CHAPTER XXVITHE AMERICAN CITIZEN WILL REMAIN

The United States [the great political society of men which this book persistently calls America] form, for many, and for most important purposes, a single nation.... In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests in all these respects, is the government of the Union. It istheir government, and in that character they have no other. America has chosen to be, in many respects, and to many purposes, a nation; and for all these purposes,her governmentis complete; to all these objects, it is competent. The people have declared that, in the exercise of all powers givenfor these objects, it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory. (U. S. Supreme Court, Cohens v. Virginia, 6Wheat.264, at p. 413 et seq.)

These words of Marshall tell every American why there is an “America,” a nation of men, in addition to a “United States,” a federation or league of political entities. The league existed before the Constitution created the nation. The league was not created by the Constitution. But the league was continued by the Constitution in which free men created the nation. In that Constitution, the league and its component members (the states) were made subordinate to the nation anditscomponent members, who are the citizens of America.

How comes it, then, that modern leaders, for five years last past, have talked their nonsense aboutanothergovernment of the one American people? How comes it that they have argued and acted as if the Fifth Articleconstitutedanother government of the one American people?

It certainly would be startling for Marshall and his generation to hear the Eighteenth Amendment claim that one important purpose for which Americans chose to be one people was the purpose of enabling thirty-six legislatures of state citizens to interfere, “in all matters whatsoever,” with every individual liberty of all American citizens.

In the light of our education with the one American people who chose to be, “in many respects, and to many purposes, a nation” and to have,IN THAT CHARACTER, no government other than the government constituted by the First Article, how otherwise, than by the one word “nonsense,” can we dignify the five-year discussion as to theextentof the powers granted in the Fifth Article toothergovernments, the respective governments of the members of the league, to interfere with the liberties of the members of the nation, the citizens of America?

Citizens of America, particularly emigrants from Europe,mustbe taught the reasonwhyand the factthatthe one American people “were bound to have and did at last secure” a government free from interference by “legislatures,whether representing the statesor the federal government.” (Judge Parker, supra, in Preface.)

Who is to teach the average citizen the reason or the fact? Have our most renowned lawyers shown any knowledge of either? Their own briefs have beenpermitted to speak for them. Which of those briefs has put a finger upon the basic flaw in the Eighteenth Amendment challenge to the fact that the American citizens “did at last secure a Government” whichitscitizens “could control despite” alllegislatures, whether representing state citizens or themselves?

The men who wrote these briefs are far more than lawyers of great renown. They are among the best known leaders of public opinion in America. Many thousands of average citizens rely upon such men to know and state every constitutional protection to individual liberty. In any generation, reliance upon any public leaders for knowledge on that matter is a distinct menace to individual liberty. The imaginary Eighteenth Amendment will have served a useful purpose if it teaches us that we must knowof our own knowledge, if we want to remain free citizens of America.

“No man, let his ingenuity be what it will, could enumerate all the individual rights not relinquished by this Constitution.” (Iredell, later a Supreme Court Justice, in the North Carolina convention, 4Ell. Deb.149)

These are the rights “retained by the people” of America in the Ninth Amendment because not enumerated in the First Article.

“If this Constitution be adopted, it must be presumed the instrument will be in the hands of every man in America, to see whether authority be usurped; and any person by inspecting it may see if the power claimed be enumerated. If it be not, he will know it to be a usurpation.” (Iredell, in North Carolina convention, 4Ell. Deb.172.)

All granted powers to interfere with the individualfreedom of theAmericancitizen, “in that character,” are enumerated in the First Article.

All powersof that kindnot enumerated therein are reserved in the Tenth Amendment exclusively to the American citizens themselves to be exercised or grantedby themin the “conventions” of the Fifth Article.

One of these powers is that which some governments of state citizens, in the Eighteenth Amendment, have attempted both to exercise and grant.

The brief ofwhichpublic leader has known or stated these facts to the destruction of the Amendment and to the continued existence of the free American citizen?

The experience of ages has taught that human liberty, even in a republic, is never secure unless the citizens of the republic themselves understand the basic security which protects that liberty. The writer of this book wishes to keep his own individual liberties secure against usurpation by any government in America. He wishes to keep his status, as such citizen, to all governments in America—the status established by the citizens of America through whose experience we have been educated. He knows that such status must end forever unless American citizens generally have the same earnest wish and,of their own knowledge, knowhowthe Constitution secures that status and their individual liberty.

