CHAPTER XXIIITHE CHALLENGES THAT FAILED
The validity of the Eighteenth Amendment (seven litigations being heard together) was argued on March 8, 1920, and for several days thereafter.
As we are not concerned with the meaning of the second section of the Amendment or with the validity of the Volstead Act (passed by Congress under the grant of said section) except as the validity of the Act depends upon the validity of the Amendment, we shall make no mention of either.
The Court announced its decision, in all the litigations, on June 7, 1920. Somewhat to the amazement of the country, but (in our humble opinion even at the time) very wisely, the Court refused to write any opinion whatever. Nothing could more certainly settle that the Court determined no question except the specific questions presented by those who challenged validity. That we may be certain that the Court neither heard nor considered nor passed upon the real and the invincible challenge to the existence of the supposed newnationalArticle, we will let the Court, in its own words, state exactly just what were the four propositions, advanced against validity, and state the simple fact that it negatived each of those four propositions. Thus, in an impressive manner, we shall acquire our own knowledge that the fifth conclusion, which later we shall state, is but the conclusion of factthat nothing, in the four propositions negatived, impairs the validity of the supposed Article.
Mr. Justice Van Devanter announced the conclusions of the Court.Power to amend the Constitution wasreservedby Article V, which reads:...
Mr. Justice Van Devanter announced the conclusions of the Court.
Power to amend the Constitution wasreservedby Article V, which reads:...
(As we have been in the conventions which made it, we know it.)
The text of the Eighteenth Amendment, proposed by Congress in 1917 and proclaimed as ratified in 1919, 40 Stat. 1050, 1941, is as follows:...
The text of the Eighteenth Amendment, proposed by Congress in 1917 and proclaimed as ratified in 1919, 40 Stat. 1050, 1941, is as follows:...
(The text of the first two sections is quoted on page 465 herein.)
We are here concerned with seven cases involving the validity of that Amendment and of certain general features of the National Prohibition Law, known as the Volstead Act, c. 83, 41Stat.305, which was adopted to enforce the Amendment. The relief sought in each case is an injunction against the execution of that act.... The cases have been elaborately argued at the bar and in printed briefs; and the arguments have been attentively considered, with the result that we reach and announce the following conclusionson the questions involved:1. The adoption by both houses of Congress, each by a two thirds vote, of a joint resolution proposing an amendment to the Constitution sufficiently shows that the proposal was deemed necessary by all who voted for it. An express declaration that they regarded it as necessary is not essential. None of the resolutions whereby prior amendments were proposed contained such a declaration.2. The two thirds vote in each house which is required in proposing an amendment is a vote of two thirds of the members present—assuming the presence of a quorum—and not a vote of two thirds of the entire membership, present and absent. Missouri Pacific Ry. Co. v. Kansas, 248U. S.276.3. The referendum provisions of state constitutions and statutes cannot be applied, consistently with the Constitution of the United States, in the ratification or rejection of amendments to it. Hawke v. Smith, ante, 221.4. The prohibition of the manufacture, sale, transportation, importation and exportation of intoxicating liquors for beverage purposes, as embodied in the Eighteenth Amendment, is within the power to amendreservedby Article V of the Constitution. (National Prohibition Cases, 253,U. S.350, 384.)
We are here concerned with seven cases involving the validity of that Amendment and of certain general features of the National Prohibition Law, known as the Volstead Act, c. 83, 41Stat.305, which was adopted to enforce the Amendment. The relief sought in each case is an injunction against the execution of that act.... The cases have been elaborately argued at the bar and in printed briefs; and the arguments have been attentively considered, with the result that we reach and announce the following conclusionson the questions involved:
1. The adoption by both houses of Congress, each by a two thirds vote, of a joint resolution proposing an amendment to the Constitution sufficiently shows that the proposal was deemed necessary by all who voted for it. An express declaration that they regarded it as necessary is not essential. None of the resolutions whereby prior amendments were proposed contained such a declaration.
2. The two thirds vote in each house which is required in proposing an amendment is a vote of two thirds of the members present—assuming the presence of a quorum—and not a vote of two thirds of the entire membership, present and absent. Missouri Pacific Ry. Co. v. Kansas, 248U. S.276.
