CHAPTER XXIBRIEFS IGNORE THE AMERICAN CITIZEN
There is one man whose skill as an artist could do justice to the atmosphere in which all the briefs of that March must have been written. Unfortunately, the reports of the death of that man are no longer greatly exaggerated. It is unfortunate that the man who pictured the sensations of a Yankee in King Arthur’s Court could not have lived to reverse the feat. Only his genius could picture one of the Americans of 1790 living in the atmosphere of the briefs of 1920forthe new Amendment and learning therein that the Americans of his own day never became citizens of America. Only the unique word-artist, who defined a cauliflower as a cabbage with a college education, could adequately state the startling fact that not one of the briefers knew that all were assembled in the court room of March, 1920, seriously to debate whether the Americans in 1788 voluntarily surrendered their status as free men and, repealing their Statute of ’76, declared themselves and their posterity subject to a legislative government superior to what they called their supreme legislature, a legislative government “invested with power to legislate for us in all cases whatsoever.”
Because Mark Twain is dead, we must get from those briefs, without his aid, the knowledge that the new Article depends entirely on the extraordinary concept that the Fifth Article constituted a hitherto unknowngovernment of all American citizens, not our government of enumerated First Article powers but an entirely distinct government—not a member of it chosen by American citizens—“invested with power to legislate for us in all cases whatsoever.”
In other words, we are to learn from the briefsforthe new Article that our supposed only and supreme American government is, and that all American citizens are, subject to the omnipotence of a still more supreme legislative government, consisting of the state legislative governments on whose behalf some of the most distinguished lawyers of 1920 appeared. It is the clear concept of those lawyers that upon thewillof the governments they represented, a will subject to the restraint of no Constitution in America, depends entirely what measure of human freedom we individual American citizens may enjoy. This concept stands out clear and sharply defined in their briefs, although neither they nor their opponent lawyers grasp the fact. On the fact that the Fifth Articlementionstheir client governments, the state legislatures, they base the entire claim that the Eighteenth Amendment is in our Constitution. On thismentionrests their extraordinary assumption that the Fifth Article is a“grant”of power to those governments—and to the very “conventions” which made the Fifth Article—to make new Articles of every kind, whetherfederalto govern states ornationalto interfere with the freedom of the individual.
Furthermore, we are to learn, from the briefs of the lawyersagainstthe new Article, that they all assert, like their opponents, that the Fifth Articleisagrantof power to the grantors and to the state governments. To our amazement, in the briefs of the lawyersagainstthe new Article, we shall find no knowledgeof or insistence upon the important fact that the Constitution is both afederaland anationalConstitution. Most amazing of all, in no brief of any lawyer, shall we find the faintest recognition of thedecisivefact that the “conventions” of the Fifth Article are the American citizens themselves, while the state “legislatures” of the Fifth Article are respectively the attorneys in fact for respective citizens of other political entities than the nation which is America. Most briefs,forthe new Amendment, will dwell upon the fact that the people of America, not the states, made the Constitution. Yet, although it is equally true to say that the whole people of America or the “conventions” of the Seventh Article made the Constitution, no briefer will know that the “conventions” of the Fifth Article are also the whole people of America, while the state “legislatures” never are the attorneys in fact for the citizens of America, who never chose a single member of those “legislatures.”
That all those lawyers, who debated theextentof the imaginary “grant” of power in the Fifth Article, may do themselves strict justice, let us accurately state a few indisputable facts before we consider their briefs.
Itisa fact that the subject matter of the first section command and the second section grant, in the Eighteenth Amendment, is the exercise of a human right, not the privilege of a citizen of America or the citizen of any state.
Itisa fact that the Americans in each former colony, in 1776, constituted a state for themselves and a government of that state and subjected that particular right, as alltheirindividual human rights, to the general welfare state power ofthatgovernment, the power which is now known as the police power.
