CHAPTER XVIIITHE TORY IN THE SENATE
When our present Constitution was before the people of America, waiting their approval or rejection, Madison and Hamilton published their series of essays, now known asThe Federalist. It is not our intent to dwell upon the knowledge of American basic law shown by these two men. Elsewhere our Supreme Court has paid its deserved tribute toThe Federalistas an authority of the greatest weight in the meaning of our Constitution. At this moment, we desire to mention one remarkable quality which makes those essays unique among arguments written in the heat of a great political controversy. They were written to urge that human beings create a great nation and grant some enumerated powers to interfere with their own freedom. They were written when other great leaders were opposing that project with the utmost ability and eloquence. These opponents, as is the custom with men in any heated controversy, denounced the project and its advocates. The abuse of both project and advocates has probably never been exceeded in America. Yet it is one remarkable quality of the arguments of Madison and Hamilton, inThe Federalist, that they themselves never leave the realm of reason and fact and law, or descend to irrelevant abuse of those who differ in opinion with them.
We, who have lived through the last five yearsin America, can truthfully say that the advocates of the new constitution of government, the Eighteenth Amendment, have made their essays and speeches and arguments notable for the same quality, by its utter absence.
Because fact would interfere with the making of their new Constitution, they have changed fact. Because law meant that government could not constitute their government of the people, they have stated law which has never been law in America since 1776. Because reason would prevent the achievement of their purpose, they have appealed to irrelevant abuse of those who dared to differ in opinion with them.
In view of these known facts, we average Americans shall not be surprised when we read the record of the Senate on its own proposal that government should exercise a power not delegated to interfere with individual freedom. Fresh from the reading of the record in the House, we shall not be surprised to find that the Senate also ignored the most important factors in the Tenth Amendment and the Fifth Article, “the people” in the one, and the mention of the people’s exclusive ability to makenationalArticles in the other.
When his proposing Resolution came before the Senate on July 30, 1917, Senator Sheppard quickly made clear his mental attitude on the relation of government to human beings. Whenever a sincere Tory has voiced himself on that matter, it has always been inevitable that he betray the thought that human beings are the assets of the State and not its constituent members. As Madison said, “We have all known the impious doctrine of the Old World, that people were made for kings and not kings for the people.” In the countryor in the mindwhere that doctrine prevails, itis held to be the right and the privilege of government to see that the people, like the other assets of the State, are kept in good condition so that all property of the State may have its greatest economic value in the market of the world.
And so we find Sheppard, through all his opening support of the new constitution of government based on the Tory doctrine, making clear the necessity that our government keep that asset, which is the citizens of America, in good physical condition like any other machine that may be in America.
“In an age of machinery and of business transactions on a scale more enormous and complicated than ever before, the clear eye, the quick brain and the steady nerve are imperatively demanded. Society today is more dependent upon the man at the machine than at any previous period. We are coming to understand that the engine of the body must have the same care as the engine of the aeroplane, the battleship, the railway train, the steamship or the automobile; that the trade in alcohol is a form of sabotage which the human machine cannot endure; that it is no more to be tolerated than would be the business of making and selling scrap iron to be dropped into the delicate and complex machinery of modern manufacture, transportation and commerce.” (Congressional Record, Vol. 55, p. 5550.)
After this admirably accurate appreciation of the relation of our American government to the asset which is ourselves, Sheppard then proceeded to teach us (who have just lived through the education of the American human beings who made the Constitution) the real facts of that making,as he knows them.
He is advocating that our only American governmentshould ask the legislative governments of the states, which are not the governments ofAmericancitizens, directly to interfere with our individual freedom and to grant to themselves and to our only government future power to interfere therewith on a matter not enumerated in the First Article. Naturally, as real fact would make manifest the absurdity of such proposal, he states that, when the Constitution was made, “by votes of the Southern States the power to amend the federal Constitution was vested in three fourths of the states.” Undoubtedly he meant us to understand that the Constitution (through whose real making we have just lived) was made by the states and that the Southern States granted to the legislatures of three fourths of the states the omnipotent ability over the human beings of America, which those human beings themselves had denied to the English king and his legislature. That he meant us so to understand we shall learn to a certainty in a moment. Meanwhile, let us note how inadvertently he states part of the truth, while omitting all reference to the part thereof which would make his own proposal the clear absurdity which it was.
