nsecures those rights to us.\n\nForewarned of such necessity, we return with renewed interest to the\nexamination of the record of the day on which it is assumed that\nMadison suggested that the Fifth Article should be changed into a\n\u201cgrant\u201d and then proposed to the American people, so that they might\nvoluntarily relinquish their status as free men and become \u201csubjects\u201d\nof a government with omnipotent ability to legislate in restraint of\ntheir individual freedom \u201cin all matters whatsoever.\u201d It ought not\nto detract from our amusement that this remarkable proposal of such\na \u201cgrant\u201d (as our modern leaders see it) was to go to the American\npeople in each state and there be approved by that people with the\nknowledge that the people in that particular state, on the occasion of\na future proposal, might not elect a single member of the legislative\ngovernments who would exercise that omnipotent power over their every\nindividual right.\n\nOur amusement is not lessened when we find that the supposed \u201cgrant\u201d\nwas suggested by Madison and seconded by Hamilton. The Philadelphia\nConvention was being held in the America which had just emerged from\nan eight year Revolution to establish the doctrine that no government\ncould be omnipotent in its ability to interfere with individual\nfreedom. The Convention itself had devoted three months and ten days,\nbefore the day in question, to bitter dispute about giving even\nenumerated powers _of that kind_ to the American government mentioned\nin the First Article. It is therefore, with great amusement _but with\nserious intent never to forget_, that we note that not a single voice\nwas raised in the Convention either to uphold or to protest this\nsupposed and absurd \u201cgrant\u201d of omnipotence to an entirely different\ngovernment. On the contrary, as we note with intent never to forget,\nthe newly worded Article was treated by the Convention as if every\n_important_ matter in it had been settled before the state governments\nwere even mentioned in it as makers of the kind of Articles which they\nalready had the power to make, _federal_ Articles. As soon as the\nnewly worded Article had been suggested by Madison and Hamilton, the\nArticle which Madison himself describes as a _constitutional_ mode for\nthe exercise of existing abilities to make Articles, only one change\n(utterly unimportant now) was suggested in the new wording. This was\nthe suggestion that the Article should not provide a _constitutional_\nmode in which existing ability to interfere with slavery could be\n_constitutionally_ exercised prior to the year 1808. This change\nwas immediately made by the Convention. Then, without the slightest\nobjection to any other part of the supposed absurd \u201cgrant,\u201d the\nConvention approved the newly worded Article.\n\nFrom the absence of one word of protest we quite clearly realize\nthat no man in that Convention so misconstrued the simple statement\nof Madison\u2019s Fifth Article as to read into it an imaginary \u201cgrant\u201d\nof any ability whatever to the state legislative governments. We\nrealize that these men, who were accurate thinkers, knew that the\n\u201cconventions\u201d named in this Madison Article were exactly the same\n\u201cconventions\u201d which Philadelphia had already named in what we know\nnow as the Seventh Article. We realize that they knew at once, when\nMadison proposed his Article, that the \u201cconventions\u201d named in it, like\nthe same \u201cconventions\u201d named in the Seventh, were \u201cWe, the people\u201d of\nAmerica, named in the Preamble. And, from a moment\u2019s reflection, we are\naware that the delegates at Philadelphia immediately knew that Madison\nwas not making the absurd suggestion that the American people, the\n\u201cconventions\u201d of the Seventh and Madison\u2019s new Article, should _grant_,\nin the very \u201cconventions\u201d of the Seventh, to _themselves_, anything\nwhatever of power, either all or part of the power which they would be\nthen exercising in those \u201cconventions.\u201d From which it follows, as the\nnight the day, that the delegates also knew that if Madison\u2019s Article\nwas not a grant by the \u201cconventions\u201d to the \u201cconventions,\u201d it was not a\ngrant to the \u201clegislatures.\u201d For which reason we will not dwell at all\nupon the obvious fact that there is not the slightest suggestion of a\nword of grant in the Fifth Article.\n\nBefore emphasizing the absurdity of the thought that the Americans at\nPhiladelphia ever intended the plain statement of the Fifth Article\nto be a \u201cgrant\u201d of power of any kind, it seems proper that we should\ngrasp at once what it clearly _was_ understood by them to be. Their\nunderstanding and knowledge of its meaning become very clear to us,\nwhen _we_ read it, as they heard it from Madison, fresh from their\ngreat debate as to the grant of enumerated powers in their First\nArticle and their proposal of a ratification by \u201cconventions\u201d as the\nonly valid mode of ratification for an Article which grants power\nto interfere with human freedom. We recall now that, when Madison\nsuggested _his_ Fifth Article to them, on September 10, the echoes\nwere still ringing of the sound statements of Madison and others that\nPhiladelphia _must_ propose a mode of ratification by the people\nor \u201cconventions\u201d because legislatures never could be competent, in\nAmerica, to make Articles which did constitute government by granting\npower to interfere with human freedom. When _we_ read Madison\u2019s Fifth\nArticle, with the same statements still fresh in _our_ minds, we\nrealize at once how the delegates at Philadelphia recognized, in the\nMadison Article, the meaning of every reference to the duties imposed\nupon, not the powers granted therein, to Congress. The delegates had\nmet at Philadelphia with purpose and intent to draft and _propose_\nconstitutional Articles in their judgment best designed to secure human\nliberty to Americans, and then, after they had drafted their Articles\nand knew the nature of such Articles, whether _national_ or _federal_,\nto _propose_ a mode of ratification in which their proposed Articles\nwould be made by those competent to make them.\n\nWhen September 10 had come they had finished their work of drafting\ntheir Article, which constituted government, the First Article. For the\npurpose of reaching their decision as to the valid mode of ratification\nfor an Article of _that kind_, they had considered and discussed the\nexisting unlimited ability of the \u201cpeople\u201d or \u201cconventions\u201d to make all\nArticles, and the existing limited ability of the state legislatures\nto make some. The unerring decision which they had made was that\ntheir Articles would not be validly made, because the First Article\nconstituted _national_ government of men, unless they proposed a mode\nof ratification by the \u201cconventions\u201d of the American people.\n\nWe note, with intent to remember, that they were well aware that\ndrafting and proposing an Article did not make it valid or part of\na Constitution and that _proposing_ a mode of ratification did not\nmake it a valid mode, unless the ratifiers were competent to make the\nproposed Article. We recall that Wilson, who appears in the brief\nrecord of September 10, later made clear the knowledge of those at\nPhiladelphia that their _proposal_ of Articles and their _proposal_ of\na mode of ratification could not make either valid, that the making of\na _proposal_ is not the exercise of any power.\n\nIn the Pennsylvania convention he said: \u201cI come now to consider the\nlast set of objections that are offered against this Constitution. It\nis urged that this is not such a system as was within the powers of the\nConvention; they assumed the _power of proposing_.... I never heard,\nbefore, that to make a proposal was an exercise of power.... The fact\nis, they have exercised no power at all; and, in point of validity,\nthis Constitution, proposed by them for the government of the United\nStates, claims no more than a production of the same nature would\nclaim, flowing from a private pen.\u201d (2 _Ell. Deb._ 469-470.)\n\nNow, if Wilson and the other delegates at Philadelphia, on September\n10, knew that to make a proposal was no exercise of power, they clearly\nunderstood that Madison\u2019s Fifth Article, when it stated that Congress\nmight _propose_ an Amendment and Congress might _propose_ a mode of\nratification, was an Article which purported to grant no power to\nCongress. If we recall the truth, which Madison so often expressed,\nthat it is the privilege of any citizen or body of citizens to propose\nthat existing power be exercised, we realize that, if the Fifth Article\nhad not mentioned Congress as the maker of either proposal, Congress\nwould still have had full ability to make either or both proposals\nat any time. As the delegates at Philadelphia knew this as well as\nwe now know it, as we have been helped to our appreciation of it by\nthem and their statements, it is apparent how instantly they knew\nthat the mention of Congress, as the _proposer_ of an Amendment and\nas the _proposer_ of its mode of ratification, meant that Congress\n_alone_ was to be left with--_not given_--the duty which they had\nassumed themselves to perform at Philadelphia. That duty, as they knew\nand we now know, was to draft a proposed Article and, after it had\nbeen worded, to examine it and its nature and (with the validity of\ntheir ultimate proposal absolutely determined by that nature) then to\npropose the Article and a mode of ratification for it which would mean\nratification by those competent to ratify an Article of _its particular\nkind_. In other words, they knew that, whenever Congress performed the\nduty they had just performed themselves, after an Article had been\ndrafted, it would be legally necessary for Congress, as it had been for\nthem at Philadelphia, to consider the existing and different abilities\nof the \u201cpeople\u201d or \u201cconventions\u201d and the state legislatures to make\nArticles, and from that consideration to ascertain a competent ratifier\nfor the particular Article they had drafted and, the validity of the\nratification to depend entirely on the accuracy of their ascertainment\nand not on their own proposal of ratification, to propose a mode of\nratification in which that Article would be made by those competent\nto make it. With the meaning and effect of a \u201cproposal\u201d so clearly\nknown to them all, with their own immediate recent experience in the\nperformance of the very duty which Madison\u2019s Fifth Article _left_\nthe duty of Congress in the future, it was a simple matter for these\ndelegates at Philadelphia to know exactly what was the only possible\nmeaning of Madison\u2019s words, when the same \u201cshall have been ratified by\nthree fourths at least of the legislatures of the several states, or\nby conventions in three fourths thereof, as one or the other mode of\nratification may be proposed by the legislature of the U. S.\u201d\n\nHow accurately Madison himself knew all this, how accurately he knew\nthat the Philadelphia proposal would validate neither proposed Articles\nnor proposed mode of ratification, and that Congress proposal in the\nfuture would never validate either proposed Article or proposed mode of\nratification, he has not left to speculation.\n\nIt was the charge of the opponents of the proposed Constitution that\nthe Philadelphia Convention had exceeded its powers in proposing those\nArticles. Madison defended himself and his Philadelphia associates\nin _The Federalist_, Number 40, published in the New York _Packet_\non Friday, January 18, 1788. With his logical mind, he echoed the\nknowledge of Wilson and his other colleagues, who had drafted and\nproposed the Articles and proposed their ratification by the \u201cpeople\u201d\nor \u201cconventions\u201d of the Seventh and the Fifth Articles. It was his\nknowledge, as it was their knowledge, that the Philadelphia proposals\nwere, as the future Congress proposals would be, no exercise of power\nand that the validity of any Article, proposed at Philadelphia or\nproposed by Congress, must always depend, not _merely_ upon its being\nratified in the mode proposed respectively by Philadelphia or by\nCongress, but also--and immeasurably the most important test of valid\nratification--upon its being ratified by ratifiers competent to make\nthe particular Article.\n\nIt was his knowledge, as it was their knowledge, as it is now our\nknowledge, that if a proposed Article directly interfere with or grant\npower to interfere with human freedom, as the First Article, or the\nEighteenth Amendment, it can never be validly made by government but\nonly by the \u201cpeople\u201d of the Tenth Amendment; the \u201cconventions\u201d of the\n\u201cSeventh\u201d and \u201cFifth\u201d Articles.\n\nAmong other things, in his defense of himself and his Philadelphia\nassociates, this is what Madison said of them: \u201cThey must have\nreflected, that in all great changes of established governments, forms\nought to give way to substance; that a rigid adherence in such cases\nto the former would render nominal and nugatory the transcendent\nand precious right of the _people_ to \u2018abolish or alter _their_\ngovernments as to _them_ shall seem most likely to effect their safety\nand happiness,\u2019 since it is impossible for the people spontaneously\nand universally to move in concert towards their object; and it is\ntherefore essential that such changes be instituted by some _informal\nand unauthorized propositions_ made by some patriotic and respectable\ncitizen or number of citizens. They must have recollected that it\nwas by this irregular and assumed privilege of _proposing_ to the\n_people_ plans for _their_ safety and happiness that the states were\nfirst united against the danger with which they were threatened by\ntheir ancient government; that committees and congresses were formed\nfor concentrating their efforts and defending their rights; and that\n_conventions_ were _elected_ in _the several states_ for establishing\nthe constitutions under which they are now governed;... They must have\nborne in mind that as the plan to be framed and proposed was to be\nsubmitted _to the people themselves_, the disapprobation of the supreme\nauthority would destroy it forever; its approbation blot out antecedent\nerrors and irregularities.\u201d\n\nAnd so we come from that September 10, 1787, with the accurate\nknowledge that Madison then proposed and Hamilton seconded and all the\ndelegates adopted the first amending Article which ever _mentioned_\nthe state governments as makers of any future Amendments. And we know\nthat they did so with the unmistakable intent and understanding that\nit changed not at all the existing inability of any governments\nin America to create, for themselves or for other governments, any\n_national_ power to interfere with the citizens of America in the\nexercise of their human freedom. And we also come from that record with\nthe certain knowledge that the Madison Fifth Article of September 10\nmerely provided that, when future Articles were suggested, the Congress\nshould play the part which the Philadelphia Convention was playing,\nwhich part involved no exercise of power of any kind, and that such\npart of Congress should consist in merely _proposing_ an Article and\n_proposing_ its mode of ratification. And we also come from that day\nwith the equally certain knowledge, which we do not intend to forget,\nthat Madison himself knew clearly that the valid ratification of future\nArticles _would_ depend, as he knew the valid ratification of the\nPhiladelphia Articles _did_ depend, not on the fact that ratification\nwas in the mode proposed but on the fact that the proposer of a mode of\nratification should propose a mode in which the proposed Article could\nbe made by those competent to make an Article _of its particular kind_.\n\nFor these reasons, if the supporters of the Eighteenth Amendment expect\nus, now educated with those earlier Americans up to and including\nthe record of September 10, 1787, to believe that the Madison Fifth\nArticle, first worded on that day, purported to grant or was understood\nand intended by Madison and his colleagues to grant any power to the\nstate legislative governments _in_ America over ourselves, the citizens\nof America, we shall hereafter listen, with naught but amusement, to\nthese amateur \u201cconstitutional\u201d thinkers and their effort to change\nlegal fact into fiction by assumption. Confirmed by our education with\nMadison and the others who had all to do with the wording and the\nmaking of that Fifth Article of September 10, 1787, we recognize, even\nif these \u201cconstitutional\u201d thinkers do not recognize, that we ourselves\nare the \u201cconventions\u201d of the Fifth Article in which sit the American\npeople to exercise their exclusive ability to grant to government any\npower to interfere with their individual freedom. We have now, even\nif these \u201cconstitutional\u201d thinkers never have had, the knowledge of\nthe legal necessity that power _of that kind_ must be derived from\nourselves, the \u201cpeople\u201d of the Tenth Amendment and the \u201cconventions\u201d\nof the Seventh and the Fifth Articles--the necessity in 1787 \u201cfelt\nand acknowledged by all.\u201d We know, as Marshall knew in one of those\n\u201cconventions\u201d of 1788 and as he knew and stated on the Bench of the\nSupreme Court, that there is but one way in which we, the citizens of\nAmerica, can act safely or _effectively_ or wisely on the subject of\nnew interference with our individual freedom, by assembling in our\n\u201cconventions,\u201d the \u201cconventions\u201d of the Fifth as well as the Seventh\nArticle.\n\nAnd so, with our knowledge and certainty that the Madison Fifth Article\nof September 10 never could change the status of the free American\ninto that of the subject of an omnipotent government, we come to the\nlast business day of the Philadelphia Convention, September 15, the\nonly other day on which the Madison Fifth Article, with its _mention_\nof legislative ability to make _federal_ Articles but not _national_\nArticles, was ever considered at Philadelphia.\n\nOn that day the Committee of Style reported the seven Articles which\nwe now know as our Constitution. The Madison amending Article, except\nthat \u201cthe legislature of the U. S.\u201d was called \u201cthe Congress,\u201d was\nidentical with that of September 10. As it is important that we\nAmericans shall never be told anything about the record of September\n10 or September 15, in relation to this Madison Fifth Article, which\nis not something that _is_ in the record, that we may be given no\ndistorted version of what happened in that Convention about the only\nArticle which ever mentioned state \u201clegislatures\u201d as makers of _some_\nfuture Articles, we shall have again the pleasure of reading the entire\nrecord of September 15. Again we read it from the brief of the great\n\u201cconstitutional\u201d lawyer of 1920 who argued on the assumption that this\nArticle, worded by Madison, was intended to make us and did make us,\nthe citizens of America, the subjects of an omnipotent government,\ncomposed mostly of the client governments whom he represented in the\nCourt Room of 1920. This is his record of the full story of September\n15 in relation to the Fifth Article of Madison, from which record this\n\u201cconstitutional\u201d lawyer and his associates hope to derive--how we know\nnot--some support for this belief and this argument.\n\n\u201cMr. Sherman expressed his fears that three fourths of the States might\nbe brought to do things fatal to particular States, as abolishing\nthem altogether or depriving them of their equality in the Senate. He\nthought it reasonable that the proviso in favor of the States importing\nslaves should be extended so as to provide that no State should be\naffected in its internal police, or deprived of its equality in the\nSenate.\n\n\u201cCol. Mason thought the plan of amending the Constitution exceptionable\nand dangerous. As the proposing of amendments is in both the modes to\ndepend, in the first immediately, and in the second, ultimately, on\nCongress, no amendments of the proper kind would ever be obtained by\nthe people, if the government should become oppressive, as he verily\nbelieved would be the case.\n\n\u201cMr. Govr. Morris & Mr. Gerry moved to amend the article so as to\nrequire a Convention on application of two thirds of the Sts.\n\n\u201cMr. Madison did not see why Congress would not be as much bound to\npropose amendments applied for by two thirds of the States as to call a\nConvention on the like application. He saw no objection however against\nproviding for a Convention for the purpose of amendments, except only\nthat difficulties might arise as to the form, the quorum etc. which in\nConstitutional regulations ought to be as much as possible avoided.\n\n\u201cThe motion of Mr. Govr. Morris and Mr. Gerry was agreed to nem: con\n(see: the first part of the article as finally past)\n\n\u201cMr. Sherman moved to strike out of art. V. after \u2018legislatures\u2019 the\nwords \u2018of three fourths\u2019 and so after the word \u2018Conventions\u2019 leaving\nfuture Conventions to act in this matter, like the present Conventions\naccording to circumstances.\n\n\u201cOn this motion\n\n\u201cN.H. divd. Mas. ay. Ct. ay. N.J. ay. Pa. no. Del. no. Md. no. Va. no.\nN.C. no. S.C. no. Geo. no. (Ayes--3; noes--7; divided--1.)\n\n\u201cMr. Gerry moved to strike out the words \u2018or by Conventions in three\nfourths thereof\u2019\n\n\u201cOn this motion\n\n\u201cN.H. no. Mas. no. Ct. ay. N.J. no. Pa. no. Del. no. Md. no. Va. no.\nN.C. no. S.C. no. Geo. no. (Ayes--1; noes--10.)\n\n\u201cMr. Sherman moved according to his idea above expressed to annex to\nthe end of the article a further proviso \u2018that no State shall without\nits consent be affected in its internal police, or deprived of its\nequal suffrage in the Senate\u2019\n\n\u201cMr. Madison Begin with these special provisos, and every State will\ninsist on them, for their boundaries, exports, etc.\n\n\u201cOn the motion of Mr. Sherman\n\n\u201cN.H. no. Mas. no. Ct. ay. N.J. ay. Pa. no. Del. ay. Md. no. Va. no.\nN.C. no. S.C. no. Geo. no. (Ayes--3; noes--8.)\n\n\u201cMr. Sherman then moved to strike out art. V. altogether\n\n\u201cMr. Brearley 2ded the motion, on which\n\n\u201cN.H. no. Mas. no. Ct. ay. N.J. ay. Pa. no. Del. divd. Md. no. Va. no.\nN.C. no. S.C. no. Geo. no. (Ayes--2; noes--8; divided--1.)\n\n\u201cMr. Govr. Morris moved to annex a further proviso--\u2018that no State,\nwithout its consent shall be deprived of its equal suffrage in the\nSenate\u2019\n\n\u201cThis motion being dictated by the circulating murmurs of the small\nStates was agreed to without debate, no one opposing it, or on the\nquestion, saying no.\u201d\n\n                                                   11 _Farrand_ 629-631.\n\nAt once we notice with interest that these men, renowned as the\nmarvelous leaders of a people better acquainted with the science of\ngovernment than any other people in the world, men who have spent\nthree entire months and fifteen days in their wonderful effort to\nframe a constitution which will secure \u201cthe Blessings of Liberty\u201d to\nall American individuals and their posterity, still have no knowledge\nwhatever, the weird and marvelous knowledge of 1917 and 1920, that\nthis Madison Fifth Article gives to the state governments the very\nomnipotence which the American people, by a successful Revolution, had\njust wrested from the British Parliament. We note with interest Mason\u2019s\nobjection to the Madison \u201cmode of procedure\u201d in which may thereafter\nbe exercised the limited ability of these very state governments to\nmake _federal_ Articles and the unlimited ability of the people or\nconventions to make _national_ Articles. Mason\u2019s objection, having\ndirect reference to the grant of _national_ powers in the First Article\nand his fear (the continued and expressed fear for the next two years\nin the \u201cconventions\u201d of the Seventh and the Fifth Articles) that the\npeople may find these _enumerated_ powers oppressive, is that, if the\npeople _do_ find them oppressive, Congress, which has these powers,\nwill never _propose_ an Amendment to take any of these powers away from\nCongress. For which reason Morris and Gerry moved to amend the Article\nso that, if Congress does not propose an Amendment for which there\nseems to be a demand, the legislatures of two thirds of the states may\ninsist that Congress call a convention and that such convention may\n_propose_ an Amendment. This suggestion was carried.\n\nWe next find Sherman moving to strike out the words \u201cthree fourths\u201d\nafter the word \u201clegislatures\u201d and after the word \u201cconventions.\u201d This\nmotion was defeated. We next find, _and we fix firmly in our mind with\nintent never to forget_, that Gerry moved to strike out of Madison\u2019s\nArticle all reference to the \u201cpeople\u201d of the Preamble and the Tenth\nAmendment, the \u201cconventions\u201d of the Seventh and the Fifth Article,\nas the makers of any future Articles or changes in the Constitution.\nHis motion was \u201cto strike out the words \u2018_or by conventions in three\nfourths thereof_.\u2019\u201d\n\nAs _almost_ every one, during the last five years, including the\nsponsor of the Eighteenth Amendment in the House of Representatives,\nseems to have had an edition of our Constitution, in which the Fifth\nArticle does not contain these words, and as _everyone_, during the\nsame five years, has argued and acted as if these words were not in the\nFifth Article or have no meaning whatever of the slightest importance,\nwe intend to note _and never forget_ that Gerry\u2019s motion to strike\nthese words out was beaten by a vote of ten to one.\n\nAs we know, the \u201cpeople\u201d of America _themselves_ are identified\nby the word \u201cconventions\u201d in this Fifth Article, just as they are\nidentified by the same word in the Seventh Article. As we know,\n_we ourselves_--the posterity of the \u201cpeople\u201d of the Preamble--are\nidentified by this word \u201cconventions\u201d in the Fifth Article, just as we\nare identified in the Tenth Amendment as the most important reservee\nthereof by the word \u201cpeople.\u201d Wherefore our interest in this motion\nof Gerry and its overwhelming defeat is only exceeded by our absolute\namazement, for the last five years, at the universal ignorance of the\nfact that it _was_ defeated and of the fact that _we_ are mentioned\nin the Fifth Article as the only competent makers of any new Articles\nwhich either directly interfere or grant power to interfere with our\nindividual freedom.\n\nWe do not know, and to an extent we do not care, what was the purpose\nof Gerry. Gerry was always an opponent of a Constitution which vested\n_national_ power in a general government. He was an advocate of the\ncontinued complete independence of each state and its government and of\na mere _federal_ union of states with a purely _federal_ constitution.\nHe was also always a consistent Tory in his mental attitude as to the\nrelation of human being to government. If he had been successful in\nstriking out any mention of ourselves, the \u201cpeople\u201d or \u201cconventions,\u201d\nleaving only the mention of the state legislatures, with their existing\nability to make _federal_ Articles, it would have been impossible\nthat any further _national_ power (beyond the grants of the First\nArticle) be vested in the general government or taken from each state\ngovernment, as only we ourselves could make _national_ Articles like\nthe First. We surmise that a mixture of his Tory mental attitude and\nhis opposition to a general national government (which minimized the\nimportance and diminished the independent sovereignty of each state\ngovernment) prompted his motion. That his motion was overwhelmingly\ndefeated is the only important fact for us American citizens. We shall\nnot forget it even if our leaders and our \u201cconstitutional\u201d thinkers\nforget it and ignore it.\n\nWe have no further interest in the short record of that September\n15. No other change was made in the Madison Fifth Article except\nto take out of it any _constitutional_ mode of procedure for the\nexercise of the existing ability of ourselves, the \u201cpeople\u201d or\n\u201cconventions,\u201d to deprive any state of an equal representation in the\nSenate with every other state. We still can do that, but we have no\n_constitutional_ mode of procedure under the Fifth Article by which\nwe can exercise our ability to do it. This change was not, however,\nas so many have absurdly thought, an exception to an imaginary\npower which we ourselves, the \u201cconventions\u201d of the Seventh Article\nand the \u201cpeople\u201d of the Preamble and the Tenth Amendment, in those\nvery \u201cconventions,\u201d \u201cgranted\u201d to ourselves, the same \u201cpeople\u201d and\n\u201cconventions\u201d mentioned in the Fifth Article. It was a recognition of\nour existing ability, about to be exercised in those \u201cconventions,\u201d\nthe ability of the supreme will in America to deprive any state of its\nequal representation in the Senate; and it was our own exclusion of\nthat ability from any _constitutional_ exercise. The reflecting mind\nwill remember that, in the heated arguments at Philadelphia, there was\nstrong sentiment in favor of asking us, the people of America, the\n\u201cconventions\u201d of the Seventh Article, to exercise our exclusive ability\nin that very respect and make the Senate a body composed of members\nelected from larger proportions of the people than the members of the\nHouse of Representatives. It was the recollection of that effort which\nprompted the request that our exclusive ability to do that very thing\nshould not be provided with a _constitutional_ mode of future exercise.\n\nWe average Americans may now leave, in our present education, the\nentire story of that wonderful Convention at Philadelphia. We leave\nit with a knowledge of our Constitution we never had until we had\nlived with those Americans through the actual record of those three\nmonths and seventeen days from the end of May to September 17, 1787.\nWe bring from it a knowledge that brooks no contradiction. We are\ncertain that nothing in any of the Articles proposed at Philadelphia\npurported to give the state legislatures any power of any kind\nwhatever, in the Fifth Article or anywhere else, either to interfere\nwith the individual freedom of the American citizen or to grant the\npower of such interference to themselves or to our only government, the\nCongress. We bring from that Convention the knowledge that, _unless_\nsomething in the conventions of the American people, the \u201cconventions\u201d\nof the Seventh Article _and the Fifth Article_, changed the free men\nof America, the citizens of America, into subjects of an omnipotent\nlegislative government, we ourselves in 1923 are still the citizens of\nAmerica and possessors of the supreme will in America and are subjects\nof no government or governments in the world.\n\n\n\n\n                              CHAPTER XI\n\n                 CONVENTIONS CREATE GOVERNMENT OF MEN\n\n The Constitution is a written instrument. As such its meaning does\n not alter. That which it meant when adopted it means now. _Being a\n grant of powers to a government its language is general._... While the\n powers granted do not change, they apply from generation to generation\n to all things to which they are in their nature applicable. This in\n no manner abridges the fact of its changeless nature and meaning.\n Those things which are within its grant of power, as those grants were\n understood when made, are still within them, and those things not\n within them remain still excluded. (Justice Brewer, in the Supreme\n Court, South Carolina v. United States, 199 _U. S._ 437, at p. 448.)\n\n It is not only the same in words, but the same in meaning, and\n delegates the same powers to the government, and reserves and secures\n the same rights and privileges to the citizen; and as long as it\n continues to exist in its present form, it speaks not only in the same\n words; but with the same meaning and intent with which it spoke when\n it came from the hands of its framers, and was voted on and adopted by\n the people of the United States. (Scott v. Sandford, 19 _How._ 393, p.\n 426.)\n\n\nFrom which common sense statements of what always has been both\nreason and law, we know that whatever the Fifth Article meant to\nthose who made it, in the conventions named in it as well as in the\nSeventh Article, it means today. There is no better way in which\nwe can grasp its meaning to the American people assembled in those\nconventions, than by sitting with them and reading it as they read\nit, with their fresh knowledge of all the wonderful things in which\nthey had participated from the Statute of \u201976 to the proposal from\nPhiladelphia of 1787. As we have just lived through all that period\nwith them, we are in a wonderful position to read it and understand\nit as they understood it. Moreover, we are in a wonderful position to\nlisten to the statements of the men in those \u201cconventions.\u201d In those\nstatements, whether by advocates or opponents of the Constitution, we\nshall find the invincible negation--without one dissent--of the absurd\n_assumption_ that Madison\u2019s Fifth Article is a \u201c_grant_\u201d of any ability\n_to make_ Articles. In those statements, we shall find all discussion\nof that Fifth Article centering upon the one question, i.e., whether\nit provides a practical mode of procedure in which the exclusive\nability of the \u201cpeople\u201d or \u201cconventions\u201d can defend individual rights\nby _withdrawal_ of some part of the power of interference therewith\ngranted in the First Article. Mason had pointed out at Philadelphia\nthat the procedural provisions of the Fifth Article--_and it consists\nentirely of procedural provisions for the exercise of existing\npowers_--_left_ the drafting and proposal of Amendments entirely to\ngovernments. For which reason, in the \u201cconventions,\u201d Henry and all the\ngreat opponents of the Constitution argued that, if the individual\nAmericans found the granted _national_ powers of the First Article\ndangerous to human liberty, the \u201cpeople\u201d or \u201cconventions\u201d would never\nget the _constitutional_ opportunity to exercise their ability to\nwithdraw.\n\n\u201cYou\u201d--the \u201cyou\u201d being the individual Americans assembled in one\nconvention--\u201ctherefore, by a natural and unavoidable implication, give\nup your rights to the general government.... If you give up these\npowers,\u201d the enumerated powers of the First Article, \u201cwithout a bill of\nrights, you will exhibit the most absurd thing to mankind that ever the\nworld saw--a government that has abandoned all its powers--the powers\nof direct taxation, the sword, and the purse. You have disposed of\nthem to Congress, without a bill of rights--without check, limitation,\nor control. And still you have checks and guards; still you keep\nbarriers--pointed where? Pointed against your weakened, prostrated,\nenervated state government! You have a bill of rights to defend you\nagainst the state government, which is bereaved of all power, and yet\nyou have none against Congress, though in full and exclusive possession\nof all power! You arm yourselves against the weak and defenseless,\u201d\nthe state legislatures mentioned in the Fifth Article, \u201cand expose\nyourselves naked to the armed and powerful. Is not this a conduct of\nunexampled absurdity?\u201d\n\nSo thundered Henry in the Virginia convention. (3 _Ell. Deb._ 446.)\n\n\u201cTo encourage us to adopt it, they tell us that there is a plain,\neasy way of getting amendments. When I come to contemplate this part,\nI suppose that I am mad, or that my countrymen are so. The way to\namendment is, in my conception, shut. Let us consider this plain,\neasy way.\u201d Then follows the verbatim statement of the Madison Fifth\nArticle as proposed from Philadelphia. \u201cHence it appears that three\nfourths of the states must ultimately agree to any amendments that\nmay be necessary. Let us consider the consequence of this. However\nuncharitable it may appear, yet I must tell my opinion--that the most\nunworthy characters may get into power and prevent the introduction\nof amendments. Let us suppose--for the case is supposable, possible,\nand probable--that you happen to deal those powers to unworthy hands;\nwill they relinquish powers already in their possession, or agree to\namendments? Two thirds of the Congress, or of the state legislatures,\nare necessary even to propose amendments.... To suppose that so large\na number as three fourths of the states will concur is to suppose that\nthey will possess genius, intelligence, and integrity, approaching to\nmiraculous. It would indeed be miraculous that they should concur in\nthe same amendments, or even in such as would bear some likeness to\none another; for four of the smallest states, that do not collectively\ncontain one tenth part of the population of the United States, may\nobstruct the most salutary and necessary amendments. Nay, in these four\nstates, six tenths of the _people_ may reject these amendments....\nSo that we may fairly and justly conclude that one twentieth part of\nthe _American people_ may prevent the removal of the most grievous\ninconveniences and oppression, by refusing to accede to amendments.\nA trifling minority may reject the most salutary amendments. Is this\nan easy mode of securing the public liberty? It is, sir, a most\nfearful situation, when the most contemptible minority can prevent\nthe alteration of the most oppressive government; for it may, in many\nrespects, prove to be such.\u201d (3 _Ell. Deb._ 48.)\n\nSo thundered Henry against the weakness of the Madison procedure\nin which only by proposal from governments could there be\n_constitutionally_ evoked the _exclusive_ ability of the citizens\nof America to dictate how much power to interfere with individual\nfreedom should be left for the citizens of each state to use in\ngoverning themselves, and how much power _of that kind_ should be\nretained by the individual people of America themselves. Henry was\nopposing a Constitution in which the individual people of America\nwere dictating that their general government, the Congress, should\nhave only the enumerated powers of that kind which are in the First\nArticle. In it, they were dictating that each state government, except\nas the American people forbade it, should have just so much _of that\nkind of power_ as the citizens of that particular state should grant\nthat government. And in it, they were dictating that the people of\nAmerica themselves, the most important factor and reservee of the\nTenth Amendment, should retain all other power _of that kind_ to be\ngranted only by themselves, the \u201cconventions\u201d of the Madison Fifth\nArticle. Throughout all his thunder against that Constitution, Henry,\nlike every other opponent of that Constitution, never questioned that\nthis was the exact distribution of power to interfere with individual\nfreedom which _was_ dictated in the Constitution. His only complaint,\nand their only complaint, was that the Madison Fifth Article, _because_\nits constitutional procedure could only be evoked by a proposal from\ngovernments, was no protection to human liberty against the granted\npower _of that kind_ in the First Article. The absurd thought of our\nmodern \u201cconstitutional\u201d thinkers (contradicting the plain statement of\nthe Tenth Amendment and contradicting _everything_ that was said in the\n\u201cconventions\u201d that made the Fifth Article) is that the Article itself\nis a \u201c_grant_\u201d of omnipotent power to governments (the legislative\ngovernments of the states) to interfere with individual freedom.\nWhen we contrast the knowledge of Henry and his colleagues with the\nmodern absurdity, we echo Henry\u2019s words and exclaim, \u201cWe suppose\nthat we are mad, or that our modern constitutional thinkers are so.\u201d\nIf Henry had read into that Fifth Article, if the opponents of the\nproposed Constitution had read into it, any \u201c_grant_\u201d of ability to\nstate governments, certainly it was an absurdity for him to refer to\nthose governments as \u201cweakened, prostrated, enervated\u201d by the proposed\nConstitution.\n\nAnd so, educated in the experience of those Americans who assembled\nin those \u201cconventions\u201d named in the Seventh and Fifth Articles, we\nsit with them in the conventions of that earlier day and read that\nFifth Article with them, while they decide to make it with the six\nother Articles. Living through their experience, like them we have\nbecome \u201ca people better acquainted with the science of government than\nany other people in the world,\u201d so far as government is intended to\nsecure _individual_ liberty and happiness. When we sit with them, we\nintend not to forget, as they never did forget in those conventions,\nthat this was the sole purpose of the Constitution they considered and\nmade, the purpose of securing _individual_ liberty and happiness. In\nthis respect, they differed in their whole philosophy of government\nwith the new school of thought that, in our day, has its different\nmanifestations of exactly the same philosophy of government on the\npart of the Bolshevik in Russia and the minority in America which\nhas dictated that government enactment of the new constitution of\ngovernment, known as the Eighteenth Amendment.\n\nThe Americans of \u201976 and \u201987 set the individual liberty and freedom\nof man above everything in this world except the Divine Will of the\nCreator of man. In the Preamble of their Constitution, they echo the\ndeclarations of their Statute of \u201976. Their creed was that the laws of\nright and wrong are immutable; that the Creator made the individual\nman and granted human freedom to him; that such freedom is inherently\nsubject only to the Divine Will, the immutable law of right and\nwrong, but that it may voluntarily become subject, by the will of the\nindividual man, to the exercise of powers of interference which only he\nand his fellow men themselves can ever validly grant to government.\n\n\u201cBut what is government itself, but the greatest of all reflections on\nhuman nature? If men were angels, no government would be necessary. If\nangels were to govern men, neither external nor internal controls on\ngovernment would be necessary. In framing a government which is to be\nadministered by men over men, the great difficulty lies in this: You\nmust first enable the government to control the governed; and in the\nnext place, oblige it to control itself.\u201d (Madison or Hamilton, _Fed._\nNo. 51.)\n\nWhen we sit in the conventions of 1787 and 1788 with the Americans\nwho had this common concept of the only purpose of government of men,\ntheir concept is our own as we read with them the language of the Fifth\nArticle. And it is impossible for us, as it is impossible for them, to\nfind concealed in that language the thought of a \u201cgrant\u201d to government,\na \u201cgrant\u201d which would challenge this concept of the very purpose of\ngovernment. They are sitting in \u201cconventions\u201d assembled to determine\nwhether American individuals will enter into the new society of men,\nwhich is to be America. They have received the Fifth Article from\nAmericans in Philadelphia, who have accompanied the proposal of that\nFifth Article with a letter which states, \u201cIndividuals entering into\nsociety must give up a share of liberty, to preserve the rest.\u201d This\nstatement is recognized by the Americans, in the \u201cconventions\u201d where\nwe sit, as the exact statement of the concept of the sole purpose of\na government of men. With that concept and that letter before us, how\ncan we or the Americans with whom we sit find in the Fifth Article the\nremarkable idea that Americans, entering the society of America, are\nto give up all their liberties to the state governments in order that\nAmericans may preserve the rest of their liberties?\n\nIn these modern days, however, there has asserted itself, in Bolshevik\nRussia and in the America of which we are the citizens, two distinct\nmanifestations of an entirely different concept of the purpose of\ngovernment than was the concept of the Americans in the \u201cconventions.\u201d\nAlthough the manifestation of the new concept by the Bolshevik in\nRussia has been different from the manifestation of the new concept\nby an aggressive and organized minority in America, the new concept,\nat the bottom of each manifestation, is exactly the same. It is the\nconcept that the purpose of constituting a government of men is to\nsecure the welfare of the state or community or nation and not the\nliberty and happiness of the individuals who compose the nation. This\nis the exact concept of the Bolshevik Russian and the Eighteenth\nAmendment American. To neither of them would the words of that letter\nfrom Philadelphia convey the slightest meaning, the words \u201cindividuals\nentering into society must give up a share of liberty, to preserve the\nrest.\u201d In their mutual concept, the individual has no liberty which\ngovernment need respect. In the Bible of their concept, men cannot\nfind the words which declare the basic American principle, that every\njust power of government must come from the individuals who are to\nbe governed by its exercise. It is, however, a misnomer to call this\ncommon concept of the Bolshevik Russian and the Eighteenth Amendment\nAmerican a _new_ concept. It is identical with the old concept known\nas \u201cSocialism,\u201d the concept that community welfare, the prosperity\nand power and strength of a nation, are more important things than\nindividual liberty and happiness and enjoyment of human freedom. It\nis a concept which sets the state (a political entity created by men)\nand the welfare of the state above what the Americans of \u201976 and \u201987\nknew and proclaimed to be superior to all human creations, namely,\nthe individual man, the noblest creation of the Divine Creator. In\nother words, the common concept of the Bolshevik Russian and the new\nAmendment American is but the reaction to the century-old concept whose\nrepudiation was the main theme of the Declaration of Independence, the\nconcept that individual men, the creation of God, are made for kings or\ngovernments or political entities.\n\nTo those who hold such a concept there comes no shock when they are\nasked to imagine that the language of the Fifth Article implies a grant\nof ability to the state governments to do what those governments will\nwith the liberties of the citizens of America. But we are sitting in\n\u201cconventions\u201d of Americans of a different type, Americans who, eleven\nyears earlier, have repudiated forever the concept that men are made\nfor kings or governments or political entities. And, if we wish to know\nwhat the Americans in these conventions think of the concept of the\nBolshevik Russian and the Eighteenth Amendment American, we get our\nwish from the man who wrote the language of the Fifth Article.\n\n\u201cWe have heard of the impious doctrine in the Old World,\u201d the\nreactionary doctrine of modern Russia and of our own aggressive\nminority, manifested in two different disguises, \u201cthat the people were\nmade for kings, not kings for the people. Is the same doctrine to be\nrevived in the New, in another shape--that the solid happiness of the\npeople is to be sacrificed to the views of political institutions of\na different form?... As far as the sovereignty of the states can not\nbe reconciled to the happiness of the people, the voice of every good\ncitizen must be, Let the former be sacrificed to the latter. How far\nthe sacrifice is necessary, has been shown. How far the unsacrificed\nresidue will be endangered, is the question before us.\u201d\n\nThis is the language of Madison, in _The Federalist_, Number 45, asking\nthe individual Americans to make the Constitution to secure their\nindividual happiness. It will amaze us later herein to hear the thought\nof our modern \u201cconstitutional\u201d thinkers that his Fifth Article makes\nthe state governments (from whom that Constitution took sovereignty to\nsecure the individual happiness of the American citizen) a supreme and\nomnipotent government of the American citizens, a government knowing no\nwill but its own. Meanwhile let us forget this latter day nonsense and\nbreathe again the real American atmosphere, where individuals, entering\na society, give up a share of their liberty, to preserve the rest. Let\nus sit with the real \u201cconstitutional\u201d thinkers of America as they sat\nin the conventions and read with them the Fifth Article worded by\nMadison. This is what they read:\n\n\nARTICLE V\n\n The Congress, whenever two thirds of both Houses shall deem it\n necessary, shall propose Amendments to this Constitution, or, on the\n Application of the Legislatures of two thirds of the several States,\n shall call a Convention for proposing Amendments, which, in either\n Case, shall be valid to all Intents and Purposes, as Part of this\n Constitution, when ratified by the Legislatures of three fourths of\n the several States, or by Conventions in three fourths thereof, as the\n one or the other Mode of Ratification may be proposed by the Congress;\n Provided that no Amendment which may be made prior to the Year One\n thousand eight hundred and eight shall in any Manner affect the first\n and fourth Clauses in the Ninth Section of the first Article; and that\n no State, without its Consent, shall be deprived of its equal Suffrage\n in the Senate.\n\nSitting with these Americans, in _their_ \u201cconventions,\u201d we note\nimmediately, as they note, that the Article names _themselves_. And we\nnote, as they note, that it names themselves, the individual American\ncitizens, the \u201cpeople\u201d of the Preamble and the Tenth Amendment, by\nexactly the same name, \u201cconventions,\u201d as in the Seventh Article and\nas in the Resolution of the Philadelphia Convention, _which proposed\nthe only valid mode of ratification for the constitution of government\nof men in the First Article_, the mode which required ratification by\nthe individual Americans themselves, the \u201cconventions\u201d of the Seventh\nand the Fifth Articles. _We_ cannot help noting it--as we intend never\nto forget it--because _we_ are sitting with them, as the people of\nAmerica, in the very \u201cconventions\u201d so named in the Seventh Article.\n\nHaving their vital and accurate knowledge of the difference between\n_federal_ and _national_ Articles, that only the latter kind exercises\nor grants power to interfere with individual human freedom, we\nrecognize at once why the state legislatures are also mentioned in\nthe Fifth Article, although they never can make _national_ Articles.\nWe know it is because those \u201clegislatures,\u201d as the Tenth Amendment\nexpressly declares, retain their existing ability to make _federal_\nArticles or Articles which neither exercise nor grant power to\ninterfere with individual freedom. And, sitting in those \u201cconventions,\u201d\nwhere Hamilton also sits, we recall his remarkable prophecy, just\nmade to us in _The Federalist_, as we were about to enter the\n\u201cconventions\u201d with the other Americans therein. \u201cFor my own part, I\nacknowledge a thorough conviction that any amendments which may, upon\nmature consideration, be thought useful, will be applicable to the\norganization of the government, _not to the mass of its powers_.\u201d\n(_Fed._ No. 85.) In that absolutely accurate advance knowledge of\nthe complete history of constitutional amendment from 1789 to 1917,\nwe recognize the motive which prompted Madison _and Hamilton_,\non September 10, 1787, to add the mention of those legislative\ngovernments to the Fifth Article mention of the _exclusive_ ability\nof the people or \u201cconventions\u201d to make all future Articles which\n_do_ relate to the \u201cmass of its powers\u201d to interfere with individual\nfreedom conferred upon the one government of America. We understand\nthat these legislative governments are mentioned in the Fifth Article,\nwhich we are now reading in the \u201cconventions\u201d of old, because those\n\u201clegislatures\u201d have an existing ability to make _federal_ Articles\nwhich relate to other things than the _national_ power of government to\ninterfere with individual freedom.\n\nHaving thus satisfied ourselves, in those conventions, that we\nourselves, the \u201cpeople\u201d of America, _are_ mentioned in the Fifth\nArticle as the sole makers of any future Article which exercises or\ngrants power to interfere with our individual freedom, we turn with\ninterest to the procedure which the Article establishes as the only\n_constitutional_ mode of procedure in which that exclusive ability of\nour own may hereafter be evoked to exercise and be exercised.\n\nFrom the language of the Article itself, we know at once that it is\nsimply the statement of a mode of procedure in which our own unlimited\nability or the limited ability of the state legislatures, when the\noccasion seems to arise for the respective exercise of either ability,\nare hereafter to be evoked by some body of men, playing the part\nwhich the Philadelphia Convention has just played in evoking our own\nexclusive ability, the ability of the \u201cpeople\u201d or \u201cconventions.\u201d\n\nOutside the language of the Fifth Article itself, many other things\nmake that fact clear to us. For instance, we recall what Madison has\njust told us. He had written this Article at Philadelphia. Then,\nasking the American people to prescribe this _constitutional_ mode\nof procedure for the future exercise of either respective existing\nability, he has explained to us, just before the convention in which we\nsit, what the Fifth Article means.\n\n\u201cThat useful alterations will be suggested by experience, could not but\nbe foreseen. It was requisite, therefore, that A MODE FOR INTRODUCING\nTHEM should be provided. The mode preferred by the Convention seems to\nbe stamped with every mark of propriety. It guards equally against\nthat extreme facility, which would render the Constitution too mutable;\nand that extreme difficulty, which might perpetuate its discovered\nfaults. It, moreover, equally enables the general and State governments\nTO ORIGINATE the amendment of errors, as they may be pointed out by the\nexperience on one side, or on the other.\u201d (_Fed._ No. 43.).\n\nSitting in the conventions of more than a century ago, we are naturally\nuninfluenced (in our reading of plain English) by the story of a\ncentury which has not even yet begun, the century that later began in\n1800. And so we get from his own words the knowledge that the author\nof the Fifth Article knew it to be nothing but a _constitutional_\nmode of procedure, for the future exercise of either ability to make\nArticles. We see that the mode _leaves_ with either \u201cthe general and\nstate governments\u201d the ability to _propose_ an Amendment to those\nwith existing power to make the particular proposed Amendment. And we\nnote, with intent to remember, that the author of the Fifth Article,\nwhile he tells us about this reservation of existing abilities to\n_propose_ amendments, pointedly does _not_ tell us that the Article\n_grants_ any power to any government or governments to _make_\nAmendments. In other words, we know that the Fifth Article _reserves_\nto the general government and to the state governments exclusively\nwhat _otherwise_ they and every one else would have had--what Madison\nhimself called \u201cthe unauthorized privilege of any respectable citizen\nor body of citizens\u201d--the ability _to propose_, but that it does not\n_grant_ to any of those governments or all of them collectively the\nability which none of them ever had or can have, the ability _to\nmake_, constitutional Articles of a _national_ kind, which relate to\ninterference with individual freedom. With this knowledge confirmed\nby the clear statement of the author of the Fifth Article, we read\nwith interest its procedural provisions about the originating of new\nArticles, about their drafting and their proposal and the proposal of a\nmode of ratification for them, after they have been drafted and their\nnature has determined who can make them.\n\nSitting in those conventions of old, we are in the company of many of\nthe men who were at the Philadelphia Convention. In Virginia we see\nMadison and Randolph and Mason and others; in New York we see Hamilton\nand others; in Pennsylvania we see Wilson and others; in South Carolina\nwe see the Pinckneys and others. That is our experience in all the\nconventions. On all sides, among the American people assembled therein,\nare those familiar with and talking about the work at Philadelphia and\nthe great debate there, in which was _ascertained_, from the character\nof the Articles drafted there, _which_ maker of Articles, the state\nlegislatures, with their existing ability to make federal Articles,\nor the \u201cpeople\u201d themselves, the \u201cconventions,\u201d with their existing\nunlimited ability to make all Articles, could make the Articles drafted\nand about to be proposed. These men, by their presence and their\nwords, remind us how the nature of their First Article, the fact that\nit constituted government to interfere with human freedom, compelled\nthe announcement of the decision that legislative governments could\nnever make _that_ kind of an Article. These men, by their presence\nand their words, remind us how they reached the ascertainment of the\nfact which _compelled_ their Proposing Resolution _to propose_ a mode\nof ratification by the \u201cpeople\u201d themselves, by the \u201cconventions\u201d of\nthe Seventh and the Fifth Articles. They remind us, as one of the men\nwith us later said in the Supreme Court, that all assembled in our\n\u201cconventions\u201d feel and acknowledge the legal necessity that every power\nto interfere with individual freedom must be derived by direct grant\nfrom the people. And, sitting in those conventions with them, where we\nall read the Fifth Article they are asked to make, we recognize _with\ncertainty_ that it prescribes that the Congress shall do exactly what\nthe Philadelphia Convention has just done--propose, and nothing more.\n\nThe words of the Fifth Article tell us that only Congress shall draft\nand propose a new Article, just as the Philadelphia Convention drafted\nand proposed its new Articles; that, after Congress has drafted its new\nArticle and is about to propose it, just as the Philadelphia Convention\ndid, _when it exercised no power at all_, Congress shall examine\ncarefully the nature of the drafted Article and, having ascertained\nby such examination _which_ existing ability to make Articles (the\nlimited ability of legislative governments or the unlimited ability of\nthe \u201cpeople\u201d or \u201cconventions\u201d) is competent to make that particular\nArticle, Congress shall propose ratification by the ability which can\nmake the proposed Article.\n\nWe are not misled because the Article prescribes this one\n_constitutional_ mode to evoke the existing limited ability or the\nexisting unlimited ability. Providing a CONSTITUTIONAL mode for\nthe exercise of either does not lessen one ability or increase the\nother. By reason of our education, we know the difference between the\n_revolutionary_ exercise of existing power and the _constitutional_\nexercise of existing power. Because we have become of the \u201cpeople\nbetter acquainted with the science of government than any other\npeople in the world,\u201d we know that to do something in a revolutionary\nmanner does not necessarily mean to do it by bloodshed or on the\nbattle-field. We know that to do something in a revolutionary manner\nmeans to do it outside of any legally prescribed mode of procedure for\nthe exercise of existing power. We know that to do the same thing,\nin a _constitutional_ mode, is to do it in some mode prescribed by\nhuman law or constitution. And that is why we understand, as did the\nmen with whom we are sitting in those conventions, that Congress, in\nthe future, is to do exactly what the Philadelphia Convention did\n_and nothing more_. Congress is to do it _constitutionally_ (where\nthe Philadelphia Convention did it outside of any human law and in\na _revolutionary_ manner) _because_ the Fifth Article commands that\nCongress alone shall do it. Congress, when doing it, will be exercising\nno power. The Philadelphia Convention exercised no power when it did\nexactly the same things. And, when Congress does it, Congress will be\nbound, as Philadelphia was bound, to ascertain and propose the mode\nof ratification by which the proposed Article will be ratified by\nratifiers competent to make that particular kind of an Article.\n\nAs we sit in the \u201cconventions\u201d and keep clearly in our mind that the\n\u201cconventions\u201d and the \u201cstate legislatures\u201d (both of which are mentioned\nin the Fifth Article) each have existing but very different abilities\nto make Articles, every part of the language of the Fifth Article\nconfirms our knowledge that the whole Article is no \u201cgrant\u201d of power\nbut is a \u201cconstitutional\u201d mode for the exercise of existing powers.\n\nLong after the conventions in which we sit, the Supreme Court paid\nthe tribute to those who wrote the Fifth Article that they were\n\u201cmasters of apt, precise and classic English.\u201d Keeping this thought\nin mind, our attention is directed to the three-time use of the one\nword \u201cpropose\u201d in the Fifth Article. We know that to use the same word\nthree times in one sentence is very poor English _unless_ there is a\ndistinct and definite intent and purpose that the meaning each time\nshall be _identically_ the same. Such definite intent and purpose\nis the only deduction from what would otherwise be the inexcusable\ntautology of the language of the Fifth Article. So, when we read that\nCongress \u201cshall _propose_ amendments\u201d or shall \u201ccall a convention for\n_proposing_ Amendments\u201d and that \u201cone or the other mode of ratification\nmay be _proposed_ by the Congress,\u201d we know with certainty that each\nuse of the word \u201cpropose\u201d is intended to convey an identical shade of\nmeaning. From which we know that, as the _proposal_ of a new Article\n(by Congress or a Convention) will be a mere proposal and will not\nmake the proposed Article valid, so also the Congress _proposal_ of\na mode of ratification will remain a mere proposal and will not make\nthat proposed mode valid for that proposed Article, unless its proposed\nratifiers are competent to make that particular kind of an Article.\nThis is what they had just known at Philadelphia about their own\nproposals (both of Articles and of mode of ratification) to us as we\nsit in the \u201cconventions.\u201d And so, in these conventions, we know the\nproposals mentioned in the Fifth Article to be identical (in nature)\nwith the proposals made from Philadelphia. We know the procedure\noutlined in the Fifth Article to be exactly the same procedure as has\njust been followed at Philadelphia. We know that our ratification (in\nthese \u201cconventions\u201d) of that procedure will be our approval of the\nprocedure they followed at Philadelphia and will be its prescription\nas the CONSTITUTIONAL procedure hereafter to be followed when either\nexisting ability, that of the state governments or that of ourselves in\n\u201cconventions,\u201d is to be hereafter evoked to exercise. From all of which\nwe recognize that, if Congress should propose a mode of ratification\nby state legislatures and the proposed Article is a grant of power\nto interfere with the individual liberty of the American citizen,\nthe state legislatures will remain just as incompetent to make that\nArticle as they were known to be at Philadelphia when Madison and his\ncolleagues held them to be incompetent to make their proposed Article\nof that kind, the First Article. And so we understand that the mere\nCongress proposal of a mode of ratification (for _such_ an Article) by\nstate governments will not give state governments ability to make such\nan Article.\n\nSitting in those old conventions, we now have read the procedural\nprovisions of the Fifth Article up to the point where proposals bring,\nin a _constitutional_ manner, a proposed new Article to makers with\nexisting ability to make the particular Article which has come to them.\n\nWe now read with interest the next chronological step of the procedural\nprovisions, the mention of the two existing makers of Articles--the\nstate legislatures, makers of federal or declaratory Articles, and the\n\u201cconventions\u201d of the American citizens, makers of any Article.\n\nWe are actually sitting in \u201cconventions\u201d identical with those named in\nthe Fifth Article. We are in the \u201cconventions\u201d mentioned in the Seventh\nArticle and named therein by exactly the same word as is used in the\nFifth Article, the word \u201cconventions.\u201d Both Seventh and Fifth Articles\nhave been worded at Philadelphia. We, assembled in the \u201cconventions\u201d\nnamed in the Seventh Article, are the whole American people. In\nour conventions, so assembled, we are to make both the Seventh and\nthe Fifth Articles, with their common use of exactly the same word\n\u201cconventions.\u201d And so we understand, with a knowledge which nothing\ncan disturb, that the \u201cconventions\u201d of the Fifth Article mean exactly\nwhat the \u201cconventions\u201d of the Seventh Article mean. Thus we know, with\nknowledge which nothing can disturb, that the \u201cconventions,\u201d named in\nboth Articles, are the American people, only competent makers (in 1787\nor at any future time) of _national_ Articles which interfere with or\ngrant power to interfere with the individual freedom of the American\ncitizen.\n\nWe recall vividly the proposal that came from Philadelphia eleven years\nearlier or in 1776, that the Americans in each former colony constitute\na government with such powers to interfere with the human freedom of\nits citizens. We recall that such governments were constituted in\nwhat Marshall states to be the only way in which men can act safely,\neffectively or wisely, when constituting government of themselves,\nnamely, by assembling in \u201cconventions.\u201d\n\nWe also recall vividly the proposal that came from the same\nPhiladelphia a year later or in 1777, that the states constitute\na federal government of states. And we recall that the state\nlegislatures, because they possessed existing ability to make _federal_\nArticles, did validly make the _federal_ Articles suggested in that\nproposal.\n\nWe also recall, that the new Constitution, which is before us in the\n\u201cconventions\u201d named in the Seventh Article, is to be both a _national_\nConstitution, constituting government of men, and a _federal_\nConstitution, constituting government of states. And we recall that\nonly one of the present Articles in that proposed Constitution, the\nFirst Article, constitutes government of men by granting government\npower to interfere with individual freedom. And we recall, with\nHamilton in the Convention beside us, the probability that all\nfuture Articles in that dual Constitution, will probably be of the\n_federal_ or the declaratory kind which the existing ability of state\nlegislatures can make.\n\nAnd so we understand why Madison and Hamilton, in their Fifth Article,\nmention that existing ability of the state legislatures to make\nArticles which do not relate to interference with individual freedom,\nas well as they mention our own exclusive ability, the ability of the\n\u201cconventions\u201d of the American people, to make Articles which do relate\nto interference with individual freedom.\n\nAnd, sitting in those conventions with the \u201cpeople better acquainted\nwith the science of government than any other people in the world,\u201d\nwhen we read the language of the Fifth Article, it is impossible for us\nto make the monumental error of assuming that the mention of the two\nexisting abilities adds anything to one or subtracts anything from the\nother.\n\nAnd so, with our minds in those \u201cconventions\u201d free from any possibility\nof such monumental error, we now read and clearly understand the\nmost important words in the _constitutional_ mode of procedure for\nexisting powers, which we know as the Fifth Article. To none of the\nAmericans in those conventions is there any doubt, to no American,\nwho understands what America is, can there ever be any doubt, what\n_are_ the most important words. They are the words \u201cin three fourths\nthereof\u201d immediately following the words which name the very kind of\n\u201cconventions\u201d in which we sit. These words, \u201cby conventions in three\nfourths thereof,\u201d bring home to us the marvel of what our \u201cconventions\u201d\nare doing.\n\nIn them sit the people of America, possessors of the supreme will in\nAmerica, assembled in their respective states, as free men and not\nas the citizens of the particular state in which each convention of\nAmericans assembles.\n\nWe realize, as the Preamble of the Constitution before us expressly\ndeclares, what is the first proposal upon which we act affirmatively,\nwhen we say \u201cYes\u201d to the whole proposal from Philadelphia. The first\neffect of that \u201cYes\u201d is that we, that part of the American people\nin that particular state, do consent (with the Americans in eight\nor more other willing states) to join the new nation or political\nsociety of men, which is to be America, and that we consent to be,\nwith those other Americans, the citizens of the new nation as soon as\nthe Americans in eight other willing states give their similar \u201cYes.\u201d\nWe are well aware, as we sit in one of the \u201cconventions,\u201d that the\nPhiladelphia proposal has left it open for the free Americans in each\nstate to become members or not of the new society as they please,\nand that, therefore, the joining of that society, by the Americans\nin at least nine states, will mean that the new nation is created by\nunanimous action of the majority in every state whose Americans become\ncitizens of America.\n\nFrom which we realize that the original grants of national power by\n_its_ citizens to the only government of the new nation will be the\nsecond effect of the \u201cYes\u201d from the Americans in nine conventions. Thus\nthese original grants, the First Article grants of enumerated power to\ninterfere with the individual freedom of the American citizen, will be\nmade simultaneously by the majority of Americans in _every_ state where\nAmericans become citizens.\n\nBut, once these early Americans leave those first \u201cconventions,\u201d the\nwhole American people will constitute the members or citizens of the\nnew nation, America.\n\n The people of these United States constitute one nation. They have a\n government in which all of them are deeply interested. (Justice Miller\n in the Supreme Court, Crandall v. Nevada, 6 _Wall._ 35.)\n\nAs in any other republican nation, all _national_ powers must be\ngranted by its members or citizens. Any future _national_ power, not\ngranted by the citizens themselves, will be neither just nor valid\nbecause power of the American government to interfere with the freedom\nof the American citizen will not have been granted by those to be\ngoverned by its exercise.\n\nBut, when the whole American people leave these \u201cconventions\u201d as\nthe united citizens of America, although it will be wise and proper\nand necessary that American citizens shall hereafter assemble in\n\u201cconventions\u201d in their respective states for the making of new proposed\ngrants of power to interfere with their freedom, it will no longer be\nnecessary that a \u201cYes\u201d from _every_ \u201cconvention\u201d should be given to any\nfuture grant of _such_ power. When the whole American people assembled\nin those first conventions, a \u201cYes\u201d from every \u201cconvention\u201d _was_\nnecessary because that \u201cYes\u201d meant the willingness of the Americans\nin that state to become citizens of America. But, once they all have\nbecome _its_ citizens, it is in that capacity--and not as citizens of\neach respective state--that the American government will interfere with\ntheir individual freedom.\n\nAnd it now dawns upon us, probably for the first time, how imperative\nit is that the new Constitution should contain an explicit command,\nprescribing how the vote of each \u201cconvention\u201d should count and how many\n\u201cconvention\u201d votes should be sufficient and necessary for any future\nproposed grant of power to interfere with the freedom of American\ncitizens. This brings home to us the impressive and important meaning\nof the words \u201cin three fourths thereof\u201d after the word \u201cconventions\u201d in\nthe Fifth Article.\n\nIf they had not been written therein by the genius of the men at\nPhiladelphia, the method of counting the vote of each \u201cconvention\u201d and\nthe number of \u201cconvention\u201d votes CONSTITUTIONALLY requisite hereafter\nfor a new grant of _national_ power would be a matter of infinite\ndispute. And so we recognize and pay our tribute, as we sit in one\nconvention of the first American citizens, to the wonderful foresight\nof Madison and Hamilton and their colleagues at the Philadelphia\nConvention which has just completed its labors. That tribute is evoked\nby the words \u201cthree fourths thereof\u201d after the word \u201cconventions.\u201d\n\nWe see that these words end all possibility of dispute in two important\nrespects where dispute would be certain if the CONSTITUTIONAL mode of\nprocedure did not contain _our_ command that, when future \u201cconventions\u201d\nare asked for further grant of power to interfere with our individual\nfreedom, the \u201cYes\u201d of each convention shall count as one \u201cYes\u201d and a\n\u201cYes\u201d from three fourths of the \u201cconventions\u201d shall be both necessary\nand sufficient to make a new grant of _such_ power. And, as we dwell\nupon these amazingly important words, their presence in the Fifth\nArticle compels a greater tribute to the men who wrote them than that\ndemanded by the fact that this ends the possibility of the disputes we\nhave mentioned. It grows upon us that these words are among the most\nimportant securities to individual liberty in the whole Constitution.