Shortly after the American people had chosen to be a nation with one government of enumerated powers, there came to that then land of individual liberty an Irish exile. Quickly he assumed his place with the great lawyers of America. And in the year 1824 he made clear that he would have been able to teachournew citizens andourpublic leadershowthe one American people “did at last securea government” which that one American people “could control despite” the state legislatures. In the argument before the Supreme Court in the famous case of Gibbons v. Ogden (9Wheat.1, at p. 87), where his opponent was Webster, this is how Emmett stated a factthenknown and “felt and acknowledged by all”:

“The Constitution gives nothing to the states or to the people.Their rights existed before it was formed.... The Constitutiongivesonly to the general government, and, so far as it operates on the state or popular rights, ittakes awaya portion, which it gives to the general government.... But the states or the people must not be thereby excluded from exercise of any part of the sovereign or popular rights held by them before the adoption of the Constitution except where that instrument has given it exclusively to the general government.” The italics are those of Emmett.

What does this clear statement of fact (known by Emmett and his generation to be the exact statement of the Tenth Amendment) make out of every argument, whether for or against the Eighteenth Amendment, based on the assumption that the Fifth Article does give something to the states and their governments? Can any American citizen doubt that it makes clear that to describe such arguments by any other word save “nonsense” is to lend them a dignity which they do not possess?

Without a single exception, every argument during the last five years, whether for or against the Eighteenth Amendment, has deserved the criticism of the Supreme Court for the fact that such argument neitherknew nor considered the meaning of the Tenth Amendment.

It reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The argument of counsel ignores the principal factor in this Article, to wit, “the people.” Its principal purpose was not the distribution of power between the United States and the states, but a reservation to the people of all powers not granted. The Preamble of the Constitution declares who framed it,—“We the people of the United States,” not the people of one state, but the people of all the states; and Article X reserves to the people of all the states the powers not delegated to the United States. The powers affecting the internal affairs of the states not granted to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, [the power of each state for that state to its own people or citizens] and all powers of anational characterwhich are not delegated to the national government by the Constitution are reserved to the people of the United States [the one people or citizens of America, that one American people which Marshall so accurately knew]. The people who adopted the Constitution, knew that in the nature of things they could not forsee all the questions which might arise in the future, all the circumstances which might call for the exercise of furthernationalpowers than those granted to the United States, and, after making provision for an Amendment to the Constitution by which any needed additional powers would be granted, they reserved to themselves all powers not so delegated. (Supreme Court, Kansas v. Colorado, 1907, 206U. S.46 at p. 90.)

Why has every argument, for or against the new Amendment, ignored the simple and impressive fact that the one word “conventions” was written into the Fifth Article and the Seventh Article by the delegates at Philadelphia, very shortly after they had reasonedout and reached their famous legal decision as to the difference between the ability of “conventions” and the ability of “state legislatures,” also named in the Fifth Article? Why completely ignore the decisive effect of this fact when considered with the fact, that Philadelphia mentioned “conventions” in both Articles and only in the Fifth mentioned “state legislatures”? If we put ourselves exactly in the position of Philadelphia when it was doing this, we see at once why state “legislatures” are pointedly absent from the Seventh Article. Philadelphia knew the nature of the First Article, that it constituted government ability to interfere with individual freedom. Philadelphia knew that neither “state legislatures” nor any combination of governments can make an Articleof that kindin any land where men are “citizens” and not “subjects.” That is why “legislatures” are not mentioned in the Seventh Article. But Philadelphia did not know the nature of any Article which might beproposedat any particular time in the future by the body which was to perform the duty of proposing, the duty which Philadelphia was then performing. And Philadelphia knew that any futureproposedArticle might be of the kind which state legislatures could make. It was the conviction of Hamilton thatallfutureproposedArticles would be of the kind that “legislatures” could make because they would be of the kind that did not relate to “the mass of powers” to interfere with individual liberty. That is why Philadelphia, almost immediately after it had omitted any mention of “legislatures” in the Seventh Article, did mention “legislatures” in the Fifth Article, which related to the making of future Articles whose nature Philadelphia could not possibly know.

Let us not forget what Madison told us about the Seventh Article: “This Article speaks for itself. The express authority of the people alone could give due validity to the Constitution.” (Fed.43.) This is his statement that the Article itself tells us that “the express authority of the people”willmake the Articles proposed from Philadelphia. How does the Article speak for itself and tell us that? By its one word “conventions.” Could Madison tell us more plainly that the word “conventions,” which he and his associates wrote into the Seventh and which he wrote into the Fifth Article, means “the express authority of the people”?