We note his reference to that part of the Fifth Article whichmentionsthe ability of three fourths of the state legislatures to amend thefederalConstitution. Because we have lived through the days of the real American leaders, we recall that our Constitution is bothfederalandnationaland that state legislatures always had ability to makefederalArticles and never had ability to makenationalones. We also remember that those state legislatures were permitted, by the people who made our Constitution, to retain some of the ability they had and were given no new ability.We also remember that the Fifth Article mentions their existing ability to makefederalArticles and prescribes, as the command of the people of America, that a “Yes” from three fourths of them shall validly make a change in thefederalpart of our dual Constitution. For which reason, with somewhat of amusement, we note Sheppard’s inadvertent accuracy of statement, when he says that three fourths of the state legislatures may amend thefederalConstitution. With our knowledge, we do not care what he meant or intended that others should understand. We know that nothing has been more definitely settled in America, since 1776, than that legislative governments never can make anationalArticle or change ournationalConstitution.
We now come to that part of Sheppard’s oration in which he makes certain his remarkable “knowledge” that our Constitution was made by the states—which are political entities—and not by the people of America. With a complacency requisite in one who advocates that unique constitution of a new kind of government in America, government of the people by government without authority from the people, we find him quoting from Calhoun of 1833 the doctrine that the states made the Constitution. “In this compact they have stipulated, among other things, that it may be amended by three fourths of the states; that is, they have conceded to each other by compact the right to add new powers or to subtract old, by the consent of that proportion of the states, without requiring, as would otherwise have been the case, the consent of all.” (Congressional Record, Vol. 55, p. 5553.)
The history of America from May 29, 1787, toJuly 30, 1917, was clearly a sealed book to Sheppard of Texas on that later day.
On May 30, 1787, at Philadelphia, Randolph of Virginia offered the three Resolutions, which proposed that the people of America create a nation and absorb into theirnationalsystem thefederalunion which had been made by the states. The first resolution was to express the sentiment of the convention “that the union of states merelyfederalwill not accomplish the objects”; the second was to express the sentiment that “no treaty or treaties among the whole or part of thestates, as individual sovereignties, would be sufficient”; and the third was to express the sentiment “that anationalgovernment ought to be established, consisting of the supreme legislative, executive, and judiciary.”
The work of that Philadelphia Convention was carried to a successful conclusion on the basis of those sentiments. When their proposed Constitution had been worded, it was sent to and made by the one people of America,not by the states.
The Constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the Preamble of the Constitution declares, by the “people of the United States.”
The Constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the Preamble of the Constitution declares, by the “people of the United States.”
So declared Justice Story, from the Bench of the Supreme Court, as far back as the decision of Martin v. Hunter’s Lessee, 1Wheat.324. As Story was an associate of Marshall on that Supreme Court, and as he is recognized as one of the greatest exponents of our Constitution, we average Americans prefer his knowledge to that of Sheppard even when the latter does quote from Calhoun. Furthermore, in an unbroken line of decisions, extending over the entireperiod of more than a century of whose history Sheppard knows naught, the Supreme Court has insistently proclaimed the same fact, namely, that the people of America—not the states—made our Constitution.
“It is no longer open to question that by the Constitution a nation was brought into being, and that that instrument was not merely operative to establish a closer union or league of States.” (Justice Brewer, in the Supreme Court, Kansas v. Colorado, 206U. S.46.)
“It is no longer open to question that by the Constitution a nation was brought into being, and that that instrument was not merely operative to establish a closer union or league of States.” (Justice Brewer, in the Supreme Court, Kansas v. Colorado, 206U. S.46.)