Itisa fact that, from 1776 to 1787, that particular individual right, asallthe human rights of the citizens of any state, was subject to no interference by any government or governments in the world except the one legislative government of that particular state. Itisa fact that all the legislative governments of the other states and the government of the federation of states could neither exercise nor grant, as some of them have attempted to do in the Eighteenth Amendment, any power to interfere with that particular individual freedom or any other individual freedom of the citizens in that particular state.
Itisa fact that, on June 21, 1788, the Americans in the nine states became collectively one political entity, the citizens of America, composing the nation which is America. Itisa fact,and a fact which flatly denies the existence of the Eighteenth Amendment, that, on June 21, 1788, the existing state legislatures did not become an omnipotent legislative body of the new nation “invested with power to legislate” for American citizens “in all cases whatsoever” in interference with our individual freedom. Itisa fact that those legislatures did not then become any government for the citizens of America on any subject whatsoever.
Itisa fact that not one of those state legislatures received any new power to interfere with human freedom anywhere by any grant ofsuchpower in the seven Articles of our Constitution. The opening words of the First Article expressly so declare. They are, “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.” Moreover, the Tenth Amendment, the declaration insisted upon by the whole “people” of America in their “conventions,”expressly so declares. Its declaration is that the entire Constitution gives no new power to any government except the new government of America, the government constituted by the First Article.
Itisa fact, again a fact which denies the existence of the Eighteenth Amendment, that thegeneral constitutional restrictions upon government power to interfere with individual freedomare restraints upon the exercise of every grant of such power in the Constitution, and that they do not restrain the state governmentsbecause those governments are the donee of no power of that kind in that Constitution. This fact, a patent fact hardly needing settlement, was decisively settled in 1833 by the decision of the Supreme Court, announced by Marshall, in Barron v. Mayor of Baltimore, 7Peters, 43. Barron contended that the Fifth Amendment restrained the power of the state governments. Marshall said:
The question thus presented is, we think, of great importance,but not of much difficulty. The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of theUnited Statesframedsucha government for the United States astheysupposed best adapted totheirsituation, and best calculated to promotetheirinterests. The powerstheyconferred on this government were to be exercised byitself;and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to thegovernment created by the instrument.They are limitations of powergranted in the instrument itself;not of distinct governments, framed by different persons and for different purposes.
The question thus presented is, we think, of great importance,but not of much difficulty. The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of theUnited Statesframedsucha government for the United States astheysupposed best adapted totheirsituation, and best calculated to promotetheirinterests. The powerstheyconferred on this government were to be exercised byitself;and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to thegovernment created by the instrument.They are limitations of powergranted in the instrument itself;not of distinct governments, framed by different persons and for different purposes.
The decision settled that the entire Constitution vested in the state governments not a single power to interfere with individual freedom in any respect. The decision is based on that one fact. The fact and decision expose the absurdity of the thought that the Fifth Article is a “grant” of anysuchpower to the state governments, much less a grant ofeverysuch power to those governments. This absurd thought, however, is the assumption on which every advocate of the Eighteenth Amendment based his argument in March, 1920: and it is the assumption upon which wholly depends the existence of the Amendment.
Itisa fact that the state legislatures, before the Constitution was even proposed, had existing ability to makefederalArticles. Itisa fact, as the Tenth Amendment declares, that the “conventions” of the Seventh Articlereservedthatfederalability to those state governments and that the Fifth Article did not “grant” it to them. Itisa fact, that the “conventions” of ourselves, the American citizens assembled in their respective states, the “conventions” of the Seventhandthe Fifth Article, even before the Constitution was worded or proposed, hadexclusiveability to makenationalArticles, which either directly interfere or grant ability to interfere with individual freedom. Itisa fact that this power of the “conventions” included the ability to make any kind of Article, eitherfederalornational. Itisa fact, therefore, as the “conventions” of the American citizens had this omnipotent power before the Fifth Article was even drafted, and as the Tenth Amendment states thattheyreserved it tothemselves, that they did not grantall of it(as the advocates of the new Amendment claimed in March, 1920), orpart of it(as the opponents of the new Amendment claimed in March, 1920) to themselves in their own Fifth Article. Itisa fact, therefore, that thementionof the two existing abilities (the existing omnipotent ability of the “conventions” and the existinglimitedability of the “state legislatures”) doesnotmake the Fifth Article any “grant” of power either to the “conventions” (who made the Article) or to the state “legislatures.”
