CHAPTER XIXARE WE CITIZENS?
“The establishment of a Constitution, in time of profound peace, by the voluntary consent of a whole people, is a prodigy.” (Fed.No. 85). Those were the words of Hamilton, in a final appeal to the people of America, as they were about to assemble in their “conventions.”
As he thought it a prodigy that their voluntary consent should be secured to that constitution of government contained in the First Article, he frankly added that he looked forward “with trembling anxiety” to their own determination as to whether or nottheywould give thatnecessaryconsent to the enumerated grants in that First Article. We know how the patriotic efforts of himself and Madison and his other colleagues were later rewarded by the giving of that consent. We knowwherethose average Americans of that day gave that consent,wherethey made that constitution of theirnationalgovernment which is that First Article. “It is true, they assembled in their several states—and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding theAmericanpeople into one common mass. Of consequence, whentheyact, they actintheir states. But the measurestheyadopt do not, on that account, cease to be the measuresof the peoplethemselves, or become the measures of the stategovernments.”
In the many other Supreme Court decisions, telling the tale of the completion of the “prodigy” and all stating the same legal fact, is there a more apt and accurate expression of the knowledge of the American people, who were better acquainted “with the science of government than any other people in the world,” that the “conventions” in the respective states, assembled to constitute their American government by grants like those in the First Article and the Eighteenth Amendment, are the Americans themselves and that the stategovernmentsnever are the American people themselves and never representthosepeople fornationalpurposes. It was natural that such apt and accurate expression of that concept should have been voiced by Marshall in the Supreme Court. He had been one of those people, fighting on the battle-field with them to wrest from all governments in the world any ability to constitute government by making grants like those in the First Article or the Eighteenth Amendment. He had been one of those people in one of those “conventions,” in their respective states, wheretheymade the only Articleof that kindwhich ever entered their and ournationalAmerican Constitution. Later it became his privilege and duty (and our great good fortune) to explainwhoalone could make and did make that First Article andwhoalone can ever validly make Articles like it or the Eighteenth Amendment, namely, the American people themselves, assembled in convention in their respective states.
When, therefore, we read the Fifth Article, made by him and his fellow Americans in those “conventions,” we recognize at once and we will never forgetor ignoretheirmention ofthemselves, in the very word by which he and they then describedthemselves, “conventions” in their respective states.
In making the Eighteenth Amendment grant of power to interfere with American freedom, we—the American citizens and “conventions” of this generation—have been ignored as completely as if we were not named in the Fifth Article.
We have been trying to ascertain “when” and “how” the American human beings, now ourselves, ceased to be “citizens of America” and again became “subjects” of governments. We have gone to the record of our Congress on those days in 1917, in which it acted on the assumption that the “when” and “how” were already history. We have found no Senator or Congressman who vouchsafed any information or displayed any knowledge of this matter, so vitally important to us who were born citizens and free men. We have seen the leader of the House advocates of the new constitution of government, the Eighteenth Amendment, read a Fifth Article in which the “conventions” of those who made it and the First Article are not mentioned. We have seen the leader of the same advocates in the Senate complacently assert the repudiated thought that the states made the First Article, our constitution ofourgovernment. We have seen him follow up this error with the Tory mistake of assuming that the government of the state is the state. We have seen him point out, to our American amazement, the remarkable and hitherto unknown fact, never mentioned by the people who made the Fifth Article, that the state governments are the only tribunal in which ournationalconstitution of government can be changed, that those governmentsare a tribunal in which new enumerated power can be given by government to government to interfere with our own individual freedom.
Fresh from our education with the Americans who made that Fifth Article in “conventions” of the very kind mentioned therein, we see that those legislators of 1917 know naught of American history or law or constitution of government of men, that from them we cannot learn “when” or “how” we ceased to be “citizens” and became “subjects.” But, there assembled in the Supreme Court in March, 1920, many renowned “constitutional” lawyers. Some came to challenge, some to uphold the new Amendment, the new government-made constitution of government right to interfere with individual human freedom.
To the reading of all their briefs and arguments we bring our knowledge that the new Amendment never entered our Constitutionunlesswe were “subjects” before 1917 orunlessthe new Amendment was itself a revolution (by government against citizens) which made us “subjects.”
We expect the lawyersagainstthe new Amendment to challenge its existence with the facts and knowledge we bring from our education with the Americans who made themselves free men and citizens.
We expect the lawyersforthe new Amendment to point out the day and the manner in which they claim that government of the American people by the American peoplediddisappear from America.
Unless these lawyers for the Amendment do point out that day and manner and sustain their claim as to both, we know that the existence of the new Amendment is successfully challenged by the facts which we have acquired in our education. Before we listen tothe expositions of these facts by the lawyers against the new Amendment, let us briefly review the facts themselves as they bear upon the supposed existence of the new Amendment.