3. The referendum provisions of state constitutions and statutes cannot be applied, consistently with the Constitution of the United States, in the ratification or rejection of amendments to it. Hawke v. Smith, ante, 221.
4. The prohibition of the manufacture, sale, transportation, importation and exportation of intoxicating liquors for beverage purposes, as embodied in the Eighteenth Amendment, is within the power to amendreservedby Article V of the Constitution. (National Prohibition Cases, 253,U. S.350, 384.)
We are not interested in the first two propositions which the Court negatived. They were that the Congress resolution should havesaidthat two thirds of Congress deemed it necessary to propose the Amendment and that the proposals should have been made by two thirds of the entire membership of the House instead of two thirds of a quorum in each House. These are trifling and unimportant matters when over one hundred million Americans seek to learn when they ceased to be citizens of America and became absolute “subjects” of governments in America.
The third proposition negatived has naught to do with ourselves, the citizensof America. It deals only with the rights of somestatecitizensas such, where theirstateconstitution has a referendum provision. For our protection against usurpation by any government of our own reserved rights or powers, we look to our ownAmericanConstitution. We have lived through its making with the Americans who made it to secure individual liberty of themselves and their posterity, ourselves, the citizens of America.
The clear statement of simple fact, expressed in the Court’s fourth conclusion, tells us something, which, with Madison, we have known since he wrote and suggested his Fifth Article, at Philadelphia, on September10, 1787. Our stay in the “conventions,” which made the Fifth Article, has taught us that the Americans in them, even Henry and the opponents of the Constitution, were fully aware of the fact that the Fifth Article provided theCONSTITUTIONALmode in which the “conventions” could thereafter exercise the existing omnipotence of the citizens of America themselves to make any kind of an Article of government. The same stay fixed firmly in our minds that every one in them knew that the Fifth Article is not a grant of any ability from themselves to themselves, from the “conventions” named in the Seventh Article to the same “conventions” named in the Fifth Article, all being the “conventions” of the American citizens assembled to exercise their own omnipotence.
And so, coming from the only “conventions” of that kind yet held, we grasp at once the absolute accuracy of the statement in the fourth conclusion of the Court in 1920. Thementionof the same “conventions” in the Fifth Article, a mention made by the “conventions” of the Seventh Article, is the sound basis for our knowledge that, as the Tenth Amendment expressly declares, those “conventions” of the Seventh expresslyreservedto themselves (the same “conventions” named in the Fifth, “the people” of America in the Tenth Amendment) their own exclusive ability to makenationalArticles, like the First Article and the Eighteenth Amendment. For which reason, we know the truth of the Court statement in its fourth conclusion, that the power to make the Eighteenth Amendment “is within the power to amendreservedby Article V.” Theexclusiveability of the “conventions” of 1787 and 1788—to make the Article which is that new Amendment—is something known to allwho were in those “conventions.” That the ability—to make Articles like the First Article and the new Amendment—remainedexclusively in such “conventions” of the American citizens, because such Articles arenationaland either directly interfere with or are the basis for direct interference with individual freedom of the American citizen, was also known to every one in those “conventions.” That is why the Americans in those early “conventions” insisted that the Tenth Amendment expressly declare that such exclusive abilitywasreserved to them, “the people” of that Amendment, and why the same “conventions” mentioned themselves, the “conventions,” in the Fifth Article and provided therein theCONSTITUTIONALmode of procedure in which that exclusive ability could thereafter be exercised by those who had it, the “conventions” of the American citizens.
Even though this knowledge, which we bring straight from the “conventions” which made the Fifth Article, be not shared at all by the lawyers of 1920, we are aware that it is also the knowledge of the Supreme Court. That is why Marshall long ago pointed out that, when individual welfare required that government should be granted somenationalpowers or powers to interfere with individual freedom, “the necessity of deriving such powers from the people themselves was felt and acknowledged by all.” That is why in 1907 the Supreme Court again declared “the powers the people have given to the General Government are named in the Constitution, and all not there named, ... are reservedto the peopleand can be exercised onlyby them, or upon further grantfrom them.” As the First Section of the new Amendment is the exercise and the Second Section is the grant ofone of those reserved powers, and as the Fifth Article provides theCONSTITUTIONALmode of procedure in which it can be exercised or granted by those, who alone have it, “the people” of the Tenth Amendment and the “conventions” of the Fifth Article, it is very natural to read in the same Supreme Court, in the National Prohibition Cases, that the ability to make the Eighteenth Amendment “is within the power to amendreservedby Article V.”
