CHAPTER XXLEST WE FORGET

“The important distinction so well understood in America, between aConstitutionestablished by the people andunalterable by the government, and alawestablished by the government and alterable by the government, seems to have been little understood and less observed in any other country.... Even in Great Britain, where the principles of political and civil liberty have been most discussed, and where we hear most of the rights of the Constitution, it is maintained that the authority of the Parliament is transcendent and uncontrollable, as well with regard to the Constitution, as the ordinary objects of legislative provision.They[the legislature] have accordingly, in several instances,actually changed, by legislative acts, some of the most fundamental Articles of the government.” (Fed.No. 53.)

Coming from Madison or Hamilton, this is the best kind of testimony that the earlier Americans, who established that constitution of government which is the First Article, knew that it was “unalterable by government.” And it is the best kind of testimony that the same American makers of the Madison Fifth Article knew that it did not grant to state governments any ability to add to or subtract from the First Article enumerated and constituted powers in government to interfere with the freedom of American citizens. IfMadison and Hamilton had been with us in our Congress of 1917, their statement would have been slightly altered. They would have spoken of “the important distinction so well understood in America” in 1787, as one which “seems to have been little understood and less observed in any other country” and not known or observed at all by our Senators or Congressmen of 1917.

The Americans of 1787, who “so well understood” the important distinction, made their knowledge a noticeable thing in the language of their Statute of ’76 and of their Constitution. With their knowledge of the important distinction, they permitted the respective states, through the respective legislatures thereof, to constitute the government of states, to make thefederalArticles of 1781. With their knowledge of the important distinction and in deference to their own clear Statute of ’76, these intelligent Americans refused to permit the states or the legislatures of the states to establish the government of men, to make thenationalArticle—the First Article—which is the constitution of government power to interfere with individual human freedom. Moreover, by their knowledge of the important distinction and of the Statute, they knewthatConstitution, that enumerated grant of national power over themselves, to be “unalterable by government.” And that we andalllater Americans might also know it,they, the American people or “conventions” of that day, insisted that the Tenth Amendment expressly declare that they, those “conventions” of the American people, reserved to themselves and their posterity, the “conventions” of any later day, exclusive ability to alter that constitution ofnationalpower, the First Article. And, for the same purpose,they, the “conventions,” mentioned themselves, the particular reservee of the exclusive ability to alter that grant of national power, in one particular earlier part of the Articles they made, the part we know as the Fifth Article. Naturally, the two men, who worded that Article at Philadelphia and who paid its later makers the deserved tribute to their knowledge of the important distinction, mentioned those makers, “conventions,” in that Fifth Article as future makers of all grants ofnationalpower and mentioned the legislatures, in the Fifth Article, as competent future makers of Articles that do not constitute newnationalgovernment.

Because we have lived through the experience of the Americans to whom the tribute was paid, we know the distinction between a constitution ofnationalgovernment, “unalterable by government,” and Articles constituting government of political entities or states, alterable by the states or the legislatures of the states. Moreover, by reason of our experience, we sense the clear recognition of the distinction in the Fifth Article distinct mention of the people or “conventions,” assolemakers ofnationalArticles, and the similar mention of the “legislatures” as competent makers offederalArticles. To our regret, we have found that our Congress, in 1917, knew naught of the distinction and naught of its recognition in the language of the Tenth Amendment and the Fifth Article. It is with relief, therefore, that we turn to the great litigations in the Supreme Court of 1920, in which the lawyers of the America, where the important distinction wasonceso clearly known, attacked and defended the proposal from the Congress of 1917 and the action of the state legislatures on that proposal. Fresh from the utterlegislative ignorance of that distinction, it is with relief that, in our first glance at the briefs of those lawyers, we find what seems the clear echo of the accurate knowledge we have acquired in the company of those earlier Americans.

“There is only one great muniment of our liberty which can never be amended, revoked or withdrawn—the Declaration of Independence. In this regard, it ranks with the Magna Charta.”