Can any supporter of the Eighteenth Amendment find any statement from Madison in which he tells us his word “legislatures” means what he has just told us his word “conventions” means? And, when “conventions” meant the “express authority of the people” before the Fifth or Seventh Articles were written, how could the mention of “conventions” in the Fifth imply a grant from the “conventions” to the “conventions”?

Why not admit the simple truth overlooked for the past five years? The respective mentions of “Congress,” of “conventions” and of state “legislatures” in the Fifth Article speak plainly of each body respectively doing something which it could do if there were no Fifth Article.

If there were no Fifth Article, could not Congress draft an Article andproposeit andproposea mode of ratification? Philadelphia did all these things and knew and stated that it exercised no power in doing any of them. The mention of Congress implies no “grant.” On the contrary, it is a command which prevents the rest of us from making such proposals andprevents “conventions” or state “legislatures” from making Articles, within their respective abilities,unlessproposed to them by “two thirds of both houses of Congress.”

If there were no Fifth Article, could not “conventions” make any kind of an article, as they had made the National Articles of 1776 and as they were making the Articles of 1787? The mention of “conventions” implies no grant. On the contrary, it is a command telling the “conventions” that a “Yes” from three fourths of the “conventions” shall be necessary and sufficient for “constitutional” exercise of the power they have. It is a great security for human freedom. It makes very difficult oppression of the people by the people.

If there were no Fifth Article, could not state “legislatures” make declaratory orfederalArticles, which neither exercise nor create power to interfere with human individual freedom? They had, in 1781, made an entire constitution of Articlesof that kind. The mention of “legislatures” implies no “grant.” On the contrary it is a command to these “legislatures,” representing the members of the union of states. The command comes from the superiors of the states, the “conventions” of the whole American people.

It is not the only command which the “conventions” of that one people made to the states andtheir“legislatures.” How absurd to imply from that command that it is a “grant” of power to those commanded governments, giving them omnipotence over every human freedom of the American people who made the command!

We know what Madison told the Americans in the “conventions,” when he asked them to make his FifthArticle. He told them that it was a “mode of procedure” in which either the general government or the state governments couldoriginate, byproposal, the introduction of changes into the Constitution which is bothnationalandfederal. He pointedly didnottell those Americans that the Fifth Article is a “grant” of any ability to the state governments to makenationalArticles and he pointedly didnottell them that it is a “grant” of ability to anyone tomakeany Articles.

Why then was it necessary for the leading brief, in support of the Eighteenth Amendment, toaddto Madison’s explanation of his own Fifth Article (the explanation that it was a “mode of procedure”) the absurd statement that it was a “grant” from the “conventions” to the “conventions” and the state legislatures of powerto makeAmendments? Why then was it necessary that this brief, speaking of the Fifth Article, should say: “The people thus ordained the mode of Amendment,” exactly what Madison said, “and in their own interest they established this power of Amendment”—exactly what Madison pointedly omitted to state to the Americans he asked to make the Fifth Article?

The answer is simple. Without adding to the Madison statement what he pointedly omitted to state, without stating the addition as axiomatic, Hughes could not evenbeginany argument for the Eighteenth Amendment.

The statement which Hughes adds to that of Madison is a statement which flatly contradicts everything we have heard in the “conventions.” It flatly contradicts everything the Americans did from 1775 on. It flatly contradicts the Tenth Amendment declarationthat the Fifth Article givesnopower whatever to the states ortheirgovernments. The added statement is sheer “nonsense,” assumed and asserted as axiomatic fact.

And, during the last five years, how has every argument against the Eighteenth Amendment met the “nonsense” of the assumption that the Fifth Article is a “grant?” In no way at all, except by assuming and asserting the same “nonsense,” and by then undertaking to prove another absurdity, namely, that the Fifth Article does notrelateto the making of fundamental changesbecausethe imaginary “grant” is limited in extent and does not include power to take away from the importance of the respective political entities which are the states.

Let no American citizen make any mistake as to this one fact. In no argument either for or against the Eighteenth Amendment has there been any challenge to the sheer assumption that the Fifth Article is a “grant” of ability to make changes in the Constitution which is bothfederalandnational. On the contrary, in every argument, the foundation of everything asserted and urged is that very assumption.