When the Supreme Court of Marshall’s day knew that state “legislatures” could not make Articles like the First Article and the Eighteenth Amendment, when the Supreme Court of 1907 still knew that only the “people” or “conventions” could make Articlesof that kind, when the Supreme Court of our own day knows that the Fifth Article deals only with “reserved” power, we Americans feel that we are to remain free men and citizens. We have come from the “conventions” with our own accurate knowledge that the power to make the new Amendment or any other Article like the First Article “is within the power to amendRESERVEDby Article V.” But, for the very reason that our knowledge is accurate, we know that the power to makesuchArticles wasnotreserved to the state legislatures, who did not have it, butwasreserved to the “conventions,” who did have it and who were exercising it (in making the First Article) at the very moment when they made the Fifth Article.
We have examined the four conclusions of the Supreme Court which deal with any argumentpresentedagainst the existence of the Eighteenth Amendment. Those conclusions negative every such argument that was presented. But, because every brief assumed and asserted that the amending power “reserved” in theFifth Article had been “granted” therein, the four conclusions make clear that the Court has yet to hear and pass upon the challenge which reads the Eighteenth Amendment out of our Constitution. When that challenge is presented by American lawyers, who know what American basic law is and how American citizens are constitutionally protected against usurpation of power by governments in America, there can be no doubt of the decision of the Supreme Court. Inthatdecision, there will be no conclusion denying the most important legal fact in America, namely, thatgovernmentscannot exercise ungranted power or create new government power to interfere with the individual freedom of the American citizen. Inthatdecision, there will be again the simple statement of the undoubted fact that the ability to make the Eighteenth Amendment “is within the power to amendreservedby Article V.” But, inthatdecision, there will beaddedthe plain statement of the Tenth Amendment that such ability wasnot reservedto the state legislatures who never had it, butwasreserved to the “conventions,” who always had it and still have it. And, comparing that future decision (which is certain to come from the Supreme Court) with the decision, which merely negatived the four unsound challenges whichweremade to the Eighteenth Amendment, we know that the first five conclusions of the latter decision—all the conclusions that have aught to do with the existence and validity of the Eighteenth Amendment—merely hold that the existence of the new Amendment is not affected by any of these challenges whichweremade.
With exceeding wisdom in our humble opinion, the Court carefully refrains from passing upon or determiningany question except the exact challenges whichwerepresented. That is why no opinion was written. When any general statement (seeming to bear upon questions not presented or submitted) might come back to perplex and annoy the Court in future litigation where protected liberty of the American citizen was the challenge to the government-made new Article, common sense and sound reason and the experience of generations dictated that no general statement should be made. And, as there was but one way to avoid a single general statement, no opinion was written. This method of deciding those particular litigations, with their four unsound challenges, would leave the decision itself without even an apparent influence upon a litigation in which somerealchallenge might be presented.
And so we find the Court merely stating “that we reach and announce the following conclusionson the questions involved.” Nothing could make more clear that no conclusion is reached or announced on any question not presented by those who urged invalidity.
The first four conclusions reached and announced are conclusions of law against the opposite legal conclusions urged by those opponents. The fifth conclusion is a conclusion of fact that validity of the Amendment is not affected by any of the four propositions advanced by the opponents of the Amendment. In other words, the first five numbered conclusions, all that deal with validity of the Amendment, can be expressed in our own words, viz: “Although the proposing Resolution did notstatethat Congress deemed the proposal necessary, although only two thirds of a quorum in each House (and not two thirds of the membership of each House) made the proposal, although the citizens of each referendum state have not acted as part oftheir respective state legislatures, and although it is urged that the Fifth Articlereservedabilities do not include ability to make an Amendment like the Eighteenth, we decide that none ofthesethings affect the validity of the new Article.”