Indeed, many men before Sheppard have attempted to deny that fact. History, however, records no successful denial. As Sheppard states, the words of Calhoun were from his reply to Webster in 1833. In the history of a century, all a sealed book to Sheppard, Haine also asserted, against Webster, the belief of Calhoun and Sheppard as to what were the facts of the making of our Constitution. We average Americans, in an earlier chapter herein, have read Webster’s statement as to what were the facts of that making. Having lived, ourselves, through the days when the Americans did make their own Constitution, we agree wholly with Webster and the Supreme Court and know that the states had no part whatever in its actual making. Over fifty years ago, however, it became absolutely immaterial, except for academic purposes, what might be the personal beliefs of ourselves or Calhoun or Haine or Sheppard or Webster. Shortly after the middle of the last century, the Southern States, just as unwilling as Sheppard in 1917 to accept the unalterable decision of the Supreme Court that our Constitution is not a compact between states, appealed to the only tribunal to which there is any appeal from that Court, the tribunal ofcivil war. Even Sheppard must know the result of Gettysburg, the surrender forever of any claim that the Constitution is a compact between the states. Even Sheppard must some time have heard the echo of Lincoln’s appeal, at Gettysburg, that government of the people, by them and for them, should not perish from the earth. Even Sheppard must recognize, whether or not he wish to do so, how successfully the American people, whose predecessors made the Constitution, answered that appeal of Lincoln and intend to keep our government a government of the people, by them and for them, instead of a Sheppard government of the people, by governments without authority from the people.
We average Americans, however, do not question the wisdom of Sheppard in quoting the repudiated claim of Calhoun, so long as Sheppard and his colleagues intended to continue their effort to impose upon us the new constitution of a new kind of American government, which is their Eighteenth Amendment. If he and they were to find anywhere citations in support of the ability of governments in America to exercise and to grant undelegated power to interfere with human freedom, to what source could he or they go for such citations? Their proposition depended wholly for its validity upon the Tory concept of the relation of government to its assets and subjects, the people. And, in the five volumes of the records of the conventions of the Americans, in the two volumes ofThe Federalist, and in over two hundred volumes of American decisions in the Supreme Court, he and they knew that no single citation of authority could be found to support the idea that we Americans are “subjects” and not citizens. In theface of such a situation, he and they had but a choice between the repudiated claims of Calhoun and Haine or the concepts of Lord North and his associates in the British Parliament of 1775. We average Americans know what choice we would have made,under such circumstances. For which reason we are not surprised to find Sheppard, after his remarkable quotation from Calhoun, continuing on to say that the states “by reserving to themselves the unqualified and exclusive right of amendment kept intact their sovereign capacity in so far as the organic law of the nation was concerned.” (Congressional Record, Vol. 55, p. 5553.)
With the Supreme Court, we have always known and we still know, despite Sheppard, that the people of America did all the reserving that was done and which the Tenth Amendment merely declared had been done. We note, with intent to remember, how clearly Sheppard demonstrated his total ignorance of the most important factor in that Tenth Amendment, “the people,” and of the most important factor in the Fifth Article, the mention of the reserved exclusive ability of the people themselves, assembled in their “conventions,” to amend or change or add anynationalArticle in their Constitution.
As we go on with his oration of that July day, we find him insisting, as we found the House insisting on a later day, that the states and their legislative governments are all the protection to our individual liberties which the American people were able to attain by the efforts of those remarkable years from 1775 to 1790. Curiously enough, that insistence is mentioned in the same breath in which he suggests that we, the citizens of America, have some rights,evidently in the nature of privileges which a government confers on its subjects. This is what he has to say: “In refusing the people the right to appeal to the only tribunal having power of amending, the tribunal of the states, for the redress of what they consider one of the most terrible grievances in the republic, Congress would deny to them one of the most sacred of all rights, the right of petition.”
Why should the supreme legislature not deny that right of petition to us, if the inferior state legislatures, who are not governments of the citizens of America, claim power to deny us any right they please, as they do by their supposed Eighteenth Amendment to our Constitution?
But we waste time on this Sheppard. Let him say his own farewell to us; the citizens of America, in his closing words of July 30, 1917. As Webb, in the House, closed with his eloquent appeal to every true Mohammedan, we naturally find Sheppard closing with his appeal to whatever Tory sentiment believes that the same most important factor in the Tenth Amendment and the Fifth Article should be equally ignored.