\nWith increasing admiration for the men at Philadelphia, we sit in those\nearly \u201cconventions\u201d and recall how much Madison and his colleagues\nhave just told us in _The Federalist_ about the danger to individual\nright from the tyranny of the citizens of a republic themselves,\nwhether that tyranny is attempted by a majority or an aggressive\nminority of such citizens. We recall _The Federalist_, Number 51, and\nits forceful exposition of the merits of the proposed Constitution and\nits remarkable distribution of powers (powers _granted_ to the new\ngovernment in the First Article, powers _left_ with each state over its\nown citizens and powers _retained_ by the American people themselves)\nas security for individual rights.\n\n\u201cIn the compound republic of America, the power surrendered by the\npeople is first divided between two distinct governments, and then\nthe portion allotted to each subdivided among distinct and separate\ndepartments. Hence arises a double security to the rights of the\npeople.... It is of great importance in a republic not only to guard\nthe society against the oppression of its rulers, but to guard one\npart of the society against the injustice of the other part. Different\ninterests necessarily exist in different classes of citizens. If a\nmajority be united by a common interest, the rights of the minority\nwill be insecure. There are but two methods of providing against this\nevil: The one by creating a will in the community independent of the\nmajority--that is, of the society itself; the other, by comprehending\nin the society so many separate descriptions of citizens as will render\nan unjust combination of a majority of the whole very improbable,\nif not impracticable. The first method prevails in all governments\npossessing an hereditary or self-appointed authority. This, at best,\nis but a precarious security; because a power independent of the\nsociety may as well espouse the unjust views of the major, as the\nrightful interests of the minor party, and may possibly be turned\nagainst both parties. The _second_ method _will_ be exemplified in\nthe federal republic of the United States. Whilst all authority in it\nwill be derived from and dependent on the society, the society itself\nwill be broken into so many parts, interests, and classes of citizens,\nthat the rights of individuals, or of the minority, will be in little\ndanger from interested combinations of the majority.... Justice is\nthe end of government. It is the end of civil society. It ever has\nbeen and ever will be pursued until it be obtained, or until liberty\nbe lost in the pursuit. In a society under the forms of which the\nstronger faction can readily unite and oppress the weaker, anarchy may\nas truly be said to reign as in a state of nature, where the weaker\nindividual is not secured against the violence of the stronger....\nIn the extended republic of the United States, and among the great\nvariety of interests, parties, and sects which it embraces, a coalition\nof a majority of the whole society could seldom take place on any\nother principles than those of justice and the general good.... It\nis no less certain than it is important, understanding the contrary\nopinions which have been entertained, that the larger the society,\nprovided it lie within a practical sphere, the more duly capable it\nwill be of self-government. And, happily for the _republican cause_,\nthe practicable sphere may be carried to a very great extent, by a\njudicious modification and mixture of the _federal principle_.\u201d (_Fed._\nNo. 51.)\n\nIn those important words of the Fifth Article, \u201cin three fourths\nthereof\u201d after the word \u201cconventions,\u201d we _now_ recognize the judicious\nmixture of the federal principle in our own command which controls our\nfuture CONSTITUTIONAL exercise of our exclusive ability to create new\npower to interfere with our individual freedom.\n\nThese words do not challenge or disturb the legal American necessity\nthat our American government must get any new power _of that kind_\nfrom us ourselves, assembled in our \u201cconventions.\u201d _But_, with a\npractical wisdom never exceeded in framing the \u201cconstitution\u201d of a\nself-governing nation, these words impose an amazingly effective check\nupon the existing ability of a majority or aggressive minority, in the\nrepublic which is America, to interfere with individual rights. These\nwords do not attempt to destroy or alter that existing ability of the\ncitizens of the new republic. On the contrary, these words recognize\nthe existence of that ability. But, with the wisdom which means so much\nsecurity to every individual right in America, these words make it\nimpossible that such ability can be CONSTITUTIONALLY exercised unless\na majority or an aggressive and organized minority, when seeking new\ngovernment power to interfere with the individual freedom of the\nAmerican citizen, obtain a majority support from the American citizens\nresiding in every one of three fourths of the state in America.\n\nLeaving (just for a moment) the conventions of the old days, we of this\ngeneration realize with gratitude the check so provided. We understand\nnow, as we never understood before, why the organized minority which\ndemanded that government write the new Amendment into our Constitution\nwas driven by this constitutional check to ignore the plain fact that\nthe new Amendment can never validly be put into the Constitution (if we\nstill are citizens and not subjects) unless a \u201cYes\u201d from the \u201cpeople\u201d\nthemselves, the \u201cconventions\u201d of the Fifth Article, is obtained from\nthree fourths of those \u201cconventions.\u201d We realize that the organized\nminority in question must support their proposition on the concept that\nMadison and Hamilton, who introduced and seconded the Fifth Article at\nPhiladelphia, intended that Article \u201cto create a will in the community\u201d\n(which is America) \u201cindependent\u201d of the supreme will of the American\npeople themselves, intended it to create that anomaly of a superior\nwill to the supreme will and to make that superior will the will of\nthe legislative governments of a fraction of the states. We refer\nthat organized minority to the quoted words of Madison or Hamilton,\nreferring to such creation of a will independent of the people\nthemselves: \u201cThis, at best, is but a precarious security, because a\npower independent of the society may as well espouse the unjust views\nof the major, as the rightful interests of the minor party, and may\npossibly be turned against both parties. The second method [not the\ncreation of a will independent of the human members of the society]\nwill be exemplified in the federal republic of the United States,\u201d\nthe very Constitution of which contains the Fifth Article. We average\nAmericans are now satisfied, beyond dispute, that neither Madison nor\nhis associates in the early conventions, to which we will now return,\nunderstood or meant that the Fifth Article would or should create such\nan independent will.\n\nSitting again in the conventions of old, we recall exactly the same\nthought expressed by Madison himself in _The Federalist_, No. 10,\nwhere he says: \u201cWhen a majority is included in a faction, the form\nof popular government, on the other hand, enables it to sacrifice to\nits ruling passion or interest both the public good and the rights of\nother citizens. To secure the public good and private rights against\nthe danger of such a faction, and at the same time to preserve the\nspirit and form of popular government, is then the great object to\nwhich our inquiries are directed.... Either the existence of the same\npassion or interest in a majority at the same time must be prevented,\nor the majority, having such co-existent passion or interest, must be\nrendered, by their number _and local situation_, unable to concert and\ncarry into effect schemes of oppression.\u201d These thoughts, from the\nworder of the Fifth Article, sink deep into our minds and hearts as we\nsit in those conventions. They come before us with startling clearness,\nwhen we read his words in that Article, \u201c_conventions in three fourths_\nthereof,\u201d and his words in reference to that Fifth Article mode of\nprocedure, \u201cIn requiring more than a majority, and particularly in\ncomputing the proportion by _states_, not by _citizens_, it departs\nfrom the _national_ and advances toward the _federal_ character.\u201d\n(_Fed_. No. 39.)\n\nWe realize that his mode of procedure is _national_, in its strict\nconformity to the Statute of \u201976, that all power over the people must\ncome _directly_ from the people, but that a judicious mixture of the\n_federal_ system, in _counting_ the votes of the people, is the best\ncheck human ingenuity has yet devised to protect individual rights\nagainst a tyrannical majority or an aggressive minority.\n\n\n\n\n                              CHAPTER XII\n\n                    TWO ARTICLES NAME \u201cCONVENTIONS\u201d\n\n\nAs we sit in those conventions and dwell upon the wisdom of the\n_practical_ thought which inspired those words, \u201cin three fourths\nthereof\u201d after the word \u201cconventions,\u201d we know why the people with\nwhom we sit compelled the tribute that they grasped the science of\ngovernment better than any other people in the world. The one aim of\nall of them was the happiness and welfare of the _individual_. The\nwelfare or prosperity of the political entities, which we know as\nAmerica and the respective states, were of no importance to these\npeople, except as they contributed to the welfare of the _individual_.\nThe prestige and the power of each and every government in America and\nof all governments in America together were of no importance to these\npeople, except as they contributed to the welfare of the _individual_.\n\nAnd when _we_ sit with them in their conventions, after living with\nthem through their experience from 1775, we realize (as we have\nnever realized before) that the Statute of \u201976 was enacted, that the\n_national_ constitutions of government were made by the _people_ in\neach colony, that the sacrifices of the Revolution were endured for\neight years, that the federation of states was established by states\nin 1781, that the wisdom and ability and patriotism of America had\njust assembled at Philadelphia in 1787 and made its proposal which\nwe are considering in these conventions--_all that the welfare of\nthe_ INDIVIDUAL _might be secured_. We realize that the wisdom and\nability and patriotism of America, at Philadelphia, had labored for\nmonths to ascertain, by the light of all human experience, in what\nproportion (_solely to secure the welfare of the individual_) power\nto interfere with individual freedom ought to be surrendered at all\nto governments and retained by the people, and in what proportion\nthe quantum of surrendered power should be _left_ with each state\ngovernment over its own individuals and given to the new general\ngovernment over its individual citizens. We realize that the wisdom\nand ability and patriotism of America, at Philadelphia, had _known_\nthat no governments, then or in the future, if individual welfare was\nto be secured, could ever legally determine either proportion or could\never alter either proportion, when once established by the supreme\nwill in America, the \u201cpeople\u201d of the Preamble and Tenth Amendment, the\n\u201cconventions\u201d of the Seventh and Fifth Articles.\n\nAnd so we, of this later generation, sit in those \u201cconventions\u201d of\nthe Seventh Article and we read the Fifth Article, where the same\n\u201cconventions\u201d are named, and look with awe upon the practical wisdom\nwhich dictated these words \u201cin three fourths thereof,\u201d after that\nmention of those \u201cconventions\u201d of the American people in the future.\nWe realize now that those words are among the greatest securities\nto individual welfare written into the proposed Constitution by the\nwisdom and ability and patriotism of America, at Philadelphia. In that\nConstitution, other great securities protect individual welfare against\nusurpation from outside America and against usurpation by government\nor governments _in_ America beyond the exercise of the _national_\npowers granted to each government by its own respective individual\ncitizens. But this particular great security of individual welfare, the\nwords \u201cin three fourths thereof,\u201d secures individual welfare against\nthe unjust oppression of a majority or an aggressive minority _of\nthe Americans themselves unless_ that majority or minority secure a\nmajority of the Americans in _each_ of three fourths of the states to\nsupport the unjust oppression of individual welfare.\n\nAnd thus, in those conventions, _we_ realize, perhaps for the first\ntime, that the _important_ statements of the Seventh and the Fifth\nArticles are, in substance, identical statements by the supreme will\nof the American people. They are respectively the two statements or\ncommands of the citizens of America, the new nation, as to WHEN the\ngrants of power in the First Article shall _be_ the grant of the\nAmerican citizens and as to WHEN the grants of any _similar_ power,\nin the generations to come, shall _be_ the grants of the American\ncitizens. In their language, in their purpose and in their plain\ncommand, both statements are exactly alike in substance. The statement\nor command of the American people, in the Seventh Article, is that\nthe constitution of the government of interference with individual\nfreedom, the First Article, shall _be_ the Constitution of the\nAmerican people _when_ nine of the \u201cconventions\u201d (named in the Seventh\nand Fifth Articles) shall have said \u201cYes\u201d to that constitution, to\nthe enumerated grants of _national_ power in the First Article. The\nstatement or command of the American people, in the Fifth Article, is\nthat any new _proposed_ constitution of government of interference with\nindividual freedom of the American citizen (the supposed Eighteenth\nAmendment being the first new constitution _of that kind_) shall be\nthe Constitution of the American people _when_ three fourths of the\n\u201cconventions\u201d (named in the Seventh and the Fifth Articles) shall have\nsaid \u201cYes\u201d to that new proposed constitution.\n\nAt this point, we average Americans, sitting with those amazing\nAmericans in their \u201cconventions,\u201d fix firmly in our minds, _with intent\nnever to forget_, the fact that the \u201cconventions\u201d of the Seventh\nArticle command are indisputably the American people themselves;\nthat the \u201cconventions\u201d of the Fifth Article command are identical\n(except as to the time in which the American people assemble) with the\n\u201cconventions\u201d of the Seventh Article command; and that, therefore,\nthe \u201cconventions\u201d of the Fifth Article command are also the people\nof America themselves. But the whole people of America are the \u201cWe,\nthe people\u201d of the Preamble. They are the only reservee of the Ninth\nAmendment, \u201cthe people\u201d therein. They are the \u201cmost important factor\u201d\nand reservee of the Tenth Amendment, \u201cthe people\u201d therein. Wherefore,\nwe grasp clearly why they are mentioned in the Fifth Article, because\nthey have no government attorney in fact--as they could not have if\nwe are \u201ccitizens of America\u201d--to surrender what they reserved to\nthemselves in the Ninth and Tenth Amendments.\n\nSitting in those conventions, we recall the limited ability of state\nlegislatures, each speaking for its own state, to make _federal_\nArticles, Articles that neither interfere nor give power to interfere\nwith individual liberty, the ability that made all the federal Articles\nof 1781. And we recall that the Constitution does not take that ability\nfrom the \u201cstates respectively\u201d and _their_ governments but _reserves_\nit to the \u201cstates respectively\u201d and their governments, as the Tenth\nAmendment expressly declares. And so we understand the _mention_ of\nthat limited ability in the Fifth Article in the words \u201cratified\nby the legislatures of three fourths of the several states.\u201d And,\neducated by the experience of the amazing Americans with whom we sit,\nwe realize the meaning of this particular statement or command of the\nsupreme will, the people of America. That supreme will is creating a\nnew nation out of its human possessors. It is destroying forever the\ncomplete independence of the respective states, but leaving each of\nthe states a political entity with citizens and much independence.\nIt is incorporating the system of a _federal_ union of states into\nthe new national system of a union of all individual Americans, and\nit is subordinating the members of the _federal_ union and also the\n_federation_ itself to the union of human beings, to the supreme will\nin America, the will of the citizens of that nation. Therefore, as each\nstate is no longer completely independent, it is no longer necessary\nthat _every_ member of the _federal_ union shall utter its \u201cYes\u201d to\nthe making of any new Article of the _federal_ or declaratory kind,\nthe only kind which governments ever can make. And so we clearly\nunderstand, as the early Americans in their conventions understood at\nonce, that the words \u201cratified by the legislatures of three fourths\nof the several states\u201d was to be the command of the American people,\nsitting in those conventions, that a \u201cYes\u201d from three fourths of the\nstate governments would, thereafter, be necessary and sufficient for\nthe making of a new proposed _federal_ or declaratory Article. And we\ndo _not_ understand, as the Americans in those conventions _never_\nunderstood, that those words implied any \u201c_grant_\u201d of ability to the\nstate governments to make _any_ Articles in _our_ Constitution, much\nless Articles by which governments interfere or give power to interfere\nwith the individual freedom of the American citizen outside the matters\nenumerated in our First Article.\n\nOn the contrary, it becomes amazingly clear to us that the\n\u201cconventions\u201d of the American citizens are mentioned in the Fifth\nArticle because the American citizens are the important reservee of\nthe Ninth and Tenth Amendments. And it becomes equally clear that the\n\u201clegislatures of the several states\u201d are mentioned in the Fifth Article\nbecause the \u201cstates respectively\u201d are the _lesser_ reservees named in\nthe Tenth Amendment.\n\nThe Tenth Amendment tells us that no power of _any kind_ is given,\nby the new Constitution, to _any_ grantee except to the new nation\nand _its_ government, the American government. It tells us that some\npowers, which each state had hitherto possessed, are taken from it;\nthat the exercise of other powers, which each state had hitherto\npossessed, are now prohibited to it; and that _only_ the _other_ powers\n(_which each state had hitherto possessed_) are _left_ with that state\nby the command of the supreme will in America, ourselves, the citizens\nof America. It tells us emphatically that no new powers of any kind\nare _given_ to any state or to any collection of states or to their\ngovernments. It tells us that the American people, in making _their_\nConstitution, left each state and each state government powerless,\nas they had been, alone or in combination with other governments, to\ninterfere with the individual rights of any human being outside that\nparticular state. And finally it tells us, what the Supreme Court has\nexpressly declared to be the most important declaration in that Tenth\nAmendment, that we ourselves, the individual citizens of America, the\n\u201cpeople\u201d of the Preamble and of that Tenth Amendment, retain (secure\nfrom any valid exercise by any government or governments in the world\nand only capable of exercise by ourselves in our \u201cconventions\u201d) every\npower to interfere with the individual freedom of the American citizen\nexcept in the matters enumerated in the First Article.\n\nAnd so, in those \u201cconventions,\u201d we need no constitutional thinker to\ntell us the simple fact that only those who have can give. If the state\nlegislatures have not, as indisputably they have not, any ability to\nexercise or to grant power of _general_ interference with individual\nrights throughout America, and if, as the Tenth Amendment expressly\ndeclares, the entire Constitution adds naught to their existing ability\nto make Articles of another kind, the Fifth Article merely prescribes\nthe _constitutional_ mode of procedure, in which, by command of the\nAmerican people, that existing and limited ability shall thereafter be\nexercised.\n\nAnd likewise, if the American people themselves, the Seventh Article\n\u201cconventions\u201d in which we are sitting, have _exclusive_ ability to\nexercise or to give power of _general_ interference with their own\nindividual rights, and if, as the Ninth and Tenth Amendments together\nexpressly state, those \u201cconventions\u201d retain that exclusive ability,\nclearly the Fifth Article reference to the same \u201cconventions\u201d of the\nAmerican citizens is but prescribing the _constitutional_ mode of\nprocedure in which, by command of the American people, that exclusive\nability of _their own_ shall thereafter be exercised. When the \u201capt,\nprecise and classic English\u201d of the Fifth Article permits no other\nmeaning, we cannot imply that the Article intends to grant what one\nsupposed grantee (who is the supposed grantor) already has and what\nthe other cannot ever have. Nor can we imply that the Article intends\nto provide a _constitutional_ mode of procedure in which those, who\nhave not, may give. Moreover, as this absurd implication would make the\nindividual American people \u201csubjects,\u201d as soon as they adopted that\nArticle, we now know, with absolute certainty, that the Americans,\nin the \u201cconventions\u201d in which we are sitting, adopted it as their\nfundamental law of procedure with the only meaning which its own \u201capt,\nprecise and classic English\u201d permits.\n\nWe have now read, in those conventions of old and with the Americans\ntherein who made it, all of the Madison Fifth Article save the two\nexceptions at the end thereof, beginning \u201cprovided that no amendment,\netc.\u201d In those conventions, the meaning of those two exceptions\nneeds but a moment\u2019s thought. One exception is that no change may be\n_constitutionally_ made, prior to 1808, in relation to the existing\nevil of human slavery. The other exception is that no change may\nbe _constitutionally_ made which shall give any state greater\nrepresentation in the Senate than each other state. These are not\nexceptions to any power \u201c_granted_\u201d in the Article. No power of _any_\nkind, as we already know, is \u201c_granted_\u201d anywhere in the Article,\nbut the Article does _mention_ two existing abilities, one limited\nand the other unlimited, and prescribes the _constitutional_ mode of\nprocedure in which each of the respective existing abilities may be\nexercised. The exceptions simply mean that the Article provides no\n_constitutional_ mode of procedure in which may be exercised existing\nability to change the Constitution in the matters mentioned in the two\nexceptions.\n\nWe average Americans have now examined carefully the record of the\nwording of all our Constitution at Philadelphia and particularly\nthe record of the wording of the three Articles, the First and the\nSeventh and the Fifth, which either purport to give or mention future\ngiving (by the \u201cpeople,\u201d who alone can give) power to interfere with\nthe individual freedom of the American citizen. Furthermore, we have\nsat in the \u201cconventions\u201d of the American people, in which all those\nworded Articles were made, and have read, with the Americans in those\n\u201cconventions,\u201d the apt, precise and classic English of the Fifth\nArticle, which told them, _as it tells us_, that the Article merely\nprescribes the _constitutional_ mode of procedure, in which thereafter\ncan be exercised either the existing limited ability of the state\ngovernments or the existing unlimited ability of the American citizens\nthemselves, the \u201cconventions\u201d of the Seventh and the Fifth Articles.\nWe are certain, therefore, that nowhere in the Constitution, made\nin those early \u201cconventions,\u201d can the most ingenious mind discover\nwhat would have been the greatest blunder in the history of mankind,\nanything which changed the actual and legal relation of the individual\nAmerican to government and made him the \u201csubject\u201d of any government\nor collection of governments in America. It would be unwise, however,\nfor us to leave those conventions without listening to some few of the\ngreat Americans, who sat therein, telling us how the new Constitution\ndoes _secure_ the status of the free individual American and protect\nhis individual freedom from all usurpation by any government or\ngovernments in America.\n\n\n\n\n                             CHAPTER XIII\n\n            CONVENTIONS KNOW \u201cCONVENTIONS\u201d ARE \u201cTHE PEOPLE\u201d\n\n\n\u201cWhen a single government is instituted, the individuals of which it is\ncomposed surrender to it a part of their natural independence, which\nthey before enjoyed as men. When a confederate republic is instituted,\nthe communities of which it is composed surrender to it a part of their\npolitical independence, which they before enjoyed as states.... Since\n_states_ as well as _citizens_ are represented in the Constitution\nbefore us, and form the objects on which that Constitution is purported\nto operate, it was necessary to notice and define _federal_ as well as\ncivil liberty.... Under these impressions, and with these views, was\nthe late convention appointed; and under these impressions, and with\nthese views, the late convention met. We now see the great end which\nthey proposed to accomplish. It was to frame, for the consideration\nof their constituents, one _federal_ and _national_ Constitution ...\na constitution that would insure peace, freedom, and happiness to the\nstates and people of America.\u201d (2 _Ell. Deb._ 429, _et seq._)\n\nSo spoke the great Wilson, beginning his explanation of the proposed\nConstitution to the first Americans assembled in the \u201cconventions\u201d\nnamed in the Seventh and Fifth Articles, the Americans in Pennsylvania.\nAs we listen to him, we remark the insistence upon the fact that the\nConstitution to be considered is both a \u201c_federal_ and _national_\nConstitution.\u201d And, in strict conformity to this fact, Wilson is\nheard explaining the difference between the _federal_ liberty of a\nstate, controlled by the _federal_ Articles of a constitution, and\nthe _natural_ liberty of a man, controlled by the _national_ Articles\nof a constitution. We listen to him with great interest when he tells\nus that this _federal and national_ Constitution has been framed to\ninsure \u201cpeace, freedom and happiness to the states and the people of\nAmerica.\u201d In his words we hear the echo of the fact so clearly declared\nin the Tenth Amendment, that the _federal_ powers, not delegated in\nthis Constitution to the new government, are reserved \u201cto the states\nrespectively,\u201d and the _national_ powers, not therein delegated, are\nreserved \u201cto the people\u201d themselves of America.\n\nAnd, remembering that the two distinct reservees of the Tenth Amendment\nare respectively named in the Fifth Article, we keep in mind that the\nnew Constitution is both \u201ca federal and a national Constitution.\u201d\nFrom which we know, as Wilson knew, that these reservees _are_ named\nin the Fifth Article, the \u201cstate legislatures\u201d because of their\nlimited ability to make _federal_ or declaratory Articles, and the\n\u201cconventions\u201d because of their ability to make Articles _of every\nkind_, the \u201cconventions\u201d of the Fifth and Seventh Articles being the\npeople themselves. As we are actually sitting with Wilson in one of\nthe \u201cconventions\u201d of the Seventh Article, there is no possibility of\nour forgetting, as none of the people in any of those conventions ever\nforgot, that the \u201cconventions\u201d of the Seventh Article are exactly the\nsame as the \u201cconventions\u201d of the Fifth Article and that both are the\npeople of America, assembled in their \u201cconventions.\u201d\n\nNone of the Americans in those conventions could be guilty of the\nridiculous modern blunder about the Fifth Article. None could possibly\nread that Article to mean that the American citizens, \u201cassembled in\nconventions,\u201d were granting to the American citizens, \u201cassembled in\nconventions,\u201d any ability whatever to _make_ Articles. The modern\nblunder becomes clear to us. Although the Seventh and Fifth Articles\nhave only been proposed and have not yet been made, we sit in one of\nthose \u201cconventions\u201d about to exercise ability to say \u201cYes\u201d to any\nArticle, whether federal or national. So, with amazement at the blunder\nof 1917 and 1920 about the Fifth Article, we listen intently to the\nWilson statement which brings home the absurdity of the idea that the\nArticle _is_ a _grant_ of ability to make Articles.\n\nAs in all those conventions, he is meeting the usual charge that the\nnew Constitution endangers individual liberty because it lacks a bill\nof rights. As in all the conventions, he is pointing out that no bill\nof rights is needed in a Constitution which gives to government no\npower to interfere with individual freedom, except the specific and\nenumerated powers of the First Article. He is repudiating the thought\nthat anywhere in the Constitution, in its Fifth Article or elsewhere,\noutside of the First Article, is there any grant to any government of\npower to interfere with individual liberty. And this is what he has to\nsay about the Philadelphia Convention, which ended in the preceding\nSeptember, and about the constitutional Articles that Convention\nproposed, including the Fifth Article. \u201cA proposition to adopt a\nmeasure that would have supposed that we were throwing into the\ngeneral government every power not expressly reserved by the people,\nwould have been spurned, in that House, with the greatest indignation.\u201d\n(2 _Ell. Deb._ 436.)\n\nWe Americans, who will listen later herein to some extraordinary ideas\nabout the Fifth Article from our modern \u201cconstitutional\u201d thinkers,\nwonder just exactly with how much indignation the Fifth Article would\nhave been spurned in all the conventions of that earlier day, if\nPatrick Henry or any other great opponent of the proposed Constitution\nhad only been able to point out that the Fifth Article was a \u201cgrant\u201d\nto a general government (the legislative governments of some of the\nstates) not only of every power \u201cexpressly reserved by the people\u201d\nbut also of every power given to Congress by the First Article. We\nalso wonder whether the indignation would have been increased or\nentirely dissipated if Henry or some other opponent had informed those\nconventions, the assembled people of America, a people so jealous\nof all government interference, that the omnipotence was granted so\nthat the state legislatures, never elected by the American citizens\nat all, might, without the slightest restraint or any constitutional\nrestriction, interfere with every individual right of the American\ncitizen.\n\nWhile many apparently sane and reasonable modern inhabitants of America\nhave listened to such ideas in the last five years as if those who\nadvanced the ideas were talking or thinking intelligently, we rather\nbelieve that the Americans in those early conventions, even from Henry,\nwould not have received such ideas complacently. However, as we have\nfound in those early Americans much of the natural humor which is\nthe characteristic of a human being who thinks for himself, we are\ninclined to believe that the modern ideas in relation to the Fifth\nArticle, about which ideas we have just been talking, would not have\nbeen received in any of those conventions with indignation but would\nhave been greeted with prolonged laughter.\n\nBut the Henry of those days had not the intellectual calibre of _our_\n\u201cconstitutional\u201d thinkers. Therefore, in those conventions, not even\nfrom one of the many bitter opponents of the proposed Constitution,\ndo we hear any suggestion that there lurks somewhere in the Fifth\nArticle, between its lines, because not hinted at in its apt, precise\nand classic English, the extraordinary grant of omnipotence to the\nlegislative governments of some of the states. On the contrary, in\nevery convention, we find the new Constitution bitterly assailed\nbecause its provisions reduce the state governments to that pitiable\ncondition where Henry calls them the weakened, enervated and\ndefenseless state governments. Indeed, we are inclined to mirth when\nwe contrast these modern ideas of the Fifth Article (that it _grants_\nomnipotence over individual rights to _some_ state governments)\nwith many of Henry\u2019s word pictures of the effect of the proposed\nConstitution on those state governments.\n\nThis is one of those pictures which he exhibits to the Americans in\nVirginia, assembled in their conventions: \u201cWhat shall the states have\nto do? Take care of the poor, repair and make highways, erect bridges,\nand so on, and so on? Abolish the state legislatures at once. What\npurposes should they be continued for? Our legislature will be indeed\na ludicrous spectacle--one hundred and eighty men marching in solemn,\nfarcical procession, exhibiting a mournful proof of the lost liberty of\ntheir country, _without the power of restoring it_. But, sir, we have\nthe consolation that it is a mixed government; that is, it may work\nsorely on your neck, but you have some comfort by saying, that it was a\nfederal government in its origin.\u201d (3 _Ell. Deb._ 171.)\n\nClearly, neither Henry nor the other opponents of the new Constitution\nhad the modern ability to discern that it only _appeared_ to deprive\nthe state governments of much of their former powers. They could not\nsee, they did not know, that its Fifth Article granted those state\ngovernments the omnipotence over individual liberty which the Statute\nof \u201976 had denied to the British Parliament. And because Henry and his\ncolleagues had not the discernment of _our_ leaders, we hear Wilson and\nthe supporters of the Constitution defending it against the plain fact\nthat it did rob the state governments of much of their former power.\nFor example, we hear Wilson saying: \u201cThe secret is now disclosed, and\nit is discovered to be a dread, that the boasted _state sovereignties_\nwill, under this system, be disrobed of part of their power.... I\nknow very well, sir, that the people have hitherto been shut out of\nthe federal government; but it is not meant that they should any\nlonger be dispossessed of their rights. In order to recognize this\nleading principle, the proposed system sets out with a declaration\nthat its existence depends upon the supreme authority of the people\nalone.... When the principle is once settled that the _people_ are\nthe source of authority, the consequence is, that _they_ may take\nfrom the subordinate governments powers with which they have hitherto\ntrusted them, and place those powers in the general government, if it\nis thought that there they will be productive of more good. They can\ndistribute one portion of power to the more contracted circle, called\n_state governments_; they can also furnish another proportion to the\ngovernment of the United States. Who will undertake to say, as a state\nofficer, that the people may not give to the general government what\npowers, and for what purposes, they please? How comes it, sir, that\nthese state governments dictate to their superiors--to the majesty\nof the people?... I have no idea that a safe system of power in the\ngovernment, sufficient to manage the general interest of the United\nStates, could be drawn from any other source, or vested in any other\nauthority, than that of the people at large; and I consider this\nauthority as the rock on which this structure will stand. If this\nprinciple is unfounded, the system must fall.... With how much contempt\nhave we seen the authority of the people treated by the legislature of\nthis state!\u201d (2 _Ell. Deb._ 443, _et seq._)\n\nBut we cannot stay much longer in the Pennsylvania Convention. It\nwould be unwise, however, for us to depart therefrom without hearing\nthe accurate confirmation of our own reading and understanding of the\nFifth Article from its own \u201capt, precise and classic English.\u201d Wilson\nwas explaining his opposition to the doctrine that a constitution is\na compact between a master government and servant people. In other\nwords, he was explaining the American Statute of \u201976, stating the\nlegal principle that Americans are not \u201csubjects.\u201d \u201cThe citizens of\nunited America, I presume, do not wish to stand on that footing with\nthose to whom, from convenience, they please to delegate the exercise\nof the general powers necessary for sustaining and preserving the\nUnion. They wish a principle established, by the operation of which\nthe legislatures may feel the direct authority of the people. The\n_people_, possessing that authority, will continue to exercise it by\namending and improving their own work.\u201d (2 _Ell. Deb._ 498.)\n\nTo us average Americans this seems like sound American law and in\nstrict keeping with our reading of the plain language of the Fifth\nArticle, as we read it with the Americans in those old conventions.\nWilson and his associates seem to know _with certainty_ that the\nFifth Article is not to change all the free individual Americans into\n\u201csubjects\u201d of the legislative governments of which he speaks. Indeed,\nhe calls all those free Americans, to some of whom he was speaking,\n\u201cthe citizens of America,\u201d although the nation of America would not\nexist and they would not be its citizens until they and the Americans,\n_in_ eight other conventions, had said \u201cYes\u201d to the Constitution they\nwere discussing. Therefore, when he speaks of that Constitution as\nestablishing a principle \u201cby the operation of which the legislatures\nmay feel the direct authority of the people\u201d or \u201ccitizens of America,\u201d\nand immediately adds that those citizens, possessing the _exclusive_\nauthority to exercise and vest ability to interfere with individual\nfreedom, \u201cwill continue to exercise it by amending and improving\ntheir own work,\u201d the enumerated grants of such authority in the First\nArticle, we realize with certainty that he and his associates know\nthat the Fifth Article in that Constitution does not mean that the\nlegislatures (who are to feel the direct authority of the people)\ncan thereafter exercise the authority of the citizens of America by\naltering, subtracting from or adding to the First Article quantum\nof delegated power to interfere with the individual freedom of the\nAmerican people.\n\nIn this convention, where the Americans in Pennsylvania are assembled,\nwe have heard the consistent emphasis laid upon the fact that the\nConstitution is both a _federal_ and a _national_ Constitution, the\ndistinction from all other constitutions so clearly recognized by the\nFifth Article mention of the two makers of Articles. Later herein we\nwill learn how this distinctive quality of our Constitution, this\ndistinction recognized in its Fifth Article as well as in its Tenth\nAmendment, has neither been felt or acknowledged but has been wholly\nignored by our modern \u201cconstitutional\u201d thinkers for five years last\npast. At this point, therefore, it is well that we sit for a moment\nin the Virginia convention and listen to Henry, the greatest and\nmost determined opponent of the Constitution before it was adopted.\nWith our minds fixed upon the language of the Fifth Article and its\nclear mention of the exclusive existing ability of \u201cconventions\u201d to\nmake national Articles, a mention emphasized by the equally clear\nrecognition of the limited ability of the legislative state governments\nto make Articles which are _not_ national, it is interesting to\nhear Henry refer to the difference between _federal_ and _national_\nArticles; and it is more than interesting, it is amazingly important\nto hear him proving, _by the fact that the Americans in Virginia are_\nassembled in one of the \u201cconventions,\u201d that the Articles which have\nbeen just proposed from Philadelphia, _are national_ and, therefore, of\nthe kind that legislative governments can never make.\n\nIt is Thursday, June 5, 1788, the day on which began the immortal\nVirginia debate. For a year, since the proposal from Philadelphia, the\nnew Articles have been the subject of the severest scrutiny on the part\nof those determined to secure the rejection of those Articles by the\nAmerican people in Virginia. Throughout all America, these Articles\nhave been examined and assailed and condemned in public writing and\nspeech by those equally determined to secure their rejection by the\nAmericans assembled in the other \u201cconventions.\u201d On the other hand, the\nsame Articles have been explained and their necessity, if American\nindividual liberty is to be secure, has been demonstrated in the famous\nessays which we now know as _The Federalist_, nearly all of which\nessays were the work of Madison and Hamilton, who are responsible\nfor the wording and the meaning of the Fifth Article. Like the other\n\u201cconventions,\u201d assembling when all minds sought the best protection\nfor individual liberty against oppressive governments, the members\nof the Virginia convention have been carefully chosen to speak the\nwill of the Americans in Virginia by a simple \u201cYes\u201d or \u201cNo\u201d to these\nseven Articles, the first of which constitutes government ability to\ninterfere with individual liberty.\n\nCould anything be more vitally important to individual liberty than\nthat just such \u201cconventions,\u201d so chosen, not the state legislatures,\neach elected by the citizens of its own state _for an entirely\ndifferent purpose_, should continue to have their exclusive ability to\ndetermine _how much_ power to interfere with individual freedom shall\nbe surrendered by the American people, and how the quantum (which _is_\nsurrendered) shall be apportioned for exercise between the one American\ngovernment and the respective states and their respective legislative\ngovernments? Later herein we shall learn how clearly Madison and\nHamilton, responsible for the wording and meaning of the Fifth\nArticle, knew and appreciated the practical and amazing importance as\nsecurity to individual liberty, in this distinction between the _two_\nmakers (\u201cconventions\u201d of the American people themselves and state\n\u201clegislatures\u201d) named in their Fifth Article and in the distinction\nbetween their respective and _existing_ abilities to make Articles in\na Constitution which is both a _federal_ and _national_ Constitution.\nAnd, as we know, as the Supreme Court has declared in the voice of the\nMarshall who sits with us in that Virginia convention, the knowledge\nand appreciation was not peculiar to Madison and Hamilton. It was the\ncommon knowledge and appreciation of all the Americans who _made_ the\nFifth Article in those conventions. \u201cTo the formation of a league,\nsuch as was the Confederation, the state sovereignties were certainly\ncompetent\u201d; but when a grant of enumerated power to interfere with\nindividual freedom was asked, \u201cthe legal necessity of referring it to\nthe people and of deriving its powers directly from them was felt and\nacknowledged by all.\u201d When such a grant is asked, whether it be asked\nin the shape of the First Article or of the Eighteenth Amendment, it\nis not referred to the people at all, unless it is sent to them to be\nconsidered and discussed _before_ they choose, from among themselves,\nthose of themselves who will assemble in the \u201cconventions\u201d for the one\nand sole purpose of uttering the carefully weighed \u201cYes\u201d or \u201cNo\u201d of\nthe Americans in the state where the particular convention assembles.\nAs all in those early conventions knew, as Marshall declared from the\nSupreme Court, _that_ assembling in those \u201cconventions\u201d is the only way\nin which the American people can act \u201csafely, effectively and wisely\u201d\nwhen asked for a grant of power to interfere with individual freedom,\nand, as the Statute of \u201976 and good sense and practical experience\nalike teach all free men, that is the only way in which any just power\nof government can be derived \u201cdirectly\u201d from the citizens upon whom it\nis to be exercised.\n\nWe commend a careful thought of this distinction, vital and important\nto individual human liberty, to the constitutional thinkers of 1917\nand 1920. Whenever they read a Fifth Article which included the words\n\u201cor in conventions in three fourths thereof,\u201d they have assumed that\ntwo makers of Articles were named in the amending procedure of the\nConstitution (which is both _federal_ and _national_) in order that\nCongress, when _it_ wanted new power to interfere with individual\nfreedom, might weigh the chance of getting it from each maker and then\nask it either from those who reserved it exclusively to themselves,\nthe \u201cpeople\u201d of the Tenth Amendment, or from those who never had it or\nthe ability to grant it, the other reservee of the Tenth Amendment,\n\u201cthe states respectively\u201d and their governments. Or perhaps it was the\nconcept of these modern constitutional thinkers that the Fifth Article\nmentions two makers of Articles merely that Congress may choose either,\naccording to its whim, as a fortunate golfer chooses between his two\ngolf suits. That is their idea of the security to human individual\nliberty against government usurpation which Madison and Hamilton and\nthe American people established about eleven years after they declared\nthat no just power to interfere with human freedom could ever be\nobtained, except from the citizens with whose individual liberty the\nexercise of the power was to interfere!\n\nAs Henry and his fellow Americans in the Virginia convention had no\nsuch absurd concept, we return to hear him charge that the Philadelphia\nConvention had exceeded its authority in proposing the Constitution of\n_national_ government and to prove that the proposed Constitution _was_\nnational by the fact that the Americans in Virginia are assembled in\n\u201cconvention\u201d to say \u201cYes\u201d or \u201cNo\u201d to that Constitution, whereas, if it\nhad consisted only of _federal_ Articles, it would have been sent to\nthe legislatures.\n\n\u201cThe distinction between a national government and a confederacy\nis not sufficiently discerned. Had the delegates, who were sent to\nPhiladelphia, a power to propose a consolidated government instead\nof a confederacy? Were they not deputed by _states_, and not by the\n_people_? The assent of the _people_, in their collective capacity,\nis not necessary to the formation of a _federal_ government.... They\nare not the proper agents for this purpose. States and foreign powers\nare the only proper agents _for this kind_ of government. Show me an\ninstance where the people have exercised this business. Has it not\nalways gone through the legislatures?... Are the people, therefore, in\ntheir aggregate capacity, the proper persons to form a _confederacy_?\nThis, therefore, ought to depend on the consent of the legislatures,\nthe people having never sent delegates to make any proposition for\nchanging the government.\u201d (3 _Ell. Deb._ 52.)\n\nIn these words, as always in the convention where we sit and listen\nto him, Henry attests the universal knowledge, common to advocate\nand opponent of the proposed Constitution, that the Constitution\nhas not been referred to the state governments because of their\nabsolute inability to constitute government of individuals, to give to\ngovernment any power to interfere with individual liberty. In this, he\nand the others but echo the knowledge of the Americans at Concord, on\nthat October day, eleven years earlier, where they returned a proposed\nConstitution with Articles _of that kind_ to the legislature which\nhad proposed it. We recall their own statements that even a _supreme_\nlegislative government \u201ceither in their proper capacity or in joint\ncommittee, are by no means a body proper to form and establish a\nConstitution.\u201d We recall their statements of the important knowledge\nthat \u201ca Constitution, alterable\u201d even \u201cby the supreme legislative,\nis no security at all against the encroachment of the governing part\non any or on all their rights and privileges.\u201d But we also hear, in\nthese words of Henry, his knowledge--the knowledge of all Americans\nat that time--of something else interesting and important to us. We\nhear him twice identify the assembling of the American people, in\nthe \u201cconventions\u201d named in the Seventh _and the Fifth_ Articles, as\nthe people \u201cin their collective capacity\u201d and the people \u201cin their\naggregate capacity.\u201d As we hear him, and as we hear Wilson in the\nPennsylvania convention stating that \u201cin this Constitution _the\ncitizens of America_ appear dispensing a portion of their power,\u201d\nas we hear similar statements in all those \u201cconventions,\u201d we sense\nthe universal knowledge of all those conventions that they are the\n_American_ people, the citizens of the _new republic_. And later\nherein, with our education of 1790 completed by sitting in these very\nconventions, we intend to listen (with amazement and without the\nslightest belief) to the remarkable statements of 1917 and 1920, that\nthe states, political entities, made our Constitution or that the\ncitizens of the different states, in their capacity as _such_ citizens,\ngave to the _American_ government the enumerated First Article powers\nto interfere with the individual liberty of the citizens of that\nentirely different and greater nation, America. Impressed by Henry\u2019s\nknowledge that the conventions which made the Constitution were the\npeople of America, \u201cin their collective capacity,\u201d \u201cin their aggregate\ncapacity,\u201d and impressed with Wilson\u2019s knowledge that \u201cthe citizens of\nAmerica\u201d--not the states or the citizens _of the states_--\u201care seen\ndispensing a portion of their power,\u201d we are going to laugh at the\nconcepts of 1917 and 1920 and know that Marshall was right when he\nsaid, speaking of the American people and their assembling in those\n\u201cconventions\u201d: \u201cIt is true, they assembled in their several states, and\nwhere else could they have assembled?... When _they_ act, _they_ act\n_in_ their states. But the measures they adopt do not, on that account,\ncease to be the measures of _the people themselves_ or become the\nmeasures of the _state governments_.\u201d\n\nYet, when we later come to the modern days of 1917 and 1920, we\nshall see all _our_ leaders, whether for or against the Eighteenth\nAmendment, blandly assume a most extraordinary meaning from the Fifth\nArticle mention of the state legislatures. Not a single member of any\nstate legislature is elected by the citizens of America. Moreover,\nthe Tenth Amendment expressly declares that the Constitution--that\ngreat power of attorney from American citizens to their only American\ngovernment--gives no power whatever to the states or _their_\ngovernments. Nevertheless, with amusement and absolute incredulity,\nwe shall hear every statesman of 1917 and every lawyer of 1920 assume\nand act and argue upon the extraordinary concept that the Fifth\nArticle of that Constitution is a great power of attorney to the state\nlegislatures as attorneys in fact for the American citizens.\n\n\u201cWe all know the severe scrutiny to which the Constitution was\nexposed--some from their own knowledge, others from different sources.\nWe know with what jealousy, with what watchfulness, with what\nscrupulous care its minutest provisions were examined, discussed,\nresisted, and supported by those who opposed and those who advocated\nits ratification.\u201d (4 _Ell. Deb._ 486.) So spoke Martin Van Buren in\nthe Senate on April 7, 1826. We sit in the conventions which made the\nConstitution of which he spoke. We listen to every word that is said\ntherein. We hear the Fifth Article explained by its worder, Madison,\nas nothing but a mode of procedure. From not one of the opponents\nof the Constitution, not even from Henry, do we hear a single word\nof attack upon the Fifth Article except as to the weakness of the\nmode of procedure which it provides for _evoking_ the power of the\n\u201cpeople\u201d themselves, assembled in \u201cconventions\u201d of the very same\nkind, to withdraw from the one American legislature, the Congress,\nsome enumerated power of the First Article which is found oppressive\nto individual liberty. On the contrary, we not only hear _no_ single\nword of complaint that the Fifth Article or any Article gives one\niota of power to the state legislatures, but the whole complaint of\nall the opponents of the Constitution which we _do_ hear is that it\npractically destroys all existing ability and power of those state\ngovernments. Only a moment ago we have heard Henry ask: \u201cIf you adopt\nthis Constitution, why continue the state legislatures at all?\u201d\n\nAnticipating the extraordinary concept which we are later to hear in\n1917 and 1920, that the citizens of America by the Fifth Article made\na collection of the state legislatures an omnipotent government over\neverything in America, including every individual right, we wonder\nif the constitutional thinkers of 1917 and 1920 remember that we are\nsitting with a people who, just five years before the conventions in\nwhich they and we sit, ended an eight-year war to make certain that\nthere never again should be a government of that kind in America, to\nmake certain that they themselves should never be the \u201csubjects\u201d of any\ngovernment or the citizens of any nation whose government should have\neven one power to interfere with individual liberty, except power _of\nthat kind_ granted directly by its citizens themselves.\n\nIt was Maclaine in the North Carolina convention who first used the\nexact expression that the Americans, who sit in the conventions where\nwe are, were a people \u201cbetter acquainted with the science of government\nthan any other people in the world.\u201d In the same convention, on July\n29, 1788, this is what he had to say about the consistent attack upon\nthe Constitution, because it robbed the state legislative governments\nof so much of their previous power. \u201cMr. Chairman, that it _will_\ndestroy the state sovereignty is a very popular argument.... Government\nis formed for the happiness and prosperity of the people at large. The\npowers given it are for _their_ own good.... The powers to be given\nthe general government are proposed to be withdrawn from the authority\nof the state governments, in order to protect and secure the union at\nlarge. This proposal is made to the _people_. No man will deny their\nauthority to delegate powers and recall them, in all free countries....\nIt may be justly said that it [the Constitution which contains the\nFifth Article] diminishes the power of the state legislatures, _and the\ndiminution is necessary to the safety and prosperity of the people_.\u201d\n(4 _Ell. Deb._ 180.) It certainly would have surprised Maclaine, as\nwell as all the Americans in those conventions, to have heard any one\nof themselves stating that the same Constitution vested the state\ngovernments with an omnipotence they had never possessed, the very\nomnipotence denied to the British Parliament eleven years earlier.\n\nIn the Virginia convention we hear Madison, who drafted and suggested\nthe Fifth Article at Philadelphia, speak of the important distinction\nbetween the makers of the _federal_ Articles of 1781, only seven years\nmade, when we sit in that Virginia convention, and the \u201cconvention\u201d\nmakers of the proposed Articles of the new _national_ Constitution.\nIf these \u201cconventions\u201d make it, he says, it will be a government\nestablished, not through the intervention of the legislatures _but by\nthe people at large_. Fie goes on to say \u201cIn this particular respect,\nthe distinction between the existing and proposed governments is very\nmaterial. The existing system has been derived from the dependent\nderivative authority of the legislatures of the _states_; whereas this\nis derived from the _superior_ power of the _people_. If we look at the\nmanner in which alterations are to be made,\u201d now referring directly to\nthe Fifth Article, \u201cthe same idea is, in some degree, attended to.\u201d (3\n_Ell. Deb._ 94.)\n\nWe feel that it will be quite difficult, when we come later to the\nconstitutional thinkers of 1917 and 1920, for them to convince us that\nMadison meant his Fifth Article to alter \u201cthe dependent derivative\nauthority of the legislatures of the state\u201d and, whenever another\ngovernment makes the suggestion, put that dependent authority above\nwhat he calls \u201cthe superior power of the people.\u201d\n\nAnd we feel that these \u201cconstitutional thinkers\u201d will find it\nimpossible to convince us when we recall Madison\u2019s other words,\ndirectly referring to his Fifth Article and the existing power of the\npeople, mentioned therein by the word \u201cconventions.\u201d These are the\nwords to which we allude: \u201cWere it [his Fifth Article] wholly national,\nthe supreme and ultimate authority would reside in the _majority_\nof the people of the Union, and this authority would be competent\nat all times, like that of a majority of every national society, to\nalter or abolish its established government.\u201d It is Madison himself\nwho puts the one word \u201cmajority\u201d in italics. He does so to call\nattention to the fact that his Article leaves \u201cthe supreme and ultimate\nauthority\u201d in the _people_ (named as \u201cconventions\u201d in his Article)\nbut not necessarily capable of exercise by the _majority_ in any\n_constitutional_ manner. He goes on to explain this very fact by saying\nthat when the mode of procedure prescribed in his Article is read, it\nis found that \u201cin requiring more than a majority, and particularly in\ncomputing the proportion by _states_, not by _citizens_, it departs\nfrom the _national_ and advances towards the _federal_ character.\u201d\n(_Fed._ No. 39.)\n\nIn New York we find Hamilton, who seconded the suggestion of Madison\u2019s\nFifth Article at Philadelphia, almost immediately after he had stated\nthat there would be no danger in permitting Congress to _propose_\namendments since \u201cthe final decision in the case will rest with the\npeople.\u201d As we recall, Hamilton said this when the tentative Fifth\nArticle mentioned no one but the people, \u201cconventions,\u201d as the maker\nof future Articles, because he and Madison and their associates at\nPhiladelphia, whose minds had so far been concentrated upon the\n_national_ First Article, had not yet grasped the fact, later stated\nby Hamilton to be his conviction, that all future changes would\nprobably relate \u201cto the organization of government and _not to the mass\nof its powers_.\u201d We are, therefore, interested to find Hamilton, in New\nYork, on Friday, December 14, 1787, pointing out that \u201cIt has not a\nlittle contributed to the infirmities of the existing _federal_ system\nthat it never had a ratification by the PEOPLE. Resting on no better\nfoundation than the consent of the several legislatures, it has been\nexposed to frequent and intricate questions concerning the validity\nof its powers.... The possibility of a question of this nature proves\nthe necessity of laying the foundations of our _national_ government\n[the First Article grant of national powers] deeper than in the mere\nsanction of delegated authority [referring directly to the state\nlegislatures which are mentioned in the Fifth Article]. The fabric of\nAmerican empire ought to rest on the solid basis OF THE CONSENT OF THE\nPEOPLE. The streams of _national_ power ought to flow immediately from\nthat pure, original fountain of all legitimate authority.\u201d (_Fed._\nNo. 22.) The capitals are those of Hamilton himself. We rather feel\nthat his stress upon the \u201cPEOPLE\u201d sharply contrasted with the state\n\u201clegislatures,\u201d as the only legitimate direct source of _national_\npower, such as is granted in the First Article and the Eighteenth\nAmendment, will be somewhat of a shock to the \u201cconstitutional thinkers\u201d\nof 1917 and 1920. Sitting in the conventions of old, we rather\nrecognize the capitalized words, where Hamilton says that _national_\npower in America \u201cought to rest on the solid basis of the CONSENT OF\nTHE PEOPLE,\u201d as a direct echo from the Statute of \u201976, enacted only\neleven years before those conventions. That Statute says that every\njust power of government must be derived directly from the governed.\n\nAnd we become rather convinced that Hamilton and Madison, when\nsubmitting the Fifth Article at Philadelphia, never worded it so that\n_national_ power in America could be granted through the illegitimate\nauthority of the state legislatures, when we read what either one\nor both of them have to say on Tuesday, February 5, 1788, in _The\nFederalist_, No. 49. \u201cAs the people are the only legitimate fountain\nof power, and it is from them that the constitutional charter, under\nwhich the several branches of government hold their power, is derived,\nit seems strictly consonant to the republican theory to recur to the\nsame original authority\u201d--a direct reference to the \u201cconventions\u201d of\nthe _Seventh and the Fifth_ Articles--\u201cwhenever it may be necessary to\nenlarge, diminish, or new-model the powers of government.\u201d\n\nIf we ever had any doubt as to what Hamilton meant the Fifth Article\nto provide, our doubt is ended forever when we hear Hamilton, in\nthe New York Convention, speak of the state legislatures, which the\n\u201cconstitutional thinkers\u201d of 1917 and 1920 assume to have been made\nattorney in fact for the American people for every purpose by that\nFifth Article. \u201cLook through their history,\u201d he says, speaking of\nthose state legislative governments. \u201cWhat factions have arisen from\nthe most trifling causes! What intrigues have been practiced for the\nmost illiberal purposes! Is not the State of Rhode Island, at this\nmoment, struggling under difficulties and distresses, for having been\nled blindly by the spirit of the multitude? What is her legislature but\nthe picture of a _mob_?\u201d Most of the states \u201care either governed by\na single democratic assembly, or have a senate constituted entirely\nupon democratic principles. These have been more or less embroiled\nin factions, and have generally been the image and echo of the\nmultitude.... _Let us beware that we do not make the state legislatures\na vehicle in which the evil humors may be conveyed into the national\nsystem._\u201d (2 _Ell. Deb._ 317.) When Hamilton knew that these state\nlegislatures were not the legitimate source of national powers in a\nrepublic and when he had _this_ view of their general character, will\nany sane man believe that he advocated that the citizens of America\nshould make these legislatures (although the citizens of America\nelect not a single member in them) absolute attorney in fact for the\ncitizens of America for all purposes? Will any sane man believe that\nhe proposed to substitute them, as grantors of _national_ power, for\nthe \u201cconventions\u201d of the Fifth Article, which \u201cconventions\u201d already\nexcited the admiration of the entire world, according to the author\nof the Fifth Article, as the only safe or effective mode in which the\nfree citizens of a nation could vest its government with any power to\ninterfere with their own individual liberty.\n\n\u201cThe authority of Constitutions over governments, and the sovereignty\nof the people over Constitutions, are truths which are at all times\nnecessary to be kept in mind; _and at no time, perhaps, more necessary\nthan at present_.\u201d This impressive statement of the truth that\nthe \u201cgovernments,\u201d state \u201clegislatures,\u201d never were placed by the\nFifth Article above the Constitution in which it is, and above the\nsovereignty of the people, mentioned therein as \u201cconventions,\u201d and\ncannot be placed there by another government, the Congress, is not a\nstatement made in the heat of the controversy about the Eighteenth\nAmendment. It is the statement of James Madison, author of the Fifth\nArticle, made in the Virginia House of Delegates in 1799;\n\nIt is becoming almost impossible for us, as we sit in these conventions\nand hear every word that is said, to understand the source of the\nmodern thought, if we can dignify it by calling it \u201cthought,\u201d that\nthe Fifth Article is a power of attorney from the citizens of America\nto the state governments, every member of which is elected by the\ncitizens of the respective states and not by the citizens of America.\nIt is beginning to grow upon us that any such \u201cthought\u201d is based on\nsheer assumption and that the entire record of the \u201cconventions\u201d is a\nclosed book to those who hold the assumption. We know that they have\nthe explicit statement of the Tenth Amendment, that the Constitution\ngives no power of any kind to any donee except the one new American\ngovernment, the government with the enumerated powers of the First\nArticle. As no power of attorney was ever written or can be conceived\nexcept one which grants the attorney in fact some power, the Tenth\nAmendment makes absolutely certain that neither the Fifth Article nor\nthe entire Constitution gives to the state legislatures any power as\nattorneys in fact for the citizens of America.\n\nMoreover, breathing the atmosphere of those first \u201cconventions\u201d of the\nkind named in the Seventh _and the Fifth_ Articles, the \u201cconventions\u201d\nwhere individual liberty of the American is the only object of advocate\nand opponent of the Articles under consideration, we begin to sense\nthat the holders of the impossible assumption have never fully grasped\nthe amazing and vital distinction between \u201cstate legislatures\u201d and\n\u201cconventions\u201d of the kind named in the Seventh _and the Fifth_\nArticles. When we shall hear the \u201cconstitutional thinkers\u201d of 1917\nand 1920 speak of the \u201clegislatures\u201d and the \u201cconventions\u201d as two\ndifferent agents given omnipotent attorneyship in fact over all the\nindividual rights of the citizens of America, we shall wonder if these\nthinkers appreciate that the \u201cstate legislatures\u201d are permanent bodies,\nalways existing, and that the \u201cconventions\u201d of the Fifth Article are,\nto the \u201cconventions\u201d in which we sit, bodies that never would have\nan existence until some future moment, when the American citizens\nthemselves would again be called to assemble in and thus make those\n\u201cconventions.\u201d Nothing could show more clearly that the \u201cconventions\u201d\nof the Seventh Article looked upon the \u201cconventions\u201d of the Fifth\nArticle, not as the donee of any power of attorney, but as themselves\nor their posterity, the citizens of America, assembling again to\ndetermine whether there shall be any change in the distribution of\npower to interfere with their individual liberty. And our thought,\nre-echoed again and again by Marshall and others from the Bench of the\nSupreme Court in the century that follows the first assembling of these\n\u201cconventions,\u201d seems but the repetition of what we hear said in the\nMassachusetts Convention as the tribute of its Americans to the Fifth\nArticle.\n\nOn January 23, 1788, the Americans, assembled in Massachusetts, took up\nthe consideration of that Article. As in every convention, there had\nbeen great opposition to the earlier Articles; as in every convention,\nnearly all of it had been to the great national powers of the First\nArticle granted to the new government and taken from the state\ngovernments; and, as in every convention, almost all of this opposition\nhad been the continued complaint that the state governments were being\ndestroyed.\n\nIt was not that the Americans loved the state governments. The truth is\nthat, like every natural human being, they objected to all governments.\nTheir sole thought was fear of oppressive government infringement\nupon their individual liberty. In this respect, the Americans in each\nconvention feared their own legislative government less than the new\nproposed Congress, because they would elect all the members of the\nformer and only a few members of the latter. If it had been suggested,\nby any of the many opponents of the new Constitution, that any possible\ntwisting of the words of the Fifth Article meant that governments\noutside their state, not one of whose members they themselves would\nelect, could infringe upon their every individual right, without\nany constitutional restraint, the record of every convention would\nhave been one unanimous \u201cNO,\u201d against the new Constitution. But,\nas no \u201cconstitutional thinker\u201d of 1917 or 1920 sat in any of those\nconventions, no such suggestion was ever made therein.\n\nAnd so, on that January 23, we hear the Fifth Article read in that\nMassachusetts convention, and we see Rufus King rising and we hear\nhim state that \u201cHe believed gentlemen had not, in their objections to\nthe Constitution, recollected that this Article was a part of it; for\nmany of the arguments of gentlemen were founded on the idea of future\namendments being impracticable.\u201d He dwelt \u201con the superior excellence\nof the proposed Constitution in this particular, and called upon\ngentlemen to produce an instance, in any other _national_ constitution,\nwhere the _people_ had so fair an opportunity to correct any abuse\nwhich might take place in the future administration of the government\nunder it.\u201d\n\nAnd then we hear Dr. Jarvis: \u201cMr. President, I cannot suffer the\npresent Article to be passed, without rising to express my entire and\nperfect approbation of it. Whatever may have been my private opinion of\nany other part, or whatever faults or imperfections I have remarked,\nor fancied I have seen, in any other instance, here, sir, I have found\ncomplete satisfaction: this has been a resting place, on which I have\nreposed myself in the fullest security, whenever a doubt has occurred,\nin considering any other passage in the proposed Constitution. The\nhonorable gentleman last speaking has called upon those persons who\nare opposed to our receiving the present system, to show another\ngovernment, in which such _a wise precaution_ has been taken to secure\nto the _people_ the right of making such alterations and amendments,\nin a peaceable way, as experience shall have proved to be necessary.\nAllow me to say, sir, as far as the narrow limits of my own information\nextend, I know of no such example. In other countries, sir,--unhappily\nfor mankind,--the history of their respective revolutions has been\nwritten in blood; and it is in this only that any great or important\nchange in our political situation has been effected, without public\ncommotions. When we shall have adopted the Constitution before us, we\nshall have in this Article an adequate provision for all the purposes\nof political reformation. If, in the course of its operation, this\ngovernment shall appear to be too severe, here are the means by which\nthis severity may be assuaged and corrected.... _We_ have united\nagainst the British; _we_ have united in calling the late federal\nconvention; and _we_ may certainly unite again in such alterations as\nin reason shall appear to be important for the peace and happiness of\nAmerica.\u201d (2 _Ell. Deb._ 116.)\n\nNo man ever voiced such sentiments, no conventions of Americans ever\nlistened to them, with any knowledge or thought that the Fifth Article,\n\u201cthe wise precaution\u201d to secure the liberty of the individual if the\ngovernment with the national powers of the First Article oppressed that\nliberty, was itself a grant to another government, ten legislatures\noutside of the Massachusetts in which that convention was held, to\ninfringe upon the individual liberty of every American in Massachusetts\non every subject without any constitutional restraint.\n\nAnd so, we average Americans end our education in the only\n\u201cconventions,\u201d named in the Seventh or the Fifth Articles, which yet\nhave assembled. And we end that education knowing that there is nothing\nanywhere in the Constitution those conventions adopted, and especially\nnothing in the Fifth Article, which changed the free American into\na subject of any government or governments in America. Everything\nwe have heard--and what we have repeated is but little of what we\nhave heard--serves but to emphasize the only meaning of its \u201capt,\nprecise and classic English,\u201d the plain meaning which we got from its\nlanguage when we read it at the beginning of these conventions with the\nAmericans who made it.\n\nIt is, as its author explained it, naught but a constitutional mode of\nprocedure in which may be thereafter exercised, in a _constitutional_\nmanner, either the limited ability of state governments to make\nArticles which do not concern themselves with the infringement of\nindividual liberty or the unlimited ability of the people themselves,\nthe \u201cconventions\u201d of the kind in which we have sat, to make any\nArticles. The procedure prescribed for such constitutional exercise is\nsimplicity itself to those who sit in those conventions. It is exactly\nthe procedure just followed (up to the point where the work of any\nproposer of a new Article and its mode of ratification must end) by the\nPhiladelphia Convention which drafted it and the other six Articles.\nThe Philadelphia Convention found itself without any CONSTITUTIONAL\nmode of procedure in which could be evoked to exercise the existing\nand exclusive power of the people of America to grant any government\npower to infringe upon the individual liberty of the American citizens.\nThere being no _constitutional_ mode of procedure, no designated\nbody to draft Articles with such grants and to propose them and to\nascertain and propose the _valid_ mode of ratification for them, the\nPhiladelphia Convention did that work, guided only by basic American\ndoctrine, the Statute of \u201976 and the experience of the \u201cconventions\u201d\nwhich had made the national Articles of 1776. It followed a certain\nmode of procedure in the doing of these things, knowing and stating\nthat to draft Articles and propose them and ascertain and propose the\nright mode of ratification for them is not the exercise of any power.