And, when we make this accurate statement of what was decided in those National Prohibition Cases, we average Americans, fresh from our education with the Americans who found themselves “subjects” and made themselves and their posterity free men, have some startling facts brought home to us.
Undoubtedly thousands of lawyers had worked, for more than a year, in the preparation of the arguments that were made and the briefs that were filed. When these amazingly important litigations were reached, the arguments lasted for several days. On the exhaustive briefs filed against validity, there appear twenty-two lawyers, many of them among the leaders of the American Bar. On the briefs to support state government omnipotence over the citizens of America, “in all matters whatsoever,” thirty-five lawyers, headed by a former member of the Supreme Court, appear.
We know, with a knowledge that brooks no denial, because it is a knowledge brought from our experience with those who made themselves free men and established the Constitution to secure that result to themselves and to us, that the new Article is not in the Constitution unless at some time prior to 1917, the free men of America, all the individual citizens of America, became the “subjects” ofsomestate governments.
It is clear, therefore, that the existence of the Eighteenth Amendment has always depended upon the correct answer to the question whether the American is “Citizen or Subject?”
If we are subjects, the new Articlemaybe in the Constitution not made by us but made by governments.
If we still are citizens, as once undoubtedly we were, the new Articlecannotbe inourConstitution, because we have not made the new Article, assembled in our “conventions.”
Where men are citizens,governmentscannot exercise ungranted power or create new power to interfere with individual liberty.
In a nation of free men, established by former “subjects” with a dominant purpose that no American should ever be the “subject” of any governments, it is amazing that one government should propose thatgovernmentsconstitute, and it is amazing that forty-sixgovernmentsshould attempt to constitute, new government of men—new government power to interfere with individual human freedom.
But most amazing of all, in a nation with the history of America, is the fact that, when audacious government had so proposed and audacious governments had so attempted, the prolonged arguments and voluminous briefs of fifty-seven leading members of the American Bar never once knew or stated the simple fact which made the proposal and the attempt a legal and constitutional absurdity. The fact itself, the one most important legal fact in America, was once known and “felt and acknowledged by all” Americans. Yet, not once in any brief in the National Prohibition Cases, was it either known or urged that the “conventions” of the Fifth Article are the “conventions” of the Seventh Article and that both are the whole American “people” of the Preamble and the Tenth Amendment and that, therefore, the Constitution expresslyreservesto the “conventions”of the Fifth Article, the citizensof America, their existing and exclusive ability to create new government power to interfere with their own individual human liberty.
Whynone of these briefs did make this challenge became known to us when Rice of Rhode Island, with the silence of his colleagues marking their approval, answered the Court that the new Article could not beconstitutionallymade.Whythey did not make the challenge will be emphasized when we read the leading brief against the new Amendment. Over fifty times it will admit and state that the Fifth Articleisa “grant” of power tostatelegislatures fromAmericancitizens and claim the “granted” power is a limited power and does not include ability to make an Amendment like the Eighteenth because such Amendment takes away the reserved powerof a state or political entity. Then, to emphasize what it does not know about the “conventions” of the Fifth Article and the reserved powers of the citizens of America, this brief will go on to tell us that there is noconstitutionalmode in which can be made an Article which takes more power away from any state; that such an Article may only be made, outside anyconstitutionalmode, by having the people themselves rescind “the social compact” which is their American Constitution and having them make “such new compact as they please”; but that such new compact, such new Article of that kind, cannot “be validly and legally made to come to pass against the objection and protest ofanystate.” All this clearly explainswhynone of the briefers were able to answer correctly the question asked by the Court. How could they tell the Court inwhatway the Eighteenth Amendment could beconstitutionallymade, when all of them “knew” that there was noconstitutionalmodein which the “conventions” of the American citizens could make it, and when they “knew” that it could not be made, even outside the Constitution, without the consent of the citizens ofeverystate? The most important words in the Fifth Article, “in conventions in three fourths thereof,” did not mean to these briefers what they meant to the Americans who made the Fifth Article or to Madison and Hamilton who wrote the Fifth Article and suggested it at Philadelphia. In the word “conventions,” they did not recognize the Seventh Article “conventions” of the American citizens describing themselves by exactly the same word, “conventions,” in the Fifth Article. In the words “in three fourths thereof” after the word “conventions,” they did not recognize the great security to human freedom which we have learned with the Americans who wrote and who made the Fifth Article. They did not recognize how the American people, by these words, made ittheirconstitutional command that they themselves, again assembled in their conventions, by a “Yes” from three fourths of their “conventions”and withoutthe consent of the Americans in the other “conventions,” might withdraw any power granted in the First Article and might add any new power to its enumerated grants, whenevertheydeemed such withdrawal or such addition would better secure and protect American individual liberty.