“At the close of this debate we will have an opportunity to enable the states to exercise their highest function—the right to shape, alter, and develop the federal Constitution. They are the proper tribunal to decide the fate of this Amendment. They compose the mightiest array of free commonwealths united in a federated whole the world has ever seen.... If there is anything in the Amendment subversive oftheirliberties andtheirwelfare,theycan be trusted to condemn it. Let not Congress assume to judge for them. Let Congress discharge its preliminary taskof submission and stand aside. Let it put in motion the referendum provided by the national organic law—the method of amendment the states themselves established when they created the Constitution. Let the states perform the duty which remains the sole instance of their sovereignty over the federal government itself.” (Congressional Record, Vol. 55, p. 5554.)
If it were still 1833, if there never had been a Gettysburg or an Appomattox, could Calhoun himself have done better? If there never had been the Statute of 1776 or an American Revolution to make it the basic law of America, could any Tory peer in the Westminster Parliament of 1775 have been more zealous to see that the states themselves—which are mere political entities—should determine whether there was anything in the Eighteenth Amendment “subversive oftheirliberties andtheirwelfare?” If there is, “theycan be trusted to condemn it.” Letour“Congress discharge its preliminary task of submission and stand aside.” What if there is anything in the Amendment subversive ofourliberties andourwelfare? Why shouldwebe trusted with the opportunity to condemn it, the opportunity which we reserved exclusively to ourselves by the most important factors in the Tenth Amendment and the Fifth Article?
Why should we remember that Jefferson, also from a Southern State, penned the Statute of 1776 in which the American people commanded that no government acquire power over people except from people and not from governments? Why should we remember that Pendleton, also from the South, while actually engaged with all the rest of the American people in making the First Article, referred to it and asked, “Whobut the people can delegate powers? What have the state governments to do with it?” Why should we remember that Wilson, in the previous December, that of 1787, said of our Constitution, “Upon what principle is it contended that the sovereign powers reside in the state governments? The proposed system sets out with a declaration that its existence depends upon the supreme authority of the people alone? How comes it, sir, that these state governments dictate to their superiors—to the majesty of the people?” Why should we remember that Webster, answering Hayne and Calhoun, said, also speaking of our Constitution, “While the people choose to maintain it as it is—while they are satisfied with it, and refuse to change it—who has given, or who can give, to the state legislatures a right to alter it, either by interference, construction,OR OTHERWISE?... Sir, the people have not trustedtheirsafety, in regard to the general constitution, to these hands. They have required other security and taken other bonds.” (4Ell. Deb.508.)
It is true that these earlier Americans have clearly in mind the most important factor in both the Tenth Amendment and the Fifth Article. But it must not be forgotten that Pendleton and Wilson and the Americans of that day, in making our Constitution, in constituting a new government and giving to it some powers over the freedom of human beings, were acting entirely outside any written law except the Statute of ’76. Is not their example a sound precedent for those who are now constituting a new government of Americans and giving it power over their freedom, for those who made the Eighteenth Amendment and those who upheld its validity? What if the makers of the new government are themselves government?If governments choose to act outside of all written law and to ignore that part thereof which is the important factor of the Tenth Amendment and the Fifth Article, are these governments not emulating the example of the American people in 1787? True, these American people did act in strict conformity to the Statute of 1776, and this modern constitution of new government by government is not in conformity with that Statute. But was not that Statute itself the revolt of human beings against government? If human beings, by successful revolt against government, could change themselves from subjects to citizens, why cannot government, by successful revolt against human beings, change them from citizens to subjects?
If, however, Sheppard and Webb and those of their Tory faith insist that the new constitution of government is inourConstitution, and put there validly, under claimed grant from us to state governments of omnipotence over American citizens, we, on our part, know that their claim is without the slightest support. Moreover, our knowledge in that respect is knowledge of indisputable legal fact. That the fact would be equally indisputable, even if our Constitution was a compact between states, as Calhoun did claim, and as Sheppard does claim, we can clearly demonstrate even to Sheppard himself. Our education with the earlier Americans, who changed their status from that of subject to citizen, has taught us all we need for that demonstration.
Let us assume, what Sheppard asserts, that the states made the Constitution, that itisa compact between states. Sheppard is a Texan. If our Constitution is a compact between states, the State of Texas is one of the parties to that compact. We ask Sheppardwhether he and the other Texansarethe State of Texas or whether the legislative government in Texas is the State of Texas? If he answers that the Texas legislature is the State of Texas, we proceed no further. That answer will be his frank confession that the Texan is a subject of the Texas government and not a citizen or member of the Texas State.