\nWith a knowledge which we of a later generation never should have\nforgotten--and which we who have been educated with them never will\nforget--the Philadelphia Convention knew that there were two makers of\nArticles in America, each of which had exercised its respective and\ndifferent ability to make them, during the eleven years which preceded\nthe Philadelphia Convention. They knew that every Article that was\n_national_ could be made by no one but the people themselves, the\n\u201cconventions,\u201d which had made the _national_ Articles of \u201976 and which\nare named as the makers of all future Articles _of that kind_ in the\nSeventh and the Fifth Articles proposed by Philadelphia.\n\nAnd so, when the Philadelphia Convention had drafted its Articles\nand was about to propose them, it recognized the legal necessity of\nascertaining, from the nature of those Articles, whether they were in\nthe power of both or only of one of those existing makers of Articles.\nIn the ascertainment, with their minds on the First Article grants of\nnational power to interfere with individual liberty, they knew that\nno governments in America could make an Article _of that kind_. Their\nascertainment was then ended and they knew that they _must_ propose\nthat mode of ratification which would send their Articles to the only\nvalid ratifiers, the people themselves, the \u201cconventions\u201d of the\nSeventh and the Fifth Articles.\n\nThis was the procedure they had followed, when there was no\n_constitutional_ mode of procedure provided. And so, with the\nextraordinary wisdom that characterized everything they did, that\nPhiladelphia Convention wrote exactly the same procedure into the\nFifth Article so that never again there might be lacking in America a\n_constitutional_ mode of procedure for the evoking and the exercise\nof the only power that is ever exercised when constitutional Articles\nare made, the power of making them. As the Philadelphia Convention\nended its existence with its own proposals, some new body had to do\nthat work, when any new Article was to be proposed. As the work of\nthe Philadelphia Convention had not been the exercise of any power\nbut merely the work of proposing, it was a certainty that the new\n_constitutional_ mode, exactly the same mode as that of Philadelphia,\nwould also be the exercise of no power. And so, the Philadelphia\nConvention named the Congress (or a convention demanded by the state\nlegislatures) to do the work of the Philadelphia Convention in drafting\nand proposing any new Article, and it named the Congress to perform\nthe duty of ascertaining (by the nature of the new drafted Article)\n_which_ of the two makers could make it, and then to propose a mode of\nratification by which it would be _validly_ ratified by such competent\nmaker. As to the only powers ever to be exercised in the making of any\nnew Article, the power of legislatures to make _federal_ Articles, and\nthe exclusive power of the people or \u201cconventions\u201d to make _national_\nArticles, the _constitutional_ mode of procedure did not (nor could\nit, if Americans were not to become \u201csubjects\u201d) give the governments\nany of the exclusive ability of the people or \u201cconventions,\u201d and it\ndid not (nor could it, if America were to be a republic) alter the\nexisting ability of the majority of the American people to make their\ngovernments what they will. But, for the very practical purpose which\nMadison so clearly explained, the purpose of providing some check\nupon the tyranny of the majority or an aggressive minority over the\nindividual rights of all Americans, the Fifth Article procedure could\nand did fail to provide any CONSTITUTIONAL method in which government\npower to interfere with individual liberty, as all surrendered power\n_of that kind_ was distributed between different governments in the\nConstitution, could be changed in any way or transferred from one\ngovernment to another, unless the \u201cconventions\u201d of the American\ncitizens _in_ three fourths of the states said \u201cYes\u201d to any proposed\nchange or transfer.\n\nThe Philadelphia Convention having proposed this particular check upon\nthe existing ability of the people themselves to oppress individual\nliberty, a check which makes the words \u201cby conventions in three fourths\nthereof\u201d by far the most important words, the Fifth Article goes on to\nprescribe exactly the same check on the exercise of the ability of the\nstate legislatures to make _federal_ Articles.\n\nThat the Fifth Article, a constitutional mode of procedure for the\nexercise of two different existing abilities, was _not a grant_ of any\npower to the state legislative governments is something that was known\nto every man in the conventions which made that Fifth Article.\n\nIn the Pennsylvania convention, Wilson plainly stated the knowledge\nof all that the supreme power \u201c_resides_ in the people, as the\nfountain of government; that the people have not--that the people\nmeant not--and that the people ought not--to part with it to any\ngovernment whatsoever. In their hands it remains secure. They can\ndelegate it in such proportions to such bodies, on such terms, and\nunder such limitations, as they think proper. I agree with the members\nin opposition, that there cannot be two sovereign powers on the same\nsubject.... My position is, sir, that, in this country, the supreme,\nabsolute, and uncontrollable power resides in the people at large.\u201d (2\n_Ell. Deb._ 456 et seq.)\n\nWhen more than half a century had passed, the same thing was known to\nthose who knew American Constitutional Law.\n\n\u201cIt is obviously impossible for the whole people to meet, prepare and\ndiscuss the proposed alterations, and there seems to be no feasible\nmode by which an expression of _their_ will can be obtained, except\nby asking it upon the single point of assent or disapproval. But no\nbody of representatives, _unless specially clothed with power for that\npurpose by the people when choosing them_, [ergo, no permanent state\ngovernments or legislatures] can rightfully take definitive action\nupon amendments or revisions; they must submit the result of their\ndeliberations to the people--WHO ALONE ARE COMPETENT TO EXERCISE THE\nPOWERS OF SOVEREIGNTY IN FRAMING THE FUNDAMENTAL LAW--for ratification\nor rejection.\u201d\n\nSo spoke the great Cooley in reference to making changes in _national_\nconstitutions in his work on Constitutional Limitations (7th ed., 1903,\nat p. 61).\n\nWhen one hundred and seventeen years had passed since the conventions\nin which we just sat, the same thing was known in the Supreme Court, in\n1907.\n\n The powers the people have given to the General Government are named\n in the Constitution, and all not there named, either expressly or by\n implication, are reserved to the _people_ and can be exercised only by\n _them_, or upon further _grant_ from _them_. (Justice Brewer in Turner\n v. Williams, 194 _U. S._ 279.)\n\n\n\n\n                              CHAPTER XIV\n\n               SEVENTEEN ARTICLES RESPECT HUMAN FREEDOM\n\n\n\u201cFor my own part, I acknowledge a thorough conviction that Amendments\nwhich may, upon mature consideration, be thought useful, will be\napplicable to the organization of the government, not to the mass of\nits powers.\u201d (_Fed._ No. 85.)\n\nThis was the statement of Hamilton to the American people when he was\nasking them, about to assemble in their conventions, to make their\nFirst Article grants of enumerated powers to interfere with their\nindividual freedom and to make their Fifth Article mode of procedure,\nin which they could exercise CONSTITUTIONALLY their exclusive ability,\nassembled again in \u201cconventions,\u201d to add or subtract from that grant of\nenumerated powers of that kind.\n\nWhen he used the words, \u201cmass of its powers,\u201d he referred directly to\nthat First Article grant. It contains all the powers that were ever\ngiven to any government to interfere with the individual freedom of\nthe American citizen. He knew what the Supreme Court clearly declared\nin United States v. Cruikshank, 92 _U. S._ 542, that, beyond the scope\nof its enumerated powers, there is _no_ government of the American\ncitizens. He knew that, in the geographical territory which is each\nstate, there would thereafter be two governments, the government of\nenumerated powers, governing the American citizens in that state under\nthe First Article grants from the American citizens, and the state\ngovernments, governing the citizens of the state, under whatever grants\nof national power its state citizens gave that government.\n\n The two governments in each state stand in their respective spheres\n of action in the same independent relation to each other, except\n in one particular, that they would if their authority embraced\n distinct territories. That particular consists in the supremacy of\n the authority of the United States when any conflict arises between\n the two governments. (Justice Field, in Tarble\u2019s case, in the Supreme\n Court, 13 _Wall._ 397.)\n\nWith such knowledge, he would have found it impossible to make the\nblunder of assuming that either government could give or join with\ngovernments in giving to the other any power to interfere with the\ncitizens of the grantee in their enjoyment of individual liberty.\nHe knew that, \u201cIn our republican forms of government, the absolute\nsovereignty of the nation is in the people of the nation; and the\nresiduary sovereignty of each state, not granted to any of its public\nfunctionaries, is in the people of the state.\u201d (Story, 1 _Ell. Deb._\n65.)\n\nWhen Hamilton stated, in those days of 1788, his conviction that new\nArticles would relate to the \u201corganization of government and not to\nthe mass of its powers,\u201d he was epitomizing the common knowledge of\neveryone, at that time, that the new Constitution was both _federal_\nand _national_. He was predicting that the power to interfere with\nindividual liberty, to the extent which Americans had surrendered\nany power _of that kind_ to their governments, had been so wisely\ndistributed, between the government of the citizens of America and the\npolitical entity which was each state, that it would never be necessary\nfor the citizens of America to alter that distribution by giving any\nmore to _their_ government. That is why he prophesied that no new\nArticle of the kind which only \u201cconventions\u201d of those citizens can\nmake, Articles changing the \u201cmass of powers\u201d granted to that government\nby the First Article, would ever be needed.\n\nAnd we recall that this conviction probably influenced the last day\nremembrance in the Philadelphia Convention by Madison and himself,\nthat the Fifth Article should also contain some reference to the state\nlegislatures and their future exercise of their existing abilities to\nmake _federal_ or declaratory Articles, which do not change the \u201cmass\nof powers\u201d in that First Article grant and do not relate to government\ninterference with the individual liberty of the American citizen.\n\nThe statement of Hamilton was not meant as a prophecy. It was the\nresult of a great mind reasoning from cause to probable effect. As we\ncome down through the century or more that follows that statement and\nreach the beginning of the year 1917, we pay our tribute to a mind\nwhich could reason so correctly _as to what would happen for more\nthan a hundred years_. We shall find that never again, from 1787 to\n1917, did experience find it necessary that the \u201cconventions\u201d of the\nAmerican citizens, the \u201cconventions\u201d named in the Seventh and the Fifth\nArticles, should again be assembled to alter, as they alone can alter,\nthe mass of enumerated powers to interfere with their own individual\nliberty, which they granted in that First Article.\n\nIt is a striking commentary upon the ability of Hamilton and his\ngeneration, when contrasted with our modern \u201cconstitutional thinkers,\u201d\nthat he knew and appreciated _what would happen in a century to come_,\nwhile they have not understood what _had_ happened in a century that\nhad gone, although the record of that century was spread out before\nthem to read. None of _our_ leaders _have_ appreciated the fact that\nevery one of the first seventeen Amendments to our Constitution _was\nof the kind_ that state legislatures had ability to make before our\nConstitution was even drafted at Philadelphia, because all were\n_federal_ (or declaratory) Articles and were not _national_ Articles.\nIf they had known, _after_ these seventeen Amendments were history,\nwhat he prophesied _before_ the Constitution itself was adopted, the\nstory of the last five years might not have been what we shall learn\nhereafter that it was.\n\nThat _we_ may know, _of our knowledge_, what _he_ prophesied and\nwhat _they_ entirely overlooked and ignored, let us briefly examine\nthe nature of those seventeen Amendments. Thus we will learn why\ngovernments, known at Philadelphia in 1787 to be incompetent to make\n_national_ Articles, could and did make those seventeen Articles in the\n_constitutional_ mode of procedure which the Fifth Article provided\nfor the exercise of their existing ability limited to the making of\n_federal_ or declaratory Articles.\n\nThe first ten Amendments were declarations insisted upon by the\nAmerican citizens, assembled in \u201cconventions\u201d where we have sat, as\nspecific security against government usurpation of power over their\nindividual freedom. The Supreme Court has repeatedly declared that\neverything in those ten Amendments was in the Constitution when it\nwas ratified by those \u201cconventions\u201d and that the Amendments simply\ndeclared what the will of the people themselves, assembled in those\n\u201cconventions,\u201d had already established as the fundamental law in\nAmerica. Certainly no man would challenge the prophecy of Hamilton\non the theory that any one of those Amendments added to the mass of\ngovernment powers to interfere with human freedom. They are, each\nand every one of them, the declaration that government cannot do\n\u201cthis\u201d and government cannot do \u201cthat.\u201d So far from being _national_\nArticles, the kind which only \u201cconventions\u201d of American citizens could\nor can make, the kind which tell government that it can command the\nAmerican citizens on this or that subject, they are all Articles which\ntell government that it _cannot_ command the American citizen. And,\nfor the further security of the individual freedom of the American\ncitizen, _a security never needed more than in this year_ 1923, the\nTenth Declaration emphatically declares _who_ it is that RETAINS the\n_exclusive_ ability to alter, in one iota, \u201cthe mass of powers\u201d (over\nthe individual freedom of the American citizen) granted _by them_ in\nthe First Article and the exclusive ability to exercise any power _of\nthat kind_ over them, which was not granted in the First Article. Who\ncan deny that, stated in our own words, this is what we find in the\nplain declaration of the Tenth Amendment? \u201cWe, the people of America,\nassembled in our conventions, have granted to the _American_ government\nenumerated powers of the First Article. They are the only powers _of\nthat kind_ delegated to any government, by which it can interfere\nwith our individual freedom in our capacity as American citizens. All\npowers, which the citizens of each state have hitherto had and which\nwe have not taken from them herein, we have left with them; and the\ncitizens of each state can grant so much of said powers as they please\nto their own government to govern them as citizens of that state.\nAll other powers, outside those we have granted to our government to\ninterfere with us and those we have left to the citizens of each state\nfor their own respective exercise, we reserve exclusively to ourselves,\nin our capacity as citizens of America. And, if any government should\ndeem it wise that any one of these powers (which we so reserve\nexclusively to ourselves) should be exercised, we have provided in\nthe Fifth Article the mode of procedure in which we, assembled in\nour conventions, can CONSTITUTIONALLY exercise it or grant it to the\ngovernment which wants to exercise it.\u201d\n\n The powers the people have given to the General Government are named\n in the Constitution, and all not there named, either expressly or by\n implication, are reserved to the people and can be exercised only by\n them, or upon further grant from them. (Justice Brewer in Turner v.\n Williams, 194 _U. S._ 279.)\n\nLater herein we Americans, fresh from the \u201cconventions\u201d which demanded\nthese declarations for the better protection of individual liberty,\nare going to hear expounded a doctrine, which would mean that these\ndeclarations were themselves the _American_ Magna Charta. We are going\nto hear, to our amazement, that these declarations were a compact\nbetween an omnipotent government and its subjects, ourselves, who\nhave always imagined that we were \u201ccitizens\u201d and not \u201csubjects.\u201d We\nare going to hear, to our utter incredulity, that these declarations\nare the promise of a government--itself omnipotent over ourselves and\n_our_ Constitution and _our_ government which we thought to be the\nsupreme government in America--that we, the subjects of that omnipotent\ngovernment, may have certain privileges which this omnipotent\ngovernment will not take from us.\n\nWhen first we shall hear this 1917 resurrection of the Tory concept\nthat government is master and Americans are \u201csubjects,\u201d that government\nis the state and we are its assets, we shall naturally be astounded and\nindignant that even a few inhabitants should still retain what Madison\ncalled \u201cthe impious doctrine\u201d of the Old World, that people are made\nfor governments, not governments for the people. Quickly, however, we\nshall become alarmed to find how wide-spread, among the \u201cconstitutional\nthinkers\u201d of our own generation, is the complacent acceptance of the\nTory concept and to learn that, when its application in any given\ninstance injures a client of one of those constitutional thinkers,\nno matter how he may argue against the application in the particular\ninstance, he neither knows nor uses for his client the fact that the\nStatute of \u201976 repealed the doctrine on which Magna Charta rested,\nthe Tory concept that government is the state and that we are its\n\u201csubjects.\u201d\n\nIt will be difficult for us to understand these leaders of our\ngeneration. In addition to what we have just lived through with\nthe early Americans, these leaders will have before them countless\ndecisions of the Supreme Court, flatly contradicting the Tory concept\non which all these leaders reason. \u201cThe concessions of Magna Charta\nwere wrung from the King as guarantees against the oppressions and\nusurpations of his prerogatives.... The omnipotence of Parliament over\nthe common law was absolute, even against common right and reason. The\nactual and practical security for English liberty against legislative\ntyranny was the power of a free public opinion represented by the\nCommons.\u201d We are going to find many of _our_ leaders with the fixed\nTory concept that there is in America a legislative government, unknown\nto the generation of Americans who created all government in America,\nand that this omnipotent government can do whatever it pleases, without\nany constitutional restraint, with _almost_ everything in America,\nincluding ourselves and our Constitution and our American government.\nCuriously enough, we are going to be told that the one thing, in\nwhich this omnipotent legislative government falls short of absolute\nomnipotence, has nothing to do with any individual human freedom, but\nis its inability to change the equal representation of every state\nin our Senate. It will be quite amazing to us to hear these men, not\n_proving_ this Tory concept but stating it as axiomatic American law\nand on it basing their every argument and audaciously claiming that\nour Supreme Court has no right even to consider whether it is so or\nnot. But there will be something to alarm us even more. We will find\n_our_ other \u201cconstitutional thinkers,\u201d by circumstances obliged to\nchallenge some particular deduction from this Tory concept, without\nany knowledge of the invincible facts which challenge the concept\nitself. To most of these men it will be as if the Statute of \u201976 had\nbeen repealed and the result of our Revolution reversed, in 1787, by\nthe very \u201cconventions\u201d in which we have sat. It will be our amazement\nto hear that these \u201cconventions\u201d never created the citizen of America\nbut that the American people, assembled therein, voluntarily made\nthemselves \u201csubjects\u201d of the omnipotent government. And these modern\n\u201cconstitutional thinkers\u201d will discuss this omnipotent government on\nthe basis that those \u201cconventions\u201d made that particular government\n(not the one to whom the First Article grants its powers) attorney in\nfact for the general people of America, authorized to interfere with\ntheir individual freedom, \u201con all matters whatsoever.\u201d To most of these\nmen, it will be as if the Supreme Court, in countless ways, had _not_\ndeclared:\n\n In this country, written constitutions were deemed _essential_\n to protect the rights and liberties of the people against the\n encroachment of power delegated to their governments, and the\n provisions of Magna Charta were incorporated into bills of rights....\n Applied in England only as guards against executive usurpation and\n tyranny, here they have become bulwarks against arbitrary legislation;\n but in that application, as it would be incongruous to measure and\n restrict them by the ancient customary English Law, they must be\n held to guarantee, not particular _forms of procedure_, but the very\n substance of individual rights to life, liberty and property.\n\nOf course, fresh from the conventions of old, we shall know that these\nmen are talking nonsense. We shall know that the last two quoted\nstatements from the Supreme Court, in Hurtado v. California, 110 _U.\nS._ 516, are but the expression of what was once the common knowledge\nof a people then \u201cbetter acquainted with the science of government\nthan any other people in the world.\u201d But, as our knowledge shall be\nas the knowledge of the Americans of old, who fought an eight year\nwar of sacrifice to make any such Tory concept in America absolute\nnonsense, it is well for us, while we are examining the nature of the\nfirst seventeen Amendments of our Constitution, to keep in mind one\nthing, which we now know and which, if it had not been forgotten, would\nhave prevented the monumental blunder of the generation in which we\nourselves are the American citizens. This one thing is the fact that\nthe Constitution, made in the conventions we have just left, is a\n_federal_ and a _national_ Constitution. That fact and its influence\nupon the Convention, which framed the Fifth Article, and on the\n\u201cconventions\u201d of the American citizens, which made that Article, led\nthem to provide, in their Fifth Article, the CONSTITUTIONAL mode in\nwhich state governments could exercise their existing limited abilities\nto make federal and declaratory Articles, like all the Articles of 1781\nand like the first seventeen Amendments, _and also_ to provide therein\nthe _constitutional_ mode in which the \u201cconventions\u201d of the American\ncitizens could exercise their exclusive ability to make NATIONAL\nArticles, like the First Article and the supposed new Eighteenth\nAmendment.\n\nHaving fixed this clearly in our mind, we now proceed to examine the\nnature of the remaining Amendments that were made, prior to 1917.\n\nThe Eleventh Amendment gave no power of any kind to anyone. It\nsimply declared that the Court of the American nation could not have\njurisdiction of law suits against one of the states \u201cby citizens of\nanother state, or by citizens or subjects of any foreign state.\u201d We\ncommend, however, to the modern \u201cconstitutional thinkers,\u201d whose Tory\nconcept we shall meet later, this early American recognition of the\nfact that, in America, _we are \u201ccitizens.\u201d_ It will be noticed that\nthis Eleventh Amendment, declared by the President to have become part\nof the Constitution on January 8, 1798, speaks of the \u201ccitizens\u201d or\n\u201csubjects\u201d of any foreign state but speaks only of \u201c_citizens_\u201d in\nAmerica.\n\nThe Twelfth Amendment likewise has naught to do with power of\ngovernments over human liberty. It deals solely with the manner in\nwhich the Chief Executive of America shall be chosen.\n\nThe Thirteenth, Fourteenth and Fifteenth Amendments are the famous so\ncalled Slavery Amendments. Even the modern \u201cconstitutional thinker\u201d\nof 1917 and 1920, no matter how Tory his concept, will hardly dare to\nclaim that these Amendments give government power to interfere with the\nrights which the Creator gave to the human being.\n\n On the most casual examination of the language of these Amendments,\n no one can fail to be impressed with the one pervading purpose found\n in them all, lying at the foundation of each, and without which none\n of them would have been even suggested; we mean the _freedom_ of the\n slave race, the security and firm establishment of that _freedom_,\n and the protection of the newly-made _freeman_ and _citizen_ from the\n oppressions of those who had formerly exercised unlimited dominion\n over him. (Slaughter House cases, Supreme Court, 16 _Wall._ 36 at p.\n 71.)\n\nOf these Amendments, in the Civil Rights Cases, 109 _U. S._ 3, the\nSupreme Court again said that \u201cthey abolished slavery, and established\n_universal freedom_.\u201d\n\nWhen, therefore, in the year 1920, we shall hear these Amendments,\nwhich establish _universal freedom_, cited as Articles of exactly the\nsame nature as a supposed new Article, directly interfering with the\nfreedom of the American citizen on a matter not enumerated in the\nFirst Article, we shall be rather surprised. But we shall be more\nthan surprised, when we hear the reason of the modern \u201cconstitutional\nthinker\u201d why _both_ Articles are within the power of the state\ngovernments, who are his clients, to put into our Constitution. Not\nknowing that our Constitution is a _federal_ as well as a _national_\nConstitution, not knowing that his government clients always had the\nability to make _federal_ Articles and never had and have not now the\nability to make Articles which interfere with human freedom, we shall\nfind him stating, as axiomatic, that the slavery Amendments, which\n_establish_ universal freedom, and the supposed Article of 1917, which\n_interferes with_ freedom of the individual, are identical, for the\nreason that both affect the individual and his rights and liberties.\nOn the remarkable nature of this identity, that one _secures_ and the\nother _interferes with_ individual _liberty_ and, therefore, both\n_affect_ individual liberty, we shall find that he bases the Tory\nconcept that state governments can do as they please with all liberties\nof the American citizens. While his theory will serve only to amuse\nus, we commend, to his reading, this extract from a better _American_\nlawyer:--\u201cThe legislature may not confer powers by law inconsistent\nwith the rights, safety, and liberties of the people, because no\nconsent to do this can be implied, but they may pass limitations _in\nfavor_ of the essential rights of the people.\u201d (Woods appeal, 75 _Pa._\n59.)\n\nThe Sixteenth Amendment simply removes, from one of the great powers\ngranted to Congress by the citizens of America in their First Article,\na _federal_ limitation upon its exercise, a limitation entirely for the\nbenefit of the states which are political entities.\n\nIn the \u201cconventions\u201d we have just left, the First Article grant of\npower to the new government to impose direct taxation was the object\nof incessant attack. No prerogative of government is more cherished\nby any government than its ability to exact financial tribute from\nhuman beings by means of taxation. Under the old federation of states,\nalthough the _federal_ government needed money, it was without any\npower of taxation. All it could do was to ask the various state\ngovernments to supply it with the money. Article VII of the \u201cArticles\nof Confederation\u201d provided that the expenses of the federal government\n\u201cshall be defrayed out of a common treasury, which shall be supplied by\nthe several states, in proportion to the value of all land, within each\nstate, granted to or surveyed for any person, as such land, and the\nbuildings and improvements thereon, shall be estimated, according to\nsuch mode as the United States in Congress assembled shall, from time\nto time, direct and appoint. The taxes for paying that proportion shall\nbe laid and levied by the authority and direction of the legislatures\nof the several states, etc.\u201d\n\nSection 8 of the First Article of the proposed new Constitution read\nthat \u201cThe Congress shall have power to lay and collect taxes, duties,\netc.\u201d At Philadelphia, in 1787, a tremendous fight was made against the\nproposal of this grant by the citizens of America to their government.\nMany delegates at Philadelphia, who had the financial welfare of their\nparticular state government at heart, contended that, if the new\ngovernment were given the power of direct taxation of the people, the\nnew government would leave the people with no money to be collected\nby the state governments for their own purposes. The _nationalists_\nat Philadelphia, however, knew that a _national_ government without\npower of direct taxation over its own citizens would be a helpless\ngovernment. Therefore, they insisted that the proposed grant of this\npower remain in the First Article. As a concession to the opposition\nmade on behalf of the state governments, there was added to the\nproposed First Article a purely _federal_ limitation on the exercise of\nthe _national_ power of direct taxation. This federal limitation, on\nbehalf of the states and their governments, read: \u201cNo capitation, or\nother direct, tax shall be laid, unless in proportion to the census or\nenumeration hereinbefore directed to be taken.\u201d\n\nIn the conventions of the citizens of America, the friends of the\nrespective state governments made every effort to defeat the First\nArticle grant of national power to impose direct taxation upon the\ncitizens of America.\n\nIn the Virginia convention, from Randolph and from Henry, arguing\nrespectively for and against the grant, we get our certain knowledge\nthat the apportionment limitation on the exercise of the granted\npower was a purely federal limitation aimed entirely to secure to the\nrespective state governments the just amount of the moneys which could\nbe collected by taxation from the Americans living in the respective\nstates.\n\nRandolph argued: \u201cThe difficulty of justly apportioning the taxes among\nthe states, under the present system, has been complained of; the rule\nof apportionment being the value of all lands and improvements within\nthe states. The inequality between the rich lands of the James River\nand the barrens of Massachusetts has been thought to militate against\nVirginia. If taxes could be laid according to the real value, no\ninconvenience could follow; but, from a variety of reasons, this value\nwas very difficult to be ascertained; and an error in the estimation\nmust necessarily have been oppressive to a part of the community.\nBut, in this new Constitution, there is a more just and equitable\nrule fixed--a limitation beyond which they cannot go. Representatives\nand taxes go hand in hand; according to the one will the other be\nregulated.... At present, before the population is actually numbered,\nthe number of representatives is 65. Of this number, Virginia has a\nright to send ten; consequently she will have to pay ten parts out\nof sixty-five parts of any sum that may be necessary to be raised by\nCongress. This, sir, is the line.\u201d (Randolph, 3 _Ell. Deb._ 121.)\n\nAs to the granted power of direct taxation, Henry argued: \u201cWe all agree\nthat it is the most important part of the body politic. If the power of\nraising money be necessary for the general government, it is no less so\nfor the states.... The general government being paramount to the state\nlegislatures, if the sheriff is to collect for both--his right hand\nfor Congress, his left for the state--his right hand being paramount\nover the left, his collections will go to Congress. We shall have the\nrest. Deficiencies in collections will always operate against the\nstates.... Congress will have an unlimited, unbounded command over the\nsoul of this Commonwealth. After satisfying their uncontrolled demands,\nwhat can be left for the states? Not a sufficiency even to defray the\nexpense of their internal administration. They must therefore glide\nimperceptibly and gradually out of existence.\u201d (Henry, 3 _Ell. Deb._\n148 _et seq._)\n\nThe Sixteenth Amendment merely removed, in one respect, this _federal_\nlimitation upon the exercise of the national power of direct taxation\ngranted by the First Article. The Amendment read: \u201cThe Congress shall\nhave power to lay and collect taxes on incomes, from whatever source\nderived, without apportionment among the several states, and without\nregard to any census or enumeration.\u201d This Amendment, being nothing but\na change in the _federal_ aspect of the Constitution, being a change\nin the protection given to each state as a political entity, was an\nAmendment which the state legislatures, each acting as attorney in fact\nfor its own respective state, were entirely competent to make.\n\nThe Seventeenth Amendment has no relation to human freedom. It merely\nprovided that the state governments should no longer elect the august\nSenators in the American Congress, some of whom we shall meet later\nherein.\n\nThis last Amendment, prior to 1917, provided that those Senators should\nbe thereafter elected in our states by ourselves, the American people.\nCuriously enough, it is from the Senate in which they sit that came\nthe proposal which caused the trouble which is obliging us to educate\nourselves to find our \u201cwhen\u201d and \u201chow\u201d between 1907 and 1917 we became\n\u201csubjects\u201d instead of keeping our status as citizens of America.\n\nEarly in our education (p. 26) we were informed that our public\nstatesmen and constitutional thinkers brought to the year 1917 the\nfalse \u201cknowledge\u201d that legislatures in America, if enough combined,\nhad the omnipotence over individual freedom, which the early Americans\ndenied to the British Parliament. Their false \u201cknowledge\u201d was\nundoubtedly caused by their failure to appreciate, if they knew or\nremembered, that America is a _national_ union of men while there is\nalso a subordinate and _federal_ union of states. Ignoring this simple\nfact, they also ignored the important fact that the Constitution is\nboth _national_ and _federal_ and contains Articles _of both kinds_.\nBlind to both important facts, they acquired their false \u201cknowledge\u201d\nfrom the fact that the \u201clegislatures,\u201d to whom they ascribed\nomnipotence over individual freedom, had made the first seventeen\nAmendments.\n\nThe fallacy of their deduction is mathematically demonstrable.\n\nA constitutional Article which gives to government any power to\ninterfere with individual human freedom IS the constitution of\ngovernment of men. That is why the First Article WAS the constitution\nof the government of the nation of men. And, in turn, _that_ is why\nthe legal necessity of having it made by the men themselves, in their\n\u201cconventions,\u201d was \u201cfelt and acknowledged by all\u201d Americans.\n\nIf one doubts that the First Article WAS the constitution of the\ngovernment of men, test the truth of the statement in this way. First,\nassume that the \u201cconventions\u201d made no Article save the First. Then ask\nyourself if the whole American people would not have constituted their\ngovernment with its great enumerated powers to interfere with their\nindividual liberty. In the second place, make exactly the opposite\nassumption. Assume that the \u201cconventions\u201d made all the Articles from\nthe Second to the Seventh, both inclusive, _but did not make the First\nArticle_. Then ask yourself whether the whole American people would\nhave constituted any government with a single power to interfere with\ntheir individual freedom.\n\nLet us now apply exactly the same test to each of the first seventeen\nAmendments and then to the supposed Eighteenth Amendment.\n\nTake any one of the first seventeen Amendments and assume that\nanything _new_ which it put into the Constitution was the entire\nConstitution. Then ask yourself whether, if the Constitution\nconsisted solely of the new matter in the Amendment, there would be\nany government of the whole American people with a single power to\ninterfere with their individual human liberty. Take _all_ the seventeen\nAmendments and assume that any change all of them made was the entire\nConstitution. Then ask yourself whether, if any new matter in the\nseventeen Amendments composed the entire Constitution, would there be\nany government of the whole American people with a single power to\ninterfere with their individual human liberty.\n\nNow make the same assumption about the supposed Eighteenth Amendment.\nAssume that it is the entire Constitution and that there are no other\nArticles. Immediately it is seen that, if the Eighteenth Amendment\nwere the entire Constitution, there would be a government of the whole\nAmerican people with an enumerated power to interfere with their\nindividual human liberty.\n\nNow we see the fallacy of the false \u201cknowledge\u201d which our statesmen\nand constitutional thinkers brought to the year 1917. Now we know\nthe marvelous foresight of Hamilton when he stated his conviction\nthat Amendments would relate to \u201cthe organization of the government,\nnot to the mass of its powers.\u201d None of the seventeen Amendments did\nrelate \u201cto the mass of its powers\u201d to interfere with individual human\nliberty. That is why state legislatures, representing the federal\nmembers of the union of states, could make the federal or declaratory\nseventeen Amendments. The fact that those \u201clegislatures\u201d in 1787 could\nmake Articles of that kind, as they had made them in 1781, did not\ndeceive the Americans at Philadelphia into a false \u201cknowledge\u201d that\nthose \u201clegislatures\u201d _could_ make the First Article with its enumerated\npowers to interfere with the individual freedom of the members of\nthe nation of men. The fact that the same \u201clegislatures,\u201d still\nrepresenting the members of the subordinate union of states, still\ncould make declaratory or federal Articles, _and had made seventeen\nArticles of that kind_, not one of which constituted new government\npower to interfere with individual liberty, should not have misled the\nstatesmen and constitutional thinkers of our generation.\n\nBut it did.\n\n\n\n\n                              CHAPTER XV\n\n                    THE EXILED TORY ABOUT TO RETURN\n\n\nWe have now educated ourselves accurately to know, at the beginning of\n1917, what was our own relation to all governments and what was the\nrelation of those governments to one another. With certainty, we know\nthat those relations, at the beginning of 1917, were exactly what they\nhad been at the close of 1790. It is amazingly important that we never\nforget that particular knowledge, when reading the story of what has\nhappened since the beginning of 1917.\n\nWith certainty, through our education we know that, _at both times_,\nthe following was our own relation to all governments and the relation\nof each of them to the others.\n\nNo individual in America was a \u201csubject\u201d of any government or\ngovernments. Each individual was a \u201ccitizen\u201d of the nation which is\nAmerica. The citizens of America, as such citizens, had given to\ntheir only government its enumerated powers to interfere with their\nindividual freedom. Those American citizens had given these enumerated\npowers by direct grant from themselves, in the only manner, in which\nthey can act effectively on such a subject, by assembling in their\n\u201cconventions.\u201d Those American citizens had made it the imperative law\nof America that no new power _of that kind_ (to interfere with their\nfreedom) could be created except by the new exercise of their own\nability _in the same manner_.\n\nThe very essence of the wisdom and _efficiency_ of the manner of\nthe first exercise was that the exercise was by \u201c_conventions_\u201d of\nthemselves, chosen by themselves, _after_ specific grants had been\nproposed to them to be made by them. These \u201cconventions,\u201d chosen from\namong themselves for the one purpose of saying \u201cYes\u201d or \u201cNo\u201d to the\nproposed grants, had made those grants in the only way in which the\nAmerican people \u201ccan act safely, effectively and wisely\u201d in the making\nof such grants. In their Fifth Article, made in the first \u201cconvention\u201d\nexercise, they had mentioned the very \u201cconvention\u201d method in which\nthey were then assembled to make their First Article grants. Thus,\nthey made that method CONSTITUTIONAL for future exercise of their own\nexclusive power to make grants _of that kind_. Thus they had secured\ntheir liberty against any attempt by government to interfere with\ntheir individual freedom, as American citizens, except in the matters\nnamed in the enumerated powers of the First Article. In this way, they\nhad secured their liberty, in their capacity of American citizens,\nagainst any attempt by other governments than their only government at\nWashington, even in the matters enumerated in the First Article.\n\nNearly every individual in America was also a citizen of a state. In\neach state, _its_ citizens had vested the legislative government of\nthe state with limited powers to interfere with the individual freedom\nof those within the jurisdiction of that state. The limitations upon\nthe power of each state government to interfere with those within its\nown jurisdiction were, firstly, limitations imposed by the citizens\nof America in _their_ Constitution upon the power of each state to\ngovern itself; secondly, the limitations imposed by the citizens of\neach state in their own constitution; and, thirdly, the limitations\nimposed by the traditional American principle that no government,\nwithout limit, can do what it will with the individual freedom of\nits citizens. In each state, subject to those limitations, its own\ncitizens were exclusively competent to determine the exact quantum of\nability which its own legislative government should have to interfere\nwith the individual human freedom of those within its jurisdiction.\nNo government or governments outside each state could interfere with\nthe individual freedom of its citizens, _as such citizens_, in any\nmatter. No outside government at all, except Congress, could interfere\nwith their freedom, as human beings, in any matter. The legislative\ngovernments of the other states, either singly or collectively, on _no_\nmatter, could either exercise themselves or give to any government a\nsingle power to interfere with the human beings in each particular\nstate. The one American government, at Washington, could only interfere\nwith those human beings on the matters enumerated in the First Article.\nNo new ability in that government so to interfere with them could be\ngranted except by direct grant from the citizens _of America_ assembled\nin their \u201cconventions.\u201d The Fifth Article had been the command of the\ncitizens of America that only a \u201cYes\u201d from three fourths of those\n\u201cconventions\u201d of _themselves_ should be valid to add a new power over\nthemselves to those enumerated in their First Article.\n\nFrom 1776 to 1917 it had been the _obeyed_ fundamental law in America\nthat no government could acquire, from another government or from other\ngovernments, any power to interfere with the individual freedom of the\nhuman beings within its jurisdiction.\n\nThe human beings in each state were members or citizens of the\nnation which is America. They were also, in each state, the members\nor citizens of the nation which is that state. The states were also\nmembers of their own federation, whose _federal_ government had been\ncontinued by the citizens of America. In its personnel, that _federal_\ngovernment was identical with the _national_ government of those\ncitizens of America. In the Fifth Article, the citizens of America\nhad recognized and mentioned the existing ability of the states, as\npolitical entities, to make constitutional Articles of a _federal_\nnature. For that reason, the Fifth Article had been the command of\nthe citizens of America that, when the states exercised their limited\nability, a \u201cYes\u201d from the legislatures of three fourths of the states\nshould be effective to make a _federal_ Article.\n\nIn the matter of interference with individual human freedom, so far as\nexperience tells the story, there had continued from 1776 to 1917 the\nknowledge of the legal fact, made basic American law by the Statute of\n\u201976, that no government could get any _national_ power except by direct\ngrant from its own citizens, and that no government could exercise any\n_national_ power over any but those in its own jurisdiction and then\nonly by direct grant of that power from its own citizens.\n\nWe know that this was the wonderful system of constitutional government\nunder which Americans had lived from 1790 to 1917. We know that the\nAmericans, who were our predecessors in 1787, had prescribed that\nsystem as best calculated to protect their human liberty and our\nown from outside aggression and from usurpation of power by their\ngovernments and our own. Educated with them, from the day when they\nwere all subjects of a legislative government, we know much of their\nstruggle to rid themselves forever of the status of \u201csubject\u201d and to\nbecome free men. In that education, however, we have dwelt but little\nso far upon one phase of that struggle. At this point, it is essential\nthat we educate ourselves briefly but accurately on that one phase.\n\nWhenever government exists, even government limited to those powers\nthought by its citizens necessary to secure human liberty, the weakness\nof human nature makes it certain that the exercise of granted powers\nwill not always be for the common benefit of the citizens who grant\nthem. When the government is the State and human beings are its\n\u201csubjects,\u201d that weakness is usually more apparent. As a result, in\nevery country the rich and powerful largely secure the actual control\nof government. That they may entrench themselves in its control\nand the exercise of even its lawful powers, they lavish favors on\na class actually large in number but comparatively constituting a\nsmall minority of the people of the country. For this class, it is of\nmaterial advantage that government should be the State and command the\npeople as its \u201csubjects.\u201d When a man is born or educated as a member of\nthis minority, it is beyond the experience of the human race that his\nmental attitude should not regard the relation of \u201csubject\u201d to ruler as\nthe proper relation of human being to government.\n\nIn those earlier days, in whose experience we have just been educated,\nthe human beings in America, who had that mental attitude, were\ndistinguished from the Americans by the name \u201cTories.\u201d Throughout this\nbook it is that mental attitude which we characterize as \u201cTory.\u201d It is\nthose who display that mental attitude whom we call \u201cTories.\u201d\n\nAt the time of our Revolution it is a historical fact that about one\nthird of our population was Tory in its mental attitude. Many of the\nTories, quite possibly most of them, were actuated by a sincere and\ndeep conviction that it was better for every one that human beings\nshould be subjects. That conviction had been the basis of nearly all\nscience of government for centuries. It is really a remarkable fact\nthat our history should show, from their recorded statements and\nwritings, so many men in 1787 accurately grasping the fallacy of that\nhistorical doctrine that men were made for kings or governments.\n\nIn our education, we now grasp accurately that the Americans, who\nended forever the status of \u201csubject\u201d in America, in their Revolution,\nhad not only to contend with their former omnipotent government but\nalso with one third of their own population, the Tories. When that\nRevolution had succeeded, when the Statute of \u201976 had actually been\nmade the basic law of America, many Tories, in the natural course\nof events, became citizens of the particular state, now a free\nrepublic, in which they lived. When the Convention of 1787 assembled\nat Philadelphia, when the respective \u201cconventions\u201d in each state later\nassembled, many delegates were men with a known leaning to the Tory\nmental attitude. It is not to be understood that, by reason of this\nfact, their loyalty to the new institutions of their country was not\nsincere. One of the great liberties secured by those new institutions\nwas the right of the human being to think and talk as he pleased as to\nwhat is the mode of government best designed to secure the happiness\nof men. As a matter of fact, when those \u201cconventions\u201d assembled, many\nof our most prominent Americans of the Revolution had begun sincerely\nto doubt whether the American people had _yet_ learned enough to profit\nmost by their legal ability now to dictate to all their governments how\nmuch power each government should have. It is the record of impartial\nhistory that the people\u2019s distribution of all surrendered power of a\n_national_ kind, the grant to the new government and reservation to the\nold state governments, was dictated by two opposite factors. The wise\nand able leaders, whether their mental attitude was American or Tory,\nknew that the general government must get a grant of much power of that\nkind, if it were successfully to promote the welfare of the American\npeople. On the other hand, they knew with certainty that such grants\nmust be specified and enumerated and limited, or the American people\nwould make no grant at all. It was, as it still is, the basic law of\nAmerica that grants _of that kind_ could only be obtained directly from\nthe people themselves. The American mental attitude, that citizens\nand not governments shall define the extent of government power to\ninterfere with individual freedom, was the controlling factor when the\nConstitution made its great distribution of all surrendered powers.\n\nIf we go back to the \u201cconventions\u201d of those who established the\nsystem, we find a striking fact. In those \u201cconventions\u201d there were\nmany men whose personal opinion always had been and still was in\nfull accord with the Tory concept of what _ought_ to be the relation\nof government to human being. But these men, with that Tory concept\nof what government ought to be, were just as keenly aware as were\nthose with the American concept, that the Tory concept had forever\ndisappeared from American law. Whenever any suggestion was based upon\nthe Tory concept, these very men were among the quickest to perceive\nand the most strenuous to insist that the suggestion could not be met\nbecause the American concept had displaced the Tory concept forever\nin America. If our modern leaders, who have the same Tory concept of\nwhat government _ought_ to be, had evinced the same perception and the\nsame insistence, the story of the last five years would be a different\nstory. Because these leaders have had no knowledge of what America is,\nwe average Americans must now come straight from the \u201cconventions\u201d in\nwhich the Americans established the Constitution to secure individual\nfreedom and we must educate ourselves in the story of the last five\nyears in which our governments and our leaders have calmly assumed that\ncitizens are subjects.\n\n\n\n\n                              CHAPTER XVI\n\n                    THE TORY \u201cEIGHTEENTH AMENDMENT\u201d\n\n\nIn the closing month of 1917, the American people had been for eight\nmonths participants in the World War. In that winter, under the\ndirection of their only government, exercising its war power, they\nwere marshalling all that they had to win that war and to win it\nquickly. The mind of the people themselves was concentrated on that one\npurpose. The response of the average American citizen to the call of\nhis government, the assembling of millions of average American citizens\nas soldiers for that war, the outpouring of their money by other\nmillions, should have made it impossible that the government servant of\nthose American citizens should have entirely forgotten and ignored the\nknowledge of the \u201cconventions\u201d of 1787, that the American is a citizen\nand not a subject. Even if their personal experience had made them\nmembers of the class which naturally have the Tory mental attitude, the\nspirit of 1917 should have awakened our legislators from their wrong\nTory concept of our American basic law. If plain words were needed to\nteach them that basic law, only ten years earlier the Supreme Court had\nstated that law in words which even a child can understand.\n\n The powers the people have given to the general government are named\n in the Constitution, and all not there named ... are reserved to the\n people and can be exercised _only by them_, or upon further grant\n _from them_. (Justice Brewer, in the Supreme Court, 1907, Turner v.\n Williams, 194 _U. S._ 279.)\n\nYet the statesmen of America, when its citizens were offering their\nlives and their all, chose that December of 1917 to propose that\nlegislative governments, which have never been the governments of the\nAmerican citizen, should exercise one of those reserved powers of \u201cthe\npeople\u201d and should give to _the_ legislative government of the American\ncitizens future ability to exercise that same power, although American\ncitizens had expressly reserved the power to themselves exclusively.\n\nIn December, 1917, as in January, 1790, the American Congress was the\nonly legislative government of the American people.\n\n All powers _of a national character_ which are not delegated to the\n national government by the Constitution are reserved to the _people_\n of the United States. (Justice Brewer, in the Supreme Court, Kansas v.\n Colorado, 206 _U. S._ 46 at p. 90.)\n\nOutside of _that_ legislature, American citizens have _no_ legislative\ngovernment.\n\n Its powers are limited in number, but not in degree. Within the scope\n of its powers, as enumerated and defined, it is supreme and above\n the states; but beyond, it has no existence. (Justice Waite, in the\n Supreme Court, United States v. Cruikshank, 92 _U. S._ 542.)\n\nIn the Senate, on April 4, 1917, Senator Sheppard of Texas had\nintroduced a Resolution, known as Senate Joint Resolution 17. The\nResolution itself, apart from the proposed new constitutional Article\nwhich the senator suggested that legislative governments should make,\nread as follows: \u201c_Resolved by the Senate and House of Representatives\nof the United States of America in Congress assembled (two thirds of\neach House concurring therein), That_ the following amendment to the\nConstitution be, and hereby is, proposed to the States, to become valid\nas a part of the Constitution when ratified by the legislatures of the\nseveral States as provided by the Constitution:\u201d\n\nThe proposed new national Article, which this 1917 Resolution suggested\nshould be made by legislative _governments_, originally and in April,\n1917, read as follows:\n\n       *       *       *       *       *\n\n\u201cArticle--.\n\n\u201cSECTION 1. The manufacture, sale, or transportation of intoxicating\nliquors within, the importation thereof into, and the exportation\nthereof from the United States and all territory subject to the\njurisdiction thereof for beverage purposes are hereby prohibited,\n\n\u201cSECTION 2. The Congress shall have power to enforce this article by\nappropriate legislation, and nothing in this article shall deprive the\nseveral States of their power to enact and enforce laws prohibiting the\ntraffic in intoxicating liquors.\u201d\n\nBy reason of _our_ education in the actual constitution of our only\nAmerican government and our respective state governments, we grasp\nimmediately the startling nature of the suggestion that the state\ngovernments make that Section 1 and that Section 2. We first dwell with\namazement upon the proposed Section 1 and its proposed makers.\n\nIt is a general and direct command to all human beings anywhere in\nAmerica, directly interfering with their individual freedom, on a\nmatter not enumerated in the First Article. Since we denied omnipotence\nto Parliament, no legislature or legislatures had ever dared to\nmake any general command to the American people, except the American\nCongress and _it_ only since 1789 and on matters enumerated in the\nFirst Article. From 1776 to 1789, no legislature or legislatures had\nany power whatever to make a general command to Americans on any\nsubject whatever. When Americans, in answer to the Philadelphia 1787\nproposal, made themselves a nation and constituted its government, they\ngave to that government _enumerated_ powers to make general commands\non _some_ subjects. All other power to make general commands _of that\nkind_ they withheld from every government and reserved exclusively to\nthemselves, as they had denied _every_ power of that kind to every\ngovernment in the world by their Statute of \u201976. For which very clear\nreasons, it had been continually repeated in the Supreme Court for a\ncentury that only one government in the world could make a general\ncommand to the citizens of America, and that the Congress itself could\nnot make any such command on any subject not enumerated in the First\nArticle.\n\nThe Congress _proposal_ of the Eighteenth Amendment was its own\nrecognition of the truth that the sole government of American citizens\nhad no power to command them on that subject. It is probable that\nnothing ever originated in Congress more remarkable than this proposal\nthat, because Congress itself was without the power to make the\ncommand, Congress should ask inferior governments of other citizens\nto make a command to the American citizens. If it were possible that\nthis could be done, there would be no American citizen. While no\npublic leader or renowned lawyer has known this simple fact, the story\nof five years has shown how difficult it is to educate _the average\ncitizen_ away from the \u201cAmerican\u201d mental attitude of 1776. In 1922, our\nChief Executive commented on the fact that the disobedience of American\ncitizens to the command made by the state governments had become a\npublic scandal. From 1765 on, similar disobedience of Americans to\ncommands made by government without authority _from_ Americans was a\npublic scandal to Tories in America and in the British Parliament.\n\nThere can be no mistake about the Tory mental attitude of the supposed\nAmerican government which asked the governments of _state_ citizens\nto make the 1918 command to the American citizens, interfering with\ntheir individual liberty on a matter outside the First Article. The\nrequest was a frank avowal of the Tory concept that the people are\n\u201csubjects\u201d and that government can constitute new government of men \u201cin\nall matters whatsoever.\u201d Even in choosing the time for the proposal\nand the command, there was sincere and flattering imitation of a Tory\nprecedent of Revolutionary days. When Americans of New York were away\nfrom their homes and at the battlefields of the Revolution, it was\na Tory who stirred up the House of the Six Nations to make a home\nattack upon what was cherished by those Americans. And it cannot be\nignored that it was in 1918, when millions of Americans were away from\ntheir homes either fighting or prepared to fight for human liberty,\nthe Houses of forty-five distinct nations were stirred up to make a\nhome attack upon what those Americans cherished, their individual\nfreedom. And the analogy does not end with this fact. Whenever the Tory\nconcept of the relation of government to \u201csubject\u201d has prevailed,\ngovernment has never recognized any obligation of government to obey\nlaw made by government. In the years which followed 1918, this was\nstrikingly exemplified by the sole American government which had asked\nthe governments of _state_ citizens to make a command to the citizens\nof America. The command, in simple English, forbade that certain\nthings be done in \u201cthe United States and all territory subject to\nthe jurisdiction thereof.\u201d The American government insisted that its\ncitizens must obey the command. But the American government itself\nfrankly added that, on its own ships which flew the American flag, it\nwould not pay the slightest attention to the command. And not until\nthis frank Tory attitude had been given unenviable notoriety did the\nAmerican government ask the remarkable information from its Attorney\nGeneral whether ships, owned by the American government and flying the\nAmerican flag, constituted \u201cterritory subject to the jurisdiction\u201d\nof America. Then, while the chief champion of the new Article before\nthe Court of 1920 and his associate government officials waited for\nthe information from their associate Attorney General, the American\ngovernment continued to act on the claimed assumption that its ships\nwere not \u201cterritory subject to the jurisdiction\u201d of America. Facts\nspeak for themselves. It seems impossible to question the consistent\nTory attitude of the American government in every matter relating to\nthe supposed Eighteenth Amendment.\n\nLet us now consider the second section of this amazing new Article, as\nsuch second section was originally suggested by the Senator from Texas.\n\nIn its _then_ form it was the suggestion that, after or simultaneously\nwith the state government exercise of an imaginary power to command\nthe American citizens, those same state governments should vest in the\nonly government of American citizens a future ability to make commands\non the same subject, a subject not enumerated in the First Article. The\nStatute of \u201976, the reasoning and the decision at Philadelphia in 1787\nthat _its_ First Article could only be made by the \u201cconventions,\u201d the\nclear and explicit statements in the Supreme Court (from Marshall to\nBrewer in 1907) that no valid grant of _national_ power could ever be\nmade except by the \u201cconventions,\u201d the prescription in the Fifth Article\nof the _constitutional_ mode in which a \u201cYes\u201d from three fourths of\nthose conventions would validly make grants of _such_ power--all\nthese things meant nothing whatever to the Senator from Texas or his\ncolleagues in Congress, to the legislators in the various states,\nto government officials or to the \u201cconstitutional\u201d lawyers who have\ndiscussed the Eighteenth Amendment. None of them realized the clear\nfact that, if government could get new power over human beings _from\ngovernment_, the Americans, through whose education _we_ have lived,\nhad wholly failed to achieve their one purpose, security of human\nfreedom from any interference by government except under some power of\ninterference directly granted by themselves to that government.\n\nMany of the colleagues of the Senator from Texas questioned the\n_wisdom_ of asking the grant on that subject. We know not one, however,\nwho questioned the _ability_ of the proposed donors _to make_ the\ngrant. We know not one who questioned as a fact that a fractional part\nof our state governments have the very omnipotence over the individual\npeople of all America, which those earlier Americans denied to the\nBritish Parliament. Among _our_ \u201cconstitutional\u201d lawyers, there were\nmany who were engaged to combat in court the validity of the new\nArticle. They questioned its validity on the ground that it took from\nthe states, which are mere political entities, part of the power which\neach state had not surrendered. In this, they ignored the legal fact,\nsettled by innumerable decisions, that the people of America, not the\nstates, made the Constitution and all its grants of _national_ power.\nThey questioned its validity on the ground that the power (to make\nconstitutional Articles) \u201cgranted\u201d (?) in the Fifth Article did not\ninclude the power to make fundamental changes in the Constitution.\nIn this, they wholly ignored the certain fact that no such power\n_is_ granted in the Fifth Article but that two distinct powers, then\nexisting, one limited and the other unlimited, are _mentioned and not\ngranted_ in the Fifth Article, and a mode of procedure for the future\nexercise of each is prescribed. In all their challenges to the validity\nof the new Article, however, we know not one who ever knew or mentioned\nthe only and the invincible challenge to that validity, that new power\nto interfere with the individual freedom of the American citizen could\n_only_ be obtained _constitutionally_ by direct action of the American\npeople themselves, assembled in the \u201cconventions\u201d of the Fifth Article.\nIt meant nothing to them that the Fifth Article prescribed that _such_\ngrants should be valid _only_ when there had been a \u201cYes\u201d evoked from\nthree fourths of those conventions. If we would realize the amazing\nignorance, during the last five years, shown on these matters, we must\ncontinue the tale of the proposed new Article.\n\nBefore the proposed Article had left the Senate for the first time,\nwhat we now call Section 2 read, \u201cThe Congress shall have power to\nenforce this Article by appropriate legislation.\u201d With the section in\nthat language, the Joint Resolution was passed and sent to the House of\nRepresentatives on August 1, 1917. (_Congressional Record_, Vol. 55,\np. 5666.) It was reported out of the Judiciary Committee and taken up\nby the House on December 17, with the proposed Section 2 reading, \u201cThe\nCongress and the several states shall have concurrent power to enforce\nthis Article by appropriate legislation.\u201d\n\nSomewhat educated with those Americans whose experience made them\nbetter acquainted with the science of government than any other people\nin the world, we realize that only Mark Twain could do full justice\nto the nature of _this_ alteration to the proposed Section 2. It was\nnot enough that Congress, because it did not have the power to make a\ncertain command to its own citizens, should ask inferior governments,\nwhich are not the government of the American citizens, to make that\ncommand. It was not enough that the American Congress, when asking\nthese inferior governments to make that command, should ask them\nto give Congress a future ability to make commands on that subject\non which the citizens of America had never given any government or\ngovernments ability to make any commands to the citizens of America.\nThe House alteration in the second suggestion from the Senate would\nindicate that the House became jealous of the Senate ignorance of\nfundamentals in the relations of governments to one another in America\nand in the relation of all governments in America to the individual\nAmerican. It is difficult otherwise to explain the House alteration\nin the Section 2 of the Amendment which came from the Senate. As the\nHouse reported the two sections back to the Senate, this is what the\ntwo sections proposed. Section 1 embodied a command (to be made by\nthe inferior state legislatures) which directly interferes with the\nindividual freedom of the American citizens on a subject not enumerated\nin their First Article. Section 2 embodied a grant of future ability\nto make similar commands on the same subject, and the grant was to be\nfrom the state legislatures to the Congress and _to the very state\nlegislatures_ who were supposed to make the grant itself and the\ncommand of the First Section.\n\nThis is exactly the form in which the Second Section of the supposed\nnew Amendment was later ratified by these very state legislatures.\nThat Second Section has been the subject of unlimited discussion for\nthe past five years. Every one seems to have given it whatever meaning\npleased him at some particular moment. When the House Chairman of the\nJudiciary Committee reported this Section to the House he frankly\nstated that \u201cWe thought it wise to give both the Congress and the\nseveral states concurrent power to enforce this Article and let that\npower be set forth and granted in the Article we propose to submit.\u201d\n(_Congressional Record_, Vol. 56, p. 424.) But when Wheeler, counsel\nfor a political organization which dictated that governments constitute\nthis new government of men, wrote his briefs to uphold the validity of\nthe new Article which Webb championed in the House, he explained that\nthis Webb Second Section \u201cdoes not add to the power already conferred\nupon Congress by Section 1\u201d but that \u201cit does, however, make clear that\nthe power is _reserved_ to the states to pass legislation in aid of the\nacts of Congress.\u201d As in most matters, the various champions of the\nsupposed Eighteenth Amendment are unable to understand and agree upon\nthe meaning of plain English. From time to time, in our education, it\nwill be clear that they do not know and understand what the American\npeople did in 1788 in their \u201cconventions\u201d but that, while flatly\ncontradicting one another, they are all satisfied that the American\ncitizens did give the state legislatures unlimited ability to interfere\nwith individual freedom of the American citizen. It seems natural,\ntherefore, to find Webb and Wheeler flatly contradicting one another as\nto the plain meaning of Section 2 of the Eighteenth Amendment. Despite\nthe absurdity of the concept, Section 2 means exactly what Webb stated\nit to mean when he brought it from the House Judiciary Committee which\nhad written it. It means, in the plainest English, that the state\nlegislatures grant to themselves (as well as to Congress) ability to\nmake commands of the very same kind as the same state legislatures\nmake, without the grant, in the First Section. And it is a remarkable\nfact that, in all the comment on that Section 2 for five years, no\nword has been spoken about this ridiculous proposal that the state\nlegislatures make a certain command and then grant themselves the power\nto make such commands. However, the absence of such comment has been\nquite in keeping with the fact that our modern leaders and lawyers,\nduring the same five years, have never known or commented upon the\nfact that the Eighteenth Amendment depends for its existence upon the\nsimilar and equally absurd concept that the Fifth Article is a grant\nfrom the \u201cconventions\u201d to the \u201cconventions\u201d as well as to the state\nlegislatures.\n\nBy reason of _our_ education, we have many natural questions to ask\nabout that Section 2 and the unique House addition to its supposed\ngrant. While some of those questions may be academic, inasmuch as we\nknow that the new Article is not in the Constitution, the thoughts\nwhich suggest the questions are strikingly pertinent to our general\nquery, \u201cCitizen or Subject?\u201d\n\n_In the first place_, we recall the opening words of Section 4 of\nthe Fourth Article of the Constitution. Those words are, \u201cThe United\nStates shall guarantee to every State in this Union a Republican Form\nof Government.\u201d These words immediately precede the Fifth Article.\nMoreover, the Supreme Court has decided that it is the particular duty\nof Congress to see that this particular guarantee of the Fourth Article\nis strictly fulfilled. (Luther v. Borden, 7 _How._ 1; Pacific Telephone\nCompany v. Oregon, 223 _U.S._ 118.) In the light of these facts, we\nwish to know whether the Congress, which proposed the change in Section\n2, so that state governments outside a particular state might give\nto the state government of that state new power to interfere with\n_its_ citizens, understood that the Fifth Article was meant to enable\nCongress to originate any desired breach of the guarantee in the Fourth\nArticle. From our education, we know that, so long as any state has a\nrepublican form of government, its legislature can have no power to\ninterfere with the individual freedom of the citizens of a state except\nby the grant _and continued consent_ of those citizens themselves. We\nknow that the citizens of each state, in 1776, gave its legislature\npower to interfere with their freedom in the matter which is the\nsubject of the Eighteenth Amendment. We know that, then or at any time\nsince then and now, the citizens of each state could take back _that_\npower so given. But, if the governments of thirty-six states outside\nany given state, by the Second Section of the Eighteenth Amendment,\nhave granted the legislature of that particular state a new and second\npower to interfere with the individual freedom of the citizens of that\nstate, in the matter which is the subject of the Eighteenth Amendment,\nwhat has become of the republican form of government in that state? No\nrepublican form of government ever exists where governments, outside\na state, give to its legislature any power to interfere with the\nindividual freedom of its citizens.\n\nThe case of Rhode Island or Connecticut makes our point clear, although\nthe question is equally apt for _any_ state, _if_ the Eighteenth\nAmendment is in the Constitution. Neither the American citizens in\nRhode Island nor the legislature of Rhode Island, which speaks only\nfor _its_ citizens and not for any citizens of America, have ever said\n\u201cYes\u201d to the grant to the legislature of Rhode Island of this new\npower to interfere with the individual human freedom of the citizens\nof Rhode Island. The other power to interfere with that freedom, on\nthe same subject, which the citizens of Rhode Island gave to _their_\nlegislature, is a power which the citizens of Rhode Island can take\nback from that legislature at any time. But, _if_ the Eighteenth\nAmendment is in the Constitution, the legislature of Rhode Island has\na power to interfere with the citizens of Rhode Island in the exercise\nof their human freedom, which power has been granted by governments\n_outside_ of Rhode Island, and which power cannot be taken away from\nthat legislature by the citizens of Rhode Island.