Thatnot one of the briefersdidmakeourchallenge is our certain knowledge when we read the four challenges they did make and which are negatived in the first four conclusions of the Court.
The first two relate to the manner of theproposalthat governments create government of men in America. Who careshowone government makes asillyproposal? The one important thing is that no governments shall attemptto act upona proposal which denies the most important legal fact in America, thatgovernmentscannot constitute new government ability to interfere with individual liberty.
The fourth challenge that was made is the absurd challenge that the Fifth Article does notmentionaCONSTITUTIONALmode of procedure in which the citizens of America may againdirectlygrant totheirgovernment new power to interfere with their own individual liberty and in which—far more important to the “conventions” which named themselves (the “conventions”) in their Fifth Article—the American citizens can directly take back any part of the granted power of the First Article which they find oppressive to their individual liberty. This challenge neither knows nor makes any distinction between the state “legislatures” and the “conventions” of the American citizens or the mention of either in the Fifth Article. It is a challenge which has not the knowledge we bring from the first “conventions,” the knowledge that “legislatures” are mentioned on account of their existing ability to makefederalor declaratory Articles and that “conventions” are mentioned on account of their exclusive ability to make Articlesof any kind. It is a challenge which assumes and asserts and is based wholly upon the absurd assumption that the Fifth Article is a “grant” of power to make Articles. On this absurd assumption of this patently absurd “grant,” this fourth challenge, frankly stated in our own words, is as follows: “In the Fifth Article, the ‘conventions’ grant to the two grantees—the grantors and the state legislatures—anidenticalability to make new Articles. We admit that, if the ‘conventions’ of the FifthArticle could constitutionally make the Eighteenth Amendment, the state legislatures can also constitutionally make it. But our challenge is that the ‘grant,’ in the Fifth Article, is limited in extent and that neither the ‘conventions’ nor the state legislatures can constitutionally make the Eighteenth Amendment.”
To the “constitutional” lawyers who make this challenge, to all who support such challenge, we commend many hours’ study of the statements of Madison, who wrote the Fifth Article; of Hamilton, who supported its introduction at Philadelphia; of Wilson, Pendleton, Henry, Iredell, MacLaine, Jarvis, Lee, Mason, and the many others, with whom we have sat in the “conventions” which made the Fifth Article. Particularly do we commend a careful reading of the reasoning which led to the decision at Philadelphia, in 1787, that the First Article,because it constituted government of men,mustgo to the “conventions” named alike in the Seventh and the Fifth Articles and could not be validly made by the state “legislatures” named in the Fifth Article. That decision was based upon the unrepealed Statute of 1776, a statute well understood in 1787, only eleven years after the Statute itself had been enacted as the command of the whole American people. Finally, to those who support this fourth challenge, we commend a thorough reading of the law laid down by Marshall in the Supreme Court. If they thus educate themselves as we have educated ourselves, they will be able to say with Marshall: “To the formation of a league, such as was the Confederation, the state sovereignties were certainly competent. But when, ‘in order to form a more perfect Union,’ it was deemed necessary to change this alliance into an effective government possessing great and sovereign powerand acting directly on the people, the necessity of referring it to the people and of deriving its power directly from them,was felt and acknowledged by all.”
And, if all shall complete their education with such men as Webster and Lincoln, they will never again make the mistake of ignoring the vital and important distinction in identity between “state legislatures” and “conventions” of the American citizens, the distinction that the former are never anything but governments and each the government agent of the citizensof one state, while the “conventions” are the citizens of America itself assembled in “conventions” to issue their commands to themselves, to their government, to the states and to the state governments. The completed education will enable these lawyers to win future litigation against legislative governments who audaciously attempt to usurp the exclusive and reserved powers of the “conventions” of the American citizens.