The clear tribute to the unrepealed Statute of ’76 excuses, while it does not explain, the error of the allusion to Magna Charta. Graduate students of the history of the advance of Americans from subjects to free men, we average citizens grasp the error of the statement, “in this regard [that neither can ever be revoked] the Statute of ’76 ranks with the Magna Charta.” We know that the Statutewasthe revocation of the basic doctrine on which Magna Charta rested. Magna Charta was the grant of privilege from an omnipotent government to its subjects. All that subjects ever have are the revocable privileges granted by the master government. The Statute of ’76 states the basic American law that there are no subjects in America, that the human members of any political society or state or nation, except as they directly grant power over some of their human rights to secure enjoyment of the rest, need obey the command of no one except Him who gave them their human rights. In a free nation, such as the earlier Americans made of themselves, no man has any privilegesgrantedby a master government. In a free nation, citizens or members of the society (and the supreme will therein) have their servant governments to which those citizens give whatevernationalpowersthose governments ever have. Except for the grants ofsuchpower which those citizens so make, the human beings retain, not as a gift or privilege of government but as the gift of Him Who created them, all human freedom of action. Ascitizens, they also possess the particular privileges which arise from membership in that particular society of men; but even those privileges are not the gift of government but the creation and effect of the society itself, just as every power of the government is also the gift of the society.

We pardon the error of the reference to Magna Charta, however, when we read on in the brief and find it immediately quoting from our Statute: “We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable Rights; that among these are Life, Liberty and the pursuit of Happiness. That to secure these Rights, Governments are instituted among men, deriving their just powers from the consent of the Governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of thePeopleto alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers on such form, as tothemshall seem most likely to effecttheirSafety and Happiness.”

At last, in this brief, we are getting the clear echo of our own knowledge that,until this Statute is revoked, it is not the right of “government or governments” to institute new government, laying its foundation on such principles and organizing its powers in such form as to “governments” shall seem most likely to effect the safety and happiness “of governments.” Moreover, in this brief, we are getting the clear echo of ourown knowledge that this Statute canneverbe revoked, while we remain free men and citizens instead of the subjects we were until that Statute was enacted.

And when we turn to another brief for a moment, we are cheered to find the refutation of the Sheppard ignorance of the identity of those who madeourConstitution, “We, the people of” America, in its Preamble and its most important factor of the Tenth Amendment, the “conventions” of ourselves in its Seventh and its Fifth Articles. With gratification that some “constitutional” lawyers still know and observe the important distinction between the ability of ourselves, the “conventions” of the Seventh and Fifth Articles, and the lack of ability in the “legislatures” of the Fifth Article to give to governmentnationalpowers, we average Americans recognize, in the following challenge ofthisbrief, the challenge we would have made to the Sheppard proposition that legislatures attempt to constitute such new government over us. This is the challenge of the brief to Sheppard: “The Constitution is not a compact between states. It proceedsdirectlyfrom the people. As was said by Mr. Chief Justice Marshall in McCulloch v. Maryland, 4Wheat.316, etc.” Then follows the Marshall clear exposition of how the people themselves, the “conventions,” made the constitution which is the First Article and how, if any other constitution of that kind, such as the Eighteenth Amendment, is ever to be made “safely,effectively, and wisely” it must be made by ourselves, assembled in the “conventions” named in the Fifth Article. The full extract from Marshall has been set out already herein at page 98.

In a second brief, in a different case, the same distinguished lawyer of 1920 is found bringing into boldrelief another part of our knowledge so intimately connected with the supposed new constitution of government, the Eighteenth Amendment. And it is a part of our knowledge which challenges a new constitution made entirely by governments without any action by ourselves, the people or the “conventions” named repeatedly in the Constitution made by themselves. In that other brief, we find him stating as one of the propositions on which he bases his argument, “What the expression ‘legislatures of the several states’ meant as used in Article V, when that Article was adopted as a part of the Constitution, it means now.” The statement being undeniably true, he immediately proceeds to urge, with equal truth, that “however popular approval or disapproval [i.e., thedirectaction of the people themselves, as, for example, in the ‘conventions’ whence, as he already stated,ourConstitution proceeded ‘directly from the people’] may be invoked, the people do not become a ‘legislature.’... As well confound the creator and the creature—the principal and the agent through which he acts.”