In every argument against the Eighteenth Amendment, possible changes in the Constitution (which is both federal and national) have been divided into two classes, but not into the federal class and the national class. It has been invariably contended that the first class include those whichcanbe made under the imaginary “grant” of power in the Fifth Article and in the mode of procedure therein prescribed. On the other hand, it has been invariably contended that the other class includes those whichcannotbe made under that imaginary “grant” or inanyCONSTITUTIONALprocedurebecausethey take away from the citizensof a statetheir right to govern themselves.

All arguments alike, whether for or against the Eighteenth Amendment, have wholly ignored the fact that the citizens ofAmerica, for the protection of the individual liberty of the one American people,IN THAT CHARACTER, established the Constitution and made it the supreme law over the citizens of the respective states and the states themselves and the state governments and the league of the states, which the citizens of America continued as subordinate to their nation of men.

For this reason probably, no argument, on either side, has ever recognized the identity of the “conventions” of the Seventh Article with the “conventions” of the Fifth Article. For this reason probably, no argument has ever recognized the identity of both “conventions” with the most important factor and reservee in the Tenth Amendment, “the people” of America, as distinguished from the lesser reservees, the peoples or citizens of each state, “the states respectively.”

It is this very failure to recognize this identity which has forced the opponents of the new Amendment into the “nonsense” of assuming and asserting, with their adversaries, that the Fifth Articleisa “grant” to the “conventions” and the state “legislatures.” If there had not been this failure, everyone would have recognized that the “conventions,” which made the Constitution, neither could nor did “grant” to themselves, the “conventions” named in the Fifth Article, any or all of the very power which they were then exercising. The “nonsense” of the concept of such a “grant” is patent once there is recognized the identity betweenthe “conventions” with the most important reservee of the Tenth Amendment, the one American people of Marshall.

We all know that, for five years, that identity has never been known or mentioned. The failure to know or to mention it has been emphasized by the occasional references to “conventions” which have been made. In one or two arguments, there has been passing attempt to support the “nonsense,” that the Fifth Article is a “grant,” but a “grant” limited in extent, by a suggestion that the Eighteenth Amendment could be “grafted” on the Constitution entirely outside of any mode of procedurementionedin the Constitution. The suggestion has been that it could be “grafted” on the Constitution by “conventions” of the citizensof each state, provided that the citizens ofeverystate gave their consent. In these suggestions, we ourselves, the citizensof America, the whole American people of Marshall, have figured not at all.

We, whoarethe citizens of America, must now realize the vital importance to our personal liberty of our own knowledge that we are citizens of America as well as citizens of some particular state. Wilson pointed out to the Americans in the Pennsylvania convention the dual capacity of the American, if the new Constitution were adopted. We remember his statement that “it was necessary to observe the two-fold relation in which the people would stand—first as citizens of the general government and, secondly, as citizens of their particular state. The general government was meant for them in the first capacity; the state governments in the second. Both governments were derived from the people; both meant for the people; both therefore ought to be regulated on thesame principles.” And we remember the one most important American principle, that every government in America must get, directly from its own citizens, every power to interfere with their individual freedom.

We cannot help contrasting the accurate statement of Wilson, “in this Constitution the citizens of America appear dispensing a portion of their power,” with what must be the modern statement, if the Eighteenth Amendment is in the Constitution, namely, “in this Constitution thestate governmentsappear dispensing to themselves and to the national government another portion of the power of the citizens of America.”

And, if that modern statement is “nonsense,” what else but “nonsense” are the arguments which rely upon its truth or which do not point out its absurdity?

What action ofourpublic leaders, even in this year 1923, does not disclose that they still have the Tory concept that states and their governments, both of which are political entities,canexercise or grant power which the Tenth Amendment expressly declares that the American citizens reserved exclusively to themselves, and which the Supreme Court, even as late as 1907, clearly held “could be exercised only by them or upon further grant from them?” No discerning American has failed to note that the Senate still clings to the delusion of 1917, that states andtheircitizens andtheirgovernments have anything whatever to do with thenationalpart of the Constitution of the citizens of America. In the newspapers, on January 30, 1923, under the heading, “Favor New Defense for Constitution,” appeared a dispatch from Washington. It told how the senators on the Judiciary Sub-Committee had agreed to report favorably a proposal again toamend the Constitution by changing the language of the Fifth Article. And the main element of the proposed change is to provide that any state may require that ratification by its legislature be subject to confirmation by popular vote of the citizensof that state.