In any of the three challenges negatived by the first, second and fourth conclusions of the Supreme Court, we have failed to find any suggestion ofourchallenge, namely, that state “legislatures” have audaciously attempted to usurp the exclusive powers reserved to the “conventions” which are named in the Fifth Article.
And now we examine the only other challenge thatwasmade, a challenge negatived by the third conclusion of the Supreme Court. No challenge could more emphatically ignore the protected individual liberty of the citizen of America. This challenge does not know that American citizens havenogovernment save the government of enumerated powers. This challenge frankly admits that the Fifth Article is a grant to legislatures, each elected by the citizensof some particular state, and that three fourths of thoselegislatures have the omnipotence, which was denied to the British Parliament, over every individual liberty of the American citizen. Like the other challenges thatweremade, like every brief for or against the Eighteenth Amendment, this challenge knows not that the Constitution is both afederaland anationalConstitution and knows not that the state “legislatures” never have and never can have aught to do with thenationalaspect of that Constitution. Based on this remarkable ignorance, this is the challenge, frankly stated in our own words:
“The state legislaturescanmake this Eighteenth Amendment. The state governmentscando what they will, so long as they call their action a constitutional Amendment, with every reserved right and power of the citizens of America. But thirty-six state legislatures are necessary to make anything called a constitutional Amendment. And our challenge is that thirty-six legislatures have not made this particular Eighteenth Amendment. In any state, where the referendum exists, the citizensof that state[we note that even now the citizensof Americaare not mentioned] are part of the state legislature. In some of these referendum states, whose legislatures are included among your claimed thirty-six ratifiers for the Eighteenth Amendment, the whole of the state legislature has not yet ratified, because the citizens of the state, who are part of its legislature, have not yet acted. For this reason, that you ignore the rights of the citizensof some states, our challenge is that the Eighteenth Amendment has not been ratified by the legislative governments of thirty-six states.”
This particular challenge, like everything in these litigations and in the whole history of the supposednew Amendment, brings into bold relief the one monumental error at the bottom of every thought that the new Amendmentisin the Constitution, at the bottom of the varied absurdities which constantly appear in every brief, either for or against validity.
Without a single exception, the fifty-seven lawyers on these briefs base their every argument, no matter how those arguments may challenge one another, on the ridiculous sheer assumption that the Fifth Article is a great power of attorney to the state governments from the citizens of America. All these fifty-seven lawyers ignore the undeniable fact—mentioned continually in the “conventions” of the Seventh Article which wrote their own name, “conventions,” into the Fifth Article—that the Constitution is bothfederalandnational. This first mistake, this ignoring of that fact, led all of them immediately into the fatal error of wholly ignoring the vitally important fact that the Fifth Article distinctly names those who already could makefederalArticles, the state governments, and those whose exclusive right it always was and is tomake nationalArticles, the people assembled in their “conventions.” Only because of these two mistakes, the next step comes in the guise of the absurd concept that the Fifth Article is a grant ofanypower of attorney, from the citizens of America, either to the “state legislatures” or the “conventions.” In this patent absurdity, all fifty-seven lawyers concur. That each of them does not see its patent absurdity is due entirely to the fact that not one of them states the proposition, that the Fifth Articleisa grant, in the frankest mode of stating it. Thatfrankestway is to state the proposition in these words: “In the Fifth Article the citizens of America, assembled in the ‘conventions’ of 1788,grantedto the state legislaturesandtothemselves, the citizens of America, assembled in their ‘conventions,’ a quantum of power as attorneys in fact of the citizens of America. We fifty-seven lawyers only differ as to theextentof the power which the citizens of America grant to themselves and to the state governments. We, whosupportthe new amendment, contend that the citizens of America grant to the state governments and to the citizens of Americaallthe power of the citizens of America. On the other hand, we, whoopposevalidity, contend that the citizens of America grant to the state governments and to the citizens of America onlysomeof the unlimited power of the citizens of America, the very power they were exercising when they made the grant which is the Fifth Article.”