\n\nWe average Americans again ask whether the Congress, chosen to fulfill\nthe guarantee of the Fourth Article, understood the meaning of the\nFifth Article to be that it could suggest and originate any desired\nbreach of that guarantee?\n\n_In the second place_, we would like to ask another question of the\nCongress which proposed that Second Section and of all who uphold\nthe validity and the sanity of the Eighteenth Amendment. This other\nquestion is about the two distinct powers, in relation to Prohibition,\nwhich the legislature of every state must have, _if_ the Amendment is\nin the Constitution? The question is simple. When such legislature\npasses an act like the Mullan-Gage Law in New York, _who_ determines\nwhich of the two distinct powers the state legislature exercises? Is\nit the power granted by the citizens of that state and revocable by\nthem? Or is it the power granted by _governments_ outside that state,\nover which the citizens of that state have not the slightest control?\nThe query is a pertinent one. It is not beyond reasonable assumption\nthat the citizens of New York may amend their state constitution and\nforbid their legislature to enact any statutes interfering with the\nfreedom of the citizens of New York, in any way, on the matter which\nis the subject of the Eighteenth Amendment. Such a step on the part\nof the citizens of New York would be absolutely valid. It is not\nforbidden even by the remarkable Eighteenth Amendment. Such a step\nwould immediately deprive the legislature of the State of New York of\nany power from New York citizens to pass such law. Moreover, it would\nend that Law itself, _if_ that Law was passed in the exercise of the\npower, in such matters, granted by the citizens of New York. If it\nwere determined, however, that the Mullan-Gage Law had been passed\nby the New York legislature in the exercise of power delegated to it\nby governments outside of New York, the Mullan-Gage Law would still\nremain a valid statute. This would mean, of course, that the republican\nform of government guaranteed to the citizens of New York, by the\nFourth Article, had come absolutely to an end. Our particular query, at\nthis point, is obviously one of considerable importance to us American\ncitizens, each of whom happens to be also a citizen of some state to\nwhich the citizens of America made the guarantee of the Fourth Article\nand imposed on the very Congress, which originated the Eighteenth\nAmendment, the duty of having that guarantee fulfilled.\n\nThere are other equally pertinent questions which we might ask about\nthis unique Section 2 of the Eighteenth Amendment. We will leave them\nfor the present, so that we may continue the story of the travel of\nthe proposed new Article through the two Houses of the Congress which\nsuggested that governments exercise and give government ability to\nexercise this new power over American citizens, not enumerated in\nthe First Article. We come now to the days on which the House of\nRepresentatives and the Senate discussed the Joint Resolution. In the\nrecorded eloquence of the advocates of the proposal, we shall find\nmuch to remind us of the prevailing attitude in the British Parliament\ntoward us in 1775. But, in that eloquence, we shall look in vain for\nany echo of the Philadelphia of 1787 or of the \u201cconventions\u201d in which\nAmericans once assembled and gave their only government its only\nenumerated powers to interfere with their individual freedom.\n\n\n\n\n                             CHAPTER XVII\n\n                         THE TORY IN THE HOUSE\n\n\n\u201cLet facts be submitted to a candid world.\u201d _They_ have \u201ccombined with\nothers to subject us to a jurisdiction foreign to our Constitution and\nunacknowledged by our laws; giving\u201d _their_ \u201cassent to their acts of\npretended legislation;. .. For. .. declaring themselves invested with\npower to legislate for us in all cases whatsoever.\u201d\n\nIt is doubtful if our Congress of 1917 ever read the above language.\nIt is certain that such Congress, reading those words, would heed them\njust as little as all advocates of the supposed Eighteenth Amendment\nhave heeded the express commands of the Americans who uttered those\nwords.\n\nFor the information of those who think that governments in America\n_can_ validly make grants of _national_ power, like those in the First\nArticle and the Eighteenth Amendment, we state that the quoted words\nare from the complaint of the American people against their British\nGovernment on July 4, 1776. For their information, we also state\nthat, on that famous July day, all Americans ceased forever to be\n\u201csubjects\u201d of any government or governments in the world. For their\ninformation, we also state that it will require more than a combination\nof our American government and the state governments to subject us\nAmerican citizens to a jurisdiction foreign to _our_ Constitution and\nunacknowledged by our laws, the jurisdiction of the state governments,\nnone of which has aught to do with the citizens of America.\n\nIt is a known legal fact, decisively settled in the Supreme Court, that\nthe jurisdiction of the American government over the American citizen\nand the jurisdiction of the state government over the state citizen are\nas distinct and foreign to each other as if the two citizens were two\nhuman beings and the territory of the state were outside of America.\n\n We have in our political system a government of the United States\n and a government of each of the several states. Each one of these\n governments is distinct from the other and has citizens of its own who\n owe it allegiance and whose rights, within its jurisdiction, it must\n protect. The same person may be, at the same time, a citizen of the\n United States and a citizen of a state, but his rights of citizenship\n under one of these governments will be different from those he has\n under the other. (Justice Waite in United States v. Cruikshank, 92 _U.\n S._ 542.)\n\n The two governments in each state stand in their respective spheres\n of action, in the same independent relation to each other, except in\n one particular, that they would if their authority embraced distinct\n territory. That particular consists in the supremacy of the authority\n of the United States where any conflict arises between the two\n governments. (Justice Field in Tarble\u2019s Case, 13 _Wall._ 397.)\n\nIn our Constitution all power ever granted to interfere with the\nindividual freedom of American citizens is vested in _our_ only\nlegislature, the Congress. That is the opening statement of that\nConstitution in its First Article, which enumerates all powers _of that\nkind_ ever validly granted to that legislature.\n\nIn _our_ Constitution no power whatever over the citizens of America\nwas ever granted to the states singly or collectively, or to the\ngovernments of the states singly or collectively. That all governments\nin America, including the Congress of 1917, might know that settled\nfact, it was stated with the utmost clarity in the Tenth Amendment to\nthat Constitution. That Amendment, repeatedly held by the Supreme Court\nto be part of the original Constitution, is the clear declaration that\nno power of any kind over us, the citizens of America, is granted in\nthat Constitution to any government save the government of America, and\nto it only the enumerated powers _of that kind_ in the First Article.\nIt is also the clear declaration that all powers to interfere with\nindividual freedom, except the powers _granted_ in the First Article to\nthe _American_ government and powers _reserved_ to the citizens of each\nstate respectively, to govern themselves, are reserved to the American\ncitizens.\n\nWherefore, now educated in the experience of the Americans who insisted\non that declaration, we make exactly the same charge, against the\nCongress of 1917 and all advocates of the Eighteenth Amendment, that\nwas made by those Americans against their king who insisted that they\nwere \u201csubjects\u201d of an omnipotent legislature.\n\nIn December, 1917, the Congress knew that it could not make, to the\ncitizens of America, the command which is Section 1 of the Eighteenth\nAmendment. By reason of that knowledge, that legislature--the only\n_American_ one--paid its tribute to the state legislative governments\nas collectively a supreme American Parliament with exactly the same\nomnipotence over all Americans \u201cas subjects\u201d which the Americans of\n1776 denied to the British Parliament.\n\nCongress ought to have known that no government except Congress can\nmake any command on any subject to American citizens. It did know that\nCongress could not make the command of the new article to the American\ncitizen. Therefore it paid its tribute to the state governments. It\nasked them, as competent grantors, to give it a new enumerated power to\ninterfere with the individual freedom of the American citizen.\n\nIt is history that those state governments, each with no jurisdiction\nwhatever except over the citizens of its own state, went through the\nfarce of signing the requested grant in the name of the citizens of\nAmerica. It is law that those state governments are not the attorneys\nin fact of the citizens in America for any purpose whatever. It is\nlaw that no governments have any power of attorney from the citizens\nof America to grant to any government a new enumerated ability to\ninterfere with the individual freedom of the American citizens. For\nwhich simple legal reason, the supposed grant of such a power, by\ngovernment to government, in Section 2 of the Eighteenth Amendment, is\na forgery.\n\nThe supposed Volstead Act was enacted under this grant. It has met\nwith the severest criticism. No one, however, has yet pointed out\none particular fact to the careful thought of every average citizen\nof America. There are thousands of laws, interfering with individual\nfreedom, in the statute books of the American nation and of the\nrespective states. In one respect, however, this Volstead Act is\nabsolutely unique among statutes in America. It is the one law in\nAmerica _of that kind_, the kind interfering with individual freedom,\nwhich does not even pretend to be founded on a grant of authority\ndirectly from its citizens to the government which passed it. It is the\nonly law in America, directly interfering with human freedom, which\nwas enacted under a grant of power made _by_ government to government.\nIt does not detract from this unique distinction that the American\ngovernment requested the grant, and the state governments made it,\nand the American government acted under it, by passing the Volstead\nAct, all being carefully planned and accomplished while millions\nof Americans were preparing to give and thousands of them did give\ntheir lives for the avowed purpose of securing human liberty from the\noppression of government.\n\nWhen, in 1787, Americans at Philadelphia had worded our Constitution,\nGerry, opening the short discussion of its Fifth Article, made this\nimportant and accurate statement of fact: \u201cThis constitution is to\nbe paramount to the state constitutions.\u201d All American citizens know\nthat each state legislature is the creature of its state constitution\nand absolutely subject to that constitution. We thus have clearly\nestablished that the American Constitution is paramount to all the\nstate constitutions and that each state constitution is respectively\nparamount to the state legislature which it creates and controls. It\nremained for the Congress of 1917 and all advocates of the Eighteenth\nAmendment to acquire and state and act upon the remarkable \u201cknowledge\u201d\nthat those same state legislatures are paramount to everything in\nAmerica, including the American Constitution, which is paramount to the\nstate constitutions which created these very legislatures. That such\nwas the unique knowledge of the Congress of 1917 is made clear by its\nrequest to those state governments to make the command of Section 1 to\nthe citizens of America and to make the grant of Section 2 of power\nover the citizens of America.\n\n\u201cWe thought it wise to give both the Congress and the several states\nconcurrent power to enforce this Article and let that power be set\nforth and granted in the Article we propose to submit.\u201d\n\nSo spoke Congressman Webb, introducing the proposed Eighteenth\nAmendment, exactly as it now reads, to the House of Representatives, on\nDecember 17, 1917. This was the day on which that House discussed and\npassed the Senate Joint Resolution 17, which proposed that Amendment\nand submitted it to _governments_ to make it. Webb was a lawyer of\nrenown and chairman of the Judiciary Committee and had entire charge of\nthe passage of the Resolution in the House on behalf of those who had\nordered the American Congress to pass that Resolution.\n\nFrom one instance alone, we may immediately glean how clearly Webb\nand all leading supporters of the Eighteenth Amendment, in and out of\nCongress during the past five years, have shown an accurate \u201cknowledge\u201d\nof the basic principles of all government in America. We realize that\nsuch knowledge, if human liberty is to remain secure, is an essential\nqualification of leaders of a people once \u201cbetter acquainted with the\nscience of government than any other people in the world.\u201d\n\nNo sooner had Webb read the Section 2 and made his quoted statement of\nits purpose than he was asked a pertinent and important question. The\nquery was whether, if Congress and a state government each passed a\nlaw and they flatly conflicted, which law would control? Webb had made\nlong preparation to carry out his purpose that the Eighteenth Amendment\nbe inserted in the Constitution _by government_. He was prepared with\nhis immediate response to that ignorant question. His prompt answer\nwas: \u201cThe one getting jurisdiction first, because both powers would\nbe supreme and one supreme power would have no right to take the case\naway from another supreme power.\u201d (_Congressional Record_, Vol. 56, p.\n424.) It is sad to relate that this lucid explanation of the manner\nin which _two_ distinct supreme powers dictate to one \u201csubject,\u201d the\nAmerican citizen, elicited the next query, \u201cDoes the gentleman say\nthat as a lawyer?\u201d With the charity that real intelligence displays to\nignorance, Webb again explained the simple proposition of two distinct\n_and supreme_ powers to command on exactly the same matter. We commend\nWebb\u2019s American mental attitude, without the slightest Tory taint, and\nhis mastery of American law, to all who ever wish to dictate to human\nbeings as \u201csubjects.\u201d\n\nFresh from our education in the experience of the earlier real\nAmericans, we deem it proper to dwell for a moment further on that\nopening statement of Webb: \u201cWe thought it wise to give both the\nCongress and the several states concurrent power to enforce this\nArticle and let that power be set forth and granted in the Article we\npropose to submit\u201d to the state governments.\n\nWe recall vividly the statement of Lloyd George made only last year in\nthe British Legislature. He was speaking of the proposed treaty with\nIreland, then before that Legislature, and this is what he said, in\nsubstance. \u201cThe Parliament at Westminster [legislative government, not\nthe people of the British Empire] is the source of every power in the\nBritish Empire.\u201d It is our just tribute to Webb and every American who\nbelieves that the Eighteenth Amendment is in the Constitution, that\nthey understand that the American nation is founded and exists on\nexactly the same principle. They have all acted upon the one conviction\nthat the state governments collectively are exactly the same as the\nParliament at Westminster, are above the American Constitution and need\nobey no command in it, and are the legitimate source of any power to\ninterfere with the individual freedom of the American citizen, on any\nmatter whatsoever.\n\nOn our part, probably blinded by our own education with the earlier\nAmericans, we still believe that Webb and all who think with him are\nhopelessly ignorant of American law. We believe that they do not\nunderstand in the least the vital change in the status of the American\nindividual, from \u201csubject\u201d to \u201ccitizen,\u201d on July 4, 1776.\n\nWe remember Marshall\u2019s clear statement, in the Supreme Court, that, in\nthe days when Americans \u201cwere better acquainted with the science of\ngovernment than any other people in the world\u201d and the First Article\ngrants of power over them were requested, the legal \u201cnecessity of\nderiving those powers from _them_ was felt and acknowledged by all.\u201d\nWe know that _they_ made no change in the imperative nature of that\nnecessity. We do not understand how that legal necessity, during the\npast five years, has not been known to Webb and those of his Tory faith.\n\nWe remember Marshall\u2019s equally clear statement, again in the Supreme\nCourt, that, when new grants of such power are wanted from its citizens\nby the American government, there is only one way, in which those\ngrants can be validly or \u201ceffectively\u201d made, namely, by those citizens\nthemselves, assembled in their \u201cconventions.\u201d It is true, the American\ncitizens assembled in those conventions in their several states. \u201cNo\npolitical dreamer was ever wild enough to think of breaking down the\nlines which separate the states, and of compounding the American people\ninto one common mass\u201d and of compelling them to assemble in _one_\n\u201cconvention,\u201d when it is necessary for them to act, as possessors of\nexclusive ability to vest national power over them.\n\n Of consequence, when they act, they act in their states. But the\n measures _they_ adopt do not, on that account, cease to be measures\n _of the people themselves_, or become the measures of the state\n governments. (M\u2019Culloch v. Maryland, 4 _Wheat._ 316.)\n\nWe do not understand how Webb and those of his Tory faith have\nforgotten this legal fact, possibly the most important in America to\nthe liberty of its citizens.\n\nWe remember how well this legal fact was once known to all Americans,\nhow clearly the Americans in Virginia expressed it as the then\nknowledge of all Americans and their leaders. \u201cThe powers granted under\nthe proposed Constitution are the gift of the people, and every power\nnot granted thereby remains with them, and at their will.\u201d (Resolution\nof the Americans in Virginia, ratifying the Constitution and making the\ngrants of its First Article, 3 _Ell. Deb._ 653.) We do not understand\nhow Webb and those of his Tory faith, speaking the language of Lord\nNorth in 1775 and of Lloyd George in 1922 as to the British Government\nof \u201csubjects,\u201d should translate the quoted accurate statement of\nAmerican law into, \u201cThe powers granted under the proposed Constitution\nare the gift of the people, but every power not granted therein remains\nwith the collective state legislative governments and can be granted\nby those governments, without any action by the citizens of America\nthemselves.\u201d\n\nWe know that the Supreme Court, in 1907, did not so understand.\n\n The powers the people have given to the General Government are named\n in the Constitution, [all in the First Article] and all not there\n named, either expressly or by implication, are reserved _to the\n people_ and can be exercised only by _them_, or upon _further grant_\n from _them_. (Justice Brewer in Turner v. Williams, 194 _U. S._ 279.)\n\nWe do not understand how Webb and those of his Tory faith could believe\nthat one of those reserved powers could be exercised by the collective\nstate governments, Section 1 of the new Amendment, or could be granted\nby those governments, Section 2.\n\nWe remember that Madison, who worded the Fifth Article, and Hamilton,\nwho seconded it at Philadelphia, did not so believe but knew that\nsuch belief came in direct conflict with basic American law. \u201cAs the\npeople are the only legitimate fountain of power, and it is from them\nthat the constitutional charter, under which the several branches of\ngovernment hold their power, is derived, it seems strictly consonant\nto the republican theory, to recur to _the same original authority_\n[the people themselves in \u201cconventions\u201d] whenever it may be necessary\nto enlarge, diminish, or new-model the powers of the government.\u201d\n(Hamilton in _The Federalist_, No. 49.) \u201cThe fabric of American Empire\nought to rest on the solid basis of the _consent of the people_. The\nstreams of _national_ power ought to flow _immediately_ from that pure,\noriginal fountain of all legitimate authority.\u201d (Hamilton in _The\nFederalist_, No. 22.) \u201cThe express authority of the people alone could\ngive due validity to the Constitution.\u201d (Madison in _The Federalist_,\nNo. 43.) \u201cIt is indispensable that the new Constitution should be\nratified in the most unexceptionable form, by the supreme authority of\nthe people themselves.\u201d (Madison, at Philadelphia, 5 _Ell. Deb._ 158.)\n\u201cThe genius of republican liberty seems to demand on one side, not only\nthat all power should be derived from the people, etc.\u201d (Madison in\n_The Federalist_, No. 37.) and \u201cThere is certainly great force in this\nreasoning, and it must be allowed to prove that a constitutional road\nto the decision of the people ought to be marked out and kept open, for\ncertain great and extraordinary occasions.\u201d (Madison or Hamilton in\n_The Federalist_, No. 49.)\n\nWe average Americans know that, in the Fifth Article, there is \u201cmarked\nout and kept open, for certain great and extraordinary occasions a\n_constitutional_ road to the decision of the _people_\u201d when their own\nexclusive ability is alone competent to do what is deemed wise to be\ndone. We know that the direct command to American citizens, interfering\nwith their individual freedom and contained in Section 1 of the new\nAmendment, was the first direct command _of that kind_ ever attempted\nto be put in our Constitution. We know that the grant of power to\nmake such commands, which is the grant of the second section of that\nAmendment, is the first and only grant _of that kind_ ever supposedly\nmade since 1788. Knowing these undoubted facts, we cannot understand\nwhy Webb and those of his Tory faith did not know that the request for\nthe command of Section 1 and for the grant of Section 2 was \u201ca great\nand extraordinary\u201d event, and that only through the \u201c_constitutional_\nroad for the decision of the _people_\u201d themselves, \u201cmarked and kept\nopen\u201d in the Fifth Article, the assembling of the people themselves\nin their \u201cconventions,\u201d could a valid command and a valid grant be\nachieved.\n\nThe more we average Americans consider, however, the Congressional\nrecord of 1917 and the story of the subsequent five years, the more\ndo we understand the curious mental attitude which has led Webb and\nthose of his Tory faith, who believe that the new Amendment is in the\nConstitution, to think that governments could make that command to and\nthat grant of power over the citizens of America. Our consideration\nleads us to think that none of these men have ever read or grasped\nthe meaning of the words expressing a knowledge so often shown by our\nSupreme Court:\n\n The people who adopted the Constitution knew that in the nature of\n things they could not foresee all the questions which might arise in\n the future, all the circumstances which might call for the exercise\n of further _national_ powers than those granted to the United States,\n and after making provision for an Amendment to the Constitution by\n which any needed additional powers would be granted, they reserved to\n _themselves_ all powers not so delegated. (Justice Brewer, Kansas v.\n Colorado, 206, _U. S._ 46 at p. 90.)\n\nWe are sorely afraid that Webb and the Congress of 1917 and all\nupholders of the new Amendment have made exactly the same vital mistake\nwhich had been made, in that reported case, by the counsel who there\nrepresented the very same government which repeated the mistake in 1917.\n\nThat counsel had contended for the proposition that there are\n\u201clegislative powers affecting the nation as a whole [the citizens\nof America] which belong to, although not expressed in the grant of\npowers\u201d in the First Article. The answer of the Supreme Court was\ndecisive on the mistake of that counsel and the mistake of the 1917\nrequest from Congress to the state governments. The answer was that the\nproposition\n\n is in direct conflict with the doctrine that this is a government of\n enumerated powers. That this is such a government clearly appears\n from the Constitution, independently of the Amendments, for otherwise\n there would be an instrument granting certain specified things\n made operative to grant other and distinct things. This natural\n construction of the original body of the Constitution is made\n absolutely certain by the Tenth Amendment. This Amendment, which was\n seemingly adopted with prescience of just such contention as the\n present, disclosed the wide-spread fear that the National Government\n might, under the pressure of a supposed general welfare, attempt to\n exercise powers _which had not been granted_. With equal determination\n the framers intended that no such assumption should ever find\n justification in the organic act, and that if in the future further\n powers seemed necessary, they should be granted _by the people_ in the\n manner they had provided for amending that act. It reads: \u201cThe powers\n not delegated to the United States by the Constitution, nor prohibited\n by it to the States, are reserved to the States respectively, or to\n the people.\u201d _The argument of counsel ignores the principal factor in\n this Article_, to wit, \u201cTHE PEOPLE.\u201d Its principal purpose was not a\n distribution of power between the United States and the States, but a\n reservation _to the people_ of all powers _not_ granted. The preamble\n of the Constitution declares who framed it,--\u201cWe, the people of the\n United States,\u201d not the people of one State, but the people of all the\n States; and Article X reserves to the people of all the States the\n powers not delegated to the United States. The powers affecting the\n internal affairs of the States not granted to the United States by the\n Constitution, nor prohibited by it to the States, are reserved to the\n _States respectively_, and all powers of a national character which\n are not delegated to the National Government by the Constitution are\n reserved to the _people of the United States_. (206 _U. S._ at p. 89.)\n\nWe average Americans know, and Webb and those of his Tory faith cannot\ndeny, that the power to make the command of Section 1, the power\npurported to be granted in Section 2, are among the powers of which the\nSupreme Court speaks as reserved, not to the states, but to the people\nof America. We also know, and again _they_ cannot deny, that only\nthose, who have, can give, or grant. For which reason, _we_ ask that\n_they_ answer this question: How can the state governments exercise or\ngrant a power which was not reserved to the states but was reserved by\nthe citizens of America to themselves?\n\nIn asking this question we but echo the learned Pendleton\u2019s question,\nin the Virginia convention of 1788: \u201cWho but the people can delegate\npowers?... What have the state governments to do with it?\u201d (3 _Ell.\nDeb._ 37.) And we also but echo the question of Wilson, in the\nPennsylvania convention of 1787: \u201cHow comes it, sir, that these state\ngovernments dictate to their superiors--to the majesty of the people?\u201d\n(2 _Ell. Deb._ 444.)\n\nBut we, the citizens of America, have a further charge, at this point,\nto make against Webb and all who claim that the new Amendment is in\nthe Constitution or that any governments could put it there. In the\ncase of Kansas v. Colorado, supra, counsel for the government of\nAmerica made a monumental error by displaying his ignorance of the\nmost important factor in the Tenth Amendment, \u201cthe people\u201d of America.\nBy reason of that particular ignorance, he assumed that all power to\ninterfere with the individual freedom of Americans, on every subject,\nmust be vested in some government or governments. This was the Tory\nconcept, accurately rebuked by the supreme judicial tribunal, knowing\nonly American law based on the American concept of the relation of\n\u201ccitizens\u201d to their servant government and not on the Tory concept\nof the relation of the master government to its \u201csubjects.\u201d He did\nnot know what Cooley knew when he made his accurate statement that\n\u201cThere never was a written republican constitution which delegated\nto functionaries all the latent powers which lie dormant in every\nnation and are boundless in extent and incapable of definition,\u201d\n(_Constitutional Limitations_, 7th Ed., 1903, p. 69.) By reason of\nhis ignorance, he contended that government could command American\ncitizens by interfering with their individual freedom on a matter not\nenumerated in the First Article. His particular error, in that respect,\nis repeated by Webb and all who uphold the validity of the command made\nin Section 1 of the new supposed Amendment.\n\nBut they were not content with repeating his one monumental error. They\nhave not only ignored the most important factor in the Tenth Amendment,\n\u201cthe people.\u201d They have also wholly ignored the most important factor\nin the Fifth Article, the mention of the _way_ in which the citizens\nof America made their only valid grants of power to interfere with\ntheir individual human freedom, the mention of the only way in which\nnew grants _of power of that kind_ can ever be _constitutionally_ made,\nthe assembling of _those_ citizens in their \u201cconventions\u201d in their\nseveral states. So assembled in such \u201cconventions,\u201d they made all their\ngrants in the First Article and then, in their Fifth Article, mentioned\ntheir own assembling in exactly similar conventions in the future and\nprescribed that a \u201cYes\u201d from three fourths of those conventions would\nbe the only valid signature of the citizens of America to any new\ngrant of a further enumerated power to interfere with their individual\nfreedom.\n\nThere never has been any other possible meaning to those words in the\nFifth Article, \u201cor by conventions in three fourths thereof.\u201d To the\nAmericans who worded that Article at Philadelphia and to the Americans\nwho made that Article, assembled in just such \u201cconventions\u201d as are\nmentioned in words therein, that quoted phrase was the most important\nfactor in the Fifth Article. To them, those quoted words therein were\nthe complement of their most important factor in the Tenth Amendment,\nthe reservation to themselves (\u201cthe people\u201d or citizens of America) of\nevery _national_ power not delegated in the First Article. Together,\nthe two important factors were the command of the citizens of America\nthat all _national_ powers so reserved to themselves could be delegated\nonly by themselves, assembled in their \u201cconventions\u201d --\u201cby conventions\nin three fourths of\u201d their states. We, who have lived through their\neducation with them, realize this with certainty. Webb and those who\nbelieve with him know nothing about it.\n\nRecognizing that Congress had been given no power to make the command\nwhich is Section 1 of the new Amendment, they first asked the state\ngovernments to make that command to the citizens of America. This was\nan exact repetition of the error made by counsel in Kansas v. Colorado,\nsupra. This was their ignoring of the most important factor in the\nTenth Amendment. Then, that the display of their own ignorance should\ncontain something original, they ignored the most important factor\nin the Fifth Article and requested that a new power, reserved by the\ncitizens of America to themselves, should be granted by the state\ngovernments. Everything that they have said or done, during the last\nfive years, is based on that ignoring of that most important factor in\nthat particular Article.\n\nIndeed Webb himself made this very clear at the very opening of his\nappeal that Senate Resolution Number 17 be passed in the House on\nDecember 17, 1917. He merely paused to make the lucid explanation\nof how _two_ supreme powers act, and then went on to read the Fifth\nArticle as it appears in his expurgated edition of our Constitution.\nThis is the Fifth Article he read to our only legislature:\n\n \u201cthat Congress, whenever two thirds of both houses shall deem it\n necessary, shall propose amendments to this Constitution ... which\n ... shall be valid to all intents and purposes as part of this\n Constitution, when ratified by the legislatures of three fourths of\n the several states.\u201d\n\nIt is clear to us, who have followed the framing of that Article in\nPhiladelphia in 1787, that the Americans who framed it there and\nthe Americans who made it, in their later \u201cconventions,\u201d would not\nrecognize _their_ Fifth Article. In the expurgated edition, the most\nimportant factor in the real Fifth Article is not only ignored but is\nentirely missing. It has been stricken from the Article. We do not know\nwho ordered that it be stricken out. We recall with interest that, on\nSeptember 15, 1787, at Philadelphia, Gerry, always a consistent Tory\nin mental attitude, moved that it be stricken out of the Article. We\nrecall that his motion was defeated by a vote of 10 to 1. Nevertheless,\nwhen we come to read that Article, as Webb and his colleagues for the\nnew Amendment know it, we find that they must have some other record\nof the vote on that old September 15, 1787, and of the later votes in\nthe \u201cconventions\u201d of the citizens of America. We find that in the\nFifth Article, as Webb and his colleagues know it, there are no words\n\u201cby conventions in three fourths of\u201d the several states. We realize\nthat this reading of _his_ Fifth Article and the absence of those\nimportant words from it was no mere inadvertence on the part of Webb.\nClearly those words are not in _his_ Fifth Article. Only a few moments\nafter his reading of it, on December 17, 1917, he quoted with approval\na statement, by some former Senator, that the American people have\na \u201cright to be heard in the forum of the state legislatures, where\n_alone_ the question can be decided whether the _national_ Constitution\nshall be amended.\u201d\n\nIn view of these facts, we educated citizens of America have no\ndifficulty in grasping the Tory mental attitude of Webb (and his\ncolleagues _for_ the new Amendment) that all constitutional protection\nfor our individual freedom may be legally dispensed with at any time\n_by government_, if governments only get together and act jointly, as\nin the proposal and supposed adoption of the new Amendment entirely\nby governments. For the edification of Webb and those of his faith\nin that respect, we would like to inform them that all who believe\nthat the new Amendment has been or can be put in the Constitution by\ngovernments, \u201cseem to have lost sight of the people altogether in\ntheir reasonings on this subject; and to have viewed\u201d our national\nand state governments, \u201cnot only as mutual rivals and enemies, but\nas uncontrolled by any common superior in their efforts to usurp the\nauthorities of each other. These gentlemen must be here reminded of\ntheir error. They must be told that the ultimate authority, wherever\nthe derivative may be found, resides in the people alone, and that it\nwill not depend merely on the comparative ambition or address of the\ndifferent governments, whether either, or which of them, will be able\nto enlarge its sphere of jurisdiction at the expense of the other.\u201d\n(_Fed._ No. 46.) It contributes not a little to the importance of the\nquoted statements that they were written by Madison, who also wrote\nthe real Fifth Article. They are his warning to the then \u201cadversaries\nof the Constitution.\u201d They serve well as our warning to the present\nadversaries of our Constitution, who assume and have acted on the\nassumption that they can ignore its most important factors whenever\ngovernment desires to exercise or to grant a new power to interfere\nwith our individual freedom, although we have not granted it but have\nreserved it to ourselves.\n\nWe might continue somewhat indefinitely the story of Senate Joint\nResolution 17 in the House of Representatives on that December day\nof its passage therein. We would find, however, what we have already\nseen of Webb and his colleagues there to be typical of all they have\nsaid and all that they knew of basic American law. We cannot leave\nthat House on that day, however, without some comment upon the final\neloquent appeal made by Webb at the close of his arduous labor to\nsecure the passage of the Resolution.\n\nTo those, who have any knowledge in the matter, it is well known\nthat Christ preached the doctrine of free will and temperance, while\nMohammed laid down the law of prohibition. With great curiosity,\ntherefore, we have listened for years and still listen to the ceaseless\ntirade coming from Christian churches where men style themselves\nAmerican \u201cCrusaders\u201d and denounce, in no temperate language, all\nAmericans who do not align themselves under the \u201cCrescent\u201d flag of\nMohammed and respect his Mohammedan command embodied in the First\nSection of the Eighteenth Amendment. Our curiosity is not lessened by\nthe fact that their denunciation of those, who flatly deny that the\ncommand itself is Christian, is always accompanied with an equally\ntemperate denunciation of those who dare to question their Tory concept\nthat governments in America can constitute new government of men.\n\nWe have seen Webb, with a candor only equalled by ignorance, frankly\narray himself with those who believe the Tory concept, that the\nlegislatures of the state citizens are \u201cthe only tribunal\u201d in which\nthe _national_ part of the Constitution of the American citizens can\nbe changed. To his credit, therefore, we find it a matter of record\nthat, with equal candor, he frankly arrays himself under the \u201cCrescent\u201d\nflag of Mohammed and eloquently appeals to all other devotees \u201cof the\ngreat Mohammed\u201d in support of the Mohammedan and un-Christian precept\nembodied in the Eighteenth Amendment. That full justice may be done\nhis eloquence and his candor, these are his own words on his immortal\nDecember 17, 1917: \u201cDuring one of the great battles fought by Mohammed,\nthe flag was shot from the ramparts. A daring and devoted soldier\nimmediately seized it with his right hand and held it back on the\nrampart. Immediately his right arm was shot off, but, never faltering,\nhe seized the flag with his left hand and that, too, was instantly shot\naway whereupon with his bleeding stubs he held the emblem in its place\nuntil victory came.\n\n\u201cWith a zeal and a determination akin to that which animated _this_\ndevotee of the great Mahomet, let us wage a ceaseless battle and\nnever sheathe our swords until our constitutional amendment is firmly\nadopted and the white banner of real effective prohibition proudly\nfloats over every courthouse and city hall throughout this, the\ngreatest nation upon earth.\u201d (_Congressional Record_, Vol. 56, p. 469.)\n\n\n\n\n                             CHAPTER XVIII\n\n                        THE TORY IN THE SENATE\n\n\nWhen our present Constitution was before the people of America, waiting\ntheir approval or rejection, Madison and Hamilton published their\nseries of essays, now known as _The Federalist_. It is not our intent\nto dwell upon the knowledge of American basic law shown by these two\nmen. Elsewhere our Supreme Court has paid its deserved tribute to _The\nFederalist_ as an authority of the greatest weight in the meaning of\nour Constitution. At this moment, we desire to mention one remarkable\nquality which makes those essays unique among arguments written in the\nheat of a great political controversy. They were written to urge that\nhuman beings create a great nation and grant some enumerated powers\nto interfere with their own freedom. They were written when other\ngreat leaders were opposing that project with the utmost ability and\neloquence. These opponents, as is the custom with men in any heated\ncontroversy, denounced the project and its advocates. The abuse of both\nproject and advocates has probably never been exceeded in America. Yet\nit is one remarkable quality of the arguments of Madison and Hamilton,\nin _The Federalist_, that they themselves never leave the realm of\nreason and fact and law, or descend to irrelevant abuse of those who\ndiffer in opinion with them.\n\nWe, who have lived through the last five years in America, can\ntruthfully say that the advocates of the new constitution of\ngovernment, the Eighteenth Amendment, have made their essays and\nspeeches and arguments notable for the same quality, by its utter\nabsence.\n\nBecause fact would interfere with the making of their new Constitution,\nthey have changed fact. Because law meant that government could not\nconstitute their government of the people, they have stated law which\nhas never been law in America since 1776. Because reason would prevent\nthe achievement of their purpose, they have appealed to irrelevant\nabuse of those who dared to differ in opinion with them.\n\nIn view of these known facts, we average Americans shall not be\nsurprised when we read the record of the Senate on its own proposal\nthat government should exercise a power not delegated to interfere with\nindividual freedom. Fresh from the reading of the record in the House,\nwe shall not be surprised to find that the Senate also ignored the most\nimportant factors in the Tenth Amendment and the Fifth Article, \u201cthe\npeople\u201d in the one, and the mention of the people\u2019s exclusive ability\nto make _national_ Articles in the other.\n\nWhen his proposing Resolution came before the Senate on July 30,\n1917, Senator Sheppard quickly made clear his mental attitude on the\nrelation of government to human beings. Whenever a sincere Tory has\nvoiced himself on that matter, it has always been inevitable that he\nbetray the thought that human beings are the assets of the State and\nnot its constituent members. As Madison said, \u201cWe have all known the\nimpious doctrine of the Old World, that people were made for kings and\nnot kings for the people.\u201d In the country _or in the mind_ where that\ndoctrine prevails, it is held to be the right and the privilege of\ngovernment to see that the people, like the other assets of the State,\nare kept in good condition so that all property of the State may have\nits greatest economic value in the market of the world.\n\nAnd so we find Sheppard, through all his opening support of the new\nconstitution of government based on the Tory doctrine, making clear the\nnecessity that our government keep that asset, which is the citizens of\nAmerica, in good physical condition like any other machine that may be\nin America.\n\n\u201cIn an age of machinery and of business transactions on a scale more\nenormous and complicated than ever before, the clear eye, the quick\nbrain and the steady nerve are imperatively demanded. Society today is\nmore dependent upon the man at the machine than at any previous period.\nWe are coming to understand that the engine of the body must have the\nsame care as the engine of the aeroplane, the battleship, the railway\ntrain, the steamship or the automobile; that the trade in alcohol is a\nform of sabotage which the human machine cannot endure; that it is no\nmore to be tolerated than would be the business of making and selling\nscrap iron to be dropped into the delicate and complex machinery of\nmodern manufacture, transportation and commerce.\u201d (_Congressional\nRecord_, Vol. 55, p. 5550.)\n\nAfter this admirably accurate appreciation of the relation of our\nAmerican government to the asset which is ourselves, Sheppard then\nproceeded to teach us (who have just lived through the education of the\nAmerican human beings who made the Constitution) the real facts of that\nmaking, _as he knows them_.\n\nHe is advocating that our only American government should ask the\nlegislative governments of the states, which are not the governments of\n_American_ citizens, directly to interfere with our individual freedom\nand to grant to themselves and to our only government future power to\ninterfere therewith on a matter not enumerated in the First Article.\nNaturally, as real fact would make manifest the absurdity of such\nproposal, he states that, when the Constitution was made, \u201cby votes of\nthe Southern States the power to amend the federal Constitution was\nvested in three fourths of the states.\u201d Undoubtedly he meant us to\nunderstand that the Constitution (through whose real making we have\njust lived) was made by the states and that the Southern States granted\nto the legislatures of three fourths of the states the omnipotent\nability over the human beings of America, which those human beings\nthemselves had denied to the English king and his legislature. That he\nmeant us so to understand we shall learn to a certainty in a moment.\nMeanwhile, let us note how inadvertently he states part of the truth,\nwhile omitting all reference to the part thereof which would make his\nown proposal the clear absurdity which it was.\n\nWe note his reference to that part of the Fifth Article which\n_mentions_ the ability of three fourths of the state legislatures to\namend the _federal_ Constitution. Because we have lived through the\ndays of the real American leaders, we recall that our Constitution\nis both _federal_ and _national_ and that state legislatures always\nhad ability to make _federal_ Articles and never had ability to make\n_national_ ones. We also remember that those state legislatures were\npermitted, by the people who made our Constitution, to retain some\nof the ability they had and were given no new ability. We also\nremember that the Fifth Article mentions their existing ability to\nmake _federal_ Articles and prescribes, as the command of the people\nof America, that a \u201cYes\u201d from three fourths of them shall validly make\na change in the _federal_ part of our dual Constitution. For which\nreason, with somewhat of amusement, we note Sheppard\u2019s inadvertent\naccuracy of statement, when he says that three fourths of the state\nlegislatures may amend the _federal_ Constitution. With our knowledge,\nwe do not care what he meant or intended that others should understand.\nWe know that nothing has been more definitely settled in America, since\n1776, than that legislative governments never can make a _national_\nArticle or change our _national_ Constitution.\n\nWe now come to that part of Sheppard\u2019s oration in which he makes\ncertain his remarkable \u201cknowledge\u201d that our Constitution was made by\nthe states--which are political entities--and not by the people of\nAmerica. With a complacency requisite in one who advocates that unique\nconstitution of a new kind of government in America, government of\nthe people by government without authority from the people, we find\nhim quoting from Calhoun of 1833 the doctrine that the states made\nthe Constitution. \u201cIn this compact they have stipulated, among other\nthings, that it may be amended by three fourths of the states; that is,\nthey have conceded to each other by compact the right to add new powers\nor to subtract old, by the consent of that proportion of the states,\nwithout requiring, as would otherwise have been the case, the consent\nof all.\u201d (_Congressional Record_, Vol. 55, p. 5553.)\n\nThe history of America from May 29, 1787, to July 30, 1917, was\nclearly a sealed book to Sheppard of Texas on that later day.\n\nOn May 30, 1787, at Philadelphia, Randolph of Virginia offered the\nthree Resolutions, which proposed that the people of America create\na nation and absorb into their _national_ system the _federal_ union\nwhich had been made by the states. The first resolution was to express\nthe sentiment of the convention \u201cthat the union of states merely\n_federal_ will not accomplish the objects\u201d; the second was to express\nthe sentiment that \u201cno treaty or treaties among the whole or part of\nthe _states_, as individual sovereignties, would be sufficient\u201d; and\nthe third was to express the sentiment \u201cthat a _national_ government\nought to be established, consisting of the supreme legislative,\nexecutive, and judiciary.\u201d\n\nThe work of that Philadelphia Convention was carried to a successful\nconclusion on the basis of those sentiments. When their proposed\nConstitution had been worded, it was sent to and made by the one people\nof America, _not by the states_.\n\n The Constitution of the United States was ordained and established,\n not by the states in their sovereign capacities, but emphatically,\n as the Preamble of the Constitution declares, by the \u201cpeople of the\n United States.\u201d\n\nSo declared Justice Story, from the Bench of the Supreme Court, as far\nback as the decision of Martin v. Hunter\u2019s Lessee, 1 _Wheat._ 324. As\nStory was an associate of Marshall on that Supreme Court, and as he is\nrecognized as one of the greatest exponents of our Constitution, we\naverage Americans prefer his knowledge to that of Sheppard even when\nthe latter does quote from Calhoun. Furthermore, in an unbroken line of\ndecisions, extending over the entire period of more than a century of\nwhose history Sheppard knows naught, the Supreme Court has insistently\nproclaimed the same fact, namely, that the people of America--not the\nstates--made our Constitution.\n\n \u201cIt is no longer open to question that by the Constitution a nation\n was brought into being, and that that instrument was not merely\n operative to establish a closer union or league of States.\u201d (Justice\n Brewer, in the Supreme Court, Kansas v. Colorado, 206 _U. S._ 46.)\n\nIndeed, many men before Sheppard have attempted to deny that fact.\nHistory, however, records no successful denial. As Sheppard states, the\nwords of Calhoun were from his reply to Webster in 1833. In the history\nof a century, all a sealed book to Sheppard, Haine also asserted,\nagainst Webster, the belief of Calhoun and Sheppard as to what were the\nfacts of the making of our Constitution. We average Americans, in an\nearlier chapter herein, have read Webster\u2019s statement as to what were\nthe facts of that making. Having lived, ourselves, through the days\nwhen the Americans did make their own Constitution, we agree wholly\nwith Webster and the Supreme Court and know that the states had no\npart whatever in its actual making. Over fifty years ago, however, it\nbecame absolutely immaterial, except for academic purposes, what might\nbe the personal beliefs of ourselves or Calhoun or Haine or Sheppard\nor Webster. Shortly after the middle of the last century, the Southern\nStates, just as unwilling as Sheppard in 1917 to accept the unalterable\ndecision of the Supreme Court that our Constitution is not a compact\nbetween states, appealed to the only tribunal to which there is any\nappeal from that Court, the tribunal of civil war. Even Sheppard must\nknow the result of Gettysburg, the surrender forever of any claim that\nthe Constitution is a compact between the states. Even Sheppard must\nsome time have heard the echo of Lincoln\u2019s appeal, at Gettysburg, that\ngovernment of the people, by them and for them, should not perish from\nthe earth. Even Sheppard must recognize, whether or not he wish to do\nso, how successfully the American people, whose predecessors made the\nConstitution, answered that appeal of Lincoln and intend to keep our\ngovernment a government of the people, by them and for them, instead of\na Sheppard government of the people, by governments without authority\nfrom the people.\n\nWe average Americans, however, do not question the wisdom of Sheppard\nin quoting the repudiated claim of Calhoun, so long as Sheppard and\nhis colleagues intended to continue their effort to impose upon us the\nnew constitution of a new kind of American government, which is their\nEighteenth Amendment. If he and they were to find anywhere citations\nin support of the ability of governments in America to exercise and\nto grant undelegated power to interfere with human freedom, to what\nsource could he or they go for such citations? Their proposition\ndepended wholly for its validity upon the Tory concept of the relation\nof government to its assets and subjects, the people. And, in the\nfive volumes of the records of the conventions of the Americans, in\nthe two volumes of _The Federalist_, and in over two hundred volumes\nof American decisions in the Supreme Court, he and they knew that no\nsingle citation of authority could be found to support the idea that\nwe Americans are \u201csubjects\u201d and not citizens. In the face of such a\nsituation, he and they had but a choice between the repudiated claims\nof Calhoun and Haine or the concepts of Lord North and his associates\nin the British Parliament of 1775. We average Americans know what\nchoice we would have made, _under such circumstances_. For which reason\nwe are not surprised to find Sheppard, after his remarkable quotation\nfrom Calhoun, continuing on to say that the states \u201cby reserving to\nthemselves the unqualified and exclusive right of amendment kept intact\ntheir sovereign capacity in so far as the organic law of the nation was\nconcerned.\u201d (_Congressional Record_, Vol. 55, p. 5553.)\n\nWith the Supreme Court, we have always known and we still know, despite\nSheppard, that the people of America did all the reserving that was\ndone and which the Tenth Amendment merely declared had been done. We\nnote, with intent to remember, how clearly Sheppard demonstrated his\ntotal ignorance of the most important factor in that Tenth Amendment,\n\u201cthe people,\u201d and of the most important factor in the Fifth Article,\nthe mention of the reserved exclusive ability of the people themselves,\nassembled in their \u201cconventions,\u201d to amend or change or add any\n_national_ Article in their Constitution.\n\nAs we go on with his oration of that July day, we find him insisting,\nas we found the House insisting on a later day, that the states and\ntheir legislative governments are all the protection to our individual\nliberties which the American people were able to attain by the efforts\nof those remarkable years from 1775 to 1790. Curiously enough, that\ninsistence is mentioned in the same breath in which he suggests that\nwe, the citizens of America, have some rights, evidently in the nature\nof privileges which a government confers on its subjects. This is what\nhe has to say: \u201cIn refusing the people the right to appeal to the only\ntribunal having power of amending, the tribunal of the states, for the\nredress of what they consider one of the most terrible grievances in\nthe republic, Congress would deny to them one of the most sacred of all\nrights, the right of petition.\u201d\n\nWhy should the supreme legislature not deny that right of petition to\nus, if the inferior state legislatures, who are not governments of the\ncitizens of America, claim power to deny us any right they please, as\nthey do by their supposed Eighteenth Amendment to our Constitution?\n\nBut we waste time on this Sheppard. Let him say his own farewell to\nus; the citizens of America, in his closing words of July 30, 1917.\nAs Webb, in the House, closed with his eloquent appeal to every true\nMohammedan, we naturally find Sheppard closing with his appeal to\nwhatever Tory sentiment believes that the same most important factor in\nthe Tenth Amendment and the Fifth Article should be equally ignored.\n\n\u201cAt the close of this debate we will have an opportunity to enable the\nstates to exercise their highest function--the right to shape, alter,\nand develop the federal Constitution. They are the proper tribunal to\ndecide the fate of this Amendment. They compose the mightiest array\nof free commonwealths united in a federated whole the world has ever\nseen.... If there is anything in the Amendment subversive of _their_\nliberties and _their_ welfare, _they_ can be trusted to condemn it.\nLet not Congress assume to judge for them. Let Congress discharge its\npreliminary task of submission and stand aside. Let it put in motion\nthe referendum provided by the national organic law--the method of\namendment the states themselves established when they created the\nConstitution. Let the states perform the duty which remains the sole\ninstance of their sovereignty over the federal government itself.\u201d\n(_Congressional Record_, Vol. 55, p. 5554.)\n\nIf it were still 1833, if there never had been a Gettysburg or an\nAppomattox, could Calhoun himself have done better? If there never had\nbeen the Statute of 1776 or an American Revolution to make it the basic\nlaw of America, could any Tory peer in the Westminster Parliament of\n1775 have been more zealous to see that the states themselves--which\nare mere political entities--should determine whether there was\nanything in the Eighteenth Amendment \u201csubversive of _their_ liberties\nand _their_ welfare?\u201d If there is, \u201c_they_ can be trusted to condemn\nit.\u201d Let _our_ \u201cCongress discharge its preliminary task of submission\nand stand aside.\u201d What if there is anything in the Amendment subversive\nof _our_ liberties and _our_ welfare? Why should _we_ be trusted with\nthe opportunity to condemn it, the opportunity which we reserved\nexclusively to ourselves by the most important factors in the Tenth\nAmendment and the Fifth Article?\n\nWhy should we remember that Jefferson, also from a Southern State,\npenned the Statute of 1776 in which the American people commanded that\nno government acquire power over people except from people and not\nfrom governments? Why should we remember that Pendleton, also from the\nSouth, while actually engaged with all the rest of the American people\nin making the First Article, referred to it and asked, \u201cWho but the\npeople can delegate powers? What have the state governments to do with\nit?\u201d Why should we remember that Wilson, in the previous December, that\nof 1787, said of our Constitution, \u201cUpon what principle is it contended\nthat the sovereign powers reside in the state governments? The proposed\nsystem sets out with a declaration that its existence depends upon\nthe supreme authority of the people alone? How comes it, sir, that\nthese state governments dictate to their superiors--to the majesty of\nthe people?\u201d Why should we remember that Webster, answering Hayne and\nCalhoun, said, also speaking of our Constitution, \u201cWhile the people\nchoose to maintain it as it is--while they are satisfied with it, and\nrefuse to change it--who has given, or who can give, to the state\nlegislatures a right to alter it, either by interference, construction,\nOR OTHERWISE?... Sir, the people have not trusted _their_ safety, in\nregard to the general constitution, to these hands. They have required\nother security and taken other bonds.\u201d (4 _Ell. Deb._ 508.)\n\nIt is true that these earlier Americans have clearly in mind the most\nimportant factor in both the Tenth Amendment and the Fifth Article. But\nit must not be forgotten that Pendleton and Wilson and the Americans of\nthat day, in making our Constitution, in constituting a new government\nand giving to it some powers over the freedom of human beings, were\nacting entirely outside any written law except the Statute of \u201976. Is\nnot their example a sound precedent for those who are now constituting\na new government of Americans and giving it power over their freedom,\nfor those who made the Eighteenth Amendment and those who upheld its\nvalidity? What if the makers of the new government are themselves\ngovernment? If governments choose to act outside of all written law\nand to ignore that part thereof which is the important factor of the\nTenth Amendment and the Fifth Article, are these governments not\nemulating the example of the American people in 1787? True, these\nAmerican people did act in strict conformity to the Statute of 1776,\nand this modern constitution of new government by government is not\nin conformity with that Statute. But was not that Statute itself\nthe revolt of human beings against government? If human beings, by\nsuccessful revolt against government, could change themselves from\nsubjects to citizens, why cannot government, by successful revolt\nagainst human beings, change them from citizens to subjects?\n\nIf, however, Sheppard and Webb and those of their Tory faith insist\nthat the new constitution of government is in _our_ Constitution, and\nput there validly, under claimed grant from us to state governments of\nomnipotence over American citizens, we, on our part, know that their\nclaim is without the slightest support. Moreover, our knowledge in\nthat respect is knowledge of indisputable legal fact. That the fact\nwould be equally indisputable, even if our Constitution was a compact\nbetween states, as Calhoun did claim, and as Sheppard does claim, we\ncan clearly demonstrate even to Sheppard himself. Our education with\nthe earlier Americans, who changed their status from that of subject to\ncitizen, has taught us all we need for that demonstration.\n\nLet us assume, what Sheppard asserts, that the states made the\nConstitution, that it _is_ a compact between states. Sheppard is a\nTexan. If our Constitution is a compact between states, the State\nof Texas is one of the parties to that compact. We ask Sheppard\nwhether he and the other Texans _are_ the State of Texas or whether\nthe legislative government in Texas is the State of Texas? If he\nanswers that the Texas legislature is the State of Texas, we proceed\nno further. That answer will be his frank confession that the Texan is\na subject of the Texas government and not a citizen or member of the\nTexas State.\n\nOn the other hand, if he answers that the human beings of Texas are\nthe State of Texas, we do proceed further. We proceed along the most\ndefinitely settled legal principle in America. If the human beings in\nTexas are its citizens and constitute its State, the constitution of\nTexas is their creation and the legislature of Texas is the creature\nof that constitution. From the Texans, through the creation which is\ntheir constitution, that legislature derives its every power over\nthe human beings in Texas and cannot have any _such_ power except by\ngrant from those human beings themselves. That is the law of Texas,\nsettled by hundreds of decisions in Texas and America. Now, if our\nAmerican Constitution is a compact between the State of Texas--the\nhuman beings in Texas--and the other states--the human beings in the\nother states--how comes it that the mere creature of the Texans,\nwithout power over them except from them, can, by combination with\nother servant legislatures outside Texas, give to itself and to other\ngovernments outside Texas a new power to interfere with the freedom of\nthe human beings in Texas?\n\nWe are rather afraid that Sheppard and those of his faith, even\nassuming that our Constitution is a compact between states, have\nentirely overlooked the legal fact that a government is not the State\nin America. We are rather afraid that they have reverted to what\nMadison called \u201cthe impious doctrine of the Old World,\u201d namely, that\nthe government is the State and the human beings are its asset and its\nproperty. We are rather afraid that they agreed with the concept of\nLouis of France, expressed in his famous \u201cI am the State.\u201d\n\nOn no other basis can we explain their complete ignorance of the one\nimportant factor in the Tenth Amendment and the Fifth Article, \u201cthe\npeople\u201d of America, who, assembled in their \u201cconventions,\u201d as mentioned\nin the Fifth Article, are the citizens of America and compose the State\nor Nation of America.\n\nWe average Americans, in the light of our education, reading the record\nof that July 30 in our Senate, would have thought, _were it not for\none fact_, that every senator was using the expurgated edition of the\nConstitution, which Webb later used in the House, and which omits\nentirely from the Fifth Article the words, \u201cby conventions in three\nfourths of\u201d the states. Were it not for that one fact our thought\nwould have been justified. We know that the proposition of Sheppard,\nembodied in his Senate Resolution No. 17, was that the proposed new\nArticle should be referred to the tribunal of the state legislative\ngovernments. We know, and we have quoted his own statement, which is\nthe basis of that knowledge, that he held that legislative tribunal to\nbe \u201cthe only tribunal having power of amending\u201d our Constitution. We\nknow that he held this legislative tribunal to be \u201cthe proper tribunal\nto decide the fate of this Amendment.\u201d We know his confidence that this\nlegislative and government tribunal has \u201cthe right to shape, alter, and\ndevelop\u201d our Constitution, ordained and established by the citizens of\nAmerica. His conviction, in this respect, is stamped indelibly on our\nmind, because it came in such sharp conflict with our knowledge that\n_all_ Americans of an earlier day held that every _national_ Article,\nlike the First Article and the supposed Eighteenth Amendment, must be\nreferred to that other tribunal, the only tribunal competent to make\n_such_ Articles where men are citizens and not subjects, the tribunal\nof the American citizens themselves, the tribunal mentioned in the\nFifth Article in the words \u201cby conventions in three fourths of\u201d the\nstates in America.\n\nWe know, therefore, inasmuch as neither Sheppard nor any senator but\none apparently knew of the existence of that other and supreme tribunal\nor of the presence of those words in the Fifth Article, that all\nsenators save that one must have been using an expurgated edition of\nthe Fifth Article.\n\nOn that July 30 we find Senator Ashurst making plain that he has our\nedition of our Constitution. He said, \u201cWhen our federal Constitution\nwas written in 1787, two methods of amending were provided; and, unless\nI am mistaken, it was the first written constitution in history which\nprovides for two methods of amendment.\u201d This brief and simple mention\nof that significant fact, in relation to the Fifth Article, seems to\nhave been the only cognizance of the fact itself, in the Senate of that\nday or in the entire subsequent history of the Eighteenth Amendment,\neven in the great litigations about it in which were arrayed against\none another the most renowned \u201cconstitutional\u201d lawyers in America.\nSo far as would appear from the Senate record, no knowledge of the\namazingly important effect of that Fifth Article _mention_ of two\ndistinct powers (one limited and then existing in government and the\nother unlimited and then and now existing in the American people) to\nmake future Articles was acquired in the Senate or afterward, from the\nfact itself or from Ashurst\u2019s allusion to the fact.\n\nBack at Philadelphia in 1787, Gerry, always Tory in his mental attitude\nto government and human being, realized fully the amazing importance\nof this Fifth Article mention of the two then existing powers to\nmake Articles, the limited power of legislative governments to make\n_federal_ Articles (which had made all the federal Articles of 1781)\nand the unlimited and _exclusive_ power of the people themselves\nto make _national_ Articles, which had been exercised to make the\nnational Articles in each existing state constitution, and which the\nPhiladelphia Convention had already ascertained and held was the _only_\npower competent to make such Articles as their own proposed First\nArticle and the Eighteenth Amendment. While the Philadelphia Convention\nhad been discussing and deciding that their proposed Constitution,\nbecause of its First Article, the real constitution of government, must\nbe referred to the people, Gerry had always opposed that decision. He\nhad always fought to have that First Article sent to government, to\nhave its grants of power over the freedom of men made by government\nto government. When, therefore, the closing business day of that\nConvention was reached on September 15, 1787, he made his final and\nconsistent Tory effort that citizens should be asked to make a Fifth\nArticle which would change them back again to the subjects they had\nbeen in 1775. That effort was his motion of September 15 to strike\nfrom the Fifth Article, as we know it, the words \u201cor by conventions in\nthree fourths of\u201d the states. He knew, as we know, by reason of our\neducation with the Americans who defeated his effort, that those words\nare the Fifth Article _mention_ of the then existing only ability in\nAmerica which then could or now can make such Articles as the original\nFirst Article or as the supposed Eighteenth Amendment. He knew, as\nwe average Americans now know, that, only _if_ such mention _were_\nstricken from that Fifth Article, could any future possible claim\nbe made that legislative governments have ability to exercise or to\ngrant undelegated power to interfere with individual freedom. With the\nimportant object in mind, that he secure _some_ foundation for such\nclaim in the future, he made his motion to strike that mention of our\nexclusive power from that Fifth Article. As we average Americans know,\nhis effort to have a convention even propose such a Fifth Article to \u201ca\npeople better acquainted with the science of government than any other\npeople in the world\u201d was beaten by the decisive vote of 10 to 1.\n\nThe proposal of the Eighteenth Amendment by government to government\nwas the attempt of our servant American government to reverse the\nresult of that vote of September 15, 1787. The action of the state\nlegislative governments in America upon that proposed Eighteenth\nAmendment was an action depending _entirely_ for its validity upon a\nrecount of that vote and the assumption that the convention did strike\nout that mention of our exclusive power to make national Articles and\nthat the Fifth Article went to the American people and was made by\nthem _without that mention in it_. For which very obvious reasons, we\naverage Americans do not understand how the fact, to which Ashurst made\nbrief allusion on July 30, 1917, was not the basis of every attack made\nin the Supreme Court by many of the most renowned \u201cconstitutional\u201d\nlawyers in America, when they did assail the validity of that\nEighteenth Amendment.\n\nIt is difficult to pick out the one most remarkable thing in the\ncomplete story of the last five years. Yet we are inclined to believe\nthat, from a certain point of view, the one most remarkable thing\nis the absolute failure of even one of those renowned lawyers to\nappreciate or know or mention the fact and its _decisive_ effect\nupon the alleged validity of the Amendment they challenged, the fact\nthat the Fifth Article does name two future makers of Articles, the\ngovernments which could and did make the federal Articles of 1781,\nbut which neither could nor did make the First Article of 1787 or the\nEighteenth Amendment of 1917, and the citizens of America, who could\nand did make the First Article of 1787 and who alone can make but have\nnot made the Eighteenth Amendment.\n\nEven Ashurst seems to have known that it was remarkable, unique in\nhistory, for the Fifth Article to name two different makers of future\nArticles. It is amazing that the imperative reason for this naming\nof two makers, distinct and different in their ability to make,\nnever suggested itself to any of the renowned lawyers of 1920, even\nthough they knew the dual nature, _national_ and _federal_, of our\nConstitution. It is amazing when we realize that the Supreme Court, in\n1819, had stated, as an obvious thing, that, when the First Article\n(granting power to interfere with the freedom of men) was proposed,\nthe legal \u201cnecessity of referring it to the people, and of deriving\nits powers _directly from them_, was felt and acknowledged by all.\u201d It\nis amazing when the same Supreme Court in 1907 had authoritatively\nrepeated that statement: \u201cThe powers the people have given to the\ngeneral government are named in the Constitution, and all not there\nnamed, either expressly or by implication, are reserved to the people\nand can be exercised only by them or upon further grant from them.\u201d\n\nHowever, we average Americans, still pursuing the history of America\nto learn when we again became \u201csubjects,\u201d will later herein consider\nthe litigation about the Eighteenth Amendment. So far as the Senate\nis concerned, we leave it on December 18, 1917, the day on which it\nfinally proposed that legislative governments make the Eighteenth\nAmendment, whose Second Section was exactly of the same nature as the\nFirst Article, namely, an Article of the kind which the Philadelphia\nConvention of 1787 had known never could be made by legislative\ngovernments in America. In that Senate, as in the House, the public\nrecord discloses no American who did not ignore the most important\nfactor in the Tenth Amendment and the Fifth Article, no American\nwho knew the legal necessity of deriving, directly from the people\nthemselves, every power to interfere with the individual freedom of the\npeople.\n\nSo far as history tells the tale, in the legislatures of the states,\nthat legal necessity was \u201cknown and acknowledged\u201d by none. There were\nmany therein, as there were many in the later court litigations, who\nopposed the making on the ground of its unwisdom. There were also many,\nagain as in the later litigations, who contended that there should be\nno interference with the freedom of American citizens, as such, except\non the matters enumerated in the First Article. But, neither in our own\nAmerican legislature nor in these state legislatures, as in the later\nlitigations, was there one who knew the only legal and maintainable\nground for that belief, the legal fact, as the Philadelphia Convention\nfound it, that only the American people could validly grant government\npower to interfere with their individual freedom, and the legal fact\nthat the American people, constituting their government, kept the legal\nsituation, in that respect, exactly as the Philadelphia Convention\nfound it, by the most important factors in the Tenth Amendment and the\nFifth Article.