This is the echo of Marshall’s clear statement of the vital distinction between the same “legislatures” (who never are the people and never have the reserved ability of the people) and the “people” or “conventions” (which are the people and have the exclusive ability of the people). We recall the tribute paid to this distinction at Philadelphia. We recall the legal decision there, a decision based squarely on that distinction, that the legislative ability to makefederalArticles could not constitute new government of men, as did the First Article, and that all Articles like it or the new Eighteenth Amendment must go to the “people” of the Tenth Amendment, the “conventions”of the Seventh and Fifth Articles. We recall Marshall’s appreciation of the accuracy of that legal decision, when he mentioned that the ability of the state governments or legislatures had been competent to make thefederalArticles of 1781 but, when it was proposed to constitute government of men, to vest thenationalpowers of thenationalFirst Article, “the necessity of deriving those powers directly from the people [the “conventions” of the Seventh Article] was known and recognized by all.” We remember that the “people” or “conventions,” so recognizing and knowing, mentioned themselves in the Fifth Article so that no one ever should forget the similar legal necessity that every Article like the First, such as the new Article, must always be made by those “conventions” so mentioned.

It is, therefore, with considerable satisfaction that we read, in this brief of 1920, the clear echo of all these settled facts, the knowledge that “legislatures” never are the people and never become the people. “As well confound the creator and the creature—the principal and the agent.”

In our gratitude for such remembrance, we ignore the inaccuracy of a suggestion that the “legislatures” of the Fifth Article are the agent of the principal therein mentioned, the “people” of America, the “conventions” which made the Constitution. Each of those “legislatures” is an agent of one particular reservee among those named collectively in the reservation of the Tenth Amendment in the words “to the statesrespectively,” while the “conventions” in the Fifth Article is the one most important reservee in that Tenth Amendment, “the people” of America, the most important factor in that Tenth Amendment and inAmerica. For the purpose of making any Articles, whether federal or national, that important reservee has no legislative agents. For any purpose, it has but one legislative agent, the Congress; and to that one legislative agent it has given no power tomakeany constitutional Articles; but it has, in the Fifth Article,leftwith that agent the mere ability todraftandproposea new Article of either kind and, as did the Philadelphia Convention, from the nature of the Article it drafts, whether within the ability of “legislatures” or within the exclusive unlimited ability of the people or “conventions,” toascertainandproposewhich shall make the drafted Article.

That the state legislatures are not agents of the American citizens, in that capacity, is self-evident. Each legislature is chosen by the citizens of a state. Moreover, the Constitution itself distinctly states that the “conventions” of the American citizens grant no power of any kind therein to the state “legislatures.”

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, 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. (Marshall in Sturges v. Crowinshield, 4Wheat.122.)

That is why anything whichthese“legislatures” do, when it comes in conflict with a valid action ofourlegislature, the Congress, must always yield. We have the supreme will in America, and whenouragent, the Congress, speaks with authority from us, it speaks for us, while the inferior agents of other lesser wills never speak for us. That clear distinction does not detractfrom the ability of those legislatures to makefederalArticles in our Constitution. They do not get that ability from us, the citizens of America. They had that ability from those respective inferior wills, when we made our Constitution. By its exercise, they had made the federation of states and thefederalArticles of its government. When we made our national Constitution, we continued that federation and the ability of its component members to make its federal Articles and put them in our Constitution, which is both our national Constitution and their federal Constitution. The ability to make thosefederalArticles is one of the powers reserved to those inferior wills by the reservation of the Tenth Amendment which reads “to the states respectively”; and it is not an ability to make Articles which is granted in the Fifth Article. No ability to make Articles isgrantedin that Fifth Article.

Inasmuch, however, as the writer of the brief in 1920 has known that “legislatures” do not ever become “the people,” it is quite probable that his reference did not intend to suggest that the legislatures of which he spoke and who are the agents respectively of other citizens, were the agents, for any purpose, of the citizens of America. With his recognition that legislatures never are the people and with the other quoted extracts of those briefs of 1920 before us, echoing the knowledge we have acquired, we feel at least that in the court of 1920, from the debate of men who know, we will learn whether and “when” and “how,” we, between 1907 and 1917, became subjects instead of the free men and citizens which we clearly were up to 1907.

At least such was the thought of one American citizen, when he read this quotation, in one of the briefsof 1920, “that the people do not become a legislature.... As well confound the creator and the creature—the principal and the agent through which he acts.” It was almost incredible to this particular American citizen that he found this statement and the statement that—“The Constitution is not a compact between states. It proceeds directly from the people.”—both in the briefs of the foremost champion of the new Amendment. And it seemed equally incredible to him to find the quotation about the Statute of ’76 being “one great muniment of our liberty which can never be amended, revoked or withdrawn” in the brief of the counsel for the political organization which dictated the new state government command to the citizens of America.