On the other hand, if he answers that the human beings of Texas are the State of Texas, we do proceed further. We proceed along the most definitely settled legal principle in America. If the human beings in Texas are its citizens and constitute its State, the constitution of Texas is their creation and the legislature of Texas is the creature of that constitution. From the Texans, through the creation which is their constitution, that legislature derives its every power over the human beings in Texas and cannot have anysuchpower except by grant from those human beings themselves. That is the law of Texas, settled by hundreds of decisions in Texas and America. Now, if our American Constitution is a compact between the State of Texas—the human beings in Texas—and the other states—the human beings in the other states—how comes it that the mere creature of the Texans, without power over them except from them, can, by combination with other servant legislatures outside Texas, give to itself and to other governments outside Texas a new power to interfere with the freedom of the human beings in Texas?
We are rather afraid that Sheppard and those of his faith, even assuming that our Constitution is a compact between states, have entirely overlooked the legal fact that a government is not the State in America. We are rather afraid that they have revertedto what Madison called “the impious doctrine of the Old World,” namely, that the government is the State and the human beings are its asset and its property. We are rather afraid that they agreed with the concept of Louis of France, expressed in his famous “I am the State.”
On no other basis can we explain their complete ignorance of the one important factor in the Tenth Amendment and the Fifth Article, “the people” of America, who, assembled in their “conventions,” as mentioned in the Fifth Article, are the citizens of America and compose the State or Nation of America.
We average Americans, in the light of our education, reading the record of that July 30 in our Senate, would have thought,were it not for one fact, that every senator was using the expurgated edition of the Constitution, which Webb later used in the House, and which omits entirely from the Fifth Article the words, “by conventions in three fourths of” the states. Were it not for that one fact our thought would have been justified. We know that the proposition of Sheppard, embodied in his Senate Resolution No. 17, was that the proposed new Article should be referred to the tribunal of the state legislative governments. We know, and we have quoted his own statement, which is the basis of that knowledge, that he held that legislative tribunal to be “the only tribunal having power of amending” our Constitution. We know that he held this legislative tribunal to be “the proper tribunal to decide the fate of this Amendment.” We know his confidence that this legislative and government tribunal has “the right to shape, alter, and develop” our Constitution, ordained and established by the citizens of America. His conviction, in this respect,is stamped indelibly on our mind, because it came in such sharp conflict with our knowledge thatallAmericans of an earlier day held that everynationalArticle, like the First Article and the supposed Eighteenth Amendment, must be referred to that other tribunal, the only tribunal competent to makesuchArticles where men are citizens and not subjects, the tribunal of the American citizens themselves, the tribunal mentioned in the Fifth Article in the words “by conventions in three fourths of” the states in America.
We know, therefore, inasmuch as neither Sheppard nor any senator but one apparently knew of the existence of that other and supreme tribunal or of the presence of those words in the Fifth Article, that all senators save that one must have been using an expurgated edition of the Fifth Article.
On that July 30 we find Senator Ashurst making plain that he has our edition of our Constitution. He said, “When our federal Constitution was written in 1787, two methods of amending were provided; and, unless I am mistaken, it was the first written constitution in history which provides for two methods of amendment.” This brief and simple mention of that significant fact, in relation to the Fifth Article, seems to have been the only cognizance of the fact itself, in the Senate of that day or in the entire subsequent history of the Eighteenth Amendment, even in the great litigations about it in which were arrayed against one another the most renowned “constitutional” lawyers in America. So far as would appear from the Senate record, no knowledge of the amazingly important effect of that Fifth Articlementionof two distinct powers (one limited and then existing in government and the other unlimited and then and now existing inthe American people) to make future Articles was acquired in the Senate or afterward, from the fact itself or from Ashurst’s allusion to the fact.