\n\nThe amazing haste with which the ratifying legislatures exercised, for\nthe first time in America, this imaginary power to interfere with the\nindividual freedom of the American citizens is a matter of history. The\nmanner in which that legislative exercise of imaginary government power\nover subjects was secured in many states is something with which we are\nall familiar. We desire, however, to emulate the example set by Madison\nand Hamilton in _The Federalist_, so far as judgment can restrain the\nhonest indignation of citizens, when government undertakes to make\nthem \u201csubjects.\u201d Therefore we leave it entirely to those who uphold\nthe validity of the supposed new Amendment to substitute irrelevant\nmatter, mostly personal abuse that is harmless in view of its source,\nfor the sound legal arguments in support of validity, which they can\nnever find until the Statute of \u201976 is repealed and our constitutions\nof government are so changed that we cease to be citizens and become\nthe subjects our ancestors were in 1775.\n\nFor those who would like to look upon all American governments as\nmodel exemplars of American respect for American law and American\nconstitutions, the date of the proposal in December, 1917, and the\nquickness of ratification and the manner in which ratification was\nlargely secured, are all matters most unpleasant to contemplate. Even\nnow the most sincere advocate of the new Amendment never speaks of\nit without unwittingly showing his chagrin at the general knowledge\nthat it _was_ proposed and passed by governments when millions of the\ncitizens of those governments were fighting and were armed to fight for\nhuman liberty, and that even governments would never have dared to pass\nit except at that particular time.\n\nThese facts, however, reflect only on the virtue of the Amendment. They\nhave no bearing upon its validity. We average Americans are interested\nnow only in that claimed validity. We know that, if it is valid, we\nhave become subjects, that we are no longer citizens. We are seeking\nto find out when and how that change was made in our relation to all\ngovernments in America. Beginning on July 4, 1776, we have come down\nto December 18, 1917. We have found ourselves, on that day, still\ncitizens. We know that our servant legislature at Washington made a\nproposal on that day, which was legally absurd, unless we had already\nbecome subjects. We have listened carefully to what they had to say,\nin support of that proposal, and have ascertained that they neither\nknew nor understood the most important factor in our Tenth Amendment\nand Fifth Article, by which our ancestors kept their own and our status\nas citizens. We know that the state legislatures could not change that\nstatus. Therefore we now simply note the fact that, in 1918, some of\nthem ratified the proposal on the basis that all of us were their\nsubjects. We know that our own government at Washington has acted,\nwhenever it felt disposed to enforce the supposed new command against\nus and not to disobey it openly itself, as if we _were_ the subjects of\nthose ratifying legislatures.\n\nWe know also that in 1920, after more than a year of exhaustive\nstudy of our history and our Constitution and our laws by hundreds\nof our most eminent lawyers, all working for one object, the legal\ndemonstration of the invalidity of the new Amendment, a chosen\nnumber of the most renowned \u201cconstitutional\u201d lawyers in America\nappeared in the Supreme Court and orally argued against validity\nand filed the briefs against validity which were the result of this\nconcentrated effort. We know also that, in that court, on behalf of\nour own government and on behalf of those other governments which\nthat government has proclaimed to be the supreme dictator in America,\nthere also appeared another chosen array of the most renowned\n\u201cconstitutional\u201d lawyers, in the forefront being a former justice of\nthat court, now the American Secretary of State. This latter array\nappeared to demonstrate how and when, since 1790, our own status was\nchanged from citizen to subject and the collective legislatures of\nsome of the states were substituted for ourselves as possessors of the\nsupreme constitutional will in America.\n\nWe average Americans, therefore, to complete our education, now turn to\nthe arguments of these lawyers and to their briefs, with somewhat of\nchagrin at our own unaided ability to ascertain the \u201cwhen\u201d and \u201chow\u201d\n_we_ became subjects and _our_ Constitution, in its _national_ Articles\nand aspect, became the creature of legislative governments, although\nthe American people originally created it to be the master of all\ngovernments.\n\n\n\n\n                              CHAPTER XIX\n\n                           ARE WE CITIZENS?\n\n\n\u201cThe establishment of a Constitution, in time of profound peace, by the\nvoluntary consent of a whole people, is a prodigy.\u201d (_Fed._ No. 85).\nThose were the words of Hamilton, in a final appeal to the people of\nAmerica, as they were about to assemble in their \u201cconventions.\u201d\n\nAs he thought it a prodigy that their voluntary consent should be\nsecured to that constitution of government contained in the First\nArticle, he frankly added that he looked forward \u201cwith trembling\nanxiety\u201d to their own determination as to whether or not _they_ would\ngive that _necessary_ consent to the enumerated grants in that First\nArticle. We know how the patriotic efforts of himself and Madison and\nhis other colleagues were later rewarded by the giving of that consent.\nWe know _where_ those average Americans of that day gave that consent,\n_where_ they made that constitution of their _national_ government\nwhich is that First Article. \u201cIt is true, they assembled in their\nseveral states--and where else should they have assembled? No political\ndreamer was ever wild enough to think of breaking down the lines which\nseparate the states, and of compounding the _American_ people into\none common mass. Of consequence, when _they_ act, they act _in_ their\nstates. But the measures _they_ adopt do not, on that account, cease to\nbe the measures of the people _themselves_, or become the measures of\nthe state _governments_.\u201d\n\nIn the many other Supreme Court decisions, telling the tale of the\ncompletion of the \u201cprodigy\u201d and all stating the same legal fact, is\nthere a more apt and accurate expression of the knowledge of the\nAmerican people, who were better acquainted \u201cwith the science of\ngovernment than any other people in the world,\u201d that the \u201cconventions\u201d\nin the respective states, assembled to constitute their American\ngovernment by grants like those in the First Article and the\nEighteenth Amendment, are the Americans themselves and that the state\n_governments_ never are the American people themselves and never\nrepresent _those_ people for _national_ purposes. It was natural that\nsuch apt and accurate expression of that concept should have been\nvoiced by Marshall in the Supreme Court. He had been one of those\npeople, fighting on the battle-field with them to wrest from all\ngovernments in the world any ability to constitute government by making\ngrants like those in the First Article or the Eighteenth Amendment. He\nhad been one of those people in one of those \u201cconventions,\u201d in their\nrespective states, where _they_ made the only Article _of that kind_\nwhich ever entered their and our _national_ American Constitution.\nLater it became his privilege and duty (_and our great good fortune_)\nto explain _who_ alone could make and did make that First Article and\n_who_ alone can ever validly make Articles like it or the Eighteenth\nAmendment, namely, the American people themselves, assembled in\nconvention in their respective states.\n\nWhen, therefore, we read the Fifth Article, made by him and his fellow\nAmericans in those \u201cconventions,\u201d we recognize at once and we will\nnever forget or ignore _their_ mention of _themselves_, in the very\nword by which he and they then described _themselves_, \u201cconventions\u201d in\ntheir respective states.\n\nIn making the Eighteenth Amendment grant of power to interfere with\nAmerican freedom, we--the American citizens and \u201cconventions\u201d of this\ngeneration--have been ignored as completely as if we were not named in\nthe Fifth Article.\n\nWe have been trying to ascertain \u201cwhen\u201d and \u201chow\u201d the American human\nbeings, now ourselves, ceased to be \u201ccitizens of America\u201d and again\nbecame \u201csubjects\u201d of governments. We have gone to the record of our\nCongress on those days in 1917, in which it acted on the assumption\nthat the \u201cwhen\u201d and \u201chow\u201d were already history. We have found no\nSenator or Congressman who vouchsafed any information or displayed any\nknowledge of this matter, so vitally important to us who were born\ncitizens and free men. We have seen the leader of the House advocates\nof the new constitution of government, the Eighteenth Amendment,\nread a Fifth Article in which the \u201cconventions\u201d of those who made it\nand the First Article are not mentioned. We have seen the leader of\nthe same advocates in the Senate complacently assert the repudiated\nthought that the states made the First Article, our constitution of\n_our_ government. We have seen him follow up this error with the Tory\nmistake of assuming that the government of the state is the state. We\nhave seen him point out, to our American amazement, the remarkable\nand hitherto unknown fact, never mentioned by the people who made the\nFifth Article, that the state governments are the only tribunal in\nwhich our _national_ constitution of government can be changed, that\nthose governments are a tribunal in which new enumerated power can be\ngiven by government to government to interfere with our own individual\nfreedom.\n\nFresh from our education with the Americans who made that Fifth\nArticle in \u201cconventions\u201d of the very kind mentioned therein, we see\nthat those legislators of 1917 know naught of American history or law\nor constitution of government of men, that from them we cannot learn\n\u201cwhen\u201d or \u201chow\u201d we ceased to be \u201ccitizens\u201d and became \u201csubjects.\u201d But,\nthere assembled in the Supreme Court in March, 1920, many renowned\n\u201cconstitutional\u201d lawyers. Some came to challenge, some to uphold the\nnew Amendment, the new government-made constitution of government right\nto interfere with individual human freedom.\n\nTo the reading of all their briefs and arguments we bring our knowledge\nthat the new Amendment never entered our Constitution _unless_ we were\n\u201csubjects\u201d before 1917 or _unless_ the new Amendment was itself a\nrevolution (by government against citizens) which made us \u201csubjects.\u201d\n\nWe expect the lawyers _against_ the new Amendment to challenge its\nexistence with the facts and knowledge we bring from our education with\nthe Americans who made themselves free men and citizens.\n\nWe expect the lawyers _for_ the new Amendment to point out the day and\nthe manner in which they claim that government of the American people\nby the American people _did_ disappear from America.\n\nUnless these lawyers for the Amendment do point out that day and manner\nand sustain their claim as to both, we know that the existence of the\nnew Amendment is successfully challenged by the facts which we have\nacquired in our education. Before we listen to the expositions of\nthese facts by the lawyers against the new Amendment, let us briefly\nreview the facts themselves as they bear upon the supposed existence of\nthe new Amendment.\n\nWhen 1776 opened, the American people were subjects in rebellion\nagainst their omnipotent government. By direct action of themselves, in\nJuly, 1776, they made themselves free men, made their former colonies\nindependent states and made each of themselves a citizen of some one of\nthose states. Almost immediately, the Statute of \u201976 having declared\nthe actual fact that the supreme will in America was possessed by the\nAmerican people, at _their_ suggestion and with _their_ permission,\nthe citizens of each state constituted their own government with its\n_national_ powers to interfere with the individual freedom of its own\ncitizens. In strict conformity to the Statute of \u201976 and to the sole\nAmerican concept of the relation between government and human being,\nthose grants of power to interfere with individual freedom, like every\nother grant _of that kind_ until the Eighteenth Amendment, were made by\nthe respective citizens to their respective governments.\n\nIn 1777 the committee of the American people known as the Second\nContinental Congress proposed a union of states or political entities\nand a general government to govern states but not to interfere directly\nwith the human freedom of the individual. Because there is a vital\ndistinction between the ability to govern states and the ability to\ninterfere with individual freedom, those Americans knew that states or\npolitical entities could make _federal_ Articles but that only citizens\ncould ever validly make _national_ Articles. It was impossible for\nthese Americans not to know this difference between the respective\nabilities of states and citizens of America. Their Statute of \u201976\nhad declared this sole American concept of the law controlling the\nrelation of government to human being. They were actually engaged in\ntheir Revolutionary War for the very purpose of making it forever\nAmerican law that no governments could ever grant _national_ power in\nany matter. Because, therefore, the proposed Articles of 1777 were\nonly _federal_ Articles with grants of _federal_ power, it was \u201cfelt\nand acknowledged by all\u201d that the state legislatures were competent\nto make _those_ Articles. So we recall, with intent to remember, that\nthose _federal_ Articles were made in the exercise of that legislative\ngovernment ability to make _federal_ Articles, which is mentioned in\nour own Fifth Article.\n\nIn 1787, from the same Philadelphia, there came the proposal that\nthe American people, collectively the possessors of the supreme will\nin America, create a new nation, with themselves as its members or\ncitizens and, as its members, constitute its government with _national_\npowers to interfere with their own individual freedom. Because the\nlegal necessity of deriving powers _of that kind_ from the people\nthemselves was \u201cfelt and acknowledged by all,\u201d the inevitable legal\ndecision was reached at Philadelphia that the existing ability of\nlegislative governments to make _federal_ Articles neither then did\nnor ever could include the ability to make _national_ Articles like\nthe First Article and the supposed Eighteenth Amendment. By reason of\nthat legal necessity and its then recognition by all, because the First\nArticle contained grants of _national_ power, \u201cby the convention, by\nCongress, and by the state legislatures, the instrument was submitted\nto the people. They acted upon it in the only manner in which they can\nact safely, effectively, and wisely on such a subject, by assembling\nin convention.\u201d The reasoning and the decision itself were embodied in\nArticle VII and in the Resolution which went from Philadelphia with the\nproposed seven Articles, including the Fifth Article.\n\nAs the Supreme Court has definitely settled, the Tenth Amendment\nmerely declares what was in that original proposed Constitution.\nTherefore the Constitution gave no new government ability anywhere\nexcept to the government at Washington. It gave to that government only\nspecific ability to govern human beings, in certain matters. It merely\n_reserved_ to _each_ state government some of its former ability to\ngovern its own citizens. It gave neither to any state government nor\nto all state governments collectively any new ability to govern. And\nit reserved to the American people themselves all ability to exercise\nor to grant any _national_ power to interfere with the freedom of\nAmerican citizens except those enumerated powers in the First Article.\nThe Supreme Court has definitely settled that this reservation of such\npower exclusively to themselves, by the makers of the Fifth Article, is\nthe most important factor in our constitutional distribution of that\nkind of power among our American government, our state governments\nand, most important of all, ourselves, the citizens of America. For\nwhich reason, until this generation, it has always been axiomatic that\nthe mention of that exclusive ability of our own, \u201cconventions\u201d of\n_Americans_ in their respective states, is the most important factor in\nthe Fifth Article.\n\nIn strict conformity with the Statute of \u201976 and without usurping\nthe reserved powers of the most important factor in both the Tenth\nAmendment and the Fifth Article, seventeen _federal_ changes were made,\nbetween 1789 and 1917, in the _federal_ part of our Constitution, which\nis both a _federal_ and a _national_ Constitution. The situation in\n1917 was exactly the same as it had been since July 4, 1776, when it\nwas known even to the humble townsmen of Concord that governments could\nnot make _national_ Articles in American constitutions. Or rather, the\nsituation in 1917 was the same _unless_, somewhere prior to 1917, the\nStatute of \u201976 had been repealed and the most important factor in both\nArticles had been eliminated from the Fifth Article and Tenth Amendment\nof the American Constitution, which is the security of the American\ncitizen against usurpation of power even by governments in America.\n\nWe know that Gerry moved to strike that important factor from the Fifth\nArticle in September, 1789, and that he failed in his effort. We know\nthat Webb and the legislative advocates of the new Eighteenth Amendment\nhad a Fifth Article in which that most important factor was not\npresent. Apparently they based their government proposal and government\nratification of the Eighteenth Amendment upon a Fifth Article which did\nnot contain that most important factor, the reference of the makers of\nthe Fifth Article to themselves as the makers of all future Articles\nof a _national_ kind, the reference of those makers to themselves in\nthe words \u201cconventions\u201d of the American people, assembled in their\nrespective states.\n\nKeeping all these settled facts clearly in our minds, we now take\nup the arguments and the briefs in which, in March, 1920, the\nconstitutional lawyers of America, who disputed the presence of\nthe new Amendment in our Constitution, should have presented these\nirresistible facts. Then we shall take up the arguments and briefs of\nthose other renowned lawyers in which _they_ presented those other\nfacts (still unknown to us average Americans) which can alone refute\nour knowledge that the new Amendment never went into our Constitution,\nbecause we are still citizens and governments are yet unable to create\ngovernment power to interfere with our individual freedom.\n\n\n\n\n                              CHAPTER XX\n\n                            LEST WE FORGET\n\n\n\u201cThe important distinction so well understood in America, between\na _Constitution_ established by the people and _unalterable by the\ngovernment_, and a _law_ established by the government and alterable by\nthe government, seems to have been little understood and less observed\nin any other country.... Even in Great Britain, where the principles\nof political and civil liberty have been most discussed, and where we\nhear most of the rights of the Constitution, it is maintained that the\nauthority of the Parliament is transcendent and uncontrollable, as well\nwith regard to the Constitution, as the ordinary objects of legislative\nprovision. _They_ [the legislature] have accordingly, in several\ninstances, _actually changed_, by legislative acts, some of the most\nfundamental Articles of the government.\u201d (_Fed._ No. 53.)\n\nComing from Madison or Hamilton, this is the best kind of testimony\nthat the earlier Americans, who established that constitution of\ngovernment which is the First Article, knew that it was \u201cunalterable\nby government.\u201d And it is the best kind of testimony that the same\nAmerican makers of the Madison Fifth Article knew that it did not grant\nto state governments any ability to add to or subtract from the First\nArticle enumerated and constituted powers in government to interfere\nwith the freedom of American citizens. If Madison and Hamilton had\nbeen with us in our Congress of 1917, their statement would have been\nslightly altered. They would have spoken of \u201cthe important distinction\nso well understood in America\u201d in 1787, as one which \u201cseems to have\nbeen little understood and less observed in any other country\u201d and not\nknown or observed at all by our Senators or Congressmen of 1917.\n\nThe Americans of 1787, who \u201cso well understood\u201d the important\ndistinction, made their knowledge a noticeable thing in the\nlanguage of their Statute of \u201976 and of their Constitution. With\ntheir knowledge of the important distinction, they permitted the\nrespective states, through the respective legislatures thereof, to\nconstitute the government of states, to make the _federal_ Articles\nof 1781. With their knowledge of the important distinction and in\ndeference to their own clear Statute of \u201976, these intelligent\nAmericans refused to permit the states or the legislatures of the\nstates to establish the government of men, to make the _national_\nArticle--the First Article--which is the constitution of government\npower to interfere with individual human freedom. Moreover, by their\nknowledge of the important distinction and of the Statute, they knew\n_that_ Constitution, that enumerated grant of national power over\nthemselves, to be \u201cunalterable by government.\u201d And that we and _all_\nlater Americans might also know it, _they_, the American people or\n\u201cconventions\u201d of that day, insisted that the Tenth Amendment expressly\ndeclare that they, those \u201cconventions\u201d of the American people, reserved\nto themselves and their posterity, the \u201cconventions\u201d of any later day,\nexclusive ability to alter that constitution of _national_ power, the\nFirst Article. And, for the same purpose, _they_, the \u201cconventions,\u201d\nmentioned themselves, the particular reservee of the exclusive ability\nto alter that grant of national power, in one particular earlier part\nof the Articles they made, the part we know as the Fifth Article.\nNaturally, the two men, who worded that Article at Philadelphia and who\npaid its later makers the deserved tribute to their knowledge of the\nimportant distinction, mentioned those makers, \u201cconventions,\u201d in that\nFifth Article as future makers of all grants of _national_ power and\nmentioned the legislatures, in the Fifth Article, as competent future\nmakers of Articles that do not constitute new _national_ government.\n\nBecause we have lived through the experience of the Americans to whom\nthe tribute was paid, we know the distinction between a constitution\nof _national_ government, \u201cunalterable by government,\u201d and Articles\nconstituting government of political entities or states, alterable by\nthe states or the legislatures of the states. Moreover, by reason of\nour experience, we sense the clear recognition of the distinction in\nthe Fifth Article distinct mention of the people or \u201cconventions,\u201d\nas _sole_ makers of _national_ Articles, and the similar mention of\nthe \u201clegislatures\u201d as competent makers of _federal_ Articles. To our\nregret, we have found that our Congress, in 1917, knew naught of the\ndistinction and naught of its recognition in the language of the Tenth\nAmendment and the Fifth Article. It is with relief, therefore, that we\nturn to the great litigations in the Supreme Court of 1920, in which\nthe lawyers of the America, where the important distinction was _once_\nso clearly known, attacked and defended the proposal from the Congress\nof 1917 and the action of the state legislatures on that proposal.\nFresh from the utter legislative ignorance of that distinction, it is\nwith relief that, in our first glance at the briefs of those lawyers,\nwe find what seems the clear echo of the accurate knowledge we have\nacquired in the company of those earlier Americans.\n\n\u201cThere is only one great muniment of our liberty which can never be\namended, revoked or withdrawn--the Declaration of Independence. In this\nregard, it ranks with the Magna Charta.\u201d\n\nThe clear tribute to the unrepealed Statute of \u201976 excuses, while it\ndoes not explain, the error of the allusion to Magna Charta. Graduate\nstudents of the history of the advance of Americans from subjects to\nfree men, we average citizens grasp the error of the statement, \u201cin\nthis regard [that neither can ever be revoked] the Statute of \u201976 ranks\nwith the Magna Charta.\u201d We know that the Statute _was_ the revocation\nof the basic doctrine on which Magna Charta rested. Magna Charta was\nthe grant of privilege from an omnipotent government to its subjects.\nAll that subjects ever have are the revocable privileges granted by\nthe master government. The Statute of \u201976 states the basic American\nlaw that there are no subjects in America, that the human members of\nany political society or state or nation, except as they directly\ngrant power over some of their human rights to secure enjoyment of the\nrest, need obey the command of no one except Him who gave them their\nhuman rights. In a free nation, such as the earlier Americans made of\nthemselves, no man has any privileges _granted_ by a master government.\nIn a free nation, citizens or members of the society (and the supreme\nwill therein) have their servant governments to which those citizens\ngive whatever _national_ powers those governments ever have. Except\nfor the grants of _such_ power which those citizens so make, the human\nbeings retain, not as a gift or privilege of government but as the gift\nof Him Who created them, all human freedom of action. As _citizens_,\nthey also possess the particular privileges which arise from membership\nin that particular society of men; but even those privileges are not\nthe gift of government but the creation and effect of the society\nitself, just as every power of the government is also the gift of the\nsociety.\n\nWe pardon the error of the reference to Magna Charta, however, when\nwe read on in the brief and find it immediately quoting from our\nStatute: \u201cWe hold these truths to be self-evident, that all men are\ncreated equal; that they are endowed by their Creator with certain\nunalienable Rights; that among these are Life, Liberty and the pursuit\nof Happiness. That to secure these Rights, Governments are instituted\namong men, deriving their just powers from the consent of the Governed.\nThat whenever any Form of Government becomes destructive of these ends,\nit is the Right of the _People_ to alter or to abolish it, and to\ninstitute new Government, laying its foundation on such principles and\norganizing its powers on such form, as to _them_ shall seem most likely\nto effect _their_ Safety and Happiness.\u201d\n\nAt last, in this brief, we are getting the clear echo of our own\nknowledge that, _until this Statute is revoked_, it is not the right\nof \u201c_government or governments_\u201d to institute new government, laying\nits foundation on such principles and organizing its powers in such\nform as to \u201cgovernments\u201d shall seem most likely to effect the safety\nand happiness \u201cof governments.\u201d Moreover, in this brief, we are getting\nthe clear echo of our own knowledge that this Statute can _never_ be\nrevoked, while we remain free men and citizens instead of the subjects\nwe were until that Statute was enacted.\n\nAnd when we turn to another brief for a moment, we are cheered to find\nthe refutation of the Sheppard ignorance of the identity of those who\nmade _our_ Constitution, \u201cWe, the people of\u201d America, in its Preamble\nand its most important factor of the Tenth Amendment, the \u201cconventions\u201d\nof ourselves in its Seventh and its Fifth Articles. With gratification\nthat some \u201cconstitutional\u201d lawyers still know and observe the important\ndistinction between the ability of ourselves, the \u201cconventions\u201d\nof the Seventh and Fifth Articles, and the lack of ability in the\n\u201clegislatures\u201d of the Fifth Article to give to government _national_\npowers, we average Americans recognize, in the following challenge\nof _this_ brief, the challenge we would have made to the Sheppard\nproposition that legislatures attempt to constitute such new government\nover us. This is the challenge of the brief to Sheppard: \u201cThe\nConstitution is not a compact between states. It proceeds _directly_\nfrom the people. As was said by Mr. Chief Justice Marshall in McCulloch\nv. Maryland, 4 _Wheat._ 316, etc.\u201d Then follows the Marshall clear\nexposition of how the people themselves, the \u201cconventions,\u201d made\nthe constitution which is the First Article and how, if any other\nconstitution of that kind, such as the Eighteenth Amendment, is ever\nto be made \u201csafely, _effectively_, and wisely\u201d it must be made by\nourselves, assembled in the \u201cconventions\u201d named in the Fifth Article.\nThe full extract from Marshall has been set out already herein at page\n98.\n\nIn a second brief, in a different case, the same distinguished lawyer\nof 1920 is found bringing into bold relief another part of our\nknowledge so intimately connected with the supposed new constitution of\ngovernment, the Eighteenth Amendment. And it is a part of our knowledge\nwhich challenges a new constitution made entirely by governments\nwithout any action by ourselves, the people or the \u201cconventions\u201d named\nrepeatedly in the Constitution made by themselves. In that other brief,\nwe find him stating as one of the propositions on which he bases his\nargument, \u201cWhat the expression \u2018legislatures of the several states\u2019\nmeant as used in Article V, when that Article was adopted as a part\nof the Constitution, it means now.\u201d The statement being undeniably\ntrue, he immediately proceeds to urge, with equal truth, that \u201chowever\npopular approval or disapproval [i.e., the _direct_ action of the\npeople themselves, as, for example, in the \u2018conventions\u2019 whence, as\nhe already stated, _our_ Constitution proceeded \u2018directly from the\npeople\u2019] may be invoked, the people do not become a \u2018legislature.\u2019...\nAs well confound the creator and the creature--the principal and the\nagent through which he acts.\u201d\n\nThis is the echo of Marshall\u2019s clear statement of the vital distinction\nbetween the same \u201clegislatures\u201d (who never are the people and\nnever have the reserved ability of the people) and the \u201cpeople\u201d or\n\u201cconventions\u201d (which are the people and have the exclusive ability\nof the people). We recall the tribute paid to this distinction at\nPhiladelphia. We recall the legal decision there, a decision based\nsquarely on that distinction, that the legislative ability to make\n_federal_ Articles could not constitute new government of men, as\ndid the First Article, and that all Articles like it or the new\nEighteenth Amendment must go to the \u201cpeople\u201d of the Tenth Amendment,\nthe \u201cconventions\u201d of the Seventh and Fifth Articles. We recall\nMarshall\u2019s appreciation of the accuracy of that legal decision, when\nhe mentioned that the ability of the state governments or legislatures\nhad been competent to make the _federal_ Articles of 1781 but, when it\nwas proposed to constitute government of men, to vest the _national_\npowers of the _national_ First Article, \u201cthe necessity of deriving\nthose powers directly from the people [the \u201cconventions\u201d of the\nSeventh Article] was known and recognized by all.\u201d We remember that\nthe \u201cpeople\u201d or \u201cconventions,\u201d so recognizing and knowing, mentioned\nthemselves in the Fifth Article so that no one ever should forget the\nsimilar legal necessity that every Article like the First, such as the\nnew Article, must always be made by those \u201cconventions\u201d so mentioned.\n\nIt is, therefore, with considerable satisfaction that we read, in this\nbrief of 1920, the clear echo of all these settled facts, the knowledge\nthat \u201clegislatures\u201d never are the people and never become the people.\n\u201cAs well confound the creator and the creature--the principal and the\nagent.\u201d\n\nIn our gratitude for such remembrance, we ignore the inaccuracy of a\nsuggestion that the \u201clegislatures\u201d of the Fifth Article are the agent\nof the principal therein mentioned, the \u201cpeople\u201d of America, the\n\u201cconventions\u201d which made the Constitution. Each of those \u201clegislatures\u201d\nis an agent of one particular reservee among those named collectively\nin the reservation of the Tenth Amendment in the words \u201cto the states\n_respectively_,\u201d while the \u201cconventions\u201d in the Fifth Article is the\none most important reservee in that Tenth Amendment, \u201cthe people\u201d\nof America, the most important factor in that Tenth Amendment and\nin America. For the purpose of making any Articles, whether federal\nor national, that important reservee has no legislative agents. For\nany purpose, it has but one legislative agent, the Congress; and\nto that one legislative agent it has given no power to _make_ any\nconstitutional Articles; but it has, in the Fifth Article, _left_ with\nthat agent the mere ability to _draft_ and _propose_ a new Article of\neither kind and, as did the Philadelphia Convention, from the nature of\nthe Article it drafts, whether within the ability of \u201clegislatures\u201d or\nwithin the exclusive unlimited ability of the people or \u201cconventions,\u201d\nto _ascertain_ and _propose_ which shall make the drafted Article.\n\nThat the state legislatures are not agents of the American citizens,\nin that capacity, is self-evident. Each legislature is chosen by the\ncitizens of a state. Moreover, the Constitution itself distinctly\nstates that the \u201cconventions\u201d of the American citizens grant no power\nof any kind therein to the state \u201clegislatures.\u201d\n\n When the American people created a national legislature, with certain\n enumerated powers, it was neither necessary nor proper to define the\n powers retained by the states. These powers proceed, _not from the\n people of America_, but from the people of the several states; and\n remain, after the adoption of the Constitution, what they were before,\n except so far as they may be abridged by that instrument. (Marshall in\n Sturges v. Crowinshield, 4 _Wheat._ 122.)\n\nThat is why anything which _these_ \u201clegislatures\u201d do, when it comes\nin conflict with a valid action of _our_ legislature, the Congress,\nmust always yield. We have the supreme will in America, and when\n_our_ agent, the Congress, speaks with authority from us, it speaks\nfor us, while the inferior agents of other lesser wills never speak\nfor us. That clear distinction does not detract from the ability of\nthose legislatures to make _federal_ Articles in our Constitution.\nThey do not get that ability from us, the citizens of America. They\nhad that ability from those respective inferior wills, when we made\nour Constitution. By its exercise, they had made the federation of\nstates and the _federal_ Articles of its government. When we made our\nnational Constitution, we continued that federation and the ability of\nits component members to make its federal Articles and put them in our\nConstitution, which is both our national Constitution and their federal\nConstitution. The ability to make those _federal_ Articles is one of\nthe powers reserved to those inferior wills by the reservation of the\nTenth Amendment which reads \u201cto the states respectively\u201d; and it is not\nan ability to make Articles which is granted in the Fifth Article. No\nability to make Articles is _granted_ in that Fifth Article.\n\nInasmuch, however, as the writer of the brief in 1920 has known that\n\u201clegislatures\u201d do not ever become \u201cthe people,\u201d it is quite probable\nthat his reference did not intend to suggest that the legislatures of\nwhich he spoke and who are the agents respectively of other citizens,\nwere the agents, for any purpose, of the citizens of America. With\nhis recognition that legislatures never are the people and with the\nother quoted extracts of those briefs of 1920 before us, echoing the\nknowledge we have acquired, we feel at least that in the court of 1920,\nfrom the debate of men who know, we will learn whether and \u201cwhen\u201d and\n\u201chow,\u201d we, between 1907 and 1917, became subjects instead of the free\nmen and citizens which we clearly were up to 1907.\n\nAt least such was the thought of one American citizen, when he read\nthis quotation, in one of the briefs of 1920, \u201cthat the people do\nnot become a legislature.... As well confound the creator and the\ncreature--the principal and the agent through which he acts.\u201d It was\nalmost incredible to this particular American citizen that he found\nthis statement and the statement that--\u201cThe Constitution is not a\ncompact between states. It proceeds directly from the people.\u201d--both\nin the briefs of the foremost champion of the new Amendment. And it\nseemed equally incredible to him to find the quotation about the\nStatute of \u201976 being \u201cone great muniment of our liberty which can never\nbe amended, revoked or withdrawn\u201d in the brief of the counsel for the\npolitical organization which dictated the new state government command\nto the citizens of America.\n\nAn unusual method had been adopted for the hearing of what were later\nreported under the one title the \u201cNational Prohibition Cases,\u201d 253\n_U.S._ 350. In that hearing, which continued for days, seven different\nlitigations were argued because all dealt either with the validity of\nthe Eighteenth Amendment or with the meaning of its remarkable second\nsection or with the statute enacted under that section and known as\nthe Volstead Act. For the same reason, the briefs on both sides of\nthe various litigations were clearly the result of conference and\ncollaboration. Nearly all of the briefs, challenging the new Article,\nmade their challenge on the same two main points and in the expression\nof those two challenges, made constant reference to the different\nexpression thereof in the other briefs.\n\nIn the litigation and argument of that March, appeared many of the\nbest known lawyers in America. Among them were distinguished counsel,\nappearing on behalf of those legislative governments who claim and, in\nthe new Article, have attempted to exercise the omnipotent supremacy\nover the citizens of America which was denied by the people of America\nto the British Parliament. Among them were other distinguished\ncounsel, appearing on behalf of what had always been known as the\nsupreme legislative government in America, _our government_ with\nits _enumerated_ powers and without omnipotence over us. Among them\nwere still other distinguished counsel, appearing on behalf of some\nseparate states or political entities to contend that there existed\nno _constitutional_ ability anywhere, even in ourselves, to take\nfrom their particular state any more of its sovereignty than it had\nsurrendered in those early days when the states made the Constitution,\nas Sheppard claimed in the Congress of 1917. Among them were still\nother distinguished counsel, some of them the most distinguished of\nall, appearing to oppose, as best they knew how, the total destruction\nof all _legitimate_ industry in a business in which it was the _human_\nright of Americans to engage even before Americans wrote their Statute\nof \u201976 and consequently not a privilege of the citizen of America or\nthe citizen of any state.\n\nAs this fact has been the basis of many errors in that comedy and\ntragedy of errors, which is the five-year tale of the Eighteenth\nAmendment, we average Americans may well dwell for a moment upon the\ncertainty of that fact. It is the natural mistake of those, who have\nthe Tory concept of the relation of men to government, that they should\nfirst confuse the meaning of the words \u201cprivilege of a citizen\u201d with\nthe words \u201cprivilege of a subject\u201d and thus believe that the nature of\nboth privileges, and the source of each are the same. That mistake is\nbut the echo of the error which confuses the nature of Magna Charta\nwith that of the Statute of \u201976. Magna Charta is the declaration of\ncertain privileges which government will permit its subjects to keep as\nlong as the government pleases. The Statute of \u201976 is the declaration\nthat destroys the relation of government to subjects, creates the\nrelation of citizens to their servant governments, and states that the\nservants shall have no power to interfere with the human rights of\nthe masters, given by their Creator, except such power as the masters\nchoose to give, and that the servants shall keep that power only so\nlong as the masters will. To the Tory concept, always concentrated\non the relation of subject to master government, it is difficult of\napprehension that the human being is born with the right to use his\nhuman freedom as he himself wills, so long as he does not interfere\nwith the similar exercise of human freedom by the rest of us human\nbeings. If men, in the exercise of their free will, would always obey\nthe defined law of Him who created them, the exercise of human freedom\nby one individual would never interfere with the exercise of human\nfreedom by all other individuals, and no human government need ever be\nconstituted.\n\nAmong the human rights of Americans, as of all human beings, when\nthey come into the world, is the human right to do everything which\nis forbidden in the first section of the Eighteenth Amendment. It is\ntrue, as we frequently hear stated, that the Supreme Court has decided\nthat the right to do any of those things is not the \u201cprivilege\u201d of\nAmerican citizens or of the citizens of any state. It is also equally\ntrue, although the Supreme Court has never been called upon to\ndecide that very obvious fact, that the right to breathe is not the\n\u201cprivilege\u201d of an American citizen or of the citizen of a state. Both\nrights are among the rights of human beings, _as such_, and they are\neach of them among the rights of themselves, which we, \u201cthe people\u201d\nof America, established and ordained our Constitution to secure. When\nwe established that Constitution for that purpose, we admittedly gave\nour only American government no power to make the command of the first\nsection of the Eighteenth Amendment. That is why the governments of\n_other_ citizens were asked to make the command to ourselves, the\ncitizens of America.\n\nEach of the Americans, who created the nation that is America, already\nlived as a member and citizen of a state. In that state, when they had\nconstituted it, the citizens _thereof_ had subjected their human right\n(to do what the new Amendment says shall not be done) to a power in the\ngovernment of that state (a power which _they_ gave it and can take\nback from it) to make that kind of a command _to them_ in that matter.\n\nWe thus have clearly in our minds that the individual in America has\nthe human right (with which the new Amendment interferes) and that it\nis subject to the interference of no government, except as the citizens\nof that particular government have given it power so to interfere with\nit. The undoubted fact that the right itself is not the privilege of\nthe citizen of America or the citizen of the state is simply another\nway of saying that the original human right itself is not granted\nto the human being by government or governments but by the Creator\nWho made him. Without the Tory concept, no man would even make the\nmistake of believing that a citizen gets any of his privileges from\nany government. The privileges of a citizen are the things which\nhe acquires by his voluntary association with the other citizens as\nthe members of a political society which is the nation. The human\nrights of the same individual are the rights which he brings into that\nassociation and subjects to whatever powers of its government are\ngranted by himself and those other citizens with whom he associates as\nthe nation.\n\nOf course, the early Americans, with whom we have now been educated,\nnot only knew these things clearly and accurately, but on their\nknowledge of them based everything that they did in the fifteen years\nwhich we have lived with them. The Americans of today, who uphold\nthe new constitution of government made entirely by government, do\nnot know them at all or understand them when they hear them. Neither\nwould the aristocrats of France, before the French Revolution, nor the\nTories of England, even at the time of our Revolution, have known or\nunderstood them. That is why the Americans continued their Revolution\nand won it, so that these things might be the basis of every government\ninterference with any human right. Later they made the American\nConstitution solely to secure the greatest possible protected enjoyment\nof all individual human rights. That security is one of the privileges\nacquired by citizenship in the society which that Constitution created.\nWherefore, it is of interest for us to know how clearly Madison, who\nlargely planned that Constitution and who worded its Fifth Article, did\nknow and understand these facts in relation even to the very things\nforbidden in the new constitution of government made entirely by\ngovernment.\n\nIn the House of Representatives, in the first session of the new\nCongress with the enumerated powers of the First Article, on May 15,\nthere came up for discussion \u201ca proposed bill laying duties on goods.\u201d\nMadison \u201cmoved to lay an impost of eight cents on all beer imported. He\ndid not think this would be a monopoly, but he hoped it would be such\nan encouragement so as to induce the manufacture to take deep root in\nevery state of the Union.\u201d (4 _Ell. Deb._ 345.)\n\nThat the knowledge of Madison was not unknown to the Supreme Court a\ncentury later, in 1890, is a matter of record.\n\n That ardent spirits, distilled liquors, ale, and beer are subjects of\n exchange, barter, and traffic, like any other commodity _in which a\n right of traffic exists_, and are so recognized by the usages of the\n commercial world, the laws of Congress, and the decisions of courts,\n is not denied. (Leisy v. Hardin, 135 _U. S._ 100.)\n\nReturning to the courtroom of 1920, therefore, we are sincerely glad to\nnote the appearance of quite an array of eminent counsel on behalf of\nthose legitimately engaged in a business which is just as legitimate\nan exercise of human right, as it was when Madison hoped that it would\ntake deep root in every state of the America he loved so well, a\nbusiness which will continue free from _unlawful_ usurpation of power\nby government so long as the Constitution planned by Madison is obeyed\nby governments in America. It is too bad that the eminent counsel, who\nshared Madison\u2019s views in relation to that legitimate business, did\nnot also have Madison\u2019s accurate knowledge of the only way in which\nlegitimate government power can be created to interfere with that or\nany other human right, the way which Madison so clearly stated in the\nFifth Article--by grant from the \u201cconventions\u201d of American citizens.\n\nWhen we average Americans look over the great array of counsel and\nthe respective clients whose causes they champion, one fact lends no\nencouragement to our hope that we may learn the merits of the claim\nthat, somehow between 1907 and 1917 we became subjects and lost our\nstatus as free men. Although each client is represented by his own\ndistinguished attorneys and although eminent counsel argue and file\nbriefs, as _amici curi\u00e6_, on behalf of the state governments which\nclaim that we are subjects and on behalf of some of the litigating\nother states and individuals, no _amicus curi\u00e6_ files any brief on\nbehalf of us, the citizens of America, the reservees of the Tenth\nAmendment, the \u201cconventions\u201d of the Seventh and the Fifth Articles.\n\nThere is, however, this comfort. If, _because_ the counsel in\nopposition to the new Amendment do not know and urge our legal\nprotection against any new constitution of _national_ government except\nby ourselves, the citizens of America, the \u201cconventions\u201d of the Fifth\nArticle, and if, _because_ of such ignorance on the part of counsel,\nthe Court should not be called upon either to consider or pass upon\nour protection, no decision of the Court will be intended to have--as\nno decision of the Court could have--any effect upon our protection.\nIf counsel fail to bring before the Court the legal facts which\ndemonstrate that the new Amendment is not in the Constitution unless\nwe Americans are \u201csubjects,\u201d our day in Court is merely postponed.\nAnd when that day shall come, when that Court is addressed by counsel\nwho do represent the citizens of America and who accurately know the\nconstitutional protection which we have for all our rights, there is\nnot the slightest danger that the Court, established and maintained\nby us for the sole purpose of protecting our individual rights against\nusurpation by government, will decide that we are subjects and that\ngovernments can create new government power to interfere with the\nfreedom of the individual American citizen.\n\nMeanwhile, let us examine the briefs of March, 1920. In them, despite\nour regret that not one of them was written in our behalf, it may be\npossible, it ought to be a certainty, that we will hear something about\nthe \u201cwhen\u201d and the \u201chow,\u201d _after_ 1907, we are supposed to have lost\nour status as free men and citizens of America.\n\n\n\n\n                              CHAPTER XXI\n\n                  BRIEFS IGNORE THE AMERICAN CITIZEN\n\n\nThere is one man whose skill as an artist could do justice to the\natmosphere in which all the briefs of that March must have been\nwritten. Unfortunately, the reports of the death of that man are no\nlonger greatly exaggerated. It is unfortunate that the man who pictured\nthe sensations of a Yankee in King Arthur\u2019s Court could not have lived\nto reverse the feat. Only his genius could picture one of the Americans\nof 1790 living in the atmosphere of the briefs of 1920 _for_ the new\nAmendment and learning therein that the Americans of his own day never\nbecame citizens of America. Only the unique word-artist, who defined\na cauliflower as a cabbage with a college education, could adequately\nstate the startling fact that not one of the briefers knew that all\nwere assembled in the court room of March, 1920, seriously to debate\nwhether the Americans in 1788 voluntarily surrendered their status\nas free men and, repealing their Statute of \u201976, declared themselves\nand their posterity subject to a legislative government superior to\nwhat they called their supreme legislature, a legislative government\n\u201cinvested with power to legislate for us in all cases whatsoever.\u201d\n\nBecause Mark Twain is dead, we must get from those briefs, without\nhis aid, the knowledge that the new Article depends entirely on the\nextraordinary concept that the Fifth Article constituted a hitherto\nunknown government of all American citizens, not our government\nof enumerated First Article powers but an entirely distinct\ngovernment--not a member of it chosen by American citizens--\u201cinvested\nwith power to legislate for us in all cases whatsoever.\u201d\n\nIn other words, we are to learn from the briefs _for_ the new Article\nthat our supposed only and supreme American government is, and that\nall American citizens are, subject to the omnipotence of a still more\nsupreme legislative government, consisting of the state legislative\ngovernments on whose behalf some of the most distinguished lawyers\nof 1920 appeared. It is the clear concept of those lawyers that upon\nthe _will_ of the governments they represented, a will subject to\nthe restraint of no Constitution in America, depends entirely what\nmeasure of human freedom we individual American citizens may enjoy.\nThis concept stands out clear and sharply defined in their briefs,\nalthough neither they nor their opponent lawyers grasp the fact. On\nthe fact that the Fifth Article _mentions_ their client governments,\nthe state legislatures, they base the entire claim that the Eighteenth\nAmendment is in our Constitution. On this _mention_ rests their\nextraordinary assumption that the Fifth Article is a _\u201cgrant\u201d_ of power\nto those governments--and to the very \u201cconventions\u201d which made the\nFifth Article--to make new Articles of every kind, whether _federal_\nto govern states or _national_ to interfere with the freedom of the\nindividual.\n\nFurthermore, we are to learn, from the briefs of the lawyers _against_\nthe new Article, that they all assert, like their opponents, that the\nFifth Article _is_ a _grant_ of power to the grantors and to the state\ngovernments. To our amazement, in the briefs of the lawyers _against_\nthe new Article, we shall find no knowledge of or insistence upon\nthe important fact that the Constitution is both a _federal_ and a\n_national_ Constitution. Most amazing of all, in no brief of any\nlawyer, shall we find the faintest recognition of the _decisive_ fact\nthat the \u201cconventions\u201d of the Fifth Article are the American citizens\nthemselves, while the state \u201clegislatures\u201d of the Fifth Article are\nrespectively the attorneys in fact for respective citizens of other\npolitical entities than the nation which is America. Most briefs, _for_\nthe new Amendment, will dwell upon the fact that the people of America,\nnot the states, made the Constitution. Yet, although it is equally\ntrue to say that the whole people of America or the \u201cconventions\u201d of\nthe Seventh Article made the Constitution, no briefer will know that\nthe \u201cconventions\u201d of the Fifth Article are also the whole people of\nAmerica, while the state \u201clegislatures\u201d never are the attorneys in fact\nfor the citizens of America, who never chose a single member of those\n\u201clegislatures.\u201d\n\nThat all those lawyers, who debated the _extent_ of the imaginary\n\u201cgrant\u201d of power in the Fifth Article, may do themselves strict\njustice, let us accurately state a few indisputable facts before we\nconsider their briefs.\n\nIt _is_ a fact that the subject matter of the first section command and\nthe second section grant, in the Eighteenth Amendment, is the exercise\nof a human right, not the privilege of a citizen of America or the\ncitizen of any state.\n\nIt _is_ a fact that the Americans in each former colony, in 1776,\nconstituted a state for themselves and a government of that state\nand subjected that particular right, as all _their_ individual human\nrights, to the general welfare state power of _that_ government, the\npower which is now known as the police power.\n\nIt _is_ a fact that, from 1776 to 1787, that particular individual\nright, as _all_ the human rights of the citizens of any state, was\nsubject to no interference by any government or governments in the\nworld except the one legislative government of that particular state.\nIt _is_ a fact that all the legislative governments of the other states\nand the government of the federation of states could neither exercise\nnor grant, as some of them have attempted to do in the Eighteenth\nAmendment, any power to interfere with that particular individual\nfreedom or any other individual freedom of the citizens in that\nparticular state.\n\nIt _is_ a fact that, on June 21, 1788, the Americans in the nine states\nbecame collectively one political entity, the citizens of America,\ncomposing the nation which is America. It _is_ a fact, _and a fact\nwhich flatly denies the existence of the Eighteenth Amendment_, that,\non June 21, 1788, the existing state legislatures did not become an\nomnipotent legislative body of the new nation \u201cinvested with power\nto legislate\u201d for American citizens \u201cin all cases whatsoever\u201d in\ninterference with our individual freedom. It _is_ a fact that those\nlegislatures did not then become any government for the citizens of\nAmerica on any subject whatsoever.\n\nIt _is_ a fact that not one of those state legislatures received any\nnew power to interfere with human freedom anywhere by any grant of\n_such_ power in the seven Articles of our Constitution. The opening\nwords of the First Article expressly so declare. They are, \u201cAll\nlegislative powers herein granted shall be vested in a Congress of\nthe United States, which shall consist of a Senate and a House of\nRepresentatives.\u201d Moreover, the Tenth Amendment, the declaration\ninsisted upon by the whole \u201cpeople\u201d of America in their \u201cconventions,\u201d\nexpressly so declares. Its declaration is that the entire Constitution\ngives no new power to any government except the new government of\nAmerica, the government constituted by the First Article.\n\nIt _is_ a fact, again a fact which denies the existence of the\nEighteenth Amendment, that the _general constitutional restrictions\nupon government power to interfere with individual freedom_ are\nrestraints upon the exercise of every grant of such power in the\nConstitution, and that they do not restrain the state governments\n_because those governments are the donee of no power of that kind in\nthat Constitution_. This fact, a patent fact hardly needing settlement,\nwas decisively settled in 1833 by the decision of the Supreme Court,\nannounced by Marshall, in Barron v. Mayor of Baltimore, 7 _Peters_, 43.\nBarron contended that the Fifth Amendment restrained the power of the\nstate governments. Marshall said:\n\n The question thus presented is, we think, of great importance, _but\n not of much difficulty_. The Constitution was ordained and established\n by the people of the United States for themselves, for their own\n government, and not for the government of the individual states. Each\n state established a constitution for itself, and in that constitution\n provided such limitations and restrictions on the powers of its\n particular government as its judgment dictated. The people of the\n _United States_ framed _such_ a government for the United States as\n _they_ supposed best adapted to _their_ situation, and best calculated\n to promote _their_ interests. The powers _they_ conferred on this\n government were to be exercised by _itself;_ and the limitations on\n power, if expressed in general terms, are naturally, and, we think,\n necessarily, applicable to the _government created by the instrument._\n They are limitations of power _granted in the instrument itself;_ not\n of distinct governments, framed by different persons and for different\n purposes.\n\nThe decision settled that the entire Constitution vested in the state\ngovernments not a single power to interfere with individual freedom\nin any respect. The decision is based on that one fact. The fact and\ndecision expose the absurdity of the thought that the Fifth Article is\na \u201c_grant_\u201d of any _such_ power to the state governments, much less a\ngrant of _every_ such power to those governments. This absurd thought,\nhowever, is the assumption on which every advocate of the Eighteenth\nAmendment based his argument in March, 1920: and it is the assumption\nupon which wholly depends the existence of the Amendment.\n\nIt _is_ a fact that the state legislatures, before the Constitution\nwas even proposed, had existing ability to make _federal_ Articles. It\n_is_ a fact, as the Tenth Amendment declares, that the \u201cconventions\u201d of\nthe Seventh Article _reserved_ that _federal_ ability to those state\ngovernments and that the Fifth Article did not \u201c_grant_\u201d it to them. It\n_is_ a fact, that the \u201cconventions\u201d of ourselves, the American citizens\nassembled in their respective states, the \u201cconventions\u201d of the Seventh\n_and_ the Fifth Article, even before the Constitution was worded\nor proposed, had _exclusive_ ability to make _national_ Articles,\nwhich either directly interfere or grant ability to interfere with\nindividual freedom. It _is_ a fact that this power of the \u201cconventions\u201d\nincluded the ability to make any kind of Article, either _federal_ or\n_national_. It _is_ a fact, therefore, as the \u201cconventions\u201d of the\nAmerican citizens had this omnipotent power before the Fifth Article\nwas even drafted, and as the Tenth Amendment states that _they_\nreserved it to _themselves_, that they did not grant _all of it_ (as\nthe advocates of the new Amendment claimed in March, 1920), or _part\nof it_ (as the opponents of the new Amendment claimed in March, 1920)\nto themselves in their own Fifth Article. It _is_ a fact, therefore,\nthat the _mention_ of the two existing abilities (the existing\nomnipotent ability of the \u201cconventions\u201d and the existing _limited_\nability of the \u201cstate legislatures\u201d) does _not_ make the Fifth Article\nany \u201c_grant_\u201d of power either to the \u201cconventions\u201d (who made the\nArticle) or to the state \u201clegislatures.\u201d\n\nIt _is_ a fact that the very \u201cconventions\u201d named in the Fifth\nArticle and the American citizens assembled therein, while they\nwere making that Article, accurately knew that it was nothing but\na _constitutional_ mode of procedure for two distinct and existing\npowers, and that it did not \u201c_grant_\u201d any power whatever to the state\ngovernments.\n\nSpeaking of the Constitution, with its Fifth Article, the entire\nconvention in Virginia declared that all the powers granted in the\nConstitution were being granted by the people _of America_ \u201cand that\nevery power, not granted thereby, remains with _them_, and at _their_\nwill.\u201d Nothing could more clearly express the knowledge that the Fifth\nArticle was not a grant of any power by the \u201cconventions\u201d to the\n\u201cconventions\u201d or to the state governments. In the Virginia convention,\nLee stated: \u201cThis new system shows, in stronger terms than words could\ndeclare, that the liberties of the people are secure. It goes on\nthe principle that all power is in the people, and that rulers have\nno powers but what are _enumerated_ [in the First Article] in that\npaper.... Candor must confess that it is infinitely more attentive to\nthe liberties of the people than any state government.\u201d (3 _Ell. Deb._\n186.)\n\nIn the South Carolina convention, Pinckney said: \u201cWith us, the\nsovereignty of the Union is in the people\u201d (4. _Ell. Deb._ 328), and\nagain \u201cI conceive it as _indispensable_, in a republic, that all\nauthority should flow from the people.\u201d (4 _Ell. Deb._ 326.)\n\nHamilton, one of the people assembled in the New York convention, said:\n\u201cAs the people are the only legitimate fountain of power, and it is\nfrom them that the constitutional charter, under which the several\nbranches of government hold their power, is derived, it seems strictly\nconsonant to the republican theory, to recur to the same original\nauthority,\u201d the people themselves, the \u201cconventions\u201d of the Fifth\nArticle and the Seventh, \u201cwhenever it may be necessary to enlarge,\ndiminish, or new-model the powers of government.\u201d (_Fed._ No. 49.) He\ncould hardly have made more clear his knowledge that the Fifth Article\nwas not a \u201cgrant\u201d of power to the state governments. As Madison and\nHamilton proposed and seconded the only Fifth Article, at Philadelphia,\nwhich ever mentioned the state legislatures, their own words have great\nweight in the interpretation of its language. For which reason, it is\nwell to recall again that Madison, in _Federalist_ Number 37, clearly\nsaid that \u201cthe genius of republican liberty seems to demand ... not\nonly that all power should be derived from the people.\u201d And either\nMadison or Hamilton said in _The Federalist_, Number 49, the reference\nto the Fifth Article being unmistakable from what they said, \u201cThere\nis certainly great force in this reasoning, and it must be allowed to\nprove that a constitutional road to the decision of the people ought\nto be marked out and kept open, for certain great and extraordinary\noccasions.\u201d As they both maintained, at the Philadelphia Convention\nand thereafter, that the ability of state governments was incompetent\nto constitute government with national powers to interfere with human\nfreedom, and as they both repeatedly stated that it would be contrary\nto the genius of republican liberty that _any_ governments should\nhave that ability, they have made unmistakable _their_ knowledge that\nthe Fifth Article, which they proposed and seconded and which Madison\nprobably worded, did not grant any such ability to governments.\n\nIn the Pennsylvania convention, Wilson clearly expressed the knowledge\nwhich reads the new Eighteenth Amendment out of our Constitution, when\nhe said: \u201cIn this Constitution, the _citizens_ of the United States\nappear dispensing a part of their original power in what manner and\nwhat proportion _they_ think fit. They never part with the whole; and\nthey retain the right of recalling what they part with.\u201d (2 _Ell. Deb._\n437.) Can any man, even a modern \u201cconstitutional\u201d lawyer, reconcile\nthat knowledge with the thought that the Fifth Article is a grant of\npower to the state governments? Again in the same convention, he said,\nspeaking of our Constitution: \u201cHere, sir, the fee simple of power\nremains in the people _at large_ and by this Constitution _they_ do not\npart with it.\u201d (2 _Ell. Deb._ 435.) In the North Carolina convention,\nIredell, later on the Supreme Court Bench, said: \u201cNo man, let his\ningenuity be what it will, could enumerate all the individual rights\nnot relinquished by this Constitution.\u201d (4 _Ell. Deb._ 149.)\n\nAll these facts should be dwelt upon and emphasized in the briefs of\nthe lawyers _against_ the new Article in which government attempts\nto exercise ungranted power and to grant new power to interfere with\nthe individual freedom of the American citizen. And against all _our_\neducation in the \u201cconventions,\u201d it must be the burden of the briefs of\nthe lawyers _for_ the new Amendment to uphold the amazing proposition\nthat all the individual rights of the American citizens were, by the\nFifth Article, made subject to a supposed omnipotence granted to the\nstate governments, not a member of which is chosen by the citizens of\nAmerica.\n\n\n\n\n                             CHAPTER XXII\n\n                   NO CHALLENGE TO THE TORY CONCEPT\n\n\nWe average Americans, therefore, come to the courtroom of 1920\nwith some knowledge that is a mathematical certainty. We know that\neverything done at Philadelphia by the \u201cconventions\u201d named in the\nSeventh Article was done with one dominant purpose--the security of\nindividual human freedom. We know that, at Philadelphia and in those\n\u201cconventions,\u201d the old states and their governments, the _federal_\ngovernment and its continuation in the new Constitution, the new\nnation and its Constitution and its government were only important as\nthe American citizens considered that each or all would contribute to\nthe security of American _individual_ freedom. We know that, only in\nrare instances, such as that of Gerry, did a Tory mental attitude lead\na man into the error (for any American after \u201976) of thinking that\npolitical entities (such as states or nations or their governments)\nhave the slightest importance except in so far as they contribute to\nthe individual freedom of the citizens who create them and _must_\ncontrol them, if an American is to remain a citizen. We know that\nevery American, in those \u201cconventions,\u201d discussed and voted upon\nevery mention of these political entities, with insistent realization\nthat nothing anywhere in the Constitution was intended to disturb\nor did disturb the legal fact that only the citizens of America,\nin \u201cconventions,\u201d ever could say _how much national power_ the new\ngovernment should have, _how much_ each old state should be allowed\nto retain over its own citizens and _how much_ the citizens of America\nshould reserve from all governments in America. We also know this legal\nfact to have been the most important legal fact in America to the\nAmericans in those \u201cconventions.\u201d We know that it was the legal fact\nwhose denial by the British Parliament caused the Revolution. We know\nthat, from July 4, 1776, everything which the Americans did was solely\nto make it impossible that any one could ever deny this legal fact in\nAmerica.\n\nAnd we also know, something that has been entirely ignored since 1917,\nthat these \u201cconventions\u201d knew that the \u201cconventions\u201d of the Seventh and\nthe Fifth Articles were identically the same thing and were the most\nimportant reservee in the Tenth Amendment, \u201cthe people\u201d of America, in\ntheir aggregate and collective capacity as Henry accurately put it.\n\nWith this simple and amazingly important knowledge of facts, a\nknowledge acquired by our education with the Americans who made\nthemselves and their posterity free men instead of \u201csubjects,\u201d we come\nto the arguments and briefs of 1920. There we expect to learn how the\nopponents of the Eighteenth Amendment presented and its supporters\nanswered these facts. Because these facts we do know, if they are _all_\nthe facts, flatly deny the existence of that new _national_ Article,\nmade by governments alone.\n\nIf forbearance were the sole rule for conduct, if conscience permitted\nus to ignore the great danger to our own _individual_ freedom in\n_every_ matter, we would be absolutely silent as to the contents of all\nthose briefs. But, that the _supposed_ presence of the new _national_\nArticle in the _national_ Constitution of a free people may never be a\nprecedent for other _government_ making of _national_ Articles, it is\nour duty to learn and state what those briefs all disclose.\n\nNot one of them recognizes the identity of the \u201cconventions\u201d of the\nFifth Article with the \u201cconventions\u201d of the Seventh. And all ignore the\nidentity of the Fifth Article \u201cconventions\u201d with \u201cWe, the people\u201d of\nAmerica, in the Preamble, and with the most important reservee of the\nTenth Amendment, \u201cthe people\u201d of America.\n\nEvery argument, whether for or against the new _national_ article,\nis based upon the sheer and absurd assumption that the \u201cconventions\u201d\nin their Fifth Article _did_ make a _grant_ to themselves, the\n\u201cconventions,\u201d and to the state governments. The advocates of the new\nArticle assume that the \u201cconventions\u201d _granted_ to themselves and to\nthe state governments _all_ the inalienable omnipotence of the American\npeople themselves, in their aggregate capacity as the citizens of\nAmerica, the very omnipotence the supposed grantors were exercising\nwhen they made the Fifth Article. The opponents of the new _national_\nArticle assert the absurd assumption of a \u201c_grant_,\u201d but contend for\ndiverse reasons--remarkable by reason of the fallacy of a \u201c_grant_\u201d\non which each rests--that the \u201cconventions\u201d grant to themselves _only\na part_ of the omnipotence which they already had and were exercising\nwhen they made the supposed \u201cgrant.\u201d On which theory, they urge that\nthe supposed \u201cgrant\u201d to the state governments, being identical with\nthe supposed \u201cgrant\u201d to the grantors themselves, is _only part_ of the\nomnipotence which the grantors already had and does not include ability\nto make Articles like the Eighteenth Amendment.\n\nNot one of these briefs recognizes or urges that the Fifth Article\nis not a \u201cgrant\u201d of ability _to make_ Articles whether _federal_\nor _national_. No brief knows the Fifth Article to be simply the\nratification, by the whole American people, of a hitherto revolutionary\nmode of procedure as the future CONSTITUTIONAL mode in which may be\nexercised either the existing and limited ability of state legislatures\nto make _federal_ Articles or the existing and unlimited ability of the\n\u201cpeople\u201d (the \u201cconventions\u201d) to make _any_ Articles. No brief either\nrecognizes or urges the absurdity of the thought that the \u201cconventions\u201d\nintended to grant or did grant to themselves, the \u201cconventions,\u201d any\npart of the omnipotence which the supposed grantors were actually\nexercising when making the supposed grant.\n\nNo brief recognizes that one of the supposed grantees _is_ the\nsupposed grantor. No brief seems to know that the supposed grantees\nwere respectively competent makers of certain kinds of Articles even\nbefore the Fifth Article was written at Philadelphia. No brief seems\nto know--or to sense the decisive effect of the fact--that, within the\ntwelve years which immediately preceded the supposed \u201cgrant,\u201d each\nof the two respective makers of Articles, who are mentioned in the\nFifth Article, had exercised its respective ability to make Articles\n_of a certain kind_. No brief seems to know that one of the supposed\ngrantees, the \u201cconventions,\u201d at the very moment of the supposed\n\u201cgrant,\u201d was exercising its own unlimited ability to make Articles of\nevery kind. For all that the briefs disclose, in the decisive effect of\nthe two facts upon the supposed validity of the Eighteenth Amendment,\nthe \u201cstate legislatures\u201d might never have made the _federal_ Articles\nof 1781 and the \u201cconventions\u201d might never have made the _federal_ and\n_national_ Articles of 1788.\n\nNo brief urges the greatest legal decision made at Philadelphia in 1787\nas binding legal authority that the state \u201clegislatures\u201d of the Fifth\nArticle _never_ can, while the Fifth Article \u201cconventions\u201d _always_\ncan, make a _national_ Article like the First Article or the Eighteenth\nAmendment. One brief does suggest that decision as authority for the\nabsurd proposition that the Fifth Article mentions no CONSTITUTIONAL\nmode in which even the exclusive ability of the \u201cconventions\u201d of the\nAmerican citizens can be again exercised to make Articles like the\nFirst Article and the Eighteenth Amendment. In urging that absurd\nproposition, the briefer wholly ignores the fact that the Philadelphia\nConvention, which made that legal decision, reached its conclusion by\nascertaining what were and still are the _respective_ abilities (to\nmake Articles) of the state \u201clegislatures\u201d and the \u201cconventions,\u201d both\nof which are named as future makers in the Fifth Article.