Itisa fact that the very “conventions” named in the Fifth Article and the American citizens assembled therein, while they were making that Article, accurately knew that it was nothing but aconstitutionalmode of procedure for two distinct and existing powers, and that it did not “grant” any power whatever to the state governments.
Speaking of the Constitution, with its Fifth Article, the entire convention in Virginia declared that all the powers granted in the Constitution were being granted by the peopleof America“and that every power, not granted thereby, remains withthem, and attheirwill.” Nothing could more clearly express the knowledge that the Fifth Article was not a grant of any power by the “conventions” to the “conventions” or to the state governments. In the Virginia convention, Lee stated: “This new system shows, in stronger terms than words could declare, that the liberties of the people are secure. It goes on the principle that all power is in the people, and that rulers have no powers but what areenumerated[in the First Article] in that paper.... Candor must confess that it is infinitely more attentive to the liberties of the people than any state government.” (3Ell. Deb.186.)
In the South Carolina convention, Pinckney said:“With us, the sovereignty of the Union is in the people” (4.Ell. Deb.328), and again “I conceive it asindispensable, in a republic, that all authority should flow from the people.” (4Ell. Deb.326.)
Hamilton, one of the people assembled in the New York convention, said: “As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority,” the people themselves, the “conventions” of the Fifth Article and the Seventh, “whenever it may be necessary to enlarge, diminish, or new-model the powers of government.” (Fed.No. 49.) He could hardly have made more clear his knowledge that the Fifth Article was not a “grant” of power to the state governments. As Madison and Hamilton proposed and seconded the only Fifth Article, at Philadelphia, which ever mentioned the state legislatures, their own words have great weight in the interpretation of its language. For which reason, it is well to recall again that Madison, inFederalistNumber 37, clearly said that “the genius of republican liberty seems to demand ... not only that all power should be derived from the people.” And either Madison or Hamilton said inThe Federalist, Number 49, the reference to the Fifth Article being unmistakable from what they said, “There is certainly great force in this reasoning, and it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occasions.” As they both maintained, at the Philadelphia Convention and thereafter, that the ability of state governments wasincompetent to constitute government with national powers to interfere with human freedom, and as they both repeatedly stated that it would be contrary to the genius of republican liberty thatanygovernments should have that ability, they have made unmistakabletheirknowledge that the Fifth Article, which they proposed and seconded and which Madison probably worded, did not grant any such ability to governments.
In the Pennsylvania convention, Wilson clearly expressed the knowledge which reads the new Eighteenth Amendment out of our Constitution, when he said: “In this Constitution, thecitizensof the United States appear dispensing a part of their original power in what manner and what proportiontheythink fit. They never part with the whole; and they retain the right of recalling what they part with.” (2Ell. Deb.437.) Can any man, even a modern “constitutional” lawyer, reconcile that knowledge with the thought that the Fifth Article is a grant of power to the state governments? Again in the same convention, he said, speaking of our Constitution: “Here, sir, the fee simple of power remains in the peopleat largeand by this Constitutiontheydo not part with it.” (2Ell. Deb.435.) In the North Carolina convention, Iredell, later on the Supreme Court Bench, said: “No man, let his ingenuity be what it will, could enumerate all the individual rights not relinquished by this Constitution.” (4Ell. Deb.149.)
All these facts should be dwelt upon and emphasized in the briefs of the lawyersagainstthe new Article in which government attempts to exercise ungranted power and to grant new power to interfere with the individual freedom of the American citizen. And against alloureducation in the “conventions,” it mustbe the burden of the briefs of the lawyersforthe new Amendment to uphold the amazing proposition that all the individual rights of the American citizens were, by the Fifth Article, made subject to a supposed omnipotence granted to the state governments, not a member of which is chosen by the citizens of America.