When 1776 opened, the American people were subjects in rebellion against their omnipotent government. By direct action of themselves, in July, 1776, they made themselves free men, made their former colonies independent states and made each of themselves a citizen of some one of those states. Almost immediately, the Statute of ’76 having declared the actual fact that the supreme will in America was possessed by the American people, attheirsuggestion and withtheirpermission, the citizens of each state constituted their own government with itsnationalpowers to interfere with the individual freedom of its own citizens. In strict conformity to the Statute of ’76 and to the sole American concept of the relation between government and human being, those grants of power to interfere with individual freedom, like every other grantof that kinduntil the Eighteenth Amendment, were made by the respective citizens to their respective governments.
In 1777 the committee of the American people known as the Second Continental Congress proposed a union of states or political entities and a general government to govern states but not to interfere directly with the human freedom of the individual. Because there is a vital distinction between the ability to govern states and the ability to interfere with individual freedom, those Americans knew that states or political entities could makefederalArticles but that only citizens could ever validly makenationalArticles. It was impossible for these Americans not to knowthis difference between the respective abilities of states and citizens of America. Their Statute of ’76 had declared this sole American concept of the law controlling the relation of government to human being. They were actually engaged in their Revolutionary War for the very purpose of making it forever American law that no governments could ever grantnationalpower in any matter. Because, therefore, the proposed Articles of 1777 were onlyfederalArticles with grants offederalpower, it was “felt and acknowledged by all” that the state legislatures were competent to makethoseArticles. So we recall, with intent to remember, that thosefederalArticles were made in the exercise of that legislative government ability to makefederalArticles, which is mentioned in our own Fifth Article.
In 1787, from the same Philadelphia, there came the proposal that the American people, collectively the possessors of the supreme will in America, create a new nation, with themselves as its members or citizens and, as its members, constitute its government withnationalpowers to interfere with their own individual freedom. Because the legal necessity of deriving powersof that kindfrom the people themselves was “felt and acknowledged by all,” the inevitable legal decision was reached at Philadelphia that the existing ability of legislative governments to makefederalArticles neither then did nor ever could include the ability to makenationalArticles like the First Article and the supposed Eighteenth Amendment. By reason of that legal necessity and its then recognition by all, because the First Article contained grants ofnationalpower, “by the convention, by Congress, and by the state legislatures, the instrument was submittedto the people. They acted upon it in the only manner in which they can act safely, effectively, and wisely on such a subject, by assembling in convention.” The reasoning and the decision itself were embodied in Article VII and in the Resolution which went from Philadelphia with the proposed seven Articles, including the Fifth Article.
As the Supreme Court has definitely settled, the Tenth Amendment merely declares what was in that original proposed Constitution. Therefore the Constitution gave no new government ability anywhere except to the government at Washington. It gave to that government only specific ability to govern human beings, in certain matters. It merelyreservedtoeachstate government some of its former ability to govern its own citizens. It gave neither to any state government nor to all state governments collectively any new ability to govern. And it reserved to the American people themselves all ability to exercise or to grant anynationalpower to interfere with the freedom of American citizens except those enumerated powers in the First Article. The Supreme Court has definitely settled that this reservation of such power exclusively to themselves, by the makers of the Fifth Article, is the most important factor in our constitutional distribution of that kind of power among our American government, our state governments and, most important of all, ourselves, the citizens of America. For which reason, until this generation, it has always been axiomatic that the mention of that exclusive ability of our own, “conventions” ofAmericansin their respective states, is the most important factor in the Fifth Article.
In strict conformity with the Statute of ’76 andwithout usurping the reserved powers of the most important factor in both the Tenth Amendment and the Fifth Article, seventeenfederalchanges were made, between 1789 and 1917, in thefederalpart of our Constitution, which is both afederaland anationalConstitution. The situation in 1917 was exactly the same as it had been since July 4, 1776, when it was known even to the humble townsmen of Concord that governments could not makenationalArticles in American constitutions. Or rather, the situation in 1917 was the sameunless, somewhere prior to 1917, the Statute of ’76 had been repealed and the most important factor in both Articles had been eliminated from the Fifth Article and Tenth Amendment of the American Constitution, which is the security of the American citizen against usurpation of power even by governments in America.
We know that Gerry moved to strike that important factor from the Fifth Article in September, 1789, and that he failed in his effort. We know that Webb and the legislative advocates of the new Eighteenth Amendment had a Fifth Article in which that most important factor was not present. Apparently they based their government proposal and government ratification of the Eighteenth Amendment upon a Fifth Article which did not contain that most important factor, the reference of the makers of the Fifth Article to themselves as the makers of all future Articles of anationalkind, the reference of those makers to themselves in the words “conventions” of the American people, assembled in their respective states.
Keeping all these settled facts clearly in our minds, we now take up the arguments and the briefs in which, in March, 1920, the constitutional lawyers of America,who disputed the presence of the new Amendment in our Constitution, should have presented these irresistible facts. Then we shall take up the arguments and briefs of those other renowned lawyers in whichtheypresented those other facts (still unknown to us average Americans) which can alone refute our knowledge that the new Amendment never went into our Constitution, because we are still citizens and governments are yet unable to create government power to interfere with our individual freedom.