An unusual method had been adopted for the hearing of what were later reported under the one title the “National Prohibition Cases,” 253U.S.350. In that hearing, which continued for days, seven different litigations were argued because all dealt either with the validity of the Eighteenth Amendment or with the meaning of its remarkable second section or with the statute enacted under that section and known as the Volstead Act. For the same reason, the briefs on both sides of the various litigations were clearly the result of conference and collaboration. Nearly all of the briefs, challenging the new Article, made their challenge on the same two main points and in the expression of those two challenges, made constant reference to the different expression thereof in the other briefs.

In the litigation and argument of that March, appeared many of the best known lawyers in America. Among them were distinguished counsel, appearing onbehalf of those legislative governments who claim and, in the new Article, have attempted to exercise the omnipotent supremacy over the citizens of America which was denied by the people of America to the British Parliament. Among them were other distinguished counsel, appearing on behalf of what had always been known as the supreme legislative government in America,our governmentwith itsenumeratedpowers and without omnipotence over us. Among them were still other distinguished counsel, appearing on behalf of some separate states or political entities to contend that there existed noconstitutionalability anywhere, even in ourselves, to take from their particular state any more of its sovereignty than it had surrendered in those early days when the states made the Constitution, as Sheppard claimed in the Congress of 1917. Among them were still other distinguished counsel, some of them the most distinguished of all, appearing to oppose, as best they knew how, the total destruction of alllegitimateindustry in a business in which it was thehumanright of Americans to engage even before Americans wrote their Statute of ’76 and consequently not a privilege of the citizen of America or the citizen of any state.

As this fact has been the basis of many errors in that comedy and tragedy of errors, which is the five-year tale of the Eighteenth Amendment, we average Americans may well dwell for a moment upon the certainty of that fact. It is the natural mistake of those, who have the Tory concept of the relation of men to government, that they should first confuse the meaning of the words “privilege of a citizen” with the words “privilege of a subject” and thus believe that the nature of both privileges, and the source of each are thesame. That mistake is but the echo of the error which confuses the nature of Magna Charta with that of the Statute of ’76. Magna Charta is the declaration of certain privileges which government will permit its subjects to keep as long as the government pleases. The Statute of ’76 is the declaration that destroys the relation of government to subjects, creates the relation of citizens to their servant governments, and states that the servants shall have no power to interfere with the human rights of the masters, given by their Creator, except such power as the masters choose to give, and that the servants shall keep that power only so long as the masters will. To the Tory concept, always concentrated on the relation of subject to master government, it is difficult of apprehension that the human being is born with the right to use his human freedom as he himself wills, so long as he does not interfere with the similar exercise of human freedom by the rest of us human beings. If men, in the exercise of their free will, would always obey the defined law of Him who created them, the exercise of human freedom by one individual would never interfere with the exercise of human freedom by all other individuals, and no human government need ever be constituted.

Among the human rights of Americans, as of all human beings, when they come into the world, is the human right to do everything which is forbidden in the first section of the Eighteenth Amendment. It is true, as we frequently hear stated, that the Supreme Court has decided that the right to do any of those things is not the “privilege” of American citizens or of the citizens of any state. It is also equally true, although the Supreme Court has never been called upon to decide that very obvious fact, that the right to breatheis not the “privilege” of an American citizen or of the citizen of a state. Both rights are among the rights of human beings,as such, and they are each of them among the rights of themselves, which we, “the people” of America, established and ordained our Constitution to secure. When we established that Constitution for that purpose, we admittedly gave our only American government no power to make the command of the first section of the Eighteenth Amendment. That is why the governments ofothercitizens were asked to make the command to ourselves, the citizens of America.

Each of the Americans, who created the nation that is America, already lived as a member and citizen of a state. In that state, when they had constituted it, the citizensthereofhad subjected their human right (to do what the new Amendment says shall not be done) to a power in the government of that state (a power whichtheygave it and can take back from it) to make that kind of a commandto themin that matter.

We thus have clearly in our minds that the individual in America has the human right (with which the new Amendment interferes) and that it is subject to the interference of no government, except as the citizens of that particular government have given it power so to interfere with it. The undoubted fact that the right itself is not the privilege of the citizen of America or the citizen of the state is simply another way of saying that the original human right itself is not granted to the human being by government or governments but by the Creator Who made him. Without the Tory concept, no man would even make the mistake of believing that a citizen gets any of his privileges from any government. The privileges of a citizen arethe things which he acquires by his voluntary association with the other citizens as the members of a political society which is the nation. The human rights of the same individual are the rights which he brings into that association and subjects to whatever powers of its government are granted by himself and those other citizens with whom he associates as the nation.