\n\nNo brief recognizes the fact (or urges any argument based upon it) that\nthe Constitution _is_ both a _federal_ and a _national_ Constitution.\nFor which reason, no brief points out that the Tenth Amendment\nexpressly reserves the ability to make _federal_ Articles to the state\n\u201clegislatures\u201d and the exclusive ability to make _national_ Articles\nto the \u201cconventions.\u201d For which reason, no brief points out that each\nof the two reservees, named in the Tenth Amendment, is mentioned\nseparately in the Fifth Article as a possible maker of future articles,\nwhenever a proposed future Article is of the kind which the existing\nability of the proposed maker is competent to make.\n\nNo brief, _against_ the new Amendment, challenges the sheer and absurd\nassumption that the Fifth Article _is_ a \u201cgrant.\u201d No brief, _for_ the\nnew Amendment, offers or suggests the slightest fact in support of that\nsheer assumption.\n\nEvery brief _for_ the new Amendment, on the fallacy of the _sheer\nassumption_ that the Fifth Article _is_ a grant, contends that the\nArticle makes a fractional part of the state legislatures an omnipotent\nParliament for the American people, a Parliament not restrained by any\nconstitutional limitations in state or national constitutions but a\nParliament which can do what it will with every individual right of\nevery human being in America. These briefs neither know nor care that\ntheir concept of the Fifth Article means that the \u201cconventions\u201d of the\nAmerican citizens, twelve years after the Declaration of Independence,\nintended to make and did make themselves absolute \u201csubjects\u201d of\ngovernments, not one of whose legislators was to be elected by\nAmericans in their capacity as American citizens. The foremost of\nthese briefs were written by eminent \u201cconstitutional\u201d lawyers who had,\nas clients, the very governments which claimed this omnipotence over\nindividual Americans as their \u201csubjects.\u201d\n\nEvery brief, _against_ the new Amendment, not only admitted but\nasserted the absurd assumption that the Fifth Article is a \u201cgrant\u201d\nto the grantors and to the state governments. In the foremost brief\nagainst the new Amendment, that absurd assumption is asserted or\nmentioned over fifty times. On this absurd assumption, every argument,\nin _these_ briefs, as well as in the opposing briefs, is based. In\nthis respect, there was but one difference between any brief and\nanother. That difference was in reference to the _extent_ of the\nsupposed \u201cgrant\u201d which the grantors made to themselves and to the state\ngovernments.\n\nNot one brief, presented in these litigations of 1920, knew or urged\nthe undoubted fact that, _because_ our government is both federal\nand national, if it wants new power to interfere with the freedom of\nthe American citizen, that government can get that power in only one\nCONSTITUTIONAL mode, through the \u201cconventions\u201d named in the Fifth\nArticle. No briefer knew the legal necessity that all power _of that\nkind_ must be obtained directly from the citizens of America, assembled\nin their \u201cconventions.\u201d We ourselves know that there was a day in\nAmerica when that legal necessity \u201cwas felt and acknowledged by all.\u201d\nIt is almost impossible for us, therefore, educated as we are in the\nexperience of the Americans who did know, to believe these statements\nabout these briefs. Yet the briefs speak for themselves.\n\nBefore, however, we turn to verify the statements by the briefs\nthemselves, it is well that we recall one amazing question and answer,\nduring the arguments of 1920 in the Supreme Court, which question and\nanswer overwhelmingly demonstrate that none of these \u201cconstitutional\u201d\nlawyers knew or cared about the facts we know.\n\nThe Supreme Court had listened, for several days, to many clever\narguments against the new _national_ Article. The arguments had\nchallenged validity on the ground that the new Article infringed upon\nthe political freedom of some political entity, such as a state or its\ngovernment. Sometimes the arguments had challenged validity on the\nground that the new Article infringed upon the liberty of the citizens\n_of some particular state_. No argument had challenged validity on the\none patent and unanswerable ground that the \u201cconventions\u201d of 1788 had\nprovided that no _national_ Article, which (like the First Article and\nthe Eighteenth Amendment) directly interferes with or grants power to\ninterfere with individual liberty of the American citizen, could ever\nbe CONSTITUTIONALLY made, except in the one CONSTITUTIONAL mode of\nprocedure, in which the _only_ competent makers of _national_ Articles\ncan make _such_ Articles, the \u201cconventions in three fourths of\u201d the\nstates, mentioned in the Fifth Article.\n\nRice of Rhode Island, one of the many prominent lawyers _against_\nvalidity, was urging his particular argument. Ignoring the citizens\nof America in the \u201cconventions\u201d of the Fifth Article, he claimed that\nno power in America could interfere with individuals in Rhode Island,\noutside the First Article matters, without the consent of Rhode Island\nitself. He was interrupted by the Court. In substance, this is the\nquestion and answer that followed: Justice Brandeis: \u201cThe court is\nnow fully acquainted with the nature of the arguments of the various\ncounsel as to why the new Article has _not_ been validly made. The\nCourt would like to know, In what way do counsel think that the new\nArticle _could_ be _constitutionally_ made?\u201d And the answer of Rice,\nundoubtedly voicing the conviction of all his colleagues, for none of\nthem had any other answer to volunteer, was: \u201c_In no way._\u201d\n\nFresh from the \u201cconventions,\u201d which knew that _they_ could have made\nwhat is supposed to be the Eighteenth Amendment, we could make the\ncorrect answer to that question. Our answer is that the \u201cconventions\u201d\nof the whole American people could have made this new Article in 1788\njust as they did make the First Article of exactly the same kind. They\ncould have made it, not because any Constitution gave them the power\nto make it. They could have made it because, in its making, they would\nhave exercised exactly the same existing ability which they exercised\nwhen they destroyed the power of the British Government over themselves\nin 1776, which they exercised when they ended the complete independence\nof each state in 1788 and which they exercised when they made _all_\nthe Articles of 1788. When they did each of these things, they had\nprescribed no \u201cconstitutional\u201d mode of procedure in which they might\n_constitutionally_ exercise that exclusive ability of their own. By\nthe declaration of the Tenth Amendment, they reserved that exclusive\nability to themselves. And, in the Fifth Article, they prescribed,\nfor the first time, exactly the same mode, in which they were then\nexercising that exclusive ability, as the future CONSTITUTIONAL\nmode for its further exercise. As Marshall stated, in the Supreme\nCourt, there is but one way in which they can exercise it, \u201csafely,\neffectively, and wisely,\u201d by assembling in their \u201cconventions\u201d in their\nrespective states.\n\nIf the accuracy and truth of this sole possible correct answer to the\nquestion of 1920 is so well known to us, certainly it should have\nbeen known to at least one of the \u201cconstitutional\u201d lawyers of 1920.\nMoreover, _every_ \u201cconstitutional\u201d lawyer of 1920 should have known\nthat the mention of state governments in the Fifth Article was not\nintended to make them omnipotent over the individual rights of the\nAmerican citizen or to provide an unsafe, ineffectual and unwise way\nor any way in which government in America could create new government\npower to interfere with individual freedom.\n\nMadison wrote the Fifth Article. Immediately after he had secured\nits proposal from Philadelphia, in the Virginia convention he paid\nhis famous tribute to the \u201cconventions\u201d--but not to the \u201cstate\nlegislatures\u201d--which he mentions in his Fifth Article. \u201cMr. Chairman,\nnothing has excited more admiration in the world than the manner in\nwhich free governments have been established in America; for it was\nthe first instance, from the creation of the world to the American\nRevolution, that free inhabitants have been seen deliberating on the\nform of government, and selecting such of their citizens as possessed\ntheir confidence, to determine upon and give effect to it.\u201d (3 _Ell.\nDeb._ 616.)\n\nBut, whatever the ignorance of our constitutional lawyers, _we_ know\nwhy Madison, in his Fifth Article, mentions these \u201cconventions\u201d\nin which free inhabitants are seen deliberating on new grants or\nconstitutions of government power to interfere with individual\nfreedom. When future grants of such power are suggested, there is\nto be a CONSTITUTIONAL mode prescribed for the reassembling of such\n\u201cconventions\u201d to make or refuse the grants.\n\nOur experience with Madison and his colleagues would educate these\n\u201cconstitutional\u201d lawyers to keen realization that the Americans of old\nknew the vital distinction, so important to individual liberty, between\npermanent and existing state legislatures and these \u201cconventions\u201d of\nthe American people themselves, chosen for the one purpose of answering\n\u201cYes\u201d or \u201cNo\u201d to a particular question previously carefully considered\nby all the American citizens.\n\nLet these \u201cconstitutional\u201d lawyers spend a moment with Hamilton, on\nFriday, March 14, 1788, when he was urging the American people to\nadopt the Constitution with that Fifth Article.\n\nHe was discussing the mode which that Constitution provided for the\nelection of the Chief Executive of the new nation. The mode was that\nthe _American_ citizens, in each state, should elect a temporary\nconvention of delegates to deliberate upon and cast the votes of\nAmericans in that state for some American as President. We sense, at\nonce, the striking similarity between the temporary body, thus to\nbe chosen for _that_ purpose, and the temporary body or convention\nalso to be chosen to pass upon the _other_ single question, a \u201cYes\u201d\nor \u201cNo\u201d to some particular proposed new grant of government power to\ninterfere with individual freedom. The danger to individual liberty\nwould necessarily be much less in having a permanent government body,\nthe legislature, cast the vote of the Americans in its state _for\nan Executive_, than in having the same permanent government body or\nlegislature say the \u201cYes\u201d or \u201cNo\u201d of the Americans in that state _to a\nnew grant of government power_ to interfere with the individual liberty\nof all Americans. Therefore, if we find Hamilton dwelling upon the\ndanger of state legislatures casting American votes for the American\nExecutive, we can be quite certain that neither Madison nor Hamilton\nnor their colleagues _mentioned_ the existing ability of legislatures\nto make _federal_ Articles (when these men worded and made their Fifth\nArticle) in order that their words might be twisted away from any\npossible English meaning and say that the citizens of America appointed\nthese state governments, not a member of which is chosen by the\ncitizens of America, to be their omnipotent attorney in fact for every\npurpose in the world, forever.\n\nThis is what Hamilton had to say on the danger to liberty, if permanent\nstate legislative governments, instead of special American delegates\nchosen for that purpose, should even elect the American President:\n\u201cThe mode of appointment of the Chief Magistrate of the United States\nis almost the only part of the system, of any consequence, which has\nescaped without severe censure, or which has received the slightest\nmark of approbation from its opponents.\u201d\n\n(Incidentally we recall that the mode of procedure, which is the Fifth\nArticle, never received one word of censure from any opponent on any\nground, except that it left _to government_ the ability to reassemble\nthe \u201cconventions\u201d of the people. It was claimed that, even if the\npeople found the First Article power oppressive to their individual\nfreedom, government would never reassemble their \u201cconventions\u201d for the\npurpose of permitting them to withdraw any of those grants.)\n\nHamilton proceeded as follows: \u201cIt was desirable that the sense of the\npeople should operate in the choice of the person to whom so important\na trust was to be confided.\u201d\n\n(We average Americans remember that the trust of making or refusing new\npower to interfere with individual freedom would always be infinitely\nmore important.)\n\n\u201cThis end will be answered by committing the right of making it,\nnot to any preestablished body, but to men chosen by the people for\nthe special purpose, and at the particular conjuncture.... A small\nnumber of persons, selected by their fellow citizens from the general\nmass, will be most likely to possess the information and discernment\nrequisite to such complicated investigations. It was also peculiarly\ndesirable to afford as little opportunity as possible to tumult and\ndisorder.... The precautions which have been so happily concerted in\nthe system under consideration, promise an effectual security against\nthis mischief.... And, as the electors,\u201d like the conventions for\ngranting or refusing national power, \u201cchosen in each State, are to\nassemble and vote in the State in which they are chosen, this detached\nand divided situation will expose them much less to heats and ferments,\nwhich might be communicated from them to the people, than if they were\nall to be convened at one time, in one place.\u201d\n\n(We recall Marshall\u2019s echo of this in his later statement, speaking of\nthe Fifth and Seventh Article \u201cconventions,\u201d \u201cNo political dreamer was\never wild enough to think of breaking down the lines which separate\nthe states, and of compounding the American people into one common\nmass. Of consequence, when they act, they act _in_ their states. But\nthe measures they adopt do not, on that account, cease to be the\nmeasures of the people themselves, or become the measures of the state\ngovernments.\u201d)\n\nHamilton went on: \u201cNothing was more to be desired than that every\npracticable obstacle should be opposed to cabal, intrigue, and\ncorruption. These most deadly adversaries of republican government\nmight naturally have been expected to make their approaches from more\nthan one quarter.... But the convention have guarded against all\ndanger of this sort, with the most provident and judicious attention.\nThey have not made the appointment of the President [or any grant\nof new power to interfere with individual freedom] to depend on any\npreexisting bodies of men, who might be tampered with beforehand\nto prostitute their votes; but they have referred it, in the first\ninstance to an immediate act of the people of America, to be exerted\nin the choice of persons for the temporary and sole purpose of making\nthe appointment,\u201d or a proposed grant of new power to interfere with\nindividual liberty.... \u201cThus without corrupting the body of the people,\nthe immediate agents in the election [or the grant] will at least enter\nupon the task free from any sinister bias. Their transient existence,\nand their detached situation, already taken notice of, afford a\nsatisfactory prospect of their continuing so, to the conclusion of it.\nThe business of corruption, when it is to embrace so considerable a\nnumber of men, requires time as well as means. Nor would it be found\neasy suddenly to embark them, dispersed as they would be over thirteen\nStates [now forty-eight States] in any combinations founded upon\nmotives, which though they could not properly be denominated corrupt,\nmight yet be of a nature to mislead them from their duty.\u201d (_Fed._ No.\n68.)\n\nIf Hamilton had been alive to watch the supposed legislative making\nof the Eighteenth Amendment, he would have seen the manner of that\nsupposed making justify everything he said about the danger of letting\npermanent government bodies have anything to do with individual\nliberty, except the proper duty of each legislature to make laws for\nits own citizens on matters committed to that legislature by those\ncitizens. And, from what we have just quoted, the \u201cconstitutional\u201d\nlawyers of 1920 certainly should have known that, when Hamilton\nwas alive, he and his associates, by their _mention_ of those\n\u201clegislatures\u201d in the Fifth Article, never subjected themselves and\ntheir posterity, ourselves, to an omnipotent ability to do what those\ngovernments might will with our individual rights, \u201cin all matters\nwhatsoever.\u201d\n\nIt has been our custom, as average American citizens, to rely upon\nour leaders to know and urge, at the proper time and place, our\nprotection under our American Constitution. We have seen the danger\nof such reliance in the record of our Congress of 1917. As many of\nour leaders are most renowned lawyers, the danger of that reliance is\nemphasized, if the briefs of those leaders and lawyers in 1920 disclose\nthat they did not and do not know all these legal facts which are so\nclear and also so essential to our protection as American citizens.\nThat we may ascertain whether these briefs do disclose this ignorance\nand do emphasize the danger of such reliance, we must later examine\nthe briefs themselves. But, that we may come to such an examination,\nproperly prepared, it is necessary that we should know the nature of\nthe litigations before the Court and what were the arguments against\nvalidity upon which the Court was asked to pass. In no other way, can\nwe acquire our own knowledge that the Supreme Court has yet to hear\nand consider the real challenge to the supposed new Article in which\ngovernments attempt to exercise ungranted power and to grant new power\nto interfere with the individual freedom of the American citizen. As we\nwell know, that one real challenge is that the new Article was not made\nby those who alone _can_ make it, that it was not made as it _can_ be\nCONSTITUTIONALLY made, by the makers _of that kind of Article_ named\nin the Fifth Article, the \u201cconventions\u201d of the Seventh _and the Fifth_\nArticles, the \u201cWe, the people\u201d of the Preamble and \u201cthe people\u201d of the\nTenth Amendment.\n\n\n\n\n                             CHAPTER XXIII\n\n                      THE CHALLENGES THAT FAILED\n\n\nThe validity of the Eighteenth Amendment (seven litigations being heard\ntogether) was argued on March 8, 1920, and for several days thereafter.\n\nAs we are not concerned with the meaning of the second section of the\nAmendment or with the validity of the Volstead Act (passed by Congress\nunder the grant of said section) except as the validity of the Act\ndepends upon the validity of the Amendment, we shall make no mention of\neither.\n\nThe Court announced its decision, in all the litigations, on June 7,\n1920. Somewhat to the amazement of the country, but (in our humble\nopinion even at the time) very wisely, the Court refused to write any\nopinion whatever. Nothing could more certainly settle that the Court\ndetermined no question except the specific questions presented by those\nwho challenged validity. That we may be certain that the Court neither\nheard nor considered nor passed upon the real and the invincible\nchallenge to the existence of the supposed new _national_ Article, we\nwill let the Court, in its own words, state exactly just what were the\nfour propositions, advanced against validity, and state the simple\nfact that it negatived each of those four propositions. Thus, in an\nimpressive manner, we shall acquire our own knowledge that the fifth\nconclusion, which later we shall state, is but the conclusion of fact\nthat nothing, in the four propositions negatived, impairs the validity\nof the supposed Article.\n\n Mr. Justice Van Devanter announced the conclusions of the Court.\n\n Power to amend the Constitution was _reserved_ by Article V, which\n reads:...\n\n(As we have been in the conventions which made it, we know it.)\n\n The text of the Eighteenth Amendment, proposed by Congress in 1917 and\n proclaimed as ratified in 1919, 40 Stat. 1050, 1941, is as follows:...\n\n(The text of the first two sections is quoted on page 465 herein.)\n\n We are here concerned with seven cases involving the validity of that\n Amendment and of certain general features of the National Prohibition\n Law, known as the Volstead Act, c. 83, 41 _Stat._ 305, which was\n adopted to enforce the Amendment. The relief sought in each case is an\n injunction against the execution of that act.... The cases have been\n elaborately argued at the bar and in printed briefs; and the arguments\n have been attentively considered, with the result that we reach and\n announce the following conclusions _on the questions involved_:\n\n 1. The adoption by both houses of Congress, each by a two thirds vote,\n of a joint resolution proposing an amendment to the Constitution\n sufficiently shows that the proposal was deemed necessary by all\n who voted for it. An express declaration that they regarded it as\n necessary is not essential. None of the resolutions whereby prior\n amendments were proposed contained such a declaration.\n\n 2. The two thirds vote in each house which is required in proposing\n an amendment is a vote of two thirds of the members present--assuming\n the presence of a quorum--and not a vote of two thirds of the entire\n membership, present and absent. Missouri Pacific Ry. Co. v. Kansas,\n 248 _U. S._ 276.\n\n 3. The referendum provisions of state constitutions and statutes\n cannot be applied, consistently with the Constitution of the United\n States, in the ratification or rejection of amendments to it. Hawke v.\n Smith, ante, 221.\n\n 4. The prohibition of the manufacture, sale, transportation,\n importation and exportation of intoxicating liquors for beverage\n purposes, as embodied in the Eighteenth Amendment, is within the\n power to amend _reserved_ by Article V of the Constitution. (National\n Prohibition Cases, 253, _U. S._ 350, 384.)\n\nWe are not interested in the first two propositions which the Court\nnegatived. They were that the Congress resolution should have _said_\nthat two thirds of Congress deemed it necessary to propose the\nAmendment and that the proposals should have been made by two thirds of\nthe entire membership of the House instead of two thirds of a quorum in\neach House. These are trifling and unimportant matters when over one\nhundred million Americans seek to learn when they ceased to be citizens\nof America and became absolute \u201csubjects\u201d of governments in America.\n\nThe third proposition negatived has naught to do with ourselves, the\ncitizens _of America_. It deals only with the rights of some _state_\ncitizens _as such_, where their _state_ constitution has a referendum\nprovision. For our protection against usurpation by any government\nof our own reserved rights or powers, we look to our own _American_\nConstitution. We have lived through its making with the Americans who\nmade it to secure individual liberty of themselves and their posterity,\nourselves, the citizens of America.\n\nThe clear statement of simple fact, expressed in the Court\u2019s fourth\nconclusion, tells us something, which, with Madison, we have known\nsince he wrote and suggested his Fifth Article, at Philadelphia, on\nSeptember 10, 1787. Our stay in the \u201cconventions,\u201d which made the\nFifth Article, has taught us that the Americans in them, even Henry\nand the opponents of the Constitution, were fully aware of the fact\nthat the Fifth Article provided the CONSTITUTIONAL mode in which the\n\u201cconventions\u201d could thereafter exercise the existing omnipotence of\nthe citizens of America themselves to make any kind of an Article of\ngovernment. The same stay fixed firmly in our minds that every one in\nthem knew that the Fifth Article is not a grant of any ability from\nthemselves to themselves, from the \u201cconventions\u201d named in the Seventh\nArticle to the same \u201cconventions\u201d named in the Fifth Article, all being\nthe \u201cconventions\u201d of the American citizens assembled to exercise their\nown omnipotence.\n\nAnd so, coming from the only \u201cconventions\u201d of that kind yet held,\nwe grasp at once the absolute accuracy of the statement in the\nfourth conclusion of the Court in 1920. The _mention_ of the same\n\u201cconventions\u201d in the Fifth Article, a mention made by the \u201cconventions\u201d\nof the Seventh Article, is the sound basis for our knowledge that, as\nthe Tenth Amendment expressly declares, those \u201cconventions\u201d of the\nSeventh expressly _reserved_ to themselves (the same \u201cconventions\u201d\nnamed in the Fifth, \u201cthe people\u201d of America in the Tenth Amendment)\ntheir own exclusive ability to make _national_ Articles, like the\nFirst Article and the Eighteenth Amendment. For which reason, we\nknow the truth of the Court statement in its fourth conclusion, that\nthe power to make the Eighteenth Amendment \u201cis within the power\nto amend _reserved_ by Article V.\u201d The _exclusive_ ability of the\n\u201cconventions\u201d of 1787 and 1788--to make the Article which is that new\nAmendment--is something known to all who were in those \u201cconventions.\u201d\nThat the ability--to make Articles like the First Article and the new\nAmendment--_remained_ exclusively in such \u201cconventions\u201d of the American\ncitizens, because such Articles are _national_ and either directly\ninterfere with or are the basis for direct interference with individual\nfreedom of the American citizen, was also known to every one in those\n\u201cconventions.\u201d That is why the Americans in those early \u201cconventions\u201d\ninsisted that the Tenth Amendment expressly declare that such exclusive\nability _was_ reserved to them, \u201cthe people\u201d of that Amendment, and why\nthe same \u201cconventions\u201d mentioned themselves, the \u201cconventions,\u201d in the\nFifth Article and provided therein the CONSTITUTIONAL mode of procedure\nin which that exclusive ability could thereafter be exercised by those\nwho had it, the \u201cconventions\u201d of the American citizens.\n\nEven though this knowledge, which we bring straight from the\n\u201cconventions\u201d which made the Fifth Article, be not shared at all by\nthe lawyers of 1920, we are aware that it is also the knowledge of the\nSupreme Court. That is why Marshall long ago pointed out that, when\nindividual welfare required that government should be granted some\n_national_ powers or powers to interfere with individual freedom, \u201cthe\nnecessity of deriving such powers from the people themselves was felt\nand acknowledged by all.\u201d That is why in 1907 the Supreme Court again\ndeclared \u201cthe powers the people have given to the General Government\nare named in the Constitution, and all not there named, ... are\nreserved _to the people_ and can be exercised only _by them_, or upon\nfurther grant _from them_.\u201d As the First Section of the new Amendment\nis the exercise and the Second Section is the grant of one of those\nreserved powers, and as the Fifth Article provides the CONSTITUTIONAL\nmode of procedure in which it can be exercised or granted by those,\nwho alone have it, \u201cthe people\u201d of the Tenth Amendment and the\n\u201cconventions\u201d of the Fifth Article, it is very natural to read in\nthe same Supreme Court, in the National Prohibition Cases, that the\nability to make the Eighteenth Amendment \u201cis within the power to amend\n_reserved_ by Article V.\u201d\n\nWhen the Supreme Court of Marshall\u2019s day knew that state \u201clegislatures\u201d\ncould not make Articles like the First Article and the Eighteenth\nAmendment, when the Supreme Court of 1907 still knew that only the\n\u201cpeople\u201d or \u201cconventions\u201d could make Articles _of that kind_, when\nthe Supreme Court of our own day knows that the Fifth Article deals\nonly with \u201c_reserved_\u201d power, we Americans feel that we are to remain\nfree men and citizens. We have come from the \u201cconventions\u201d with our\nown accurate knowledge that the power to make the new Amendment or any\nother Article like the First Article \u201cis within the power to amend\nRESERVED by Article V.\u201d But, for the very reason that our knowledge\nis accurate, we know that the power to make _such_ Articles was _not_\nreserved to the state legislatures, who did not have it, but _was_\nreserved to the \u201cconventions,\u201d who did have it and who were exercising\nit (in making the First Article) at the very moment when they made the\nFifth Article.\n\nWe have examined the four conclusions of the Supreme Court which deal\nwith any argument _presented_ against the existence of the Eighteenth\nAmendment. Those conclusions negative every such argument that was\npresented. But, because every brief assumed and asserted that the\namending power \u201c_reserved_\u201d in the Fifth Article had been \u201c_granted_\u201d\ntherein, the four conclusions make clear that the Court has yet to hear\nand pass upon the challenge which reads the Eighteenth Amendment out of\nour Constitution. When that challenge is presented by American lawyers,\nwho know what American basic law is and how American citizens are\nconstitutionally protected against usurpation of power by governments\nin America, there can be no doubt of the decision of the Supreme Court.\nIn _that_ decision, there will be no conclusion denying the most\nimportant legal fact in America, namely, that _governments_ cannot\nexercise ungranted power or create new government power to interfere\nwith the individual freedom of the American citizen. In _that_\ndecision, there will be again the simple statement of the undoubted\nfact that the ability to make the Eighteenth Amendment \u201cis within the\npower to amend _reserved_ by Article V.\u201d But, in _that_ decision, there\nwill be _added_ the plain statement of the Tenth Amendment that such\nability was _not reserved_ to the state legislatures who never had it,\nbut _was_ reserved to the \u201cconventions,\u201d who always had it and still\nhave it. And, comparing that future decision (which is certain to come\nfrom the Supreme Court) with the decision, which merely negatived the\nfour unsound challenges which _were_ made to the Eighteenth Amendment,\nwe know that the first five conclusions of the latter decision--all\nthe conclusions that have aught to do with the existence and validity\nof the Eighteenth Amendment--merely hold that the existence of the new\nAmendment is not affected by any of these challenges which _were_ made.\n\nWith exceeding wisdom in our humble opinion, the Court carefully\nrefrains from passing upon or determining any question except the\nexact challenges which _were_ presented. That is why no opinion was\nwritten. When any general statement (seeming to bear upon questions\nnot presented or submitted) might come back to perplex and annoy the\nCourt in future litigation where protected liberty of the American\ncitizen was the challenge to the government-made new Article, common\nsense and sound reason and the experience of generations dictated that\nno general statement should be made. And, as there was but one way to\navoid a single general statement, no opinion was written. This method\nof deciding those particular litigations, with their four unsound\nchallenges, would leave the decision itself without even an apparent\ninfluence upon a litigation in which some _real_ challenge might be\npresented.\n\nAnd so we find the Court merely stating \u201cthat we reach and announce the\nfollowing conclusions _on the questions involved_.\u201d Nothing could make\nmore clear that no conclusion is reached or announced on any question\nnot presented by those who urged invalidity.\n\nThe first four conclusions reached and announced are conclusions of\nlaw against the opposite legal conclusions urged by those opponents.\nThe fifth conclusion is a conclusion of fact that validity of the\nAmendment is not affected by any of the four propositions advanced by\nthe opponents of the Amendment. In other words, the first five numbered\nconclusions, all that deal with validity of the Amendment, can be\nexpressed in our own words, viz: \u201cAlthough the proposing Resolution\ndid not _state_ that Congress deemed the proposal necessary, although\nonly two thirds of a quorum in each House (and not two thirds of the\nmembership of each House) made the proposal, although the citizens\nof each referendum state have not acted as part of their respective\nstate legislatures, and although it is urged that the Fifth Article\n_reserved_ abilities do not include ability to make an Amendment like\nthe Eighteenth, we decide that none of _these_ things affect the\nvalidity of the new Article.\u201d\n\nAnd, when we make this accurate statement of what was decided in those\nNational Prohibition Cases, we average Americans, fresh from our\neducation with the Americans who found themselves \u201csubjects\u201d and made\nthemselves and their posterity free men, have some startling facts\nbrought home to us.\n\nUndoubtedly thousands of lawyers had worked, for more than a year, in\nthe preparation of the arguments that were made and the briefs that\nwere filed. When these amazingly important litigations were reached,\nthe arguments lasted for several days. On the exhaustive briefs filed\nagainst validity, there appear twenty-two lawyers, many of them among\nthe leaders of the American Bar. On the briefs to support state\ngovernment omnipotence over the citizens of America, \u201cin all matters\nwhatsoever,\u201d thirty-five lawyers, headed by a former member of the\nSupreme Court, appear.\n\nWe know, with a knowledge that brooks no denial, because it is a\nknowledge brought from our experience with those who made themselves\nfree men and established the Constitution to secure that result to\nthemselves and to us, that the new Article is not in the Constitution\nunless at some time prior to 1917, the free men of America, all the\nindividual citizens of America, became the \u201csubjects\u201d of _some_ state\ngovernments.\n\nIt is clear, therefore, that the existence of the Eighteenth Amendment\nhas always depended upon the correct answer to the question whether the\nAmerican is \u201cCitizen or Subject?\u201d\n\nIf we are subjects, the new Article _may_ be in the Constitution not\nmade by us but made by governments.\n\nIf we still are citizens, as once undoubtedly we were, the new Article\n_cannot_ be in _our_ Constitution, because we have not made the new\nArticle, assembled in our \u201cconventions.\u201d\n\nWhere men are citizens, _governments_ cannot exercise ungranted power\nor create new power to interfere with individual liberty.\n\nIn a nation of free men, established by former \u201csubjects\u201d with a\ndominant purpose that no American should ever be the \u201csubject\u201d of\nany governments, it is amazing that one government should propose\nthat _governments_ constitute, and it is amazing that forty-six\n_governments_ should attempt to constitute, new government of men--new\ngovernment power to interfere with individual human freedom.\n\nBut most amazing of all, in a nation with the history of America, is\nthe fact that, when audacious government had so proposed and audacious\ngovernments had so attempted, the prolonged arguments and voluminous\nbriefs of fifty-seven leading members of the American Bar never\nonce knew or stated the simple fact which made the proposal and the\nattempt a legal and constitutional absurdity. The fact itself, the\none most important legal fact in America, was once known and \u201cfelt\nand acknowledged by all\u201d Americans. Yet, not once in any brief in the\nNational Prohibition Cases, was it either known or urged that the\n\u201cconventions\u201d of the Fifth Article are the \u201cconventions\u201d of the Seventh\nArticle and that both are the whole American \u201cpeople\u201d of the Preamble\nand the Tenth Amendment and that, therefore, the Constitution expressly\n_reserves_ to the \u201cconventions\u201d _of the Fifth Article_, the citizens\nof America, their existing and exclusive ability to create new\ngovernment power to interfere with their own individual human liberty.\n\n_Why_ none of these briefs did make this challenge became known to us\nwhen Rice of Rhode Island, with the silence of his colleagues marking\ntheir approval, answered the Court that the new Article could not be\n_constitutionally_ made. _Why_ they did not make the challenge will be\nemphasized when we read the leading brief against the new Amendment.\nOver fifty times it will admit and state that the Fifth Article _is_\na \u201c_grant_\u201d of power to _state_ legislatures from _American_ citizens\nand claim the \u201c_granted_\u201d power is a limited power and does not include\nability to make an Amendment like the Eighteenth because such Amendment\ntakes away the reserved power _of a state or political entity_. Then,\nto emphasize what it does not know about the \u201cconventions\u201d of the Fifth\nArticle and the reserved powers of the citizens of America, this brief\nwill go on to tell us that there is no _constitutional_ mode in which\ncan be made an Article which takes more power away from any state;\nthat such an Article may only be made, outside any _constitutional_\nmode, by having the people themselves rescind \u201cthe social compact\u201d\nwhich is their American Constitution and having them make \u201csuch new\ncompact as they please\u201d; but that such new compact, such new Article\nof that kind, cannot \u201cbe validly and legally made to come to pass\nagainst the objection and protest of _any_ state.\u201d All this clearly\nexplains _why_ none of the briefers were able to answer correctly\nthe question asked by the Court. How could they tell the Court in\n_what_ way the Eighteenth Amendment could be _constitutionally_ made,\nwhen all of them \u201cknew\u201d that there was no _constitutional_ mode\nin which the \u201cconventions\u201d of the American citizens could make it,\nand when they \u201cknew\u201d that it could not be made, even outside the\nConstitution, without the consent of the citizens of _every_ state? The\nmost important words in the Fifth Article, \u201cin conventions in three\nfourths thereof,\u201d did not mean to these briefers what they meant to\nthe Americans who made the Fifth Article or to Madison and Hamilton\nwho wrote the Fifth Article and suggested it at Philadelphia. In\nthe word \u201cconventions,\u201d they did not recognize the Seventh Article\n\u201cconventions\u201d of the American citizens describing themselves by exactly\nthe same word, \u201cconventions,\u201d in the Fifth Article. In the words \u201cin\nthree fourths thereof\u201d after the word \u201cconventions,\u201d they did not\nrecognize the great security to human freedom which we have learned\nwith the Americans who wrote and who made the Fifth Article. They did\nnot recognize how the American people, by these words, made it _their_\nconstitutional command that they themselves, again assembled in their\nconventions, by a \u201cYes\u201d from three fourths of their \u201cconventions\u201d _and\nwithout_ the consent of the Americans in the other \u201cconventions,\u201d might\nwithdraw any power granted in the First Article and might add any new\npower to its enumerated grants, whenever _they_ deemed such withdrawal\nor such addition would better secure and protect American individual\nliberty.\n\n_That_ not one of the briefers _did_ make _our_ challenge is our\ncertain knowledge when we read the four challenges they did make and\nwhich are negatived in the first four conclusions of the Court.\n\nThe first two relate to the manner of the _proposal_ that governments\ncreate government of men in America. Who cares _how_ one government\nmakes a silly _proposal_? The one important thing is that no\ngovernments shall attempt _to act upon_ a proposal which denies the\nmost important legal fact in America, that _governments_ cannot\nconstitute new government ability to interfere with individual liberty.\n\nThe fourth challenge that was made is the absurd challenge that the\nFifth Article does not _mention_ a CONSTITUTIONAL mode of procedure in\nwhich the citizens of America may again _directly_ grant to _their_\ngovernment new power to interfere with their own individual liberty\nand in which--far more important to the \u201cconventions\u201d which named\nthemselves (the \u201cconventions\u201d) in their Fifth Article--the American\ncitizens can directly take back any part of the granted power of the\nFirst Article which they find oppressive to their individual liberty.\nThis challenge neither knows nor makes any distinction between the\nstate \u201clegislatures\u201d and the \u201cconventions\u201d of the American citizens or\nthe mention of either in the Fifth Article. It is a challenge which has\nnot the knowledge we bring from the first \u201cconventions,\u201d the knowledge\nthat \u201clegislatures\u201d are mentioned on account of their existing ability\nto make _federal_ or declaratory Articles and that \u201cconventions\u201d are\nmentioned on account of their exclusive ability to make Articles _of\nany kind_. It is a challenge which assumes and asserts and is based\nwholly upon the absurd assumption that the Fifth Article is a \u201cgrant\u201d\nof power to make Articles. On this absurd assumption of this patently\nabsurd \u201cgrant,\u201d this fourth challenge, frankly stated in our own words,\nis as follows: \u201cIn the Fifth Article, the \u2018conventions\u2019 grant to the\ntwo grantees--the grantors and the state legislatures--an _identical_\nability to make new Articles. We admit that, if the \u2018conventions\u2019\nof the Fifth Article could constitutionally make the Eighteenth\nAmendment, the state legislatures can also constitutionally make it.\nBut our challenge is that the \u2018grant,\u2019 in the Fifth Article, is limited\nin extent and that neither the \u2018conventions\u2019 nor the state legislatures\ncan constitutionally make the Eighteenth Amendment.\u201d\n\nTo the \u201cconstitutional\u201d lawyers who make this challenge, to all who\nsupport such challenge, we commend many hours\u2019 study of the statements\nof Madison, who wrote the Fifth Article; of Hamilton, who supported its\nintroduction at Philadelphia; of Wilson, Pendleton, Henry, Iredell,\nMacLaine, Jarvis, Lee, Mason, and the many others, with whom we have\nsat in the \u201cconventions\u201d which made the Fifth Article. Particularly\ndo we commend a careful reading of the reasoning which led to the\ndecision at Philadelphia, in 1787, that the First Article, _because it\nconstituted government of men_, _must_ go to the \u201cconventions\u201d named\nalike in the Seventh and the Fifth Articles and could not be validly\nmade by the state \u201clegislatures\u201d named in the Fifth Article. That\ndecision was based upon the unrepealed Statute of 1776, a statute well\nunderstood in 1787, only eleven years after the Statute itself had been\nenacted as the command of the whole American people. Finally, to those\nwho support this fourth challenge, we commend a thorough reading of the\nlaw laid down by Marshall in the Supreme Court. If they thus educate\nthemselves as we have educated ourselves, they will be able to say with\nMarshall: \u201cTo the formation of a league, such as was the Confederation,\nthe state sovereignties were certainly competent. But when, \u2018in order\nto form a more perfect Union,\u2019 it was deemed necessary to change this\nalliance into an effective government possessing great and sovereign\npower and acting directly on the people, the necessity of referring it\nto the people and of deriving its power directly from them, _was felt\nand acknowledged by all_.\u201d\n\nAnd, if all shall complete their education with such men as Webster and\nLincoln, they will never again make the mistake of ignoring the vital\nand important distinction in identity between \u201cstate legislatures\u201d\nand \u201cconventions\u201d of the American citizens, the distinction that the\nformer are never anything but governments and each the government\nagent of the citizens _of one state_, while the \u201cconventions\u201d are the\ncitizens of America itself assembled in \u201cconventions\u201d to issue their\ncommands to themselves, to their government, to the states and to the\nstate governments. The completed education will enable these lawyers to\nwin future litigation against legislative governments who audaciously\nattempt to usurp the exclusive and reserved powers of the \u201cconventions\u201d\nof the American citizens.\n\nIn any of the three challenges negatived by the first, second and\nfourth conclusions of the Supreme Court, we have failed to find any\nsuggestion of _our_ challenge, namely, that state \u201clegislatures\u201d have\naudaciously attempted to usurp the exclusive powers reserved to the\n\u201cconventions\u201d which are named in the Fifth Article.\n\nAnd now we examine the only other challenge that _was_ made, a\nchallenge negatived by the third conclusion of the Supreme Court. No\nchallenge could more emphatically ignore the protected individual\nliberty of the citizen of America. This challenge does not know\nthat American citizens have _no_ government save the government of\nenumerated powers. This challenge frankly admits that the Fifth\nArticle is a grant to legislatures, each elected by the citizens _of\nsome particular state_, and that three fourths of those legislatures\nhave the omnipotence, which was denied to the British Parliament,\nover every individual liberty of the American citizen. Like the other\nchallenges that _were_ made, like every brief for or against the\nEighteenth Amendment, this challenge knows not that the Constitution\nis both a _federal_ and a _national_ Constitution and knows not that\nthe state \u201clegislatures\u201d never have and never can have aught to do with\nthe _national_ aspect of that Constitution. Based on this remarkable\nignorance, this is the challenge, frankly stated in our own words:\n\n\u201cThe state legislatures _can_ make this Eighteenth Amendment. The state\ngovernments _can_ do what they will, so long as they call their action\na constitutional Amendment, with every reserved right and power of the\ncitizens of America. But thirty-six state legislatures are necessary to\nmake anything called a constitutional Amendment. And our challenge is\nthat thirty-six legislatures have not made this particular Eighteenth\nAmendment. In any state, where the referendum exists, the citizens\n_of that state_ [we note that even now the citizens _of America_ are\nnot mentioned] are part of the state legislature. In some of these\nreferendum states, whose legislatures are included among your claimed\nthirty-six ratifiers for the Eighteenth Amendment, the whole of the\nstate legislature has not yet ratified, because the citizens of the\nstate, who are part of its legislature, have not yet acted. For this\nreason, that you ignore the rights of the citizens _of some states_,\nour challenge is that the Eighteenth Amendment has not been ratified by\nthe legislative governments of thirty-six states.\u201d\n\nThis particular challenge, like everything in these litigations and\nin the whole history of the supposed new Amendment, brings into bold\nrelief the one monumental error at the bottom of every thought that the\nnew Amendment _is_ in the Constitution, at the bottom of the varied\nabsurdities which constantly appear in every brief, either for or\nagainst validity.\n\nWithout a single exception, the fifty-seven lawyers on these briefs\nbase their every argument, no matter how those arguments may challenge\none another, on the ridiculous sheer assumption that the Fifth Article\nis a great power of attorney to the state governments from the citizens\nof America. All these fifty-seven lawyers ignore the undeniable\nfact--mentioned continually in the \u201cconventions\u201d of the Seventh Article\nwhich wrote their own name, \u201cconventions,\u201d into the Fifth Article--that\nthe Constitution is both _federal_ and _national_. This first mistake,\nthis ignoring of that fact, led all of them immediately into the\nfatal error of wholly ignoring the vitally important fact that the\nFifth Article distinctly names those who already could make _federal_\nArticles, the state governments, and those whose exclusive right it\nalways was and is to _make national_ Articles, the people assembled\nin their \u201cconventions.\u201d Only because of these two mistakes, the next\nstep comes in the guise of the absurd concept that the Fifth Article\nis a grant of _any_ power of attorney, from the citizens of America,\neither to the \u201cstate legislatures\u201d or the \u201cconventions.\u201d In this patent\nabsurdity, all fifty-seven lawyers concur. That each of them does not\nsee its patent absurdity is due entirely to the fact that not one of\nthem states the proposition, that the Fifth Article _is_ a grant, in\nthe frankest mode of stating it. That _frankest_ way is to state the\nproposition in these words: \u201cIn the Fifth Article the citizens of\nAmerica, assembled in the \u2018conventions\u2019 of 1788, _granted_ to the\nstate legislatures _and_ to _themselves_, the citizens of America,\nassembled in their \u2018conventions,\u2019 a quantum of power as attorneys in\nfact of the citizens of America. We fifty-seven lawyers only differ\nas to the _extent_ of the power which the citizens of America grant\nto themselves and to the state governments. We, who _support_ the new\namendment, contend that the citizens of America grant to the state\ngovernments and to the citizens of America _all_ the power of the\ncitizens of America. On the other hand, we, who _oppose_ validity,\ncontend that the citizens of America grant to the state governments and\nto the citizens of America only _some_ of the unlimited power of the\ncitizens of America, the very power they were exercising when they made\nthe grant which is the Fifth Article.\u201d\n\nWhen the common proposition of all those lawyers, that the Fifth\nArticle \u201cgrants\u201d power to those two grantees, _is_ stated in this frank\nway, its patent absurdity is manifest. Every one of those lawyers knows\nthat a grantor never can or does grant to himself either _all_ or _part\nof_ what he already has. Moreover, all those lawyers ought to know that\nthe Tenth Amendment expressly declares that the entire Constitution,\nin which is the Fifth Article, grants no power of any kind except to\nthe American government at Washington. Alone and unaided, this simple\ndeclaration makes it impossible that the Fifth Article grants any power\nto the state governments. Thus, even without the certain knowledge we\nbring from the conventions of 1788, the state governments disappear\nfrom the scene as attorneys in fact for the citizens of America in any\nmatter. Each of those state governments is left with no power it did\nnot have before the Fifth Article was made. Not one of them even keeps\nall of the power which it had before 1788. The citizens of America,\nthe \u201cconventions\u201d in which they assembled, commanded otherwise. \u201cWhen\nthe American people created a national legislature, with certain\nenumerated powers, it was neither necessary nor proper to define the\npowers retained by the States. These powers proceed, _not from the\npeople of America_, [the \u201cconventions\u201d named in the Seventh _and the\nFifth_ Articles] _but from the people of the several states_; and\nremain, after the adoption of the Constitution, what they were before,\nexcept so far as they may be abridged by that instrument.\u201d So spoke\nMarshall from the Supreme Court Bench, in 1819, after he had come from\none of those \u201cconventions\u201d in which he himself had stated: \u201cIt could\nnot be said that the states derived any powers from that system, [the\nnew Constitution then before the convention in Virginia] but retained\nthem, though not acknowledged in any part of it.\u201d (3 _Ell. Deb._ 421.)\n\nYet every brief of those fifty-seven lawyers bases its every argument\non the sheer assumption, asserted by all, that the Fifth Article is a\n\u201cgrant\u201d to the state legislatures which makes them attorneys in fact\nfor the citizens of America. No brief can offer and no brief does\noffer the slightest proof in support of the assumption. But no brief\n_asks_ for proof of the assumption or challenges the assumption. On the\ncontrary, every brief makes the assumption and asserts it and on it\nrests every argument.\n\nBecause of this monumental error, every brief _for_ the Amendment\ninsists that the state legislatures, as attorneys in fact for the\ncitizens of America with _every_ power of the citizens of America,\nvalidly made the Eighteenth Amendment.\n\nBecause of this monumental error, every brief against the Amendment\nasserts that the state legislatures are attorneys in fact for the\ncitizens of America but insists that the Fifth Article (the assumed\npower of attorney in a Constitution which expressly declares that\n_no_ power is given to the state legislatures) grants to the state\nlegislatures (as well as to the \u201cgrantors\u201d themselves) only _limited_\nability on behalf of the principal, the citizens of America. On this\naltogether unique argument, it is contended that the limited power\nof attorney does not confer ability to make an Amendment like the\nEighteenth.\n\nBecause all briefs make the same monumental error, there is no\nchallenge on the ground that the state legislatures, not a member\nof which is elected by the citizens of America, hold _no_ power of\nattorney from the citizens of America to interfere in any way, in any\nmatter, with the individual freedom of the American citizens. Because\nall briefs against the Amendment make the same monumental error,\nthe fourth challenge (which _was_ made and considered by the Court)\nis based upon the heretical doctrine--the heresy being clear from\nwhat we have heard in the \u201cconventions\u201d where we sat--that the Fifth\nArticle does not mention a CONSTITUTIONAL mode in which the citizens\nof America, again assembled in their \u201cconventions,\u201d can take back from\ntheir American government any enumerated power of the First Article\nwhich they find oppressive to their individual rights and freedom.\nAnd, perhaps most amazing and amusing fact of all, because all briefs\nmake the same monumental error, the briefs _for_ the Amendment make\nno effort to support and the briefs _against_ the Amendment make no\nattempt to challenge the clear paradox, on which the Eighteenth\nAmendment depends for its existence, that there never has been a\ncitizen of America if it be true that the Fifth Article makes the state\ngovernments the attorneys in fact _for_ the citizens of America with\n_unlimited_ ability to interfere with the individual freedom of the\ncitizens of America. Where such unlimited ability _is_ in government,\nmen are not \u201ccitizens\u201d but \u201csubjects.\u201d\n\nBut we ourselves come from the \u201cconventions\u201d where the Americans\nknew that they entered as free men and left as citizens of America,\nnot as \u201csubjects\u201d of any governments. Therefore, we need no lawyer\nto tell us--and no lawyer can deny our knowledge--that, if the state\ngovernments are the attorneys in fact for the American citizens and\nhave ability either to interfere with or to grant power to interfere\nwith the individual liberty of the American citizens, or, if _any_\ngovernments can interfere with that liberty on a matter not enumerated\nin the First Article, there never were American citizens and the\nearly Americans entered their \u201cconventions\u201d free men but left those\n\u201cconventions\u201d as \u201csubjects\u201d of an omnipotent government.\n\n\n\n\n                             CHAPTER XXIV\n\n                GOVERNMENTS CLAIM AMERICANS AS SUBJECTS\n\n\n\u201cIs the government of Virginia a state government after this government\nis adopted? I grant that it is a republican government, but for what\npurposes? For such trivial _domestic_ considerations as render it\nunworthy the name of a legislature.\u201d (3 _Ell. Deb._ 171.) So thundered\nPatrick Henry to the Americans assembled in convention in Virginia,\nwhile these Americans still heard the echo of his charge that the\nnew Constitution made the state legislatures \u201cweak, enervated and\ndefenseless governments.\u201d\n\nBut these are the governments which all lawyers of 1920 \u201cknew\u201d had been\nmade the attorneys in fact for the citizens of America, possessors\nof the supreme will in America. These are the governments to which\nall advocates of the Eighteenth Amendment contend that the Americans,\nin the \u201cconventions\u201d with Henry, gave the entire omnipotence of the\nAmerican people to be exercised by these governments, without any\nconstitutional restraint.\n\nThe real fact is, although all lawyers of 1920 failed to know the\nfact, that these state governments were only named in the Fifth\nArticle, _because_ they already had an existing limited ability to\nmake _federal_ Articles, an ability _not_ granted by the citizens _of\nAmerica_ but possessed by each of those governments as attorney in\nfact for the citizens _of its own state_. That it _was_ an ability not\ngranted by the citizens _of America_, must be apparent when we recall\nthat it was exercised by those governments in 1781--seven years before\nthere was such a thing as a citizen of America. That the lawyers of\n1920 neither knew nor realized the importance of this fact, is apparent\nwhen we recall that every brief of _those_ lawyers asserted that these\ngovernments get their ability to make Articles by a \u201cgrant\u201d in the\nFifth Article.\n\nOur knowledge of the nature of _every_ challenge to the new Amendment,\nand our knowledge that each challenge involved the assumption that\nthe Fifth Article _was_ a \u201c_grant_\u201d to these state governments, is a\nknowledge which is certain from our study of the conclusions of the\nSupreme Court which negatived each challenge.\n\nThe certainty is emphasized by our memory of the reply of Rice in that\nSupreme Court, when, without one dissent from the challengers, he\nstated his and their conviction that the \u201cconventions\u201d of 1788--the\nchallengers all forgetting that those \u201cconventions\u201d named _themselves_\nin the Fifth Article--provided no CONSTITUTIONAL mode of procedure\nin which their own exclusive power could be again exercised to make\nArticles like the First Article and the Eighteenth Amendment.\n\nLet us again emphasize our certainty by a few moments with the briefs\nof the challengers.\n\nRoot was their leader. A distinguished public leader and considered by\nmany to be the leader of the American Bar, there was special reason why\n_he_ should have known the ability of _government_ to _make_ national\nArticles in a Constitution, _only_ when men are \u201csubjects,\u201d and the\ninability of _governments_ to _make_ such Articles, when men are\n\u201ccitizens.\u201d\n\nIf his brief, or the brief of any challenger, had urged this real and\ninvincible challenge, we would have found the mention of that challenge\nin the decision _and it would not have been a refutation of that\nchallenge_. That we may confirm our knowledge that the brief of Root,\n_like the brief of every challenger_, did not make this challenge, the\nchallenge that the Fifth Article is _no \u201cgrant\u201d_ but a _mention_ of\ntwo existing abilities and a mode of CONSTITUTIONAL procedure for the\nrespective exercise of each, let us read the brief\u2019s own statements of\nthe three challenges it does make. \u201cThe plaintiff contends that this\nattempted amendment to the Constitution of the United States is invalid\n(1) because it constitutes mere legislation, and is, therefore, not\nauthorized by Article V of the Constitution, (2) because it impairs\nthe reserved police or governmental powers of the several States and\ntheir right to local self-government, and (3) because it has not been\nratified by three fourths of the several States since it has not been\nsubmitted to the electorate of the States in which the initiative, or\nthe referendum, or both, prevail (assignment of errors Nos. 1-5). These\nquestions are discussed in points II, III, and IV, respectively. In\npoint I the prior amendments to the Constitution are considered with\nreference to these contentions, and in point V the justiciability of\nthe contentions is maintained.\u201d\n\nIts first challenge is itself the admission that all CONSTITUTIONAL\nability to change our Constitution is ability \u201c_granted_\u201d in the Fifth\nArticle. Moreover, it is the flat denial of any CONSTITUTIONAL mode\nof procedure in which the citizens of America, by a \u201cYes\u201d from three\nfourths of their assembled \u201cconventions,\u201d can enact the legislation\nwhich is Section One of the supposed Eighteenth Amendment.\n\nIts second challenge is wholly on behalf of the political entities,\nwhich are the states. It not only makes no claim for the rights of\nAmerican citizens, but it denies any CONSTITUTIONAL ability in the\nAmerican citizens to interfere, by changing the American Constitution,\nwith what _the American citizens_ reserved to each state and _its\ncitizens_.\n\nThe third challenge again fails to assert any claim on behalf of the\nrights of the _American_ citizens. It is the challenge negatived by the\nthird conclusion of the Supreme Court. It is the challenge that the\ncitizens _of the State_, in some of the states, are part of the state\nlegislature.\n\nIf we want further confirmation of our knowledge that this brief does\nnot make the real challenge, namely, that the Fifth Article is no grant\nto the supposed grantors and the state governments, we find it in the\nfact that the brief itself refers over fifty times to the Fifth Article\n_as a \u201cgrant\u201d_ of limited ability to make Articles.\n\nIf we need further confirmation, we find it in this fact. After the\nSupreme Court had negatived every proposition in that brief, its\nwriters made application for a reargument. The application was based\non one ground as far as concerned the _validity_ of the Amendment.\nThat one ground was that the Court had written no opinion. From this\none fact, the claim was made that the Court could not have considered\nthe potency of the three challenges which had been urged in the brief.\nEducated with the earlier Americans, we believe that each of these\nthree challenges, in its very statement, shows why it is unsound, and\nthat no opinion was needed to explain its refutation. But the nature of\nthe application shows the continued concept of the Fifth Article as a\n\u201cgrant.\u201d\n\nIf we look at the other briefs against validity, we will find all\narguments based on the same monumental error that the Fifth Article\n_is_ a \u201c_grant_\u201d and that the state legislatures are therein named\nthe attorneys for the citizens of America, although the latter, _as\ncitizens of America_, never elect a single member in those legislatures\nand the Tenth Amendment expressly declares that the Constitution gives\nno power of any kind to the states or their legislatures. On the\nimpossible hypothesis of this monumental error are budded the most\nextraordinary arguments.\n\nIn more than one brief, it is urged that, in the Fifth Article, the\nwhole people of America made a certain number of state legislatures\ntheir own attorneys in fact to amend the _American_ Constitution.\nBut, urges the brief, the _American_ people have no power to change\nthe state constitutions, and \u201ctherefore, the grantees,\u201d the state\nlegislatures, \u201ccannot exceed the powers of their principal, the people\nof the United States.\u201d And, the brief goes on, as the people of America\ncannot change a _state_ constitution, neither can the attorneys in fact\nof that whole American people, the state legislatures, change it. The\nability of the people or citizens of America and of \u201c_their_\u201d attorneys\nin fact, the state legislatures, is only competent to change the\nConstitution of the citizens of America. But this Eighteenth Amendment\nchanges the Constitution of each state. Ergo, that change is clearly\nbeyond the power of the citizens of America and \u201c_their_\u201d attorneys in\nfact, the state legislatures!\n\nIt will serve no useful purpose for us to dwell further upon the briefs\nagainst validity. They all show the universal conviction that the Fifth\nArticle _is_ a \u201cgrant\u201d and makes the state legislatures attorneys in\nfact for ourselves, the citizens of America, who elect not a single\nmember in the state legislatures. Naturally, as this fundamental\nerror is the invincible conviction of all counsel against validity\nbefore any brief is written, none of those briefs mentions such simple\nfacts as the fact decided by the Supreme Court in Barron v. City of\nBaltimore, 7 _Pet._ 243. That decision, by John Marshall, decisively\nsettled the legal fact that the Fifth Article grants no power to the\nstate legislatures to make the Eighteenth Amendment. _And_, as it also\ndecisively settled that the Fifth Article _does not give_ the state\nlegislatures _any_ power whatever, it destroys the absurd concept\nthat the Fifth Article makes the state legislatures attorneys in\nfact for those who made the Fifth Article, the citizens of America,\nthe \u201cconventions\u201d of the Fifth Article and the Seventh Article. But\nlawyers, who start to write briefs with the certain (although false)\n\u201cknowledge\u201d that the Fifth Article _does_ make the state legislatures\nattorneys in fact for the citizens of America, neither know the meaning\nof that decision nor state the decision and its meaning and its effect\nupon the Eighteenth Amendment in the briefs which they write. The\ndecision is very clear. We have met it earlier in our education herein.\nIt will bear repetition right now, when we find fifty-seven lawyers all\n\u201cknowing\u201d that the Fifth Article (despite the declaration of the Tenth\nAmendment) does give power to the state governments and, by giving it,\nmakes these governments attorneys in fact for the citizens of America.\n\nBarron claimed that a state statute was void because it came in\nconflict with the restriction imposed by the Article which is the Fifth\nAmendment to the American Constitution. If the restriction applied to\nthe state legislatures and their powers, the statute was clearly void.\nTherefore, as Marshall pointed out, the Court had but one question\nto solve, whether the American Constitution (in which is the Fifth\nArticle) granted _any_ power to the state governments. If it did, then\ngeneral restrictions in that Constitution, as they clearly applied\nto all powers _granted_ in that Constitution, applied to the state\ngovernments. On the contrary, if the Constitution granted _no_ power to\nthe state governments, general restrictions in the Constitution would\nnot apply to the state governments. For which reason, the decision of\nthe case itself was to depend on one thing alone, whether there _was_\nany power granted in the entire Constitution to the state governments.\nIf there was not, the decision would be against Barron.\n\n The question thus presented is, we think, of great importance, but\n not of much difficulty. The Constitution was ordained and established\n by the people of the United States for themselves, for their own\n government, and not for the government of the individual states. Each\n state established a constitution for itself, and in that constitution\n provided such limitations and restrictions on the powers of its\n particular government as its judgment dictated. The people of the\n United States framed such a government for the United States as they\n supposed best adapted to their situation, and best calculated to\n promote their interests. The powers they conferred on this government\n were to be exercised by itself; and the limitations on power, if\n expressed in general terms, are naturally, and, we think, necessarily,\n applicable to the government created by the instrument. They are\n limitations of _power granted in the instrument itself_; not of\n distinct governments, framed by different persons and for different\n purposes.\n\nIt would have been impossible for Marshall to have stated more plainly\nthat the \u201cinstrument,\u201d the Constitution (which contains the Fifth\nArticle), _grants no powers whatever to the state governments_. On\nthat fact, the fact being the simple answer to the question \u201cof\ngreat importance but not of much difficulty,\u201d Marshall decided that\nthe general restrictions (applying only to powers _granted_ in the\nConstitution) did not apply at all to the state governments, to whom\nthe Constitution granted no power whatever.\n\nAnd so we Americans, trying to find the \u201cwhen\u201d and \u201chow\u201d (between, 1907\nand 1917) we became subjects, cannot find the supposed answer anywhere\nin the briefs against validity. All that we do find of interest to us,\nin those briefs, is that the briefers, either with or without knowledge\nof the fact, are meeting a claim that there never was an American\ncitizen and that the American people became \u201csubjects\u201d when they made\nthe Fifth Article on June 21st, 1788.\n\nBy reason of our education in the making of the Fifth Article, we\nknow the answer to the absurd claim. The answer is one that cannot\nbe denied unless there are facts which we have not learned in our\neducation. Therefore, we go quickly to the briefs of those who make the\nclaim, those who upheld the existence of the Eighteenth Amendment, to\nascertain what are the _new_ facts on which they base their claim that\nthere never was an American citizen and that the Fifth Article made the\nAmerican people \u201csubjects.\u201d\n\nThese opponents were led by Hughes. In this litigation, _he_ should not\nhave forgotten that there are limits to the powers of every government\nin America. In the following January, he appeared in the same Court,\nto prove that there is limit to the power of the _supreme_ legislature\nin America, the Congress.\n\nThat Congress had passed a statute, known as the \u201cCorrupt Practices\nAct.\u201d In it, certain practices, at federal primary and other elections,\nwere prohibited and made criminal offenses. His client had been\ntried and convicted by a jury as guilty of one of these practices in\na primary election for the nomination to the Senate of America. On\nthe appeal to the Supreme Court, Hughes urged that, as our American\ngovernment _is_ a government of _enumerated_ powers, _incidentally\na fact which his claim for the state governments in the National\nProhibition Cases flatly denies_. Congress could not _validly_ pass the\nstatute, under which his client had been convicted, unless the power to\npass a statute in that particular matter was found in some enumerated\npower in the Constitution. The Constitution clearly gave Congress\npower to pass laws concerning \u201celections\u201d for federal officers. But,\nurged Hughes, the Americans of 1788, the \u201cconventions\u201d in the Fifth\nand Seventh Articles, did not know anything about \u201cprimary\u201d elections.\nTherefore, urged Hughes, Congress has not the power to make the same\nthing a penal offense at \u201cprimary\u201d elections, which Congress can make\na penal offense at the regular elections. By a divided Court, this\nargument, based on the claim of _limited_ power in the _supreme_\nlegislature to prohibit what a candidate for Senator may do, was\nsustained and the conviction was reversed.\n\nIt is amazing, therefore, to turn to the Eighteenth Amendment brief\nof the same briefer, a few months earlier, and to find him contending\nfor his clients therein, twenty-four governments of state citizens, an\nabsolute omnipotence to interfere with individual freedom of American\ncitizens on every subject. And it is startling to find, in this brief,\naudacious denial of any right in the Supreme Court even to consider\nwhether these governments of state citizens have that omnipotence over\nthe American citizen.\n\nIn the case of the candidate for Senator, it was his concept and his\nclaim that the Supreme Court can decide that the _supreme legislature_\nin America had not the power to make a certain command to candidates\nfor seats in the American Senate. This is the doctrine that the only\ngovernment of the American citizens is a government of enumerated\npowers. In the Eighteenth Amendment litigation, the following is\nhis contention, that thirty-six governments of state citizens (the\n_inferior_ legislatures in America) have unlimited power, without any\nconstitutional restraint, to make commands to the American citizens on\nany matter whatsoever:\n\n\u201cWe submit that the conception involved in the bill of complaint, that\nan amendment duly submitted by Congress on the vote of two thirds of\neach House, and duly ratified by the legislatures of three fourths\nof the States, is still subject to judicial review, and may be held\nfor naught through judicial action by virtue of a process of implied\nrestrictions upon the amending power--restrictions which thus set up by\njudicial decree would be unalterable by any constitutional process--is\na conception of the most extravagant character and opposed to the\nfundamental principles of our government. No principle of judicial\naction can possibly be invoked for sustaining such an authority. The\npropriety and advisability of amendments, which are not prohibited by\nthe express exceptions in Article V, are necessarily confided to those\nthrough whose action the amendments are to be made.\u201d\n\nWe are quite accustomed to have men like Anderson maintain that\ngovernments of state citizens have outlawed _for the citizens of\nAmerica_ a traffic which Madison hoped would take deep root everywhere\nin America, a rightful traffic by human beings \u201cso recognized by the\nusages of the commercial world, the laws of Congress, and the decisions\nof courts.\u201d (Leisy v. Harden, 135 _U.S._ 100.)\n\nWhen Americans were fighting on the battlefields of the Revolution for\nhuman liberty, Walter Butler stirred up the House of the Six Nations to\nmake a home attack. It was natural, therefore, when Americans in 1918\nwere fighting on the battlefields of Europe for human liberty, that\nAnderson and men of his type should stir up the Houses of thirty-six\nnations to make a similar home attack. Americans will probably always\nhave Butlers and Andersons to stir up home attacks, when Americans are\naway on the battlefields.\n\nBut it is a grave matter when one who has sat on the Bench of the\nSupreme Court later contends that the Court has no ability even to\nreview an attempted effort of the legislatures of state citizens to\ncommand the citizens of America on a matter not enumerated in the First\nArticle.