Back at Philadelphia in 1787, Gerry, always Tory in his mental attitude to government and human being, realized fully the amazing importance of this Fifth Article mention of the two then existing powers to make Articles, the limited power of legislative governments to makefederalArticles (which had made all the federal Articles of 1781) and the unlimited andexclusivepower of the people themselves to makenationalArticles, which had been exercised to make the national Articles in each existing state constitution, and which the Philadelphia Convention had already ascertained and held was theonlypower competent to make such Articles as their own proposed First Article and the Eighteenth Amendment. While the Philadelphia Convention had been discussing and deciding that their proposed Constitution, because of its First Article, the real constitution of government, must be referred to the people, Gerry had always opposed that decision. He had always fought to have that First Article sent to government, to have its grants of power over the freedom of men made by government to government. When, therefore, the closing business day of that Convention was reached on September 15, 1787, he made his final and consistent Tory effort that citizens should be asked to make a Fifth Article which would change them back again to the subjects they had been in 1775. That effort was his motion of September 15 to strike from the Fifth Article, as we know it, the words “or by conventions in three fourths of” the states. He knew, as we know, by reason of our education with the Americanswho defeated his effort, that those words are the Fifth Articlementionof the then existing only ability in America which then could or now can make such Articles as the original First Article or as the supposed Eighteenth Amendment. He knew, as we average Americans now know, that, onlyifsuch mentionwerestricken from that Fifth Article, could any future possible claim be made that legislative governments have ability to exercise or to grant undelegated power to interfere with individual freedom. With the important object in mind, that he securesomefoundation for such claim in the future, he made his motion to strike that mention of our exclusive power from that Fifth Article. As we average Americans know, his effort to have a convention even propose such a Fifth Article to “a people better acquainted with the science of government than any other people in the world” was beaten by the decisive vote of 10 to 1.
The proposal of the Eighteenth Amendment by government to government was the attempt of our servant American government to reverse the result of that vote of September 15, 1787. The action of the state legislative governments in America upon that proposed Eighteenth Amendment was an action dependingentirelyfor its validity upon a recount of that vote and the assumption that the convention did strike out that mention of our exclusive power to make national Articles and that the Fifth Article went to the American people and was made by themwithout that mention in it. For which very obvious reasons, we average Americans do not understand how the fact, to which Ashurst made brief allusion on July 30, 1917, was not the basis of every attack made in theSupreme Court by many of the most renowned “constitutional” lawyers in America, when they did assail the validity of that Eighteenth Amendment.
It is difficult to pick out the one most remarkable thing in the complete story of the last five years. Yet we are inclined to believe that, from a certain point of view, the one most remarkable thing is the absolute failure of even one of those renowned lawyers to appreciate or know or mention the fact and itsdecisiveeffect upon the alleged validity of the Amendment they challenged, the fact that the Fifth Article does name two future makers of Articles, the governments which could and did make the federal Articles of 1781, but which neither could nor did make the First Article of 1787 or the Eighteenth Amendment of 1917, and the citizens of America, who could and did make the First Article of 1787 and who alone can make but have not made the Eighteenth Amendment.
Even Ashurst seems to have known that it was remarkable, unique in history, for the Fifth Article to name two different makers of future Articles. It is amazing that the imperative reason for this naming of two makers, distinct and different in their ability to make, never suggested itself to any of the renowned lawyers of 1920, even though they knew the dual nature,nationalandfederal, of our Constitution. It is amazing when we realize that the Supreme Court, in 1819, had stated, as an obvious thing, that, when the First Article (granting power to interfere with the freedom of men) was proposed, the legal “necessity of referring it to the people, and of deriving its powersdirectly from them, was felt and acknowledged by all.” It is amazing when the same Supreme Courtin 1907 had authoritatively repeated that statement: “The powers the people have given to the general government are named in the Constitution, and all not there named, either expressly or by implication, are reserved to the people and can be exercised only by them or upon further grant from them.”
However, we average Americans, still pursuing the history of America to learn when we again became “subjects,” will later herein consider the litigation about the Eighteenth Amendment. So far as the Senate is concerned, we leave it on December 18, 1917, the day on which it finally proposed that legislative governments make the Eighteenth Amendment, whose Second Section was exactly of the same nature as the First Article, namely, an Article of the kind which the Philadelphia Convention of 1787 had known never could be made by legislative governments in America. In that Senate, as in the House, the public record discloses no American who did not ignore the most important factor in the Tenth Amendment and the Fifth Article, no American who knew the legal necessity of deriving, directly from the people themselves, every power to interfere with the individual freedom of the people.