The citizens of each state make their own Constitution. In it, they give to their own government what ability they please to interfere with their own individual freedom. What have the citizensof any State, what have the citizensof every state, in their capacityas state citizens, to do with grants of power to the American government to interfere with the individual liberty of theAmericancitizens? Have not theAmericancitizens, ineverystate, protection against grants ofsuchpower to the one government of theAmericanpeople except by the citizensof Americathemselves,in that character? Is there anything in the Fifth Article, as it was written by Madison and made by the one American people, which permits any state governments—which have no power even over their own respective citizens except by grant from them—to exercise or create new government power to interfere with the liberty of the citizens of the distinct and supreme nation, America?

Why persistently and insistently ignore the basic American legal principle that every state government must get its own power over its own citizens from them and that the only government of the American citizens must get its everynational(as distinguished fromfederal) power directly from the citizensof America, assembled in the “conventions” named in the Fifth Article?

Is there any doubt that Madison, who wrote the Fifth Article, knew whom its word “conventions” described?When he asked the one American people to make the entire Constitution, this is what he told them about the Seventh Article, in which the same word “conventions” was used: “This Article speaks for itself. The express authority of the people alone could give due validity to the Constitution.” If the Seventh Article “speaks for itself” and points out that “the people alone” are to make the Constitution, with its grants ofnationalpower in the First Article, what word in that Seventh Article identifies the makers of the Constitution, which Madison and all Americans know was made by theone peopleof America? Is there any word in it except the one word “conventions” to describe the people or citizens of America? And if that one word “conventions” makes the Article speak for itself and tell us that the American citizens themselves made the whole Constitution, does not the word “conventions” in the Fifth Article speak just as plainly for itself and tell us that it also describes and identifies the one people of America, the citizens of America?

Why then tinker with the Fifth Article and repeat the monumental error on which the existence of the Eighteenth Amendment is assumed? Why propose an Amendment to the Fifth Article, which Amendment will itself assume that the Fifth Article already is a “grant” to the state legislatures of ability to give away from the citizens of America their exclusive power to say to what extent and in what matters their one American government may interfere with their individual freedom in their character as American citizens?

Why not be sane and admit that the Fifth Article is not a “grant” to the legislatures of state citizens?It is settled fact that each such legislature, like every legislature in America, must get its every power to govern its own citizensfromits own citizens. That is why the Fourth Article guarantee of “a Republican Form of Government” to every state has taught us (pp. 250-1) the absurdity of the thought that the Fifth Article enables state governments outside Rhode Island to give its government power to interfere with the individual freedom of citizens of Rhode Island. And there is a further and more monumental absurdity, in this same respect, when we contrast this Fourth Article guarantee with the assumption that the Fifth Article is a “grant” to the state legislatures. One of the great purposes for which the whole American people made themselves one nation of men was that the strength of such a great nation might be used to secure to the Americans in every state the ability to govern themselves without any interference from outside the state, in all matters except those in which the citizens of America took from them the ability to govern themselves. That is why the citizens of America wrote that guarantee into the Fourth Article as a command to their inferiors, the states and the state governments. Having thus secured “a Republican Form of Government” to the Americans in every state by the command of the Fourth Article, is it conceivable that the same whole American people, immediately thereafter and in the Fifth Article, created for the citizens of America a government which has not even the semblance of “a Republican Form of Government”? That is the concept on which the existence of the Eighteenth Amendment depends. It is not in the Constitution unless, immediately after the guarantee of the Fourth Article andinthe Fifth Article, the whole people of Americasaid: “We have just insisted that the Americans in each state must be governed by a government which gets its power directly from them. For ourselves, however, as the whole American people, we are content to let two thirds of Congress and the legislatures of three fourths of the states interfere with our individual freedom, in all matters whatsoever. For that reason, we make this grant to those legislatures. For ourselves, as one people, we have no desire for a Republican Form of Government.”

Does not the claim that the Americans did say this in their Fifth Article entitle us more justly than Henry to exclaim: “I suppose that I am mad, or that my countrymen are so!” (3Ell. Deb.446.)

We know, with certainty, that the Eighteenth Amendment is not in our Constitution, and we know that the real and invincible challenge to its existence has never been made. What will be the epitaph of the audacious attempt of government to dictate to Americans as “subjects,” when the challenge is presented to the Supreme Court? No patriotic American can have the slightest doubt. No man, familiar with its history and traditions, can fail to know the answer of that Court to the question, “Citizen or Subject?”

