CHAPTER XIVSEVENTEEN ARTICLES RESPECT HUMAN FREEDOM

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

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

When he used the words, “mass of its powers,” he referred directly to that First Article grant. It contains all the powers that were ever given to any government to interfere with the individual freedom of the American citizen. He knew what the Supreme Court clearly declared in United States v. Cruikshank, 92U. S.542, that, beyond the scope of its enumerated powers, there isnogovernment of the American citizens. He knew that, in the geographical territory which is each state, there would thereafter be two governments, the government of enumerated powers, governing the American citizens in that state under theFirst Article grants from the American citizens, and the state governments, governing the citizens of the state, under whatever grants of national power its state citizens gave that government.

The two governments in each state stand in their respective spheres of action in the same independent relation to each other, except in one particular, that they would if their authority embraced distinct territories. That particular consists in the supremacy of the authority of the United States when any conflict arises between the two governments. (Justice Field, in Tarble’s case, in the Supreme Court, 13Wall.397.)

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

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

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

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

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

Thatwemay know,of our knowledge, whatheprophesied and whattheyentirely overlooked and ignored, let us briefly examine the nature of those seventeen Amendments. Thus we will learn why governments, known at Philadelphia in 1787 to be incompetent to makenationalArticles, could and did make those seventeen Articles in theconstitutionalmode of procedure which the Fifth Article provided for the exercise of their existing ability limited to the making offederalor declaratory Articles.

The first ten Amendments were declarations insisted upon by the American citizens, assembled in “conventions” where we have sat, as specific security against government usurpation of power over their individual freedom. The Supreme Court has repeatedly declared that everything in those ten Amendments was in the Constitution when it was ratified by those“conventions” and that the Amendments simply declared what the will of the people themselves, assembled in those “conventions,” had already established as the fundamental law in America. Certainly no man would challenge the prophecy of Hamilton on the theory that any one of those Amendments added to the mass of government powers to interfere with human freedom. They are, each and every one of them, the declaration that government cannot do “this” and government cannot do “that.” So far from beingnationalArticles, the kind which only “conventions” of American citizens could or can make, the kind which tell government that it can command the American citizens on this or that subject, they are all Articles which tell government that itcannotcommand the American citizen. And, for the further security of the individual freedom of the American citizen,a security never needed more than in this year1923, the Tenth Declaration emphatically declareswhoit is thatRETAINStheexclusiveability to alter, in one iota, “the mass of powers” (over the individual freedom of the American citizen) grantedby themin the First Article and the exclusive ability to exercise any powerof that kindover them, which was not granted in the First Article. Who can deny that, stated in our own words, this is what we find in the plain declaration of the Tenth Amendment? “We, the people of America, assembled in our conventions, have granted to theAmericangovernment enumerated powers of the First Article. They are the only powersof that kinddelegated to any government, by which it can interfere with our individual freedom in our capacity as American citizens. All powers, which the citizens of each state have hitherto had and which we have not taken fromthem herein, we have left with them; and the citizens of each state can grant so much of said powers as they please to their own government to govern them as citizens of that state. All other powers, outside those we have granted to our government to interfere with us and those we have left to the citizens of each state for their own respective exercise, we reserve exclusively to ourselves, in our capacity as citizens of America. And, if any government should deem it wise that any one of these powers (which we so reserve exclusively to ourselves) should be exercised, we have provided in the Fifth Article the mode of procedure in which we, assembled in our conventions, canCONSTITUTIONALLYexercise it or grant it to the government which wants to exercise it.”

The powers the people have given to the General Government are named in the Constitution, and all not there named, either expressly or by implication, are reserved to the people and can be exercised only by them, or upon further grant from them. (Justice Brewer in Turner v. Williams, 194U. S.279.)

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

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

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

In this country, written constitutions were deemedessentialto protect the rights and liberties of the people against the encroachment of power delegated to their governments, and the provisions of Magna Charta were incorporated into bills of rights.... Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks against arbitrary legislation; but in that application, as it would be incongruous to measure and restrict them by the ancient customary English Law, they must be held to guarantee, not particularforms of procedure, but the very substance of individual rights to life, liberty and property.

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

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

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

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

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

On the most casual examination of the language of these Amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean thefreedomof the slave race, the security and firm establishment of thatfreedom, and the protection of the newly-madefreemanandcitizenfrom the oppressions of those who had formerly exercised unlimited dominion over him. (Slaughter House cases, Supreme Court, 16Wall.36 at p. 71.)

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

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

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

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

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

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

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

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

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

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

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

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

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

The fallacy of their deduction is mathematically demonstrable.

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

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

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

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

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

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

But it did.

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