So far as history tells the tale, in the legislatures of the states, that legal necessity was “known and acknowledged” by none. There were many therein, as there were many in the later court litigations, who opposed the making on the ground of its unwisdom. There were also many, again as in the later litigations, who contended that there should be no interference with the freedom of American citizens, as such, except on the matters enumerated in the First Article. But, neither in our own American legislature nor inthese state legislatures, as in the later litigations, was there one who knew the only legal and maintainable ground for that belief, the legal fact, as the Philadelphia Convention found it, that only the American people could validly grant government power to interfere with their individual freedom, and the legal fact that the American people, constituting their government, kept the legal situation, in that respect, exactly as the Philadelphia Convention found it, by the most important factors in the Tenth Amendment and the Fifth Article.
The amazing haste with which the ratifying legislatures exercised, for the first time in America, this imaginary power to interfere with the individual freedom of the American citizens is a matter of history. The manner in which that legislative exercise of imaginary government power over subjects was secured in many states is something with which we are all familiar. We desire, however, to emulate the example set by Madison and Hamilton inThe Federalist, so far as judgment can restrain the honest indignation of citizens, when government undertakes to make them “subjects.” Therefore we leave it entirely to those who uphold the validity of the supposed new Amendment to substitute irrelevant matter, mostly personal abuse that is harmless in view of its source, for the sound legal arguments in support of validity, which they can never find until the Statute of ’76 is repealed and our constitutions of government are so changed that we cease to be citizens and become the subjects our ancestors were in 1775.
For those who would like to look upon all American governments as model exemplars of American respect for American law and American constitutions, the dateof the proposal in December, 1917, and the quickness of ratification and the manner in which ratification was largely secured, are all matters most unpleasant to contemplate. Even now the most sincere advocate of the new Amendment never speaks of it without unwittingly showing his chagrin at the general knowledge that itwasproposed and passed by governments when millions of the citizens of those governments were fighting and were armed to fight for human liberty, and that even governments would never have dared to pass it except at that particular time.
These facts, however, reflect only on the virtue of the Amendment. They have no bearing upon its validity. We average Americans are interested now only in that claimed validity. We know that, if it is valid, we have become subjects, that we are no longer citizens. We are seeking to find out when and how that change was made in our relation to all governments in America. Beginning on July 4, 1776, we have come down to December 18, 1917. We have found ourselves, on that day, still citizens. We know that our servant legislature at Washington made a proposal on that day, which was legally absurd, unless we had already become subjects. We have listened carefully to what they had to say, in support of that proposal, and have ascertained that they neither knew nor understood the most important factor in our Tenth Amendment and Fifth Article, by which our ancestors kept their own and our status as citizens. We know that the state legislatures could not change that status. Therefore we now simply note the fact that, in 1918, some of them ratified the proposal on the basis that all of us were their subjects. We know that our own government at Washington has acted,whenever it felt disposed to enforce the supposed new command against us and not to disobey it openly itself, as if wewerethe subjects of those ratifying legislatures.
We know also that in 1920, after more than a year of exhaustive study of our history and our Constitution and our laws by hundreds of our most eminent lawyers, all working for one object, the legal demonstration of the invalidity of the new Amendment, a chosen number of the most renowned “constitutional” lawyers in America appeared in the Supreme Court and orally argued against validity and filed the briefs against validity which were the result of this concentrated effort. We know also that, in that court, on behalf of our own government and on behalf of those other governments which that government has proclaimed to be the supreme dictator in America, there also appeared another chosen array of the most renowned “constitutional” lawyers, in the forefront being a former justice of that court, now the American Secretary of State. This latter array appeared to demonstrate how and when, since 1790, our own status was changed from citizen to subject and the collective legislatures of some of the states were substituted for ourselves as possessors of the supreme constitutional will in America.
We average Americans, therefore, to complete our education, now turn to the arguments of these lawyers and to their briefs, with somewhat of chagrin at our own unaided ability to ascertain the “when” and “how”webecame subjects andourConstitution, in itsnationalArticles and aspect, became the creature of legislative governments, although the American people originally created it to be the master of all governments.