\n\nFrom the \u201cconventions\u201d of the early American citizens, we bring the\nknowledge that it is the bounden duty of the Supreme Court to determine\nthat the governments of state citizens have no power whatever to\ninterfere with the individual freedom of American citizens in any\nmatter whatsoever. From those \u201cconventions,\u201d we bring the certain\nknowledge that the main purpose of the establishment of the Supreme\nCourt, as one department of the only and limited government of American\ncitizens, was that the Supreme Court might protect every individual\nliberty of the American citizen from usurpation of power by all\ngovernments in America.\n\nAny concept to the contrary is the most Tory doctrine ever stated\nas American law since July 4, 1776. It is blind to the fact that,\nby the Constitution, the whole American people, \u201cin their aggregate\ncapacity,\u201d created a new nation of men and set it above the existing\nand continued federation of states; to the fact that the whole American\npeople made that Constitution one with _national_ Articles, relating\nto the government of men, and with _federal_ Articles, relating to\nthe government of states; and to the fact that the whole American\npeople knew and settled that only \u201cconventions\u201d of themselves could\nmake _national_ Articles, although state legislatures, as attorneys in\nfact for their respective states, could make _federal_ Articles; and\nto the fact that the Tenth Amendment names two distinct reservees of\nexisting power, \u201cthe states respectively,\u201d who are the members of the\nsubordinate federation, and \u201cthe people,\u201d who are the members of the\nsupreme nation of men; and to the fact that the Fifth Article grants no\npower whatever but mentions the \u201cstate legislatures,\u201d who act for the\nmembers of the federation, and the \u201cconventions,\u201d who alone can ever\nact for the members of the supreme nation, when the latter are to make\na change in _their_ part of the Constitution, the _national_ part.\n\nBut we find the brief of Hughes, like the briefs of his associates,\nactually challenging any right of review by the Supreme Court, when\nthe attorneys in fact for the states and state citizens, although\nthe states have nothing whatever to do with _that_ part of the dual\nConstitution which relates _to the nation of men_, actually attempt to\nchange the quantum of power (to interfere with their own individual\nfreedom) granted by the nation of men to their only government. His\nchallenge even goes to the extreme of boldly asserting that the\n\u201cpropriety and advisability of amendments,\u201d even though they infringe\nupon the individual freedom of the members of the nation of men, must\nbe finally determined by the governments of state citizens, which have\nnothing to do with the nation of men which is America. His challenge\nis that the Supreme Court is powerless to protect the liberty of the\nAmerican citizens if thirty-six governments of state citizens decide\nto interfere with that liberty in matters not enumerated in the First\nArticle.\n\nThe challenge is exactly the challenge of Lord North to the Americans\nin 1775. It is exactly the challenge which the British Parliament would\nmake, if we were still its \u201csubjects.\u201d As basic American law, it is\nsheer nonsense.\n\nWhen we remember the doctrine of this briefer, that there _is_ a limit\nto the right of our _supreme_ legislature to prohibit what a candidate\nfor Senator may do, and compare it with this new Tory concept that\nthree fourths of the _inferior_ state governments can validly interfere\nwith every personal liberty of ourselves, we have one or two questions\nto ask the briefer. Is it his thought that the supposed citizens of\nAmerica made their Constitution with the sole intent that the personal\nrights of candidates for Senators should be secure and that the number\nof Senators from each state should remain the same? Is it his thought\nthat the American citizens, from whose \u201cconventions\u201d we have just\ncome, having settled these amazingly important things about Senators,\nthen voluntarily granted omnipotence over every individual freedom\nin America to a fractional part of the inferior state governments,\ntwenty-four of whom he represented in the litigation of 1920? Is it\nhis thought that the whole American people have two governments, one\nthe government of enumerated powers constituted in the First Article\nand the other the government of unlimited power constituted in the\nFifth Article? Is it his thought that his inferior state governments,\nalthough all members of all the state governments collectively could\nnot enact a statute interfering in the slightest degree with the\nAmerican citizen, can issue any command whatever to the American\ncitizen, and that the citizens of America must obey that command so\nlong as the state governments call it an Amendment of the American\nConstitution?\n\nIt is our own certain knowledge that, when governments issue any\ncommand to the citizens of America and the command interferes with\nindividual freedom, the maker of the command must show the grant of\npower to make that particular command. It is the Alpha and Omega of\nAmerican law that no government has any just power to make any command\nto the citizens of America, except in a matter on which those citizens\nthemselves have given that government the power to make that particular\ncommand. It is in the primer of American constitutional law, that there\nis no government _of the citizens of America_, except the government at\nWashington, and that it has no power to command the American citizen,\ninterfering with his individual freedom, _except_ in the matters named\nin the First Article. It is admitted by all, even by the writer of\nthat brief and his colleagues, that the power to make the command which\nis the First Section of the Eighteenth Amendment, is not enumerated in\nthat First Article. When, therefore, this counsel for twenty-four of\nthe governments which made that command tells us that, after his client\ngovernments (at the suggestion of our government which could not make\nthe command) have passed upon the propriety and advisability of the\ncommand, we cannot have the Supreme Court even consider the ability of\nhis client governments to make the command, our indignation is mingled\nwith our mirth.\n\nOur indignation need not be explained. Our mirth comes when we think of\nour needless fear that something might have happened between 1907 and\n1917 by which we became \u201csubjects\u201d instead of the citizens we had been.\nThroughout our education we have always known that, _if_ the Eighteenth\nAmendment (a NATIONAL article made entirely by GOVERNMENTS) is in the\nConstitution, we are \u201csubjects.\u201d We have known that no legislative\ngovernments, before 1787 _and after_ 1776, could have made this general\ncommand to the citizens of America, _because_, during those eleven\nyears, there was no citizen of America and there were no governments\nin the world who could make any _general_ command to the American\npeople, interfering with their individual freedom on any subject. We\nhave known, with certainty, that, if the Americans in the \u201cconventions\u201d\n(where we have sat) knew what they were doing and the Supreme Court,\nfor a century, has known what they did, there were no governments in\nthe world, up to the year 1907, who could make that command _to the\nAmerican citizens_. We have gone everywhere to find what happened,\nbetween 1907 and 1917, to change the American citizens into \u201csubjects\u201d\nof the governments for whom this counsel appears. Now, after the\nfruitless search elsewhere, we are reading his brief to find out what\ndid happen between 1907 and 1917. His plain answer, as we have already\nsensed, is--\u201cNOTHING.\u201d\n\nOur mirth entirely dispels our indignation, when we sense his full\nconcept of the nature of that absurd Fifth Article \u201cgrant\u201d to his\ngovernment clients. That we may not mistake his concept, the most Tory\nconcept ever stated as law in America since 1776, he explains it again\nand again in his briefs. It is his concept that the absurd supposed\n\u201cgrant\u201d gives to his client governments, not one member of which is\never elected by the citizens of America, unlimited and constitutionally\nunrestrained power to interfere with the individual freedom of the\nAmerican citizen on every matter or, as the Declaration of \u201976 put it,\nin its complaint against the English King and _his_ legislature, to\nlegislate for us on all matters whatsoever.\n\nAnd our mirth is not lessened when we read, in this brief, John\nMarshall\u2019s full statement of the making of the Constitution (with the\nFifth Article in it) and John Marshall\u2019s clear decision that it was all\nmade by the citizens of America, the \u201cconventions\u201d of the Seventh and\nthe Fifth Articles.\n\nNo statement of facts could ever be written, which more absolutely\ndestroys the concept that the state governments have the omnipotence\ndenied to the English Parliament, than the quotation from John Marshall\nwhich we read in this brief to support that concept.\n\nThroughout the quotation, with which _we_ are all very familiar,\nMarshall points out that there is a vital distinction, amazingly\nimportant to individual freedom, between the ability of the\n\u201cconventions\u201d (named by exactly the same name in the Fifth as well as\nthe Seventh Article) and the limited ability of the same \u201clegislatures\u201d\nfor which this counsel appeared in 1920. In the quotation Marshall\npoints out that, when the American citizens are to make a NATIONAL\nArticle, like the First Article and the Eighteenth Amendment, there\nis but one way in which they can make it \u201csafely, EFFECTIVELY and\nwisely,\u201d \u201cby assembling in convention.\u201d That all of us, including\nthat counsel of 1920, may not find any excuse for an assumption that\nstate governments can ever make Articles _of that kind_, Marshall\ndwells at length upon the _inability_ of state governments or any\ngovernments to make them or any Article like them. He tells us that,\nwhen the _American_ people make Articles _of that kind_, in the only\nway in which they can ever EFFECTIVELY make Articles _of that kind_,\nby assembling in \u201cconventions,\u201d \u201c_they_ act _in_ their states. But\nthe measures they adopt do not, on that account, cease to be the\nmeasures of the people themselves or become the measures of the state\ngovernments.\u201d \u201cFrom these conventions the Constitution derives its\nwhole authority.\u201d \u201cIt required not the affirmance, and could not be\nnegatived, by the state governments. The Constitution, when thus\nadopted, was of complete obligation and bound the state sovereignties.\u201d\n\nUp to the last short sentence _we_ have just quoted from the decision\nso familiar to us, Hughes quotes at length and without omission. Hughes\nis in Court for those \u201cstate legislatures\u201d and state sovereignties,\nwhich Marshall\u2019s decision finds to be legislatures and sovereignties\nwholly inferior in ability to the \u201cconventions\u201d of the American\npeople, named in the Fifth and Seventh Articles by exactly the same\nname--\u201cconventions.\u201d How does the great lawyer of 1920 find, in this\nMarshall decision, support for the unique idea that these state,\ngovernments are omnipotent over every right of the American citizens\nwho sit in those \u201cconventions\u201d? His remarkable claim is that the\nstate governments he represents have omnipotent ability to command\nor interfere with anything in America, except one thing. It is his\nclaim that these governments have omnipotent ability to interfere with\nthe citizens of America, with the Constitution of America, with the\ngovernment of America, with anything in America, _except_ that they\ncannot interfere with that one thing for which the Revolution was\nfought, the Statute of \u201976 enacted and the Constitution established.\nIn the view of Hughes, that one thing apparently is the right of every\nstate to have the same number of Senators. Our indignation is entirely\ndispelled when we realize that he sincerely believes this nonsense. Our\nmirth is merely increased when we find him quoting, at some length,\nthis decision of Marshall, evidently under the impression that the\ndecision supports the nonsense.\n\nBut, we wonder why, at the particular point which we have reached in\nthe Hughes quotation from Marshall, the former puts \u201cstars\u201d instead of\nthe next paragraph in the Marshall decision? Certainly, when the great\nlawyer of 1920 has such faith in the omnipotence of his government\nclients over us their \u201csubjects,\u201d it cannot be that there is anything\nin the missing Marshall paragraph to disturb that faith! Yet, as we\nread the missing paragraph, with which we are quite familiar, doubt\nassails us. _Is_ the great lawyer of 1920 sincere or does he know that\nthe position of his clients in relation to the Eighteenth Amendment is\nnonsense?\n\nWhat is the missing Marshall paragraph with which we are so familiar?\nLo and behold! it is our constant companion throughout our education\nin the days of the early Americans. It is the paragraph in which the\nSupreme Court, by Marshall, points out why the Philadelphia Convention\nof 1787 found themselves compelled to send their First Article,\nwith its grant of _national_ power like the grant in the Eighteenth\nAmendment, to the \u201cconventions,\u201d named in the Seventh and the Fifth\nArticles, _because_ the state governments, the clients of Hughes,\nwere known and recognized by everybody to be without ability to make\n_national_ Articles. In other words, it is the paragraph in which\nMarshall announces what we have learned so clearly ourselves, that\n\u201cto the formation of a league, such as was the Confederation [to the\nmaking of _federal_ Articles] the state sovereignties were certainly\ncompetent. But when \u2018in order to form a more perfect Union,\u2019 it was\ndeemed necessary to change this alliance into an effective government,\npossessing great and sovereign powers and acting directly on the\npeople, the necessity of referring it to the people [the conventions of\nthe Fifth and the Seventh Articles] and of deriving its powers directly\nfrom them was felt and acknowledged by all.\u201d\n\nWe know this paragraph of Marshall\u2019s, omitted from the Hughes brief, to\nbe the epitome of everything that we have heard in the \u201cconventions\u201d\nwhich made the Fifth Article. We remember that even Henry, from the\nvery fact that the \u201cconventions\u201d of the American citizens _were_\nassembled, knew that the _then_ proposed Articles did grant power to\ninterfere with human freedom. And we remember (because he knew the\ninability of state governments ever to make such grants) that, on the\nfact that \u201cconventions\u201d _were_ assembled, he based his charge that\nthe proposed Articles _were_ NATIONAL and not _federal_. We remember\nthat the Tenth Amendment declares that the entire Constitution,\nincluding the Fifth Article, gave no power of any kind to those\nstate governments. And so we know, what Henry knew, that the state\ngovernments did not _have_, and that _the Fifth Article did not give\nthem_, any ability to make NATIONAL Articles, like the First Article\nand the Eighteenth Amendment.\n\nFor which reason, we cannot (looking at the matter purely from the\nstandpoint of lawyer\u2019s attitude to his government clients) blame Hughes\nfor putting the stars in his quotation from Marshall.\n\nEager to remain free citizens, eager to have all governments recognize\nthat we are not \u201csubjects,\u201d we ourselves commend, to the writer of\nthat brief and to all who uphold the Eighteenth Amendment, the entire\ndecision of Marshall in M\u2019Culloch v. Maryland. For instance, we commend\nthis clear statement of basic American law:\n\n If any one proposition could command the universal assent of mankind\n [except those _for_ the validity of the Eighteenth Amendment], we\n might expect it would be this:--That the government of the Union,\n though limited in its powers, is supreme within its sphere of action.\n This would seem to result necessarily from its nature. It is the\n government of all; _its powers are delegated by all_; it represents\n all, and acts for all. Though any one state may be willing to control\n its operations, _no state_ is willing to allow _others_ to control\n them. The nation, on those subjects on which it can act, must\n necessarily bind its component parts.\n\nAmong other things, this statement, itself but a repetition of\neverything that we have learned by our experience with early Americans,\nemphasizes the important fact that the nation, which is ourselves, has\nbut one government, the government \u201climited in its power.\u201d Which fact\nclearly demonstrates that the state governments, not being that one\ngovernment of \u201climited powers,\u201d are not the attorneys in fact for the\ncitizens of _America_, in any matter whatsoever, and cannot command us,\nas they attempt to do in the First Section, or grant power to command\nus, as they attempt to do in the Second Section of the Eighteenth\nAmendment.\n\nAgain this same decision of Marshall holds clearly: \u201cIn America, the\npowers of sovereignty are divided between the governments of the Union\nand those of the State.\u201d The claimed ability of the Hughes government\nclients, their claimed ability to _make_ the NATIONAL new Article in\nour Constitution, rests entirely upon the absurd doctrine that, _above_\nthe two sovereignties which Marshall names, there is an omnipotent\nlegislative sovereignty, without any constitutional restraint, the\nsovereignty of three fourths of the very state governments which\nMarshall mentions.\n\nIn the same M\u2019Culloch v. Maryland, Marshall pays a tribute to an\naccurate knowledge, which we have acquired in our education with\nthe early Americans. It is the knowledge that everything in the\nConstitution denies any ability in even all the states _as such_, or\nin all the state governments, each of which is never anything but a\ngovernment of the citizens of _one_ state and _their_ attorney in fact\nas _state_ citizens, to alter in any way the NATIONAL part of _our_\nConstitution (which Constitution is both _national_ and _federal_)\nbecause the NATIONAL part relates to direct interference with the\nindividual freedom of the _American_ citizens. This is his tribute to\nthe truth of the knowledge which we have acquired. He says that there\nis \u201ca principle which so entirely pervades the Constitution, is so\nintermixed with the materials which compose it, so interwoven with its\nweb, so blended with its texture, as to be incapable of being separated\nfrom it without rending it into shreds. This great principle is, that\nthe Constitution and the laws made in pursuance thereof are supreme;\nthat they control the Constitution and laws of the respective states\nand cannot be controlled by them.\u201d\n\nAnd so we average Americans find naught but encouragement in the brief\nof Hughes. From its quotations, from its every statement, we learn that\nwe have known all the facts, before we read it, and that we are free\ncitizens and not \u201csubjects.\u201d In that brief of the champion of champions\nof the governments that \u201cmade\u201d the new NATIONAL Article, we learn that\nthere are no new facts on which to base the claim that we, the whole\npeople of America, have another government besides the government\nof enumerated powers, the claim that we are \u201csubjects\u201d and that our\nnew omnipotent Parliament wears the aspect of thirty-six inferior\ngovernments, each elected by the citizens of a nation which is not\nAmerica.\n\nIn the brief of this champion, we find no pretense that there is\nany support for this weird claim. On the contrary we find the whole\nclaim depending entirely upon the sheer assumption--asserted as if\nto state it was to state an axiom--that the Fifth Article _is_ a\n\u201cgrant,\u201d wherein the \u201cconventions\u201d grant _to the grantors_ and to the\nstate governments ability to exercise omnipotence over the American\ncitizens, ability to interfere with their individual freedom, in any\nmatter whatsoever.\n\nIn his brief, Hughes emphatically asserts the truth that \u201cthe people\nnever become a legislature.\u201d Yet, the basis of his whole argument is\nthat what \u201cthe people\u201d of the Tenth Amendment expressly reserved to\nthemselves may be given away by the \u201clegislatures\u201d of the states,\nalthough the \u201cstates\u201d are an entirely different reservee in the Tenth\nAmendment. He does not know, what all knew when the Fifth Article\nwas made, that the \u201cconventions,\u201d who made it and who are named in\nit, meant \u201cthe people\u201d themselves. He does not know the tribute of\nMadison, in the Virginia convention which ratified the Fifth Article,\nto the American \u201cconventions\u201d in which the people themselves directly\nconstituted new government of men; \u201cMr. Chairman: Nothing has excited\nmore admiration in the world than the manner in which free governments\nhave been established in America; for it was the first instance,\nfrom the creation of the world to the American Revolution, that free\ninhabitants have been seen deliberating on a form of government, and\nselecting such of their citizens as possessed their confidence, to\ndetermine upon and give effect to it.\u201d (3 _Ell. Deb._ p. 616.)\n\nHughes does not know, as Story did, that the drafter and the makers\nof the Fifth Article put into it the lessons of their own experience\nin the making of _national_ Articles, by the \u201cconventions\u201d of 1776,\nand in the making of _federal_ Articles by the state \u201clegislatures\u201d\nbetween 1777 and 1781. \u201cIt is wise, therefore, in every government, and\nespecially in a Republic, to provide means for altering and improving\nthe fabric of government as time and experience or the new phases of\nhuman affairs may render proper to promote the happiness and safety of\nthe people. The great principle to be sought is to make the changes\npracticable, but not too easy; to secure due deliberation and caution;\n_and to follow experience_, rather than to open a way for experiment\nsuggested by mere speculation or theory.\u201d (2 Story on the Constitution,\nSec. 1827.)\n\nFor all of which reasons, Hughes and his associates, although they\nmight be certain that the people never became the legislature, were\nnot aware that, to the Americans who made the Fifth Article, its\n\u201cconventions\u201d _were_ \u201cthe people\u201d of the Tenth Amendment.\n\nNaturally, we are not surprised to find a briefer who ignores this\nfact, possibly the legal fact in America most important to individual\nliberty, also indulging in the monumental error of the thought\nthat these \u201cconventions,\u201d in their Fifth Article, made a grant, to\n_themselves_ and to his clients, of equal omnipotence over themselves,\nthe citizens of America. We recognize that, if the Article was such a\ngrant to his clients, the grant would have been the greatest grant ever\nmade in the history of mankind. We recognize that it would have been a\ngrant by three million free men, four years after the war by which they\nhad become free men, surrendering to governments absolute control of\nevery individual liberty and making themselves absolute \u201csubjects.\u201d\n\nWe know that Hughes _did_ maintain that the one government created by\nor given any power in the Constitution, in which is the Fifth Article,\nhad not power to forbid a candidate for Senator to do what he did. It\nis interesting and instructive to know that the same lawyer holds,\nas an axiom which needs no proof, that the same Constitution gave\nunlimited ability to his client governments to interfere with every\nindividual liberty of the Americans who are not candidates for a\nSenatorship.\n\nWe have the word of the man who wrote the language of that Fifth\nArticle that it is merely \u201ca mode of procedure\u201d in which may be\nexercised either the existing unlimited ability of ourselves in\n\u201cconventions\u201d or the limited ability of the state governments to\nmake _federal_ Articles. _We_ recognize, no one who reads it could\nrecognize otherwise, that the Fifth Article, outside of two exceptions\nto CONSTITUTIONAL exercise of existing abilities to make Articles,\ncontains nothing but procedural provisions. This knowledge we brought\nto the reading of the Hughes brief, after we had acquired the certainty\nin our education with the Americans who made the Fifth Article. Then\nwe read this brief of the champion of champions for the validity of\nthe supposed new Article and found therein the sheer assumption, as an\naxiom which needed no proof, that the Fifth Article, with nothing but\nits procedural provisions, was a grant of omnipotence to his government\nclients over ourselves!\n\nImagine, therefore, our amazement _and our amusement_, in the same\nbrief, to find this clear echo of the statement of Madison and of our\nown knowledge, this accurate and complete statement of exactly what the\nFifth Article contains: \u201cArticle V, _apart from procedural provisions_,\ncontains two limitations of the power to amend, as follows: \u2018Provided\nthat no Amendment which may be made prior, etc.\u2019\u201d\n\nIf, \u201c_apart from procedural provisions_,\u201d the Article has nothing but\n\u201ctwo limitations\u201d of existing abilities to make Articles, where does\nhe or anyone find in it the greatest \u201cgrant\u201d known to the history of\nmankind?\n\nWhen this briefer made his argument for his client who had been a\ncandidate for Senator, he had no attack to make upon the _procedure_\nin which Congress had passed the Corrupt Practices Act. When he went\nto ascertain whether Congress had the power to make that command,\nabout \u201celections,\u201d he did not look for the power in any \u201cprocedural\nprovisions,\u201d which prescribe _how_ Congress should exercise its ability\nto make commands.\n\nIf this briefer or any lawyer were asked, on behalf of a client,\nto accept a bill of sale from an _alleged_ attorney in fact of the\nowner of a cow, he would not seek, in any procedural provisions which\nprescribed _how_ an attorney in fact can execute an instrument for his\nprincipal, to find the authority of the alleged attorney to sell the\ncow.\n\nWhy then, in an Article with naught but procedural provisions and two\nlimitations on power to make Articles, do he and all his associates\nseek to find, _and assert that they do find_, grant of authority to the\ninferior governments of state citizens to give away every liberty which\nthe citizens of America hold most dear?\n\n\n\n\n                              CHAPTER XXV\n\n                  CITIZEN OR \u201cEIGHTEENTH AMENDMENT\u201d?\n\n\nIt is our invincible knowledge that the Fifth Article is not a power\nof attorney to any one to act for us, the citizens of America, in\nregard to any individual right which the _American_ citizen has. In our\ncapacity as American citizens and in \u201cconventions\u201d of the very kind\nnamed in that Fifth Article, we gave the only power of attorney, which\nwe have ever given to any government to act for us in making commands\nto interfere with any of our individual rights. That power of attorney\nis the First Article. We made it in the same \u201cconventions.\u201d In it, we\ngave to our Congress our only power of attorney _of that kind_. In\nit, with futile effort to keep modern \u201cconstitutional thinkers\u201d from\nmonumental error, we said, at the very beginning of the one Article\nwhich is our only power of attorney, that to our Congress alone the\nConstitution gives any powers to make commands that interfere with our\nindividual rights. \u201cAll legislative powers herein granted shall be\nvested in a Congress, etc.\u201d (Art. I, Section I. _U.S. Cons._)\n\nIn those same \u201cconventions\u201d (named in the Fifth Article) we insisted,\nagain in futile effort to keep modern \u201cconstitutional thinkers\u201d from\nmonumental error, that there be written the exact declaratory statement\nthat the entire Constitution gave no power (to act for us, the\ncitizens of America, in any matter) to any donee except our new general\ngovernment, the government of the First Article enumerated powers. And,\nin those \u201cconventions,\u201d we insisted that there be written into that\nConstitution the accurate declaratory statement that all powers to act\nfor us in any matter, except the powers _of that kind_ we gave to that\none limited general government, we retained exclusively to ourselves,\nthe citizens of America, that they might be exercised only _by\nourselves_ or upon further grant _from ourselves_. Those two important\ndeclaratory statements were written into that Constitution in the shape\nof the Tenth Amendment.\n\nThat we ourselves might have a CONSTITUTIONAL mode of procedure\nin which _constitutionally_ we could make that future exercise or\nfurther grant of those powers which we reserved to ourselves, we named\nourselves--the \u201cconventions\u201d of the kind in which we sat--in the Fifth\nArticle and provided therein the CONSTITUTIONAL mode in which we\n_could_ again do exactly what we were then doing in the same kind of\n\u201cconventions.\u201d It was impossible for us in those conventions, \u201cbeing\na people better acquainted with the science of government than any\nother people in the world,\u201d to anticipate that modern \u201cconstitutional\nthinkers\u201d should make the ludicrous mistake of inferring, from that\nmention, that we--the \u201cconventions\u201d--granted to ourselves--the\n\u201cconventions\u201d--all or some of the very power we were then exercising\nin those \u201cconventions.\u201d Nor did we anticipate, inasmuch as _we_ (in\nthose \u201cconventions\u201d) never forgot that this new Constitution was\nto be _federal_ as well as _national_, that modern \u201cconstitutional\nthinkers\u201d would make another monumental error in assuming that a\nsimilar _mention_ of the existing ability of state legislatures (the\nability to make _federal_ or declaratory Articles) was a _grant_ to\nthose governments of our own power to make _national_ ones. Even if we\nhad possessed (in those \u201cconventions\u201d) the vision to see the future\nthat was 1920, we would have felt that the Statute of \u201976, the opening\nwords of the First Article and the explicit declarations of the Tenth\nAmendment made any such error impossible for modern \u201cconstitutional\nthinkers.\u201d\n\nYet, one or more of such errors are the basis of every argument in\nevery brief of the fifty-seven lawyers of 1920.\n\nThey are the basis of the Root briefs and the other briefs _against_,\nas they are the basis of the Hughes briefs and the other briefs _for_,\nthe validity of the supposed new Amendment. Not a single one of the\nbriefs fails to _assume_, without the slightest foundation, that the\nstate governments, not a member of which is elected by the citizens of\nAmerica, _are_ attorneys in fact for the citizens of America. Wherever\none brief differs from another in this respect, it is only in urging\nsome difference in the extent of the power of attorney made to those\ngovernments by the citizens of America in the Fifth Article.\n\nFor which reason, we, who have come from the days of those early\nAmericans, strong in the knowledge that we are citizens and not\n\u201csubjects,\u201d are now satisfied that none of these modern \u201cconstitutional\nthinkers\u201d can disturb our certain knowledge. It is a matter of no\nconcern to us that some of them, because they did not have our\nknowledge, failed to win their litigations for their clients. It\nis, however, a matter of great concern to us that supporters of the\nEighteenth Amendment should be found maintaining, as if it was an\naxiom needing no proof, that we are \u201csubjects\u201d of the governments they\nrepresented.\n\nWe need spend very little further time in the briefs of those who so\nmaintain. We have no patience with their Tory concept of the relation\nof men to governments. We KNOW that Tory concept never has been\nAmerican law since the Statute of \u201976. But it would not be proper to\nleave their briefs without one glance at some of their heresies, which\nare flatly contradicted by everything we have learned in our education.\nAs a matter of fact, not one of these heresies can stand accurate and\nsimple statement without exposing its own absurdity.\n\nSome of us are familiar with the book known as \u201cThe Comic Blackstone.\u201d\nWe have thought of it often as we read the briefs of those _for_\nvalidity of the new Amendment--the government constitution of\ngovernment power to interfere with the individual freedom of American\ncitizens. There is, however, a vital difference between the book\nand those briefs. The book was a conscious effort to be humorous.\nUnconscious humor has never failed to surpass conscious and intended\nhumor.\n\nWe recall our search to know \u201cwhen\u201d and \u201chow,\u201d between 1907 and\n1917, we became subjects. We remember the first glance at the briefs\nof 1920. We remember the tribute of one to the simple truth that\n\u201cthe people do not become a legislature.... As well confound the\ncreator and the creature--the principal and the agent through which\nhe acts.\u201d We wonder why the author of this tribute did not challenge\nthe monumental error of the concept that the Fifth Article (when it\nmentions the \u201cconventions\u201d of the American citizens, the greatest\nprincipal in America, and also mentions the state governments, each as\nthe attorney in fact of another and distinct principal, the citizens\nof its own state) is a grant from the great principal to itself and\nthese mentioned attorneys in fact of others. But we now know why the\nauthor of the tribute made no such challenge. He is Hughes, who rests\nhis entire argument _on_ the monumental error. We remember, as we\nglance at the briefs, that another one challenged the doctrine on which\nSheppard proposed that the Eighteenth Amendment be sent to governments\nof state citizens, that such governments might interfere with the\nfreedom of _American_ citizens. We remember the Sheppard doctrine\nas the Calhoun heresy that the states, political entities, made the\nConstitution which _we_, the citizens of America, actually made in\nour \u201cconventions.\u201d We remember how refreshed we were to find, in our\nfirst glance at the briefs, this statement: \u201cThe Constitution is not\na compact between states. It proceeds directly from the people. As\nwas stated by Mr. Chief Justice Marshall in M\u2019Culloch v. Maryland, 4\n_Wheat._ 316, &c.\u201d We remember our thought, when we had just come from\nthose \u201cconventions,\u201d to find this statement in that brief. We remember\nhow we anticipated this briefer telling the Court why the states\nor _their_ governments, who could not make the First Article, were\nincompetent to make the only other supposed grant of power to interfere\nwith our liberty, the Eighteenth Amendment. Now that we have finished\nwith the briefs of 1920, we recognize how absurd was our expectation.\nThe statement that the states, which are mere political entities, did\nnot make the Constitution, the quotation from Marshall, supporting this\ntruth and showing that the states did not make it because the states\nand their governments cannot make _national_ Articles, are both from\nthe brief of this same Hughes, the champion of his government clients\nand their claimed ability to make _national_ Articles.\n\nWe find some considerable amusement in comparing the speech of\nSheppard, proposer of the Eighteenth Amendment, and the brief of\nHughes, champion of the Eighteenth Amendment. If government was to\ncarry through a successful revolution against free men and acquire\nthe omnipotence denied to the British Parliament, it would have been\nwell for the proposers of the Revolution and the champions of it to\nhave agreed at least upon one fact, whether the states, political\nentities, or the citizens of _America_, in _their_ \u201cconventions,\u201d made\nthe Constitution--which was to secure the American citizen against all\nusurpation of power by governments.\n\nBut, once we sense the certainty that this revolution of government\nagainst free citizens _cannot_ be successful, once we realize the\ncertain decision of the Supreme Court when the real challenge is made\nto the disguised revolution, we can forget the attempted tragedy of\nhuman liberty. Then we shall know that the entire story of the last\nfive years is an inexhaustible mine of humor. And, among the briefs of\nthose who championed this revolution of government against human being,\nwe shall find no mean rival (in unconscious humor) to any other part of\nthat story.\n\nWe recall, at our first introduction to all the briefs, the epitome\nof all the knowledge we had just brought from the early conventions:\n\u201cThere is only one great muniment of our liberty which can never be\namended, revoked or withdrawn--the Declaration of Independence. In this\nregard, it ranks with the Magna Charta.\u201d We recall how pleased we\nwere to know that the Court must hear another champion of individual\nliberty, who also must have come from the \u201cconventions\u201d in which we had\nsat. We recall how, in his brief, this truthful tribute to the Statute\nof \u201976 was immediately followed by the quotation from that Statute,\nwhich includes these words: \u201cThat to secure these Rights, [the Rights\nof men granted by their Creator] governments are instituted among men,\nderiving their just powers from the consent of the governed. That\nwhenever any Form of Government becomes destructive of these ends,\nit is the Right of the _People_ to alter or to abolish it, and to\ninstitute new government, laying its foundation on such principles and\norganizing its powers in such form, as to _them_ shall seem most likely\nto effect _their_ Safety and Happiness.\u201d\n\nIn our eager anticipation to hear his argument and see his brief, how\nwere we, fresh from the \u201cconventions\u201d in which sat some of the men\nwho had written that Statute eleven years earlier, to know that the\nbriefer understood their language to read as follows: \u201cThat to secure\nthese rights of human beings, granted by their Creator, governments are\ninstituted among men, deriving their just powers from the consent of\n_the state governments_. That whenever any Form of Government becomes\ndestructive of these ends, it is the right of _the state governments_\nto alter or abolish it, and to institute new government, laying its\nfoundation on such principles and organizing its powers in such form as\nto _the state governments_ shall seem most likely to effect the welfare\nof those who control the state governments.\u201d\n\nThat this _is_ the meaning of that Statute to this briefer, we may\nrealize when we know that the tribute to the Statute and the quotation\nfrom the Statute are in the brief of Wheeler, counsel for the political\norganization which managed the new revolution of government against\npeople and dictated the proposal that governments should constitute\nnew government of men in America. Now we grasp why this briefer said\nthat, in the fact that the Declaration of Independence could \u201cnever\nbe amended, revoked or withdrawn,\u201d the Statute of \u201976 \u201cranks with the\nMagna Charta.\u201d To this briefer, the Statute of \u201976, like the Great\nCharter of old, is the ruler government dispensing privileges to its\nsubjects, the people. That is why this briefer, with his Tory concept\nof the relation of government to human beings, does not know that the\nStatute of \u201976 _is_ the revocation of the principle on which Magna\nCharta rested, the doctrine that the government is the State and the\npeople are its assets.\n\nThis briefer, _like all his associates_, does not know the great change\nwhich the American people made in the picture of American government.\nWe are all familiar with the picture, \u201cHis Master\u2019s Voice.\u201d When\nthose Americans were born, from whose \u201cconventions\u201d we have come, the\nlistener in that picture was \u201cthe people\u201d of the Preamble and the\nTenth Amendment in our Constitution. The voice of the master was the\nvoice of government. When those Americans died, _they_ had changed\nthe picture. The listener had become the governments in America, the\nvoice of the master had become \u201cthe people\u201d of America, its citizens.\nThe new painting of the picture was on July 4, 1776. That the listener\nmight never deface the truth of the new picture, the Constitution of\n1787 was proposed at Philadelphia and later made by the master in the\npicture. The proposal of Wheeler and his associates and the action of\ngovernments on that proposal are the unlawful attempt to change the\npicture back to what it had been before the Statute of \u201976.\n\nIf time permitted, our sense of humor would keep us long with the\nbriefs of Wheeler and his associates. It was their thought that\nthe doctrine of Christ could be made a better Christianity by a\nsubstitution of the prohibition of Mohammed for the temperance of\nChrist. This natural modesty on their part made certain that we would\nfind, in the Wheeler brief, this tribute to the good _intentions_ of\nthe Americans of those early \u201cconventions,\u201d accompanied by an humble\ntribute to the much greater wisdom of the briefers. \u201cThe people, under\nthis form of government may, of course, do unwise things. This is the\nalleged danger of a republican or democratic form of government. If the\nelectorates are not intelligent, moral and patriotic, our government\nwill fail. Our forefathers took that chance in choosing a form of\ngovernment that was controlled entirely by the people. History proves\nthat they builded more wisely than they knew. The people have kept\nstep with advancing civilization under the same construction of our\nConstitution. This last advance in the prohibition of the beverage\nliquor traffic, which is one of the greatest evils that ever cursed\nhumanity, is additional evidence of the wisdom of our forebears. It is\ngenerally recognized as the greatest piece of constructive legislation\nthat was ever adopted by a self-governing people.\u201d The finest passage\nin the \u201cComic Blackstone\u201d does not approach this in its excellence as\nunconscious humor.\n\nEducated with \u201cour forefathers\u201d who \u201ctook that chance in choosing a\nform of government that was controlled entirely _by the people_,\u201d we\ncall the attention of Wheeler to one of his many mistakes by rewriting\nhis next sentence, as he should have written it: \u201cHistory proves that\nthey builded more wisely than Wheeler or his associates knew or are\nable to understand.\u201d\n\nOur forefathers knew that, wherever men are citizens, neither state\ngovernments nor any governments are \u201cthe people\u201d or can surrender\nrights of \u201cthe people\u201d or can constitute new governments of \u201cthe\npeople\u201d interfering with their individual freedom and, therefore,\nwhen those \u201cconventions\u201d of old did choose and establish a form of\ngovernment \u201cthat was controlled entirely by the people,\u201d they were\nnot stupid enough to think that the American government would be\n_that kind_ of a government if it could be controlled entirely by\nlegislatures, which never are the people. It is rather ridiculous to\nfind Hughes, associate champion of Wheeler for the new Amendment,\ncontending that the people never are the legislature, while Wheeler\ncontends that a government is controlled entirely by the people when it\nis controlled entirely by legislatures. But, it is to be expected, when\nmen work in association on a common _unsound_ basis, that one champion\nshould frequently contradict another as to fact, and that even the same\nchampion should often contradict himself as to fact.\n\nAnd so we find the Wheeler brief stating that the new Amendment, made\nentirely by governments without any authority from the people about\nwhom he prates, \u201cis generally recognized as the greatest piece of\nconstructive _legislation_ that was ever adopted by a self-governing\npeople\u201d; and we turn over the pages of the brief and we find the\nremarkable proposition that these state legislatures, when making\nthe Eighteenth Amendment, were not _legislating_, but were \u201ca body\nof representatives sitting in a conventional capacity.\u201d Of course,\nwe now learn, by this latter statement, that the greatest piece of\n\u201cconstructive legislation\u201d the world ever knew was not legislation\nat all. But we also learn a more important thing. It would have been\nof great advantage to the British Parliament in 1765, if it had only\nknown the Wheeler concept of our American security for human freedom.\nThink how remarkable it would have been to have passed a Stamp Act\nwhich would have been universally respected and obeyed by the American\npeople of that time! All the British Parliament should have done was\nto announce: \u201cThis is not passed by us as a legislature. In issuing\nthis command to the American people, we are a \u2018body of representatives\nsitting in a conventional capacity.\u2019\u201d Having exactly the same attitude\nmentally as Lord North in 1775, this Wheeler would have been a better\nMinister for the English King. He would have been able to keep for him\nthe American \u201csubjects\u201d of the British Legislature.\n\n\u201cArticle V itself shows that the representative or convention idea was\nin the minds of the framers of the Constitution. If the legislatures\nof two thirds of the states should apply to Congress, then Congress\nwould be obliged to call a convention for proposing Amendments to the\nConstitution. Then, also, when it came to the matter of ratification,\nthis question could be considered by conventions in the various states.\nA review of the proceedings of the constitutional convention, as well\nas a study of the political and governmental bodies at the time at\nwhich the provision providing for amending the federal Constitution\nwas adopted, revealed the fact that these men thought in terms of\nconventions ... _and that the clear intent of the framers was to ratify\nproposed amendments by bodies sitting in the capacity of conventions_.\nThe Court will not find any able exponent of the theories of government\nof that time, however, _who even asserted that the people could be\nconsidered as a portion of the legislature_. This can be shown most\nclearly by an examination of the proceedings of the constitutional\nconvention, as reported by Mr. Madison and particularly by examining\nthe various proposals advanced in that convention for the ratification\nof the Constitution.\u201d\n\nWe recognize immediately, in this extract from the briefs of 1920,\nour own exact knowledge brought from those \u201cconventions.\u201d And, when\nthis briefer challenges the existence of the Eighteenth Amendment on\nthe ground that the people who made it showed \u201cin Article V itself\u201d\nthat \u201cthe convention idea was in the minds of the framers\u201d and \u201cwhen\nit came to the matter of ratification,\u201d a \u201cYes\u201d or \u201cNo\u201d was to be\nconsidered by \u201cconventions\u201d in the various states, we are amazed to\nfind no upholder of the Eighteenth Amendment replying to this attack\nupon its validity. The challenge to validity again and again touches on\nthe monumental error of the Tory concept behind all claim to validity.\nThe challenge puts its finger at once upon the absurd assumption,\non which the Eighteenth Amendment wholly depends for existence, the\nassumption that the Americans we have just left ever considered the\n\u201cpeople\u201d as the \u201clegislature\u201d or the \u201clegislature\u201d as the \u201cpeople.\u201d The\nchallenge emphasizes the fact we all know, that the \u201cconventions\u201d knew\nthat \u201cconventions\u201d _were_ the \u201cpeople\u201d and that \u201clegislatures\u201d never\nwere the \u201cpeople.\u201d But we are mistaken in believing that this clear\nchallenge was not met by some \u201cconstitutional thinker\u201d in his effort to\nuphold the new supposed NATIONAL Article, made by the governments or\n\u201clegislatures\u201d which the old \u201cconventions\u201d so well knew were not the\n\u201cpeople.\u201d In the brief of one champion of the new NATIONAL Article, we\nfind this clear reply to the challenge. And we notice how the reply\nis not mere assertion. No one can deny the tremendous \u201csupport,\u201d in\nhistory and in decision and in the Fifth Article itself, for the full\nreply that the Fifth Article states definitely that \u201cthe only agency\nwhich is authorized to ratify the Amendment is the state legislatures!\u201d\n\nWe have only one comment to make on the challenge itself and the\ndestructive reply to it, that the state legislatures are the \u201conly\nagent\u201d authorized by the Fifth Article to amend our NATIONAL\nConstitution. It is an interesting comment. Both the challenge and\nthe reply are from the brief of Wheeler, counsel for the political\norganization which directed that governments make this new national\ngovernment of men.\n\nThis Wheeler believes that the Statute of \u201976 is \u201cone great muniment of\nour liberty which can never be amended, revoked or withdrawn.\u201d He says\nso in his brief. He also maintains that his state governments, not one\nof their members elected by us as citizens of America, have omnipotent\npower over our every liberty, except that they cannot change the number\nof senators from each State. At one point in his brief he \u201cproves\u201d\noverwhelmingly that the citizens of America universally demanded his\nnew Article, the Eighteenth Amendment. His proof is--and we cannot\ndeny the fact which he asserts as proof--that, in the year 1918, when\nAmericans were in the Argonne Forest in France, four thousand seven\nhundred and forty-two Tories in forty-five state legislatures said\n\u201cYes\u201d to this new command to the one hundred million American citizens\non a subject not among the matters enumerated in our First Article.\nThat his \u201cproof\u201d might be perfect (for the claim that the making of the\ncommand was demanded by the citizens of America) he fails to mention\nthe fact that not one of those four thousand odd Americans, who were\nnot the Americans in the Argonne or in our training camps preparing to\nfight for human liberty, was elected for any purpose by the citizens of\nAmerica.\n\nReflecting upon this briefer\u2019s admiration for the Statute of \u201976 and\nupon his knowledge that the \u201clegislatures\u201d never are the people, while\nthe \u201cconventions\u201d of the Fifth Article are the \u201cpeople,\u201d we wonder\nif he ever read a certain statement of the early American who wrote\nthe Statute of \u201976. It is a statement from Thomas Jefferson quoted by\nMadison, author of the Fifth Article, when he was urging the American\npeople or \u201cconventions\u201d to make that Fifth Article. Jefferson was\ntalking about a constitution, in which \u201call the powers of government\n... result to the legislative body,\u201d as they result (under the modern\nassumption as to what the Fifth Article says) to the state governments,\nthe new omnipotent legislature of the American people. This is what\nJefferson had to say, what Madison approved: \u201cThe concentrating\nthese in the same hands, is precisely the definition of despotic\ngovernment. It will be no alleviation, that these powers will be\nexercised by a plurality of hands, and not by a single one. One hundred\nand seventy-three despots would surely be as oppressive as one....\nAs little will it avail us, that they are chosen by ourselves. An\n_elective_ despotism was not the government we fought for.\u201d (_Fed._ No.\n48.)\n\nIt is clearly the view of Wheeler and all his associates that the early\nAmericans did fight their Revolution so that we might have, in these\nmodern days, an elective despotism of four thousand seven hundred and\nforty-two despots. That form of government is probably relieved from\nthe odium of the Madison and Jefferson attack, by the \u201calleviation\u201d\nthat we ourselves, the citizens of America, those to be governed by\nthis \u201c_elective despotism_,\u201d do not elect or choose even one of the\ndespots!\n\nWe cannot linger longer with these amazing briefs of the champions\nof the Eighteenth Amendment. From the viewpoint of unconscious\nhumor, we have become rather enamored of the Wheeler idea that\n\u201cstate governments\u201d and \u201cthe people of America\u201d expressed the same\nthought to the latter when they made the Fifth Article. Since we read\nWheeler\u2019s brief, we have been trying the same method with some famous\nstatements of great Americans. For example, we have this new excerpt\nfrom Washington\u2019s famous Farewell Address: \u201cThe basis of our political\nsystem is the right of the \u2018state governments\u2019 to make or alter the\npeople\u2019s Constitution of government. And the Constitution which at any\ntime exists, till changed by an explicit and authentic act of \u2018the\nlegislatures of three fourths of the states\u2019\u201d--(Washington said \u2018the\nwhole people\u2019)--\u201cis sacredly obligatory upon all.\u201d\n\nAnd we like particularly the improved Wheeler concept of the rather\ncrude Gettysburg speech of Lincoln. In its new form, altered by the\nWheeler idea, it is wonderful to hear the appeal of Lincoln that we,\nwho were not among the dead at Gettysburg, should play our part \u201cthat\ngovernment of the people, by the state governments, and for those who\ncontrol the state governments, shall not perish from the earth.\u201d\n\nWe wonder if Hughes and Wheeler and Sheppard and Webb realize how far\nthey have gone beyond the Calhoun idea that was repudiated forever at\nGettysburg! In the old days, the Calhoun doctrine was that a single\nstate, although but a political entity, could do as it pleased _in its\nown affairs_, even to leaving the Union without reference to the wishes\nof the citizens of America. That question was settled forever by the\nresult at Gettysburg. The modern claim, the sole claim upon which the\nEighteenth Amendment depends for existence, is that a state government,\nif it combines with enough other state governments, can go outside its\nown jurisdiction, outside the citizenship which chose the legislators\nin it, and issue its omnipotent command telling the citizens _of\nAmerica_ what _they_ may do and may not do, \u201cin all matters whatsoever.\u201d\n\nBut we leave the Court of 1920, quite satisfied that the modern\n\u201cconstitutional thinkers,\u201d who filed their briefs therein, have not\nexactly the American concept of the relation of government to human\nbeings, which would have located them at Valley Forge, with Marshall,\nin the Winter of 1778.\n\nWe leave that Court, however, quite satisfied that the Court itself\nstill has the knowledge which Marshall had, the knowledge stated in the\nTenth Amendment and by the decision of that Court in 1907, that all the\npowers not granted by the Constitution to the general government at\nWashington \u201care _reserved_ to the _people_ and _can be exercised only\nby them or, upon further grant from them_.\u201d\n\nWe do not forget the question of the Court, the question which none\nof the lawyers could answer, \u201cIn what way do counsel believe that the\nEighteenth Amendment _could_ be made CONSTITUTIONALLY?\u201d\n\nWe do know the answer to that question. The Americans, in the\n\u201cconventions\u201d we just left, wrote the answer in the Fifth Article in\nthe words which are the most important words in the Article and one\nof our greatest securities to human liberty, \u201cby conventions in three\nfourths thereof.\u201d\n\nThe \u201cconventions\u201d which mentioned themselves, the \u201cconventions,\u201d in\nthe Fifth Article, are the same \u201cconventions\u201d which demanded that the\ndeclaration be made that every power, not granted in that Constitution\nto the government at Washington, remained where it had been. As the\nstate governments had been incompetent to make the First Article or the\nEighteenth Amendment, they remained incompetent to make either of them.\n\nIf we needed any assurance that the Supreme Court still retains the\naccurate conceptions of these early Americans, we find it in one of the\nmost significant facts in the whole remarkable story of the last five\nyears.\n\nWe do not need to recall how every lawyer dwells continuously upon\nthe fact that the Fifth Article _is_ a \u201c_grant_\u201d of power to make new\nArticles. We do not need to refresh our mind with the recollection that\nthe Root brief referred to the Fifth Article over fifty times as a\n\u201c_grant_\u201d of such power. We know that every argument in every brief was\nbased on the stated assumption that the Fifth Article _was_ a \u201c_grant_\u201d\nand that it made the legislatures of state citizens attorneys in fact\nfor the citizens of America, who elect none of the members of those\nlegislatures.\n\nDid this monumental error of all the lawyers have any effect upon the\naccurate knowledge of the Supreme Court? Did this insistence upon\nthe absurd assumption that the Fifth Article _is_ a \u201c_grant_,\u201d in\nwhich \u201cconventions\u201d _grant_ something to themselves and to the state\ngovernments, lead the Court into the error of calling it a \u201cgrant?\u201d\n\nRead the conclusions of the Court, as they were stated by Judge Van\nDevanter. The opening sentence of that statement sweeps aside every\nassumption that the Fifth Article _is_ a \u201c_grant_.\u201d Can our knowledge,\nbrought right from the old \u201cconventions,\u201d be put more completely than\nin the one statement: \u201cPower to amend the Constitution was RESERVED by\nArticle V.\u201d\n\nWhere is the \u201c_grant_\u201d all the lawyers have been talking about?\nWhere is the \u201c_grant_\u201d on which the Eighteenth Amendment depends for\nexistence? Where is the \u201c_grant_\u201d which makes the state legislatures of\nstate citizens attorneys in fact, for any purpose, for the _American_\ncitizens? Before the Constitution, in which is the Fifth Article,\nthere was no citizen of America. And, as the exclusive ability of\n\u201cconventions\u201d to make NATIONAL Articles (like the ability of state\nlegislatures to make Articles which are _not_ national) \u201cwas _reserved_\nby Article V,\u201d the state governments, as imaginary attorneys for\nourselves, disappear entirely from the scene. We remain free citizens.\nWe have not become \u201csubjects.\u201d\n\nThis comforting knowledge is emphasized when we find that, as the\nSupreme Court states its Fourth Conclusion, again the accurate\nstatement is that the ability to make the new Article \u201cis within the\npower to amend RESERVED by Article V of the Constitution.\u201d\n\nThat is our own knowledge. We have brought from the conventions, in\nwhich we have sat with the early Americans, their knowledge that the\nability of the \u201cconventions\u201d to make Articles _of that kind_, their\nexclusive ability to do so, was _reserved_ to those \u201cconventions,\u201d\nthe assembled citizens of America. We know that the Tenth Amendment\nexpressly so declares. Therefore, when _we_ go to the Supreme Court,\nwith _our_ contention that we still are citizens and that a revolution\nby government against the people, a revolution to make us \u201csubjects,\u201d\nmust be repudiated by the Supreme Court which we have established to\nprotect our human liberty against all usurpation by governments, _our_\nchallenge will be in the words of Wilson, uttered in the Pennsylvania\nConvention where Americans first set their names to the Fifth Article:\n\n\u201cHow comes it, sir, that these state governments dictate to their\nsuperiors--to the majesty of the people?\u201d\n\n\n\n\n                             CHAPTER XXVI\n\n                   THE AMERICAN CITIZEN WILL REMAIN\n\n\n The United States [the great political society of men which this book\n persistently calls America] form, for many, and for most important\n purposes, a single nation.... In war, we are one people. In making\n peace, we are one people. In all commercial regulations, we are one\n and the same people. In many other respects, the American people are\n one; and the government which is alone capable of controlling and\n managing their interests in all these respects, is the government of\n the Union. It is _their government, and in that character they have\n no other_. America has chosen to be, in many respects, and to many\n purposes, a nation; and for all these purposes, _her government_\n is complete; to all these objects, it is competent. The people\n have declared that, in the exercise of all powers given _for these\n objects_, it is supreme. It can, then, in effecting these objects,\n legitimately control all individuals or governments within the\n American territory. (U. S. Supreme Court, Cohens v. Virginia, 6\n _Wheat._ 264, at p. 413 et seq.)\n\nThese words of Marshall tell every American why there is an \u201cAmerica,\u201d\na nation of men, in addition to a \u201cUnited States,\u201d a federation\nor league of political entities. The league existed before the\nConstitution created the nation. The league was not created by the\nConstitution. But the league was continued by the Constitution in which\nfree men created the nation. In that Constitution, the league and its\ncomponent members (the states) were made subordinate to the nation and\n_its_ component members, who are the citizens of America.\n\nHow comes it, then, that modern leaders, for five years last past, have\ntalked their nonsense about _another_ government of the one American\npeople? How comes it that they have argued and acted as if the Fifth\nArticle _constituted_ another government of the one American people?\n\nIt certainly would be startling for Marshall and his generation to\nhear the Eighteenth Amendment claim that one important purpose for\nwhich Americans chose to be one people was the purpose of enabling\nthirty-six legislatures of state citizens to interfere, \u201cin all matters\nwhatsoever,\u201d with every individual liberty of all American citizens.\n\nIn the light of our education with the one American people who chose to\nbe, \u201cin many respects, and to many purposes, a nation\u201d and to have, IN\nTHAT CHARACTER, no government other than the government constituted by\nthe First Article, how otherwise, than by the one word \u201cnonsense,\u201d can\nwe dignify the five-year discussion as to the _extent_ of the powers\ngranted in the Fifth Article to _other_ governments, the respective\ngovernments of the members of the league, to interfere with the\nliberties of the members of the nation, the citizens of America?\n\nCitizens of America, particularly emigrants from Europe, _must_ be\ntaught the reason _why_ and the fact _that_ the one American people\n\u201cwere bound to have and did at last secure\u201d a government free from\ninterference by \u201clegislatures, _whether representing the states_ or the\nfederal government.\u201d (Judge Parker, supra, in Preface.)\n\nWho is to teach the average citizen the reason or the fact? Have our\nmost renowned lawyers shown any knowledge of either? Their own briefs\nhave been permitted to speak for them. Which of those briefs has put a\nfinger upon the basic flaw in the Eighteenth Amendment challenge to the\nfact that the American citizens \u201cdid at last secure a Government\u201d which\n_its_ citizens \u201ccould control despite\u201d all _legislatures_, whether\nrepresenting state citizens or themselves?\n\nThe men who wrote these briefs are far more than lawyers of great\nrenown. They are among the best known leaders of public opinion in\nAmerica. Many thousands of average citizens rely upon such men to\nknow and state every constitutional protection to individual liberty.\nIn any generation, reliance upon any public leaders for knowledge on\nthat matter is a distinct menace to individual liberty. The imaginary\nEighteenth Amendment will have served a useful purpose if it teaches\nus that we must know _of our own knowledge_, if we want to remain free\ncitizens of America.\n\n\u201cNo man, let his ingenuity be what it will, could enumerate all the\nindividual rights not relinquished by this Constitution.\u201d (Iredell,\nlater a Supreme Court Justice, in the North Carolina convention, 4\n_Ell. Deb._ 149)\n\nThese are the rights \u201cretained by the people\u201d of America in the Ninth\nAmendment because not enumerated in the First Article.\n\n\u201cIf this Constitution be adopted, it must be presumed the instrument\nwill be in the hands of every man in America, to see whether\nauthority be usurped; and any person by inspecting it may see if the\npower claimed be enumerated. If it be not, he will know it to be a\nusurpation.\u201d (Iredell, in North Carolina convention, 4 _Ell. Deb._ 172.)\n\nAll granted powers to interfere with the individual freedom of the\n_American_ citizen, \u201cin that character,\u201d are enumerated in the First\nArticle.\n\nAll powers _of that kind_ not enumerated therein are reserved in the\nTenth Amendment exclusively to the American citizens themselves to\nbe exercised or granted _by them_ in the \u201cconventions\u201d of the Fifth\nArticle.\n\nOne of these powers is that which some governments of state citizens,\nin the Eighteenth Amendment, have attempted both to exercise and grant.\n\nThe brief of _which_ public leader has known or stated these facts to\nthe destruction of the Amendment and to the continued existence of the\nfree American citizen?\n\nThe experience of ages has taught that human liberty, even in a\nrepublic, is never secure unless the citizens of the republic\nthemselves understand the basic security which protects that liberty.\nThe writer of this book wishes to keep his own individual liberties\nsecure against usurpation by any government in America. He wishes to\nkeep his status, as such citizen, to all governments in America--the\nstatus established by the citizens of America through whose experience\nwe have been educated. He knows that such status must end forever\nunless American citizens generally have the same earnest wish and, _of\ntheir own knowledge_, know _how_ the Constitution secures that status\nand their individual liberty.\n\nShortly after the American people had chosen to be a nation with\none government of enumerated powers, there came to that then land\nof individual liberty an Irish exile. Quickly he assumed his place\nwith the great lawyers of America. And in the year 1824 he made clear\nthat he would have been able to teach _our_ new citizens and _our_\npublic leaders _how_ the one American people \u201c_did at last secure_ a\ngovernment\u201d which that one American people \u201ccould control despite\u201d the\nstate legislatures. In the argument before the Supreme Court in the\nfamous case of Gibbons v. Ogden (9 _Wheat._ 1, at p. 87), where his\nopponent was Webster, this is how Emmett stated a fact _then_ known and\n\u201cfelt and acknowledged by all\u201d:\n\n\u201c_The Constitution gives nothing to the states or to the people._ Their\nrights existed before it was formed.... The Constitution _gives_ only\nto the general government, and, so far as it operates on the state\nor popular rights, it _takes away_ a portion, which it gives to the\ngeneral government.... But the states or the people must not be thereby\nexcluded from exercise of any part of the sovereign or popular rights\nheld by them before the adoption of the Constitution except where that\ninstrument has given it exclusively to the general government.\u201d The\nitalics are those of Emmett.\n\nWhat does this clear statement of fact (known by Emmett and his\ngeneration to be the exact statement of the Tenth Amendment) make out\nof every argument, whether for or against the Eighteenth Amendment,\nbased on the assumption that the Fifth Article does give something to\nthe states and their governments? Can any American citizen doubt that\nit makes clear that to describe such arguments by any other word save\n\u201cnonsense\u201d is to lend them a dignity which they do not possess?\n\nWithout a single exception, every argument during the last five years,\nwhether for or against the Eighteenth Amendment, has deserved the\ncriticism of the Supreme Court for the fact that such argument neither\nknew nor considered the meaning of the Tenth Amendment.\n\n It reads: \u201cThe powers not delegated to the United States by the\n Constitution, nor prohibited by it to the states, are reserved to\n the states respectively, or to the people.\u201d The argument of counsel\n ignores the principal factor in this Article, to wit, \u201cthe people.\u201d\n Its principal purpose was not the distribution of power between the\n United States and the states, but a reservation to the people of all\n powers not granted. The Preamble of the Constitution declares who\n framed it,--\u201cWe the people of the United States,\u201d not the people of\n one state, but the people of all the states; and Article X reserves to\n the people of all the states the powers not delegated to the United\n States. The powers affecting the internal affairs of the states not\n granted to the United States by the Constitution, nor prohibited\n by it to the states, are reserved to the states respectively, [the\n power of each state for that state to its own people or citizens] and\n all powers of a _national character_ which are not delegated to the\n national government by the Constitution are reserved to the people of\n the United States [the one people or citizens of America, that one\n American people which Marshall so accurately knew]. The people who\n adopted the Constitution, knew that in the nature of things they could\n not forsee all the questions which might arise in the future, all the\n circumstances which might call for the exercise of further _national_\n powers than those granted to the United States, and, after making\n provision for an Amendment to the Constitution by which any needed\n additional powers would be granted, they reserved to themselves all\n powers not so delegated. (Supreme Court, Kansas v. Colorado, 1907, 206\n _U. S._ 46 at p. 90.)\n\nWhy has every argument, for or against the new Amendment, ignored\nthe simple and impressive fact that the one word \u201cconventions\u201d\nwas written into the Fifth Article and the Seventh Article by the\ndelegates at Philadelphia, very shortly after they had reasoned out\nand reached their famous legal decision as to the difference between\nthe ability of \u201cconventions\u201d and the ability of \u201cstate legislatures,\u201d\nalso named in the Fifth Article? Why completely ignore the decisive\neffect of this fact when considered with the fact, that Philadelphia\nmentioned \u201cconventions\u201d in both Articles and only in the Fifth\nmentioned \u201cstate legislatures\u201d? If we put ourselves exactly in the\nposition of Philadelphia when it was doing this, we see at once why\nstate \u201clegislatures\u201d are pointedly absent from the Seventh Article.\nPhiladelphia knew the nature of the First Article, that it constituted\ngovernment ability to interfere with individual freedom. Philadelphia\nknew that neither \u201cstate legislatures\u201d nor any combination of\ngovernments can make an Article _of that kind_ in any land where men\nare \u201ccitizens\u201d and not \u201csubjects.\u201d That is why \u201clegislatures\u201d are not\nmentioned in the Seventh Article. But Philadelphia did not know the\nnature of any Article which might be _proposed_ at any particular time\nin the future by the body which was to perform the duty of proposing,\nthe duty which Philadelphia was then performing. And Philadelphia knew\nthat any future _proposed_ Article might be of the kind which state\nlegislatures could make. It was the conviction of Hamilton that _all_\nfuture _proposed_ Articles would be of the kind that \u201clegislatures\u201d\ncould make because they would be of the kind that did not relate to\n\u201cthe mass of powers\u201d to interfere with individual liberty. That is why\nPhiladelphia, almost immediately after it had omitted any mention of\n\u201clegislatures\u201d in the Seventh Article, did mention \u201clegislatures\u201d in\nthe Fifth Article, which related to the making of future Articles whose\nnature Philadelphia could not possibly know.\n\nLet us not forget what Madison told us about the Seventh Article: \u201cThis\nArticle speaks for itself. The express authority of the people alone\ncould give due validity to the Constitution.\u201d (_Fed._ 43.) This is his\nstatement that the Article itself tells us that \u201cthe express authority\nof the people\u201d _will_ make the Articles proposed from Philadelphia.\nHow does the Article speak for itself and tell us that? By its one\nword \u201cconventions.\u201d Could Madison tell us more plainly that the word\n\u201cconventions,\u201d which he and his associates wrote into the Seventh and\nwhich he wrote into the Fifth Article, means \u201cthe express authority of\nthe people\u201d?\n\nCan any supporter of the Eighteenth Amendment find any statement from\nMadison in which he tells us his word \u201clegislatures\u201d means what he has\njust told us his word \u201cconventions\u201d means? And, when \u201cconventions\u201d\nmeant the \u201cexpress authority of the people\u201d before the Fifth or Seventh\nArticles were written, how could the mention of \u201cconventions\u201d in the\nFifth imply a grant from the \u201cconventions\u201d to the \u201cconventions\u201d?\n\nWhy not admit the simple truth overlooked for the past five years?\nThe respective mentions of \u201cCongress,\u201d of \u201cconventions\u201d and of state\n\u201clegislatures\u201d in the Fifth Article speak plainly of each body\nrespectively doing something which it could do if there were no Fifth\nArticle.\n\nIf there were no Fifth Article, could not Congress draft an Article\nand _propose_ it and _propose_ a mode of ratification? Philadelphia\ndid all these things and knew and stated that it exercised no power in\ndoing any of them. The mention of Congress implies no \u201cgrant.\u201d On the\ncontrary, it is a command which prevents the rest of us from making\nsuch proposals and prevents \u201cconventions\u201d or state \u201clegislatures\u201d from\nmaking Articles, within their respective abilities, _unless_ proposed\nto them by \u201ctwo thirds of both houses of Congress.\u201d\n\nIf there were no Fifth Article, could not \u201cconventions\u201d make any kind\nof an article, as they had made the National Articles of 1776 and as\nthey were making the Articles of 1787? The mention of \u201cconventions\u201d\nimplies no grant. On the contrary, it is a command telling the\n\u201cconventions\u201d that a \u201cYes\u201d from three fourths of the \u201cconventions\u201d\nshall be necessary and sufficient for \u201c_constitutional_\u201d exercise of\nthe power they have. It is a great security for human freedom. It makes\nvery difficult oppression of the people by the people.