When the common proposition of all those lawyers, that the Fifth Article “grants” power to those two grantees,isstated in this frank way, its patent absurdity is manifest. Every one of those lawyers knows that a grantor never can or does grant to himself eitherallorpart ofwhat he already has. Moreover, all those lawyers ought to know that the Tenth Amendment expressly declares that the entire Constitution, in which is the Fifth Article, grants no power of any kind except to the American government at Washington. Alone and unaided, this simple declaration makes it impossible that the Fifth Article grants any power to the state governments. Thus, even without the certain knowledge we bring from the conventions of 1788, the state governments disappear from the scene as attorneys in fact for the citizens of America in any matter. Each of those state governments is left with no power it did not have before the Fifth Article was made. Not one of them even keeps all of the powerwhich it had before 1788. The citizens of America, the “conventions” in which they assembled, commanded otherwise. “When the American people created a national legislature, with certain enumerated powers, it was neither necessary nor proper to define the powers retained by the States. These powers proceed,not from the people of America, [the “conventions” named in the Seventhand the FifthArticles]but from the people of the several states; and remain, after the adoption of the Constitution, what they were before, except so far as they may be abridged by that instrument.” So spoke Marshall from the Supreme Court Bench, in 1819, after he had come from one of those “conventions” in which he himself had stated: “It could not be said that the states derived any powers from that system, [the new Constitution then before the convention in Virginia] but retained them, though not acknowledged in any part of it.” (3Ell. Deb.421.)
Yet every brief of those fifty-seven lawyers bases its every argument on the sheer assumption, asserted by all, that the Fifth Article is a “grant” to the state legislatures which makes them attorneys in fact for the citizens of America. No brief can offer and no brief does offer the slightest proof in support of the assumption. But no briefasksfor proof of the assumption or challenges the assumption. On the contrary, every brief makes the assumption and asserts it and on it rests every argument.
Because of this monumental error, every briefforthe Amendment insists that the state legislatures, as attorneys in fact for the citizens of America witheverypower of the citizens of America, validly made the Eighteenth Amendment.
Because of this monumental error, every brief against the Amendment asserts that the state legislatures are attorneys in fact for the citizens of America but insists that the Fifth Article (the assumed power of attorney in a Constitution which expressly declares thatnopower is given to the state legislatures) grants to the state legislatures (as well as to the “grantors” themselves) onlylimitedability on behalf of the principal, the citizens of America. On this altogether unique argument, it is contended that the limited power of attorney does not confer ability to make an Amendment like the Eighteenth.
Because all briefs make the same monumental error, there is no challenge on the ground that the state legislatures, not a member of which is elected by the citizens of America, holdnopower of attorney from the citizens of America to interfere in any way, in any matter, with the individual freedom of the American citizens. Because all briefs against the Amendment make the same monumental error, the fourth challenge (whichwasmade and considered by the Court) is based upon the heretical doctrine—the heresy being clear from what we have heard in the “conventions” where we sat—that the Fifth Article does not mention aCONSTITUTIONALmode in which the citizens of America, again assembled in their “conventions,” can take back from their American government any enumerated power of the First Article which they find oppressive to their individual rights and freedom. And, perhaps most amazing and amusing fact of all, because all briefs make the same monumental error, the briefsforthe Amendment make no effort to support and the briefsagainstthe Amendment make no attempt to challenge the clear paradox, on which theEighteenth Amendment depends for its existence, that there never has been a citizen of America if it be true that the Fifth Article makes the state governments the attorneys in factforthe citizens of America withunlimitedability to interfere with the individual freedom of the citizens of America. Where such unlimited abilityisin government, men are not “citizens” but “subjects.”
But we ourselves come from the “conventions” where the Americans knew that they entered as free men and left as citizens of America, not as “subjects” of any governments. Therefore, we need no lawyer to tell us—and no lawyer can deny our knowledge—that, if the state governments are the attorneys in fact for the American citizens and have ability either to interfere with or to grant power to interfere with the individual liberty of the American citizens, or, ifanygovernments can interfere with that liberty on a matter not enumerated in the First Article, there never were American citizens and the early Americans entered their “conventions” free men but left those “conventions” as “subjects” of an omnipotent government.