Of course, the early Americans, with whom we have now been educated, not only knew these things clearly and accurately, but on their knowledge of them based everything that they did in the fifteen years which we have lived with them. The Americans of today, who uphold the new constitution of government made entirely by government, do not know them at all or understand them when they hear them. Neither would the aristocrats of France, before the French Revolution, nor the Tories of England, even at the time of our Revolution, have known or understood them. That is why the Americans continued their Revolution and won it, so that these things might be the basis of every government interference with any human right. Later they made the American Constitution solely to secure the greatest possible protected enjoyment of all individual human rights. That security is one of the privileges acquired by citizenship in the society which that Constitution created. Wherefore, it is of interest for us to know how clearly Madison, who largely planned that Constitution and who worded its Fifth Article, did know and understand these facts in relation even to the very things forbidden in the new constitution of government made entirely by government.

In the House of Representatives, in the first session of the new Congress with the enumerated powers of the First Article, on May 15, there came up for discussion“a proposed bill laying duties on goods.” Madison “moved to lay an impost of eight cents on all beer imported. He did not think this would be a monopoly, but he hoped it would be such an encouragement so as to induce the manufacture to take deep root in every state of the Union.” (4Ell. Deb.345.)

That the knowledge of Madison was not unknown to the Supreme Court a century later, in 1890, is a matter of record.

That ardent spirits, distilled liquors, ale, and beer are subjects of exchange, barter, and traffic, like any other commodityin which a right of traffic exists, and are so recognized by the usages of the commercial world, the laws of Congress, and the decisions of courts, is not denied. (Leisy v. Hardin, 135U. S.100.)

Returning to the courtroom of 1920, therefore, we are sincerely glad to note the appearance of quite an array of eminent counsel on behalf of those legitimately engaged in a business which is just as legitimate an exercise of human right, as it was when Madison hoped that it would take deep root in every state of the America he loved so well, a business which will continue free fromunlawfulusurpation of power by government so long as the Constitution planned by Madison is obeyed by governments in America. It is too bad that the eminent counsel, who shared Madison’s views in relation to that legitimate business, did not also have Madison’s accurate knowledge of the only way in which legitimate government power can be created to interfere with that or any other human right, the way which Madison so clearly stated in the Fifth Article—by grant from the “conventions” of American citizens.

When we average Americans look over the great array of counsel and the respective clients whose causes they champion, one fact lends no encouragement to our hope that we may learn the merits of the claim that, somehow between 1907 and 1917 we became subjects and lost our status as free men. Although each client is represented by his own distinguished attorneys and although eminent counsel argue and file briefs, asamici curiæ, on behalf of the state governments which claim that we are subjects and on behalf of some of the litigating other states and individuals, noamicus curiæfiles any brief on behalf of us, the citizens of America, the reservees of the Tenth Amendment, the “conventions” of the Seventh and the Fifth Articles.

There is, however, this comfort. If,becausethe counsel in opposition to the new Amendment do not know and urge our legal protection against any new constitution ofnationalgovernment except by ourselves, the citizens of America, the “conventions” of the Fifth Article, and if,becauseof such ignorance on the part of counsel, the Court should not be called upon either to consider or pass upon our protection, no decision of the Court will be intended to have—as no decision of the Court could have—any effect upon our protection. If counsel fail to bring before the Court the legal facts which demonstrate that the new Amendment is not in the Constitution unless we Americans are “subjects,” our day in Court is merely postponed. And when that day shall come, when that Court is addressed by counsel who do represent the citizens of America and who accurately know the constitutional protection which we have for all our rights, there is not the slightest danger that the Court, established andmaintained by us for the sole purpose of protecting our individual rights against usurpation by government, will decide that we are subjects and that governments can create new government power to interfere with the freedom of the individual American citizen.

Meanwhile, let us examine the briefs of March, 1920. In them, despite our regret that not one of them was written in our behalf, it may be possible, it ought to be a certainty, that we will hear something about the “when” and the “how,”after1907, we are supposed to have lost our status as free men and citizens of America.

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