\n\nIf there were no Fifth Article, could not state \u201clegislatures\u201d make\ndeclaratory or _federal_ Articles, which neither exercise nor create\npower to interfere with human individual freedom? They had, in 1781,\nmade an entire constitution of Articles _of that kind_. The mention of\n\u201clegislatures\u201d implies no \u201cgrant.\u201d On the contrary it is a command to\nthese \u201clegislatures,\u201d representing the members of the union of states.\nThe command comes from the superiors of the states, the \u201cconventions\u201d\nof the whole American people.\n\nIt is not the only command which the \u201cconventions\u201d of that one people\nmade to the states and _their_ \u201clegislatures.\u201d How absurd to imply\nfrom that command that it is a \u201cgrant\u201d of power to those commanded\ngovernments, giving them omnipotence over every human freedom of the\nAmerican people who made the command!\n\nWe know what Madison told the Americans in the \u201cconventions,\u201d when\nhe asked them to make his Fifth Article. He told them that it was\na \u201cmode of procedure\u201d in which either the general government or the\nstate governments could _originate_, by _proposal_, the introduction of\nchanges into the Constitution which is both _national_ and _federal_.\nHe pointedly did _not_ tell those Americans that the Fifth Article is\na \u201cgrant\u201d of any ability to the state governments to make _national_\nArticles and he pointedly did _not_ tell them that it is a \u201cgrant\u201d of\nability to anyone to _make_ any Articles.\n\nWhy then was it necessary for the leading brief, in support of the\nEighteenth Amendment, to _add_ to Madison\u2019s explanation of his own\nFifth Article (the explanation that it was a \u201cmode of procedure\u201d) the\nabsurd statement that it was a \u201cgrant\u201d from the \u201cconventions\u201d to the\n\u201cconventions\u201d and the state legislatures of power _to make_ Amendments?\nWhy then was it necessary that this brief, speaking of the Fifth\nArticle, should say: \u201cThe people thus ordained the mode of Amendment,\u201d\nexactly what Madison said, \u201cand in their own interest they established\nthis power of Amendment\u201d--exactly what Madison pointedly omitted to\nstate to the Americans he asked to make the Fifth Article?\n\nThe answer is simple. Without adding to the Madison statement what he\npointedly omitted to state, without stating the addition as axiomatic,\nHughes could not even _begin_ any argument for the Eighteenth Amendment.\n\nThe statement which Hughes adds to that of Madison is a statement which\nflatly contradicts everything we have heard in the \u201cconventions.\u201d It\nflatly contradicts everything the Americans did from 1775 on. It flatly\ncontradicts the Tenth Amendment declaration that the Fifth Article\ngives _no_ power whatever to the states or _their_ governments. The\nadded statement is sheer \u201cnonsense,\u201d assumed and asserted as axiomatic\nfact.\n\nAnd, during the last five years, how has every argument against the\nEighteenth Amendment met the \u201cnonsense\u201d of the assumption that the\nFifth Article is a \u201cgrant?\u201d In no way at all, except by assuming\nand asserting the same \u201cnonsense,\u201d and by then undertaking to prove\nanother absurdity, namely, that the Fifth Article does not _relate_\nto the making of fundamental changes _because_ the imaginary \u201cgrant\u201d\nis limited in extent and does not include power to take away from the\nimportance of the respective political entities which are the states.\n\nLet no American citizen make any mistake as to this one fact. In no\nargument either for or against the Eighteenth Amendment has there been\nany challenge to the sheer assumption that the Fifth Article is a\n\u201cgrant\u201d of ability to make changes in the Constitution which is both\n_federal_ and _national_. On the contrary, in every argument, the\nfoundation of everything asserted and urged is that very assumption.\n\nIn every argument against the Eighteenth Amendment, possible changes in\nthe Constitution (which is both federal and national) have been divided\ninto two classes, but not into the federal class and the national\nclass. It has been invariably contended that the first class include\nthose which _can_ be made under the imaginary \u201cgrant\u201d of power in the\nFifth Article and in the mode of procedure therein prescribed. On the\nother hand, it has been invariably contended that the other class\nincludes those which _cannot_ be made under that imaginary \u201cgrant\u201d or\nin _any_ CONSTITUTIONAL procedure _because_ they take away from the\ncitizens _of a state_ their right to govern themselves.\n\nAll arguments alike, whether for or against the Eighteenth Amendment,\nhave wholly ignored the fact that the citizens of _America_, for the\nprotection of the individual liberty of the one American people,\nIN THAT CHARACTER, established the Constitution and made it the\nsupreme law over the citizens of the respective states and the states\nthemselves and the state governments and the league of the states,\nwhich the citizens of America continued as subordinate to their nation\nof men.\n\nFor this reason probably, no argument, on either side, has ever\nrecognized the identity of the \u201cconventions\u201d of the Seventh Article\nwith the \u201cconventions\u201d of the Fifth Article. For this reason probably,\nno argument has ever recognized the identity of both \u201cconventions\u201d with\nthe most important factor and reservee in the Tenth Amendment, \u201cthe\npeople\u201d of America, as distinguished from the lesser reservees, the\npeoples or citizens of each state, \u201cthe states respectively.\u201d\n\nIt is this very failure to recognize this identity which has forced\nthe opponents of the new Amendment into the \u201cnonsense\u201d of assuming\nand asserting, with their adversaries, that the Fifth Article _is_ a\n\u201cgrant\u201d to the \u201cconventions\u201d and the state \u201clegislatures.\u201d If there\nhad not been this failure, everyone would have recognized that the\n\u201cconventions,\u201d which made the Constitution, neither could nor did\n\u201cgrant\u201d to themselves, the \u201cconventions\u201d named in the Fifth Article,\nany or all of the very power which they were then exercising. The\n\u201cnonsense\u201d of the concept of such a \u201cgrant\u201d is patent once there is\nrecognized the identity between the \u201cconventions\u201d with the most\nimportant reservee of the Tenth Amendment, the one American people of\nMarshall.\n\nWe all know that, for five years, that identity has never been known\nor mentioned. The failure to know or to mention it has been emphasized\nby the occasional references to \u201cconventions\u201d which have been made. In\none or two arguments, there has been passing attempt to support the\n\u201cnonsense,\u201d that the Fifth Article is a \u201cgrant,\u201d but a \u201cgrant\u201d limited\nin extent, by a suggestion that the Eighteenth Amendment could be\n\u201cgrafted\u201d on the Constitution entirely outside of any mode of procedure\n_mentioned_ in the Constitution. The suggestion has been that it could\nbe \u201cgrafted\u201d on the Constitution by \u201cconventions\u201d of the citizens _of\neach state_, provided that the citizens of _every_ state gave their\nconsent. In these suggestions, we ourselves, the citizens _of America_,\nthe whole American people of Marshall, have figured not at all.\n\nWe, who _are_ the citizens of America, must now realize the vital\nimportance to our personal liberty of our own knowledge that we are\ncitizens of America as well as citizens of some particular state.\nWilson pointed out to the Americans in the Pennsylvania convention the\ndual capacity of the American, if the new Constitution were adopted. We\nremember his statement that \u201cit was necessary to observe the two-fold\nrelation in which the people would stand--first as citizens of the\ngeneral government and, secondly, as citizens of their particular\nstate. The general government was meant for them in the first capacity;\nthe state governments in the second. Both governments were derived\nfrom the people; both meant for the people; both therefore ought to\nbe regulated on the same principles.\u201d And we remember the one most\nimportant American principle, that every government in America must\nget, directly from its own citizens, every power to interfere with\ntheir individual freedom.\n\nWe cannot help contrasting the accurate statement of Wilson, \u201cin this\nConstitution the citizens of America appear dispensing a portion of\ntheir power,\u201d with what must be the modern statement, if the Eighteenth\nAmendment is in the Constitution, namely, \u201cin this Constitution the\n_state governments_ appear dispensing to themselves and to the national\ngovernment another portion of the power of the citizens of America.\u201d\n\nAnd, if that modern statement is \u201cnonsense,\u201d what else but \u201cnonsense\u201d\nare the arguments which rely upon its truth or which do not point out\nits absurdity?\n\nWhat action of _our_ public leaders, even in this year 1923, does not\ndisclose that they still have the Tory concept that states and their\ngovernments, both of which are political entities, _can_ exercise or\ngrant power which the Tenth Amendment expressly declares that the\nAmerican citizens reserved exclusively to themselves, and which the\nSupreme Court, even as late as 1907, clearly held \u201ccould be exercised\nonly by them or upon further grant from them?\u201d No discerning American\nhas failed to note that the Senate still clings to the delusion of\n1917, that states and _their_ citizens and _their_ governments have\nanything whatever to do with the _national_ part of the Constitution\nof the citizens of America. In the newspapers, on January 30, 1923,\nunder the heading, \u201cFavor New Defense for Constitution,\u201d appeared a\ndispatch from Washington. It told how the senators on the Judiciary\nSub-Committee had agreed to report favorably a proposal again to amend\nthe Constitution by changing the language of the Fifth Article. And the\nmain element of the proposed change is to provide that any state may\nrequire that ratification by its legislature be subject to confirmation\nby popular vote of the citizens _of that state_.\n\nThe citizens of each state make their own Constitution. In it, they\ngive to their own government what ability they please to interfere\nwith their own individual freedom. What have the citizens _of any\nState_, what have the citizens _of every state_, in their capacity\n_as state citizens_, to do with grants of power to the American\ngovernment to interfere with the individual liberty of the _American_\ncitizens? Have not the _American_ citizens, in _every_ state,\nprotection against grants of _such_ power to the one government of\nthe _American_ people except by the citizens _of America_ themselves,\n_in that character_? Is there anything in the Fifth Article, as it\nwas written by Madison and made by the one American people, which\npermits any state governments--which have no power even over their own\nrespective citizens except by grant from them--to exercise or create\nnew government power to interfere with the liberty of the citizens of\nthe distinct and supreme nation, America?\n\nWhy persistently and insistently ignore the basic American legal\nprinciple that every state government must get its own power over\nits own citizens from them and that the only government of the\nAmerican citizens must get its every _national_ (as distinguished from\n_federal_) power directly from the citizens _of America_, assembled in\nthe \u201cconventions\u201d named in the Fifth Article?\n\nIs there any doubt that Madison, who wrote the Fifth Article, knew\nwhom its word \u201cconventions\u201d described? When he asked the one American\npeople to make the entire Constitution, this is what he told them about\nthe Seventh Article, in which the same word \u201cconventions\u201d was used:\n\u201cThis Article speaks for itself. The express authority of the people\nalone could give due validity to the Constitution.\u201d If the Seventh\nArticle \u201cspeaks for itself\u201d and points out that \u201cthe people alone\u201d\nare to make the Constitution, with its grants of _national_ power in\nthe First Article, what word in that Seventh Article identifies the\nmakers of the Constitution, which Madison and all Americans know was\nmade by the _one people_ of America? Is there any word in it except the\none word \u201cconventions\u201d to describe the people or citizens of America?\nAnd if that one word \u201cconventions\u201d makes the Article speak for itself\nand tell us that the American citizens themselves made the whole\nConstitution, does not the word \u201cconventions\u201d in the Fifth Article\nspeak just as plainly for itself and tell us that it also describes and\nidentifies the one people of America, the citizens of America?\n\nWhy then tinker with the Fifth Article and repeat the monumental\nerror on which the existence of the Eighteenth Amendment is assumed?\nWhy propose an Amendment to the Fifth Article, which Amendment will\nitself assume that the Fifth Article already is a \u201cgrant\u201d to the state\nlegislatures of ability to give away from the citizens of America their\nexclusive power to say to what extent and in what matters their one\nAmerican government may interfere with their individual freedom in\ntheir character as American citizens?\n\nWhy not be sane and admit that the Fifth Article is not a \u201cgrant\u201d to\nthe legislatures of state citizens? It is settled fact that each such\nlegislature, like every legislature in America, must get its every\npower to govern its own citizens _from_ its own citizens. That is why\nthe Fourth Article guarantee of \u201ca Republican Form of Government\u201d to\nevery state has taught us (pp. 250-1) the absurdity of the thought that\nthe Fifth Article enables state governments outside Rhode Island to\ngive its government power to interfere with the individual freedom of\ncitizens of Rhode Island. And there is a further and more monumental\nabsurdity, in this same respect, when we contrast this Fourth Article\nguarantee with the assumption that the Fifth Article is a \u201cgrant\u201d\nto the state legislatures. One of the great purposes for which the\nwhole American people made themselves one nation of men was that\nthe strength of such a great nation might be used to secure to the\nAmericans in every state the ability to govern themselves without any\ninterference from outside the state, in all matters except those in\nwhich the citizens of America took from them the ability to govern\nthemselves. That is why the citizens of America wrote that guarantee\ninto the Fourth Article as a command to their inferiors, the states\nand the state governments. Having thus secured \u201ca Republican Form\nof Government\u201d to the Americans in every state by the command of\nthe Fourth Article, is it conceivable that the same whole American\npeople, immediately thereafter and in the Fifth Article, created for\nthe citizens of America a government which has not even the semblance\nof \u201ca Republican Form of Government\u201d? That is the concept on which\nthe existence of the Eighteenth Amendment depends. It is not in the\nConstitution unless, immediately after the guarantee of the Fourth\nArticle and _in_ the Fifth Article, the whole people of America\nsaid: \u201cWe have just insisted that the Americans in each state must\nbe governed by a government which gets its power directly from them.\nFor ourselves, however, as the whole American people, we are content\nto let two thirds of Congress and the legislatures of three fourths\nof the states interfere with our individual freedom, in all matters\nwhatsoever. For that reason, we make this grant to those legislatures.\nFor ourselves, as one people, we have no desire for a Republican Form\nof Government.\u201d\n\nDoes not the claim that the Americans did say this in their Fifth\nArticle entitle us more justly than Henry to exclaim: \u201cI suppose that I\nam mad, or that my countrymen are so!\u201d (3 _Ell. Deb._ 446.)\n\nWe know, with certainty, that the Eighteenth Amendment is not in our\nConstitution, and we know that the real and invincible challenge to\nits existence has never been made. What will be the epitaph of the\naudacious attempt of government to dictate to Americans as \u201csubjects,\u201d\nwhen the challenge is presented to the Supreme Court? No patriotic\nAmerican can have the slightest doubt. No man, familiar with its\nhistory and traditions, can fail to know the answer of that Court to\nthe question, \u201cCitizen or Subject?\u201d\n\nIt is not unknown that there is growing up in America, even among many\npublic leaders and lawyers, an unfounded concept that the Supreme\nCourt was created by the American citizens _to make_ law. Such\nconcept is quite in accord with the concept--indeed it is part of the\nconcept--that government can create and constitute new government\nof men. But the entire history and tradition of the Supreme Court\nflatly denies the existence of any such concept in the mind of the\nCourt itself. Even in the National Prohibition Cases, the Court\nquickly displayed the American concept of the relation of men to all\ngovernments in America. When the lawyers had finished their incessant\ntalk about the imaginary Fifth Article \u201cgrant\u201d which would make all\nAmerican citizens \u201csubjects\u201d of some governments of state citizens, had\nthe Tory concept of such a grant made the slightest impression upon\nthe mind of the Court? We all know that in the decisions, which merely\nnegatived four unsound challenges to the Amendment, the first statement\nof the Court was a reference to the power \u201cRESERVED\u201d in the Fifth\nArticle.\n\nAnd we know how, in the same litigations, the Court wholly ignored\nthe absurd claim, even when advanced by a former justice of the\nCourt, that, when governments had attempted to put anything into our\nConstitution, so long as the attempt did not involve changing the\nnumber of senators from a state, the Court was without power to review\nthe action of governments or to protect the American citizen against\nusurpation by government.\n\n The Constitution is not only the same in words, but the same in\n meaning, and delegates the same powers to the government, and reserves\n and secures the same rights and privileges to the citizen, and as\n long as it continues to exist in its present form, it speaks not only\n in the same words, but with the same meaning and intent with which\n it spoke when it came from the hands of its framers and was voted on\n and adopted _by the people of the United States_. Any other rule of\n construction would abrogate the judicial character of the Court, and\n make it the mere reflex of the popular opinion or passion of the day.\n This Court was not created by the Constitution for such purposes.\n Higher and graver trusts have been confided to it, and it must not\n falter in the path of duty. (Scott v. Sandford, 19 _How._ 393, at p.\n 426.)\n\n The high power has been conferred upon this Court of passing judgment\n upon the acts of the state sovereignties and of the legislative and\n executive branches of the federal government, of determining whether\n they are beyond the limits of power marked out for them respectively\n by the Constitution of the United States. (Luther v. Borden, 1849, 7\n _How._ 1 at p. 47.)\n\nThe Court will never be called upon to exercise a higher or graver\ntrust than to answer the question \u201cCitizen or Subject?\u201d, when the real\nchallenge is made to the new attempted constitution of government of\nmen entirely by government. The Court is not unaware that the whole\nAmerican people established their Constitution for the one purpose of\nprotecting individual liberty.\n\n The simple, classical, precise, yet comprehensive language in\n which it is couched, leaves, at most, but very little latitude for\n construction; and when its intent and meaning is discovered, nothing\n remains but to execute the will of those who made it, in the best\n manner to effect the purposes intended. The great and paramount\n purpose was to unite this mass of wealth and power, for the protection\n of the humblest individual; his rights, civil and political, his\n interests and prosperity, are the sole _end_; the rest are nothing but\n the _means_. (Justice Johnson, Gibbons v. Ogden, 9 _Wheat._ 1, at p.\n 223.)\n\nNor will anyone familiar with the unbroken tradition of the Supreme\nCourt listen, with aught but mingled incredulity and indignation, to\nthe suggestion that the Court itself has not always understood that it\nis itself but a part of the _limited_ government of the one American\npeople, created by that people as one means to that sole end.\n\n\u201cIt is emphatically the province and duty of the Judiciary Department\nto say what the law _is_.\u201d\n\nThis is the clear statement of Marshall in Marbury v. Madison, 1\n_Cranch._ 137, declaring unconstitutional a section of an act of\nCongress, which had been passed at the first session in 1789. The\nentire Bench and Bar of America, including the Supreme Court, for\nfourteen years, had practiced on the assumption that the section was\nconstitutional. Yet in 1803, the Supreme Court declared it to be\nunconstitutional. Nothing could more clearly establish the knowledge of\nthe Supreme Court that no continued thought (even by the Court itself),\nthat any command of legislatures is valid, will ever blind the Court to\nits bounden duty to announce the fact that the command was made without\nauthority from the people, when that fact is once made clear to the\nCourt.\n\nExactly the same attitude was taken by the Court in relation to an\nincome tax and a _federal_ limitation on a _national_ power given to\nimpose direct taxation.\n\nWhen that federal limitation was imposed it was aimed only at taxation\non land and at what were then known as \u201cpoll\u201d or \u201ccapitation\u201d taxes.\nIn the days of the \u201cconventions\u201d where we have sat, all other kinds of\ntaxation were deemed to be indirect taxation.\n\nIn the very early days of the Supreme Court, this knowledge of the\n\u201cconvention\u201d days was echoed in decisions which, _on that ground_, held\nthat certain taxes, which today might be regarded as direct taxation,\nwere not within the federal limitation as to apportionment of direct\ntaxes among the states. Among those taxes, those imposed without\napportionment, were a tax on carriages and receipts of insurance\ncompanies and on the inheritance of real estate. Even as late as the\ndays of the Civil War, when a tax was imposed upon incomes and without\napportionment among states, the Supreme Court held that such tax was\nnot a direct tax within the meaning of \u201cdirect tax\u201d to those who\nimposed the federal limitation.\n\nNevertheless, when the income tax law of 1894 had been enacted, its\nopponents again carried to the Supreme Court the claim that it violated\nthe federal limitation on the power of direct taxation, because it did\nnot apportion the tax among the states. And the Supreme Court, by a\ndivided vote and on the ground that a tax on the income from land was a\ntax on the land itself and consequently a direct tax, held the Income\nTax Law of 1894 to be void. It was by reason of this decision that the\nSixteenth Amendment was proposed and adopted, making the _federal_\nchange in the Constitution that lifted the _federal_ limitation from\nthe national power of direct taxation insofar as a tax on incomes was\nconcerned.\n\nIn these decisions, as in the many others which have followed the same\nclear American concept of duty and power, the Supreme Court has always\nknown and followed the reason stated by Hamilton for its existence as\npart of the _limited_ government of the one American people.\n\nIn _Federalist_, Nos. 78 and 81, appealing to the Americans to make\nthe Constitution, Hamilton points out that the Constitution does not\nauthorize the Supreme Court to exercise its will to make the law what\nthe Court thinks it _ought to be_, but does impose upon the Court the\nduty of exercising its judgment to ascertain what the law _has been\nmade_ by those competent to make it. And then he points out that the\nSupreme Court, in this Constitution of a self-governing people, is made\nthe great bulwark of the people against legislative encroachment upon\nthe rights or powers of the people reserved to themselves.\n\nThis knowledge of Hamilton has been the knowledge of the Supreme\nCourt from its institution. It has been reiterated and explained and\nexpounded in that Court from the days of Marshall to our own day. It\nhas become part and parcel of the great traditions of that Court, which\nare the foundation of the great respect which the average American\ncitizen pays to its decisions and its authority as his own great\nprotection against usurpation of power by other departments of his\nvarious governments.\n\nAnd so the average American citizen will look forward with certainty\nto the decision of that Court when the _real_ challenge is made to\nthe existence of the Eighteenth Amendment by an American who does\nknow and assert the plain facts which mean that either there is no\nEighteenth Amendment or there never has been an American citizen.\nIt _is_ simple fact that the existence of the Eighteenth Amendment,\nthat government-made constitution of government of men, is absolutely\nincompatible with the existence of a citizen of America. It _is_ simple\nfact that the Fifth Article did not grant to state governments or to\nany governments the ability to make Articles like the First Article or\nthe Eighteenth Amendment, or else the Fifth Article made all Americans\n\u201csubjects\u201d of a part of the state governments, with omnipotent ability\nin those governments to legislate for Americans \u201cin all matters\nwhatsoever.\u201d\n\nAnd it is simple fact that the Supreme Court must and will--when the\nreal challenge is at last made--decide that the Eighteenth Amendment is\nnot in the _national_ part of the American Constitution because it was\nmade by governments and not by the \u201cconventions\u201d of the Fifth Article.\nOtherwise, in the face of history, in the face of the record of the\n\u201cconventions\u201d of the American citizens, and in the face of all that\nthe Supreme Court has hitherto decided, the Court must decide that the\nAmerican citizen has never existed. The possibility that there should\nbe such a decision is absolutely beyond conception.\n\nWhat the decision _will_ be was long ago foreshadowed and forecast\nby Daniel Webster. It would almost seem as if Webster had heard the\nSheppard claim that the states made the Constitution and that the\nstates had then agreed between themselves that the governments of\nthirty-six of the states, in combination, could command the American\ncitizen in any matter of his individual freedom. It would almost seem\nas if Webster had heard Hughes deny, while his associate lawyers\nfor the Eighteenth Amendment still asserted with Sheppard, that the\nConstitution was a compact between states and then had heard them all\ninsist that the Fifth Article was a \u201cgrant\u201d which made thirty-six\ngovernments of state citizens an omnipotent Parliament over all\ncitizens of America.\n\n\u201cWhen the gentleman says, the Constitution is a compact between the\nstates, he uses language exactly applicable to the old Confederation.\nHe speaks as if he were in Congress before 1789. He describes fully\nthat old state of things then existing. The Confederation was, in\nstrictness, a compact; the states, as states, were parties to it. We\nhad no other general government. But that was found insufficient, and\ninadequate to the public exigencies. The _people_ were not satisfied\nwith it, and undertook to establish a better. _They_ undertook to\nform a general government which would stand on a new basis--not a\nconfederacy, not a league, not a compact between states, but a\nconstitution; a popular government, founded in popular election,\ndirectly responsible to the people themselves, and divided into\nbranches, with prescribed _limits of power_, and prescribed duties.\n_They_ ordained such a government; _they_ gave it the name of a\nconstitution; and therein _they_ established a distribution of powers\nbetween this, their general government, and their several state\ngovernments. When _they_ shall have become dissatisfied with this\ndistribution, _they_ can alter it. _Their own power over their own\ninstrument remains._ But until _they_ shall alter it, it must stand as\n_their_ will, and is equally binding on the general government and on\nthe states.\u201d (Webster\u2019s concluding remarks in the reply to Hayne, 4\n_Ell. Deb._ 518.)\n\nIs not the same doctrine certain from the Court which knew the whole\nConstitution so well that it decided, in the important case of Barron\nv. Mayor of Baltimore, supra, p. 376, that the entire Constitution gave\nno power of any kind to the state governments? Is not the same doctrine\ncertain from the Court which held:\n\n The powers the people have given to the General Government are named\n in the Constitution, and all not there named, either expressly or by\n implication, are reserved to the people, and can be exercised only by\n them, or upon further grant from them. (Turner v. Williams, 194 _U.\n S._ 279 at 296.)\n\nWhen the real challenge to the Eighteenth Amendment is presented before\nthat Court, it will be necessary for the defenders of the Amendment to\nabandon the disguise in which they attempt to conceal the real nature\nof their Tory concept. No one of them has been bold enough to state\nin words the real claim about the Fifth Article. That real claim is\nthat the Article is a \u201cgrant\u201d and that the \u201cgrant\u201d gives to thirty-six\ngovernments of state citizens unrestricted ability to interfere with\nthe freedom of the American citizen on every subject enumerated in the\nFirst Article and on every subject not enumerated in the First Article.\nThat is not the way any defender of the Amendment states his claim.\nIt is always stated that those thirty-six governments can change the\nConstitution by putting into it anything which the American citizens,\nassembled in their \u201cconventions,\u201d can put into it. Our education with\nthe Americans in the \u201cconventions\u201d has taught us that both statements\nare exactly the same statement. If the thirty-six state governments\ncan make the command to the American citizens which is embodied in the\nFirst Section of the Eighteenth Amendment, by putting that command\ninto the _national_ part of our Constitution, any thirty-six state\nlegislatures can make any command to the American citizens on any\nsubject enumerated or not enumerated in the First Article. The claim,\nthat the Fifth Article \u201cgrants\u201d to the thirty-six state governments\nthe right to put the command in the Constitution, is identical with\nthe claim that the Fifth Article \u201cgrants\u201d to the state governments the\nright to make the command to the citizens of America. A legislative\ncommand to human beings, interfering with their individual freedom,\nis a legislative command by whatever name it may be called. Mere\nomission to call a legislative command by the usual names, an \u201cAct\u201d or\n\u201cStatute,\u201d cannot alter its essential nature.\n\nFrom June 21st, 1788, the birthday of the American nation of men, there\nhas been but one possible answer to the question which is the title of\nthis book. That one answer was known to everyone in the \u201cconventions\u201d\nwhich made the Fifth Article. The Americans in those conventions all\nknew that they were becoming \u201ccitizens\u201d of America, not \u201csubjects\u201d of\nany governments. They knew that they were dispensing part of the power\nof the American citizens to Congress in the First Article; _and that\nthe rest of that power they were reserving to themselves_. They knew\nthat they were giving no power whatever to the state governments with\nwhom _they_ never deal except to command those governments.\n\nThat is why Pendleton, in the Virginia convention, made his statement\nof fact in the oratorical form of a question, because the one answer\nto the question was known and \u201cfelt and acknowledged by all.\u201d His\nstatement of fact, made in the oratorical form of a question, is, in\nsubstance, exactly the title of this book:\n\n\u201cWho but the people can delegate powers?... What have the state\ngovernments to do with it?\u201d (3 _Ell. Deb._ 37.)\n\n\n\n\n                              APPENDICES\n\n\n\n\n                              APPENDIX I\n\n            THE ORIGINAL CONSTITUTION OF THE UNITED STATES\n\n\nWe the People of the United States, in Order to form a more perfect\nUnion, establish Justice, insure domestic Tranquility, provide for the\ncommon defence, promote the general Welfare, and secure the Blessings\nof Liberty to ourselves and our Posterity, do ordain and establish this\nConstitution for the United States of America.\n\n\nArticle. I.\n\nSection, 1. All legislative Powers herein granted shall be vested in\na Congress of the United States, which shall consist of a Senate and\nHouse of Representatives.\n\nSection. 2. The House of Representatives shall be composed of Members\nchosen every second Year by the People of the several States, and the\nElectors in each State shall have ^^{the} Qualifications requisite for\nElectors of the most numerous Branch of the State Legislature.\n\nNo Person shall be a Representative who shall not have attained to the\nAge of twenty five Years, and been seven Years a Citizen of the United\nStates, and who shall not, when elected, be an Inhabitant of that State\nin which he shall be chosen.\n\nRepresentatives and direct Taxes shall be apportioned among the\nseveral States which may be included within this Union, according to\ntheir respective Numbers, which shall be determined by adding to the\nwhole Number of free Persons, including those bound to Service for\na Term of Years, and excluding Indians not taxed, three fifths of\nall other Persons. The actual Enumeration shall be made within three\nYears after the first Meeting of the Congress of the United States,\nand within every subsequent Term of ten Years, in such Manner as they\nshall by Law direct. The Number of Representatives shall not exceed\none for every thirty Thousand, but each State shall have at Least one\nRepresentative; and until such enumeration shall be made, the State of\nNew Hampshire shall be entitled to chuse three, Massachusetts eight,\nRhode-Island and Providence Plantations one, Connecticut five, New-York\nsix, New Jersey four, Pennsylvania eight, Delaware one, Maryland six,\nVirginia ten, North Carolina five, South Carolina five, and Georgia\nthree.\n\nWhen vacancies happen in the Representation from any State, the\nExecutive Authority thereof shall issue Writs of Election to fill such\nVacancies.\n\nThe House of Representatives shall chuse their Speaker and other\nOfficers; and shall have the sole Power of Impeachment.\n\nSection. 3. The Senate of the United States shall be composed of two\nSenators from each State, chosen by the Legislature thereof, for six\nYears; and each Senator shall have one Vote.\n\nImmediately after they shall be assembled in Consequence of the first\nElection, they shall be divided as equally as may be into three\nClasses. The Seats of the Senators of the first Class shall be vacated\nat the Expiration of the second Year, of the second Class at the\nExpiration of the fourth Year, and of the third Class at the Expiration\nof the sixth Year, so that one third may be chosen every second Year;\nand if Vacancies happen by Resignation, or otherwise, during the\nRecess of the Legislature of any State, the Executive thereof may make\ntemporary Appointments until the next Meeting of the Legislature, which\nshall then fill such Vacancies.\n\nNo Person shall be a Senator who shall not have attained to the Age of\nthirty Years, and been nine Years a Citizen of the United States, and\nwho shall not, when elected, be an Inhabitant of that State for which\nhe shall be chosen.\n\nThe Vice President of the United States shall be President of the\nSenate, but shall have no Vote, unless they be equally divided.\n\nThe Senate shall chuse their other Officers, and also a President\npro tempore, in the Absence of the Vice President, or when he shall\nexercise the Office of President of the United States.\n\nThe Senate shall have the sole Power to try all Impeachments. When\nsitting for that Purpose, they shall be on Oath or Affirmation. When\nthe President of the United States ^^{is tried} the Chief Justice shall\npreside: And no Person shall be convicted without the Concurrence of\ntwo thirds of the Members present.\n\nJudgment in Cases of Impeachment shall not extend further than to\nremoval from Office, and disqualification to hold and enjoy any Office\nof honor, Trust or Profit under the United States: but the Party\nconvicted shall nevertheless be liable and subject to Indictment,\nTrial, Judgment and Punishment, according to Law.\n\nSection. 4. The Times, Places and Manner of holding Elections for\nSenators and Representatives, shall be prescribed in each State by the\nLegislature thereof; but the Congress may at any time by Law make or\nalter such Regulations, except as to the Places of chusing Senators.\n\nThe Congress shall assemble at least once in every Year, and such\nMeeting shall be on the first Monday in December, unless they shall by\nLaw appoint a different Day.\n\nSection. 5. Each House shall be the Judge of the Elections, Returns\nand Qualifications of its own Members, and a Majority of each shall\nconstitute a Quorum to do Business; but a smaller Number may adjourn\nfrom day to day, and may be authorized to compel the Attendance of\nabsent Members, in such Manner, and under such Penalties as each House\nmay provide.\n\nEach House may determine the Rules of its Proceedings, punish its\nMembers for disorderly Behaviour, and, with the Concurrence of two\nthirds, expel a Member.\n\nEach House shall keep a Journal of its Proceedings, and from time to\ntime publish the same, excepting such Parts as may in their Judgment\nrequire Secrecy; and the Yeas and Nays of the Members of either House\non any question shall, at the Desire of one fifth of those Present, be\nentered on the Journal.\n\nNeither House, during the Session of Congress, shall, without the\nConsent of the other, adjourn for more than three days, nor to any\nother Place than that in which the two Houses shall be sitting.\n\nSection. 6. The Senators and Representatives shall receive a\nCompensation for their Services, to be ascertained by Law, and paid out\nof the Treasury of the United States. They shall in all Cases, except\nTreason, Felony and Breach of the Peace, be privileged from Arrest\nduring their Attendance at the Session of their respective Houses, and\nin going to and returning from the same; and for any Speech or Debate\nin either House, they shall not be questioned in any other Place.\n\nNo Senator or Representative shall, during the Time for which he was\nelected, be appointed to any civil Office under the Authority of the\nUnited States, which shall have been created, or the Emoluments whereof\nshall have been encreased during such time; and no Person holding any\nOffice under the United States, shall be a Member of either House\nduring his Continuance in Office.\n\nSection. 7. All Bills for raising Revenue shall originate in the\nHouse of Representatives; but the Senate may propose or concur with\nAmendments as on other Bills.\n\nEvery Bill which shall have passed the House of Representatives and the\nSenate, shall, before it become a Law, be presented to the President of\nthe United States; If he approve he shall sign it, but if not he shall\nreturn it, with his Objections to that House in which it shall have\noriginated, who shall enter the Objections at large on their Journal,\nand proceed to reconsider it. If after such Reconsideration two thirds\nof that House shall agree to pass the Bill, it shall be sent, together\nwith the Objections, to the other House, by which it shall likewise be\nreconsidered, and if approved by two thirds of that House, it shall\nbecome a Law. But in all such Cases the Votes of both Houses shall be\ndetermined by yeas and Nays, and the Names of the Persons voting for\nand against the Bill shall be entered on the Journal of each House\nrespectively. If any Bill shall not be returned by the President within\nten Days (Sundays excepted) after it shall have been presented to him,\nthe Same shall be a Law, in like Manner as if he had signed it, unless\nthe Congress by their Adjournment prevent its Return, in which Case it\nshall not be a Law.\n\nEvery Order, Resolution, or Vote to which the Concurrence of the Senate\nand House of Representatives may be necessary (except on a question of\nAdjournment) shall be presented to the President of the United States;\nand before the Same shall take Effect, shall be approved by him, or\nbeing disapproved by him, shall be repassed by two thirds of the Senate\nand House of Representatives, according to the Rules and Limitations\nprescribed in the Case of a Bill.\n\nSection. 8. The Congress shall have Power To lay and collect Taxes,\nDuties, Imposts and Excises, to pay the Debts and provide for the\ncommon Defence and general Welfare of the United States; but all\nDuties, Imposts and Excises shall be uniform throughout the United\nStates;\n\nTo borrow Money on the credit of the United States;\n\nTo regulate Commerce with foreign Nations, and among the several\nStates, and with the Indian Tribes;\n\nTo establish an uniform Rule of Naturalization, and uniform Laws on the\nsubject of Bankruptcies throughout the United States;\n\nTo coin Money, regulate the Value thereof, and of foreign Coin, and fix\nthe Standard of Weights and Measures;\n\nTo provide for the Punishment of counterfeiting the Securities and\ncurrent Coin of the United States;\n\nTo establish Post Offices and post Roads;\n\nTo promote the Progress of Science and useful Arts, by securing for\nlimited Times to Authors and Inventors the exclusive Right to their\nrespective Writings and Discoveries;\n\nTo constitute Tribunals inferior to the supreme Court;\n\nTo define and punish Piracies and Felonies committed on the high Seas,\nand Offences against the Law of Nations;\n\nTo declare War, grant Letters of Marque and Reprisal, and make Rules\nconcerning Captures on Land and Water;\n\nTo raise and support Armies, but no Appropriation of Money to that Use\nshall be for a longer Term than two Years;\n\nTo provide and maintain a Navy;\n\nTo make Rules for the Government and Regulation of the land and naval\nForces;\n\nTo provide for calling forth the Militia to execute the Laws of the\nUnion, suppress Insurrections and repel Invasions;\n\nTo provide for organizing, arming, and disciplining, the Militia, and\nfor governing such Part of them as may be employed in the Service\nof the United States, reserving to the States respectively, the\nAppointment of the Officers, and the Authority of training the Militia\naccording to the discipline prescribed by Congress;\n\nTo exercise exclusive Legislation in all Cases whatsoever, over\nsuch District (not exceeding ten Miles square) as may, by Cession\nof particular States, and the Acceptance of Congress, become the\nSeat of the Government of the United States, and to exercise like\nAuthority over all Places purchased by the Consent of the Legislature\nof the State in which the Same shall be, for the Erection of Forts,\nMagazines, Arsenals, dock-Yards, and other needful Buildings;--And\n\nTo make all Laws which shall be necessary and proper for carrying\ninto Execution the foregoing Powers, and all other Powers vested by\nthis Constitution in the Government of the United States, or in any\nDepartment or Officer thereof.\n\nSection. 9. The Migration or Importation of such Persons as any of\nthe States now existing shall think proper to admit, shall not be\nprohibited by the Congress prior to the Year one thousand eight hundred\nand eight, but a Tax or duty may be imposed on such Importation, not\nexceeding ten dollars for each Person.\n\nThe Privilege of the Writ of Habeas Corpus shall not be suspended,\nunless when in Cases of Rebellion or Invasion the public Safety may\nrequire it.\n\nNo Bill of Attainder or ex post facto Law shall be passed.\n\nNo Capitation, or other direct, Tax shall be laid, unless in Proportion\nto the Census or Enumeration herein before directed to be taken.\n\nNo Tax or Duty shall be laid on Articles exported from any State.\n\nNo Preference shall be given by any Regulation of Commerce or Revenue\nto the Ports of one State over those of another: nor shall Vessels\nbound to, or from, one State, be obliged to enter, clear, or pay Duties\nin another.\n\nNo Money shall be drawn from the Treasury, but in Consequence of\nAppropriations made by Law; and a regular Statement and Account of the\nReceipts and Expenditures of all public Money shall be published from\ntime to time.\n\nNo Title of Nobility shall be granted by the United States: And no\nPerson holding any Office of Profit or Trust under them, shall, without\nthe Consent of the Congress, accept of any present, Emolument, Office,\nor Title, of any kind whatever, from any King, Prince, or foreign State.\n\nSection. 10. No State shall enter into any Treaty, Alliance, or\nConfederation; grant Letters of Marque and Reprisal; coin Money; emit\nBills of Credit; make any Thing but gold and silver Coin a Tender in\nPayment of Debts; pass any Bill of Attainder, ex post facto Law, or Law\nimpairing the Obligation of Contracts, or grant any Title of Nobility.\n\nNo State shall, without the Consent of ^^{the} Congress, lay any\nImposts or Duties on Imports or Exports, except what may be absolutely\nnecessary for executing it\u2019s inspection Laws: and the net Produce of\nall Duties and Imposts, laid by any State on Imports or Exports, shall\nbe for the Use of the Treasury of the United States; and all such Laws\nshall be subject to the Revision and Controul of ^^{the} Congress.\n\nNo State shall, without the Consent of Congress, lay any Duty of\nTonnage, keep Troops, or Ships of War in time of Peace, enter into any\nAgreement or Compact with another State, or with a foreign Power, or\nengage in War, unless actually invaded, or in such imminent Danger as\nwill not admit of delay.\n\n\nArticle. II.\n\nSection. 1. The executive Power shall be vested in a President of the\nUnited States of America. He shall hold his Office during the Term of\nfour Years, and, together with the Vice President, chosen for the same\nTerm, be elected, as follows:\n\nEach State shall appoint, in such Manner as the Legislature thereof may\ndirect, a Number of Electors, equal to the whole Number of Senators and\nRepresentatives to which the State may be entitled in the Congress: but\nno Senator or Representative, or Person holding an Office of Trust or\nProfit under the United States, shall be appointed an Elector.\n\nThe Electors shall meet in their respective States, and vote by Ballot\nfor two Persons, of whom one at least shall not be an Inhabitant of\nthe same State with themselves. And they shall make a List of all the\nPersons voted for, and of the Number of Votes for each; which List\nthey shall sign and certify, and transmit sealed to the Seat of the\nGovernment of the United States, directed to the President of the\nSenate. The President of the Senate shall, in the Presence of the\nSenate and House of Representatives, open all the Certificates, and\nthe Votes shall then be counted. The Person having the greatest Number\nof Votes shall be the President, if such Number be a Majority of the\nwhole Number of Electors appointed; and if there be more than one\nwho have such Majority, and have an equal Number of Votes, then the\nHouse of Representatives shall immediately chuse by Ballot one of them\nfor President; and if no Person have a Majority, then from the five\nhighest on the List the said House shall in like Manner chuse the\nPresident. But in chusing the President, the Votes shall be taken by\nStates, the Representation from each State having one Vote; A quorum\nfor this Purpose shall consist of a Member or Members from two thirds\nof the States, and a Majority of all the States shall be necessary to\na Choice. In every Case, after the Choice of the President, the Person\nhaving the greatest Number of Votes of the Electors shall be the Vice\nPresident. But if there should remain two or more who have equal Votes,\nthe Senate shall chuse from them by Ballot the Vice President.\n\nThe Congress may determine the Time of chusing the Electors, and the\nDay on which they shall give their Votes; which Day shall be the same\nthroughout the United States.\n\nNo Person except a natural born Citizen, or a Citizen of the United\nStates, at the time of the Adoption of this Constitution, shall be\neligible to the Office of President; neither shall any Person be\neligible to that Office who shall not have attained to the Age of\nthirty-five Years, and been fourteen Years a Resident within the United\nStates.\n\nIn Case of the Removal of the President from Office, or of his Death,\nResignation, or Inability to discharge the Powers and Duties of the\nsaid Office, the Same shall devolve on the Vice President, and the\nCongress may by Law provide for the Case of Removal, Death, Resignation\nor Inability, both of the President and Vice President, declaring\nwhat Officer shall then act as President, and such Officer shall act\naccordingly, until the Disability be removed, or a President shall be\nelected.\n\nThe President shall, at stated Times, receive for his Services, a\nCompensation, which shall neither be encreased nor diminished during\nthe Period for which he shall have been elected, and he shall not\nreceive within that Period any other Emolument from the United States,\nor any of them.\n\nBefore he enter on the Execution of his Office, he shall take the\nfollowing Oath or Affirmation:--\u201cI do solemnly swear (or affirm) that I\nwill faithfully execute the Office of President of the United States,\nand will to the best of my Ability, preserve, protect and defend the\nConstitution of the United States.\u201d\n\nSection. 2. The President shall be Commander in Chief of the Army and\nNavy of the United States, and of the Militia of the several States,\nwhen called into the actual Service of the United States; he may\nrequire the Opinion, in writing, of the principal Officer in each of\nthe executive Departments, upon any Subject relating to the Duties of\ntheir respective Offices, and he shall have Power to grant Reprieves\nand Pardons for Offences against the United States, except in Cases of\nImpeachment.\n\nHe shall have Power, by and with the Advice and Consent of the Senate,\nto make Treaties, provided two thirds of the Senators present concur;\nand he shall nominate, and by and with the Advice and Consent of the\nSenate, shall appoint Ambassadors, other public Ministers and Consuls,\nJudges of the supreme Court, and all other Officers of the United\nStates, whose Appointments are not herein otherwise provided for, and\nwhich shall be established by Law: but the Congress may by Law vest the\nAppointment of such inferior Officers, as they think proper, in the\nPresident alone, in the Courts of Law, or in the Heads of Departments.\n\nThe President shall have Power to fill up all Vacancies that may happen\nduring the Recess of the Senate, by granting Commissions which shall\nexpire at the End of their next Session.\n\nSection. 3. He shall from time to time give to the Congress Information\nof the State of the Union, and recommend to their Consideration\nsuch Measures as he shall judge necessary and expedient; he may, on\nextraordinary Occasions, convene both Houses, or either of them, and\nin Case of Disagreement between them, with Respect to the Time of\nAdjournment, he may adjourn them to such Time as he shall think proper;\nhe shall receive Ambassadors and other public Ministers; he shall take\nCare that the Laws be faithfully executed, and shall Commission all the\nOfficers of the United States.\n\nSection. 4. The President, Vice President and all civil Officers of the\nUnited States, shall be removed from Office on Impeachment for, and\nConviction of, Treason, Bribery, or other high Crimes and Misdemeanors.\n\n\nArticle III.\n\nSection. 1. The judicial Power of the United States, shall be vested\nin one supreme Court, and in such inferior Courts as the Congress may\nfrom time to time ordain and establish. The Judges, both of the supreme\nand inferior Courts, shall hold their Offices during good Behaviour,\nand shall, at stated Times, receive for their Services, a Compensation,\nwhich shall not be diminished during their Continuance in Office.\n\nSection. 2. The judicial Power shall extend to all Cases, in Law\nand Equity, arising under this Constitution, the Laws of the United\nStates, and Treaties made, or which shall be made, under their\nAuthority;--to all Cases affecting Ambassadors, other public Ministers\nand Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to\nControversies to which the United States shall be a Party;--to\nControversies between two or more States;--between a State and Citizens\nof another State;--between Citizens of different States,--between\nCitizens of the same State claiming Lands under Grants of different\nStates, and between a State, or the Citizens thereof, and foreign\nStates, Citizens or Subjects.\n\nIn all Cases affecting Ambassadors, other public Ministers and Consuls,\nand those in which a State shall be Party, the supreme Court shall have\noriginal Jurisdiction. In all the other Cases before mentioned, the\nsupreme Court shall have appellate Jurisdiction, both as to Law and\nFact, with such Exceptions, and under such Regulations as the Congress\nshall make.\n\nThe Trial of all Crimes, except in Cases of Impeachment, shall be by\nJury; and such Trial shall be held in the State where the said Crimes\nshall have been committed; but when not committed within any State, the\nTrial shall be at such Place or Places as the Congress may by Law have\ndirected.\n\nSection. 3. Treason against the United States, shall consist only in\nlevying War against them, or in adhering to their Enemies, giving them\nAid and Comfort. No Person shall be convicted of Treason unless on the\nTestimony of two Witnesses to the same overt Act, or on Confession in\nopen Court.\n\nThe Congress shall have Power to declare the Punishment of Treason, but\nno Attainder of Treason shall work Corruption of Blood, or Forfeiture\nexcept during the Life of the Person attainted.\n\n\nArticle. IV.\n\nSection. 1. Full Faith and Credit shall be given in each State to the\npublic Acts, Records, and judicial Proceedings of every other State.\nAnd the Congress may by general Laws prescribe the Manner in which such\nActs, Records and Proceedings shall be proved, and the Effect thereof.\n\nSection. 2. The Citizens of each State shall be entitled to all\nPrivileges and Immunities of Citizens in the several States.\n\nA Person charged in any State with Treason, Felony, or other Crime,\nwho shall flee from Justice, and be found in another State, shall on\nDemand of the executive Authority of the State from which he fled, be\ndelivered up, to be removed to the State having Jurisdiction of the\nCrime.\n\nNo Person held to Service or Labour in one State, under the Laws\nthereof, escaping into another, shall, in Consequence of any Law or\nRegulation therein, be discharged from such Service or Labour, but\nshall be delivered up on Claim of the Party to whom such Service or\nLabour may be due.\n\nSection. 3. New States may be admitted by the Congress into this Union;\nbut no new State shall be formed or erected within the Jurisdiction of\nany other State; nor any State be formed by the Junction of two or more\nStates, or Parts of States, without the Consent of the Legislatures of\nthe States concerned as well as of the Congress.\n\nThe Congress shall have Power to dispose of and make all needful Rules\nand Regulations respecting the Territory or other Property belonging\nto the United States; and nothing in this Constitution shall be so\nconstrued as to Prejudice any Claims of the United States, or of any\nparticular State.\n\nSection. 4. The United States shall guarantee to every State in this\nUnion a Republican Form of Government, and shall protect each of them\nagainst Invasion; and on Application of the Legislature, or of the\nExecutive (when the Legislature cannot be convened) against domestic\nViolence.\n\n\nArticle. V.\n\nThe Congress, whenever two thirds of both Houses shall deem it\nnecessary, shall propose Amendments to this Constitution, or, on the\nApplication of the Legislatures of two thirds of the several States,\nshall call a Convention for proposing Amendments, which, in either\nCase, shall be valid to all Intents and Purposes, as Part of this\nConstitution, when ratified by the Legislatures of three fourths of\nthe several States, or by Conventions in three fourths thereof, as the\none or the other Mode of Ratification may be proposed by the Congress;\nProvided that no Amendment which may be made prior to the Year One\nthousand eight hundred and eight shall in any Manner affect the first\nand fourth Clauses in the Ninth Section of the first Article; and that\nno State, without its Consent, shall be deprived of it\u2019s equal Suffrage\nin the Senate.\n\n\nArticle. VI.\n\nAll Debts contracted and Engagements entered into, before the Adoption\nof this Constitution, shall be as valid against the United States under\nthis Constitution, as under the Confederation.\n\nThis Constitution, and the Laws of the United States which shall be\nmade in Pursuance thereof; and all Treaties made, or which shall be\nmade, under the Authority of the United States, shall be the supreme\nLaw of the Land; and the Judges in every State shall be bound thereby,\nany Thing in the Constitution or Laws of any State to the Contrary\nnotwithstanding.\n\nThe Senators and Representatives before mentioned, and the Members\nof the several State Legislatures, and all executive and judicial\nOfficers, both of the United States and of the several States, shall\nbe bound by Oath or Affirmation, to support this Constitution; but no\nreligious Test shall ever be required as a Qualification to any Office\nor public Trust under the United States.\n\n\nArticle. VII.\n\nThe Ratification of the Conventions of nine States, shall be sufficient\nfor the Establishment of this Constitution between the States so\nratifying the Same.\n\n The Word, \u201cthe,\u201d being interlined between the seventh and eighth\n Lines of the first Page, The Word \u201cThirty\u201d being partly written on an\n Erazure in the fifteenth Line of the first Page, The Words \u201cis tried\u201d\n being interlined between the thirty second and thirty third Lines of\n the first Page and the Word \u201cthe\u201d being interlined between the forty\n third and forty fourth Lines of the second Page.\n\n Attest WILLIAM JACKSON Secretary\n\ndone in Convention by the Unanimous Consent of the States present the\nSeventeenth Day of September in the Year of our Lord one thousand seven\nhundred and Eighty seven and of the Independence of the United States\nof America the Twelfth. In witness whereof We have hereunto subscribed\nour Names,\n\n                         GO WASHINGTON--Presidt and deputy from Virginia\n\n\nNew Hampshire   { JOHN LANGDON    }\n                { NICHOLAS GILMAN }\n\nMassachusetts   { NATHANIEL GORHAM\n                { RUFUS KING\n\nConnecticut     { WM. SAML. JOHNSON\n                { ROGER SHERMAN\n\nNew York          ALEXANDER HAMILTON\n\n                { WIL: LIVINGSTON\n                { DAVID BREARLEY.\nNew Jersey      { WM PATERSON.\n                { JONA: DAYTON\n\n                { B FRANKLIN\n                { THOMAS MIFFLIN\n                { ROBT MORRIS\n                { GEO. CLYMER\nPennsylvania    { THOS FITZSIMONS\n                { JARED INGERSOLL\n                { JAMES WILSON\n                { GOUV MORRIS\n\n                { GEO: READ\n                { GUNNING BEDFORD jun\nDelaware        { JOHN DICKINSON\n                { RICHARD BASSETT\n                { JACO: BROOM\n\n                { JAMES MCHENRY\nMaryland        { DAN OF ST THOS JENIFER\n                { DAN. CARROLL\n\n                { JOHN BLAIR\nVirginia        { JAMES MADISON Jr.\n\n                { WM BLOUNT\nNorth Carolina  { RICHD DOBBS SPAIGHT.\n                { HU WILLIAMSON\n\n                { J. RUTLEDGE\n                { CHARLES COTESWORTH PINCKNEY\nSouth Carolina  { CHARLES PINCKNEY\n                { PIERCE BUTLER.\n\n                { WILLIAM FEW\nGeorgia         { ABR BALDWIN\n\n\n\n\n                              APPENDIX II\n\n THE RESOLUTION WHICH PROPOSED THE CONSTITUTION TO THE CONVENTIONS OF\n                         THE PEOPLE OF AMERICA\n\n\nIn Convention Monday September 17th 1787.\n\nPresent\n\nThe States of\n\nNew Hampshire, Massachusetts, Connecticut, Mr. Hamilton from New York,\nNew Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina,\nSouth Carolina and Georgia.\n\nResolved,\n\nThat the preceding Constitution be laid before the United States in\nCongress assembled, and that it is the Opinion of this Convention,\nthat it should afterwards be submitted to a Convention of Delegates,\nchosen in each State by the People thereof, under the Recommendation\nof its Legislature, for their Assent and Ratification; and that each\nConvention assenting to, and ratifying the Same, should give Notice\nthereof to the United States in Congress assembled.\n\nResolved, That it is the Opinion of this Convention, that as soon as\nthe Conventions of nine States shall have ratified this Constitution,\nthe United States in Congress assembled should fix a Day on which\nElectors should be appointed by the States which shall have ratified\nthe same, and a Day on which the Electors should assemble to vote\nfor the President, and the Time and Place for commencing Proceedings\nunder this Constitution. That after such Publication the Electors\nshould be appointed, and the Senators and Representatives elected:\nThat the Electors should meet on the Day fixed for the Election of\nthe President, and should transmit their Votes certified, signed,\nsealed and directed, as the Constitution requires, to the Secretary\nof the United States in Congress assembled, that the Senators and\nRepresentatives should convene at the Time and Place assigned; that\nthe Senators should appoint a President of the Senate, for the sole\nPurpose of receiving, opening and counting the Votes for President;\nand, that after he shall be chosen, the Congress, together with the\nPresident, should, without Delay, proceed to execute this Constitution.\n\nBy the Unanimous Order of the Convention\n\n                                                   GO WASHINGTON Presidt\n\n                                                   W. JACKSON Secretary.\n\n\n\n\n                             APPENDIX III\n\n          THE FIRST SEVENTEEN AMENDMENTS TO THE CONSTITUTION\n\n\n1. Congress shall make no law respecting an establishment of religion,\nor prohibiting the free exercise thereof; or abridging the freedom\nof speech, or of the press; or the right of the people peaceably to\nassemble, and to petition the Government for a redress of grievances.\n\n2. A well regulated Militia, being necessary to the security of a free\nState, the right of the people to keep and bear Arms, shall not be\ninfringed.\n\n3. No Soldier shall, in time of peace be quartered in any house,\nwithout the consent of the Owner, nor in time of war, but in a manner\nto be prescribed by law.\n\n4. The right of the people to be secure in their persons, houses,\npapers, and effects, against unreasonable searches and seizures, shall\nnot be violated, and no Warrants shall issue, but upon probable cause,\nsupported by Oath or affirmation, and particularly describing the place\nto be searched, and the persons or things to be seized.\n\n5. No person shall be held to answer for a capital, or otherwise\ninfamous crime, unless on a presentment or indictment of a Grand\nJury, except in cases arising in the land or naval forces, or in the\nMilitia, when in actual service in time of War or public danger; nor\nshall any person be subject for the same offence to be twice put in\njeopardy of life or limb; nor shall be compelled in any criminal case\nto be a witness against himself, nor to be deprived of life, liberty,\nor property, without due process of law; nor shall private property be\ntaken for public use, without just compensation.\n\n6. In all criminal prosecutions, the accused shall enjoy the right to a\nspeedy and public trial, by an impartial jury of the State and district\nwherein the crime shall have been committed, which district shall have\nbeen previously ascertained by law, and to be informed of the nature\nand cause of the accusation; to be confronted with the witnesses\nagainst him; to have compulsory process for obtaining witnesses in his\nfavor, and to have the Assistance of Counsel for his defence.\n\n7. In Suits at common law, where the value in controversy shall exceed\ntwenty dollars, the right of trial by jury shall be preserved, and no\nfact tried by a jury, shall be otherwise re-examined in any Court of\nthe United States, than according to the rules of the common law.\n\n8. Excessive bail shall not be required, nor excessive fines imposed,\nnor cruel and unusual punishments inflicted.\n\n9. The enumeration in the Constitution, of certain rights, shall not be\nconstrued to deny or disparage others retained by the people.\n\n10. The powers not delegated to the United States by the Constitution,\nnor prohibited by it to the States, are reserved to the States\nrespectively, or to the people.\n\n11. The Judicial power of the United States shall not be construed to\nextend to any suit in law or equity, commenced or prosecuted against\none of the United States by Citizens of another State, or by Citizens\nor Subjects of any Foreign State.\n\n12. The Electors shall meet in their respective states, and vote\nby ballot for President and Vice-President, one of whom, at least,\nshall not be an inhabitant of the same state with themselves; they\nshall name in their ballots the person voted for as President, and\nin distinct ballots the person voted for as Vice-President, and they\nshall make distinct lists of all persons voted for as President,\nand of all persons voted for as Vice-President, and of the number\nof votes for each, which lists they shall sign and certify, and\ntransmit sealed to the seat of the government of the United States\ndirected to the President of the Senate;--The President of the Senate\nshall, in the presence of the Senate and House of Representatives,\nopen all the certificates and the votes shall then be counted;--The\nperson having the greatest number of votes for President, shall be\nthe President, if such number be a majority of the whole number of\nElectors appointed; and if no person have such majority, then from the\npersons having the highest numbers not exceeding three on the list\nof those voted for as President, the House of Representatives shall\nchoose immediately, by ballot, the President. But in choosing the\nPresident, the votes shall be taken by states, the representation from\neach state having one vote; a quorum for this purpose shall consist\nof a member or members from two-thirds of the states, and a majority\nof all the states shall be necessary to a choice. And if the House of\nRepresentatives shall not choose a President whenever the right of\nchoice shall devolve upon them, before the fourth day of March next\nfollowing, then the Vice-President shall act as President, as in the\ncase of death or other constitutional disability of the President.--The\nperson having the greatest number of votes as Vice-President, shall\nbe the Vice-President, if such number be a majority of the whole\nnumber of Electors appointed, and if no person have a majority, then\nfrom the two highest numbers on the list, the Senate shall choose the\nVice-President; a quorum for the purpose shall consist of two-thirds of\nthe whole number of Senators, and a majority of the whole number shall\nbe necessary to a choice. But no person constitutionally ineligible to\nthe office of President shall be eligible to that of Vice-President of\nthe United States.\n\n13. Section 1. Neither slavery nor involuntary servitude, except as a\npunishment for crime whereof the party shall have been duly convicted,\nshall exist within the United States, or any place subject to their\njurisdiction. Section 2. Congress shall have power to enforce this\narticle by appropriate legislation.\n\n14. Section 1. All persons born or naturalized in the United States,\nand subject to the jurisdiction thereof, are citizens of the United\nStates and of the State wherein they reside. No State shall make or\nenforce any law which shall abridge the privileges or immunities of\ncitizens of the United States; nor shall any State deprive any person\nof life, liberty, or property, without due process of law; nor deny to\nany person within its jurisdiction the equal protection of the laws.\n\nSection 2. Representatives shall be apportioned among the several\nStates according to their respective numbers, counting the whole number\nof persons in each State, excluding Indians not taxed. But when the\nright to vote at any election for the choice of electors for President\nand Vice President of the United States, Representatives in Congress,\nthe Executive and Judicial officers of a State, or the members of\nthe Legislature thereof, is denied to any of the male inhabitants of\nsuch State, being twenty-one years of age, and citizens of the United\nStates, or in any way abridged, except for participation in rebellion,\nor other crime, the basis of representation therein shall be reduced\nin the proportion which the number of such male citizens shall bear to\nthe whole number of male citizens twenty-one years of age in such State.\n\nSection 3. No person shall be a Senator or Representative in Congress,\nor elector of President and Vice President, or hold any office, civil\nor military, under the United States, or under any State, who, having\npreviously taken an oath, as a member of Congress, or as an officer of\nthe United States, or as a member of any State legislature, or as an\nexecutive or judicial officer of any State, to support the Constitution\nof the United States, shall have engaged in insurrection or rebellion\nagainst the same, or given aid or comfort to the enemies thereof.\nBut Congress may by a vote of two-thirds of each House, remove such\ndisability.\n\nSection 4. The validity of the public debt of the United States,\nauthorized by law, including debts incurred for payment of pensions and\nbounties for services in suppressing insurrection or rebellion, shall\nnot be questioned. But neither the United States nor any State shall\nassume or pay any debt or obligation incurred in aid of insurrection\nor rebellion against the United States, or any claim for the loss or\nemancipation of any slave; but all such debts, obligations and claims\nshall be held illegal and void.\n\nSection 5. The Congress shall have power to enforce, by appropriate\nlegislation, the provisions of this article.\n\n15. Section 1. The right of citizens of the United States to vote shall\nnot be denied or abridged by the United States or by any State on\naccount of race, color, or previous condition of servitude--\n\nSection 2. The Congress shall have power to enforce this article by\nappropriate legislation--\n\n16. The Congress shall have power to lay and collect taxes on incomes,\nfrom whatever source derived, without apportionment among the several\nStates, and without regard to any census or enumeration.\n\n17. The Senate of the United States shall be composed of two Senators\nfrom each State, elected by the people thereof, for six years; and each\nSenator shall have one vote. The electors in each State shall have the\nqualifications requisite for electors of the most numerous branch of\nthe State legislatures.\n\nWhen vacancies happen in the representation of any State in the\nSenate, the executive authority of such State shall issue writs of\nelection to fill such vacancies: _Provided_, That the legislature\nof any State may empower the executive thereof to make temporary\nappointments until the people fill the vacancies by election as the\nlegislature may direct.\n\nThis amendment shall not be so construed as to affect the election\nor term of any Senator chosen before it becomes valid as part of the\nConstitution.\n\n\n\n\n                              APPENDIX IV\n\n                   THE ALLEGED EIGHTEENTH AMENDMENT\n\n\nSection 1. After one year from the ratification of this article the\nmanufacture, sale, or transportation of intoxicating liquors within,\nthe importation thereof into, or the exportation thereof from the\nUnited States and all territory subject to the jurisdiction thereof for\nbeverage purposes is hereby prohibited.\n\nSec. 2. The Congress and the several States shall have concurrent power\nto enforce this article by appropriate legislation.\n\nSec. 3. This article shall be inoperative unless it shall have been\nratified as an amendment to the Constitution by the legislatures of the\nseveral States, as provided in the Constitution, within seven years\nfrom the date of the submission hereof to the States by the Congress.\n\n\n\n\n                              APPENDIX V\n\n                       THE NINETEENTH AMENDMENT\n\n\nThe right of citizens of the United States to vote shall not be denied\nor abridged by the United States or by any State on account of sex.\n\nCongress shall have power to enforce this article by appropriate\nlegislation.\n\n\n\n\n                          Transcriber\u2019s Notes\n\nMinor punctuation errors have been fixed.\n\nPage xvii: \u201cstate legislalatures\u201d changed to \u201cstate legislatures\u201d\n\nPage 34: \u201cindependent governernments\u201d changed to \u201cindependent\ngovernments\u201d\n\nPage 76: \u201cThis govermnent\u201d changed to \u201cThis government\u201d\n\nPage 290: \u201centire subesquent\u201d changed to \u201centire subsequent\u201d\n\nPage 432: \u201cthe semblence of\u201d changed to \u201cthe semblance of\u201d\n\nPage 448: \u201che appointed\u201d changed to \u201cbe appointed\u201d\n\nPage 456: \u201cof the Independance\u201d changed to \u201cof the Independence\u201d\n\nPage 457: \u201cPensylvania\u201d changed to \u201cPennsylvania\u201d\n\nPage 458: \u201cthe preceeding Constitution\u201d changed to \u201cthe preceding\nConstitution\u201d","title":"Citizen or subject?","tradition":"philosophy-ethics","translated_text":null,"word_count":135762}