It is not unknown that there is growing up in America, even among many public leaders and lawyers, an unfounded concept that the Supreme Court was created by the American citizensto makelaw. Such concept is quite in accord with the concept—indeed it is part of the concept—that government can create and constitute new government of men. But the entire history and tradition of the Supreme Court flatly denies the existence of any such concept in the mind of the Court itself. Even in the National Prohibition Cases, theCourt quickly displayed the American concept of the relation of men to all governments in America. When the lawyers had finished their incessant talk about the imaginary Fifth Article “grant” which would make all American citizens “subjects” of some governments of state citizens, had the Tory concept of such a grant made the slightest impression upon the mind of the Court? We all know that in the decisions, which merely negatived four unsound challenges to the Amendment, the first statement of the Court was a reference to the power “RESERVED” in the Fifth Article.

And we know how, in the same litigations, the Court wholly ignored the absurd claim, even when advanced by a former justice of the Court, that, when governments had attempted to put anything into our Constitution, so long as the attempt did not involve changing the number of senators from a state, the Court was without power to review the action of governments or to protect the American citizen against usurpation by government.

The Constitution is not only the same in words, but the same in meaning, and delegates the same powers to the government, and reserves and secures the same rights and privileges to the citizen, and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers and was voted on and adoptedby the people of the United States. Any other rule of construction would abrogate the judicial character of the Court, and make it the mere reflex of the popular opinion or passion of the day. This Court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty. (Scott v. Sandford, 19How.393, at p. 426.)The high power has been conferred upon this Court of passing judgment upon the acts of the state sovereignties and of the legislative and executive branches of the federal government, of determining whether they are beyond the limits of power marked out for them respectively by the Constitution of the United States. (Luther v. Borden, 1849, 7How.1 at p. 47.)

The high power has been conferred upon this Court of passing judgment upon the acts of the state sovereignties and of the legislative and executive branches of the federal government, of determining whether they are beyond the limits of power marked out for them respectively by the Constitution of the United States. (Luther v. Borden, 1849, 7How.1 at p. 47.)

The Court will never be called upon to exercise a higher or graver trust than to answer the question “Citizen or Subject?”, when the real challenge is made to the new attempted constitution of government of men entirely by government. The Court is not unaware that the whole American people established their Constitution for the one purpose of protecting individual liberty.

The simple, classical, precise, yet comprehensive language in which it is couched, leaves, at most, but very little latitude for construction; and when its intent and meaning is discovered, nothing remains but to execute the will of those who made it, in the best manner to effect the purposes intended. The great and paramount purpose was to unite this mass of wealth and power, for the protection of the humblest individual; his rights, civil and political, his interests and prosperity, are the soleend; the rest are nothing but themeans. (Justice Johnson, Gibbons v. Ogden, 9Wheat.1, at p. 223.)

Nor will anyone familiar with the unbroken tradition of the Supreme Court listen, with aught but mingled incredulity and indignation, to the suggestion that the Court itself has not always understood that it is itself but a part of thelimitedgovernment of the one American people, created by that people as one means to that sole end.

“It is emphatically the province and duty of the Judiciary Department to say what the lawis.”

This is the clear statement of Marshall in Marbury v. Madison, 1Cranch.137, declaring unconstitutional a section of an act of Congress, which had been passed at the first session in 1789. The entire Bench and Bar of America, including the Supreme Court, for fourteen years, had practiced on the assumption that the section was constitutional. Yet in 1803, the Supreme Court declared it to be unconstitutional. Nothing could more clearly establish the knowledge of the Supreme Court that no continued thought (even by the Court itself), that any command of legislatures is valid, will ever blind the Court to its bounden duty to announce the fact that the command was made without authority from the people, when that fact is once made clear to the Court.

Exactly the same attitude was taken by the Court in relation to an income tax and afederallimitation on anationalpower given to impose direct taxation.

When that federal limitation was imposed it was aimed only at taxation on land and at what were then known as “poll” or “capitation” taxes. In the days of the “conventions” where we have sat, all other kinds of taxation were deemed to be indirect taxation.

In the very early days of the Supreme Court, this knowledge of the “convention” days was echoed in decisions which,on that ground, held that certain taxes, which today might be regarded as direct taxation, were not within the federal limitation as to apportionment of direct taxes among the states. Among those taxes, those imposed without apportionment, were a tax on carriages and receipts of insurance companies and on the inheritance of real estate. Even as late as the days of the Civil War, when a tax was imposedupon incomes and without apportionment among states, the Supreme Court held that such tax was not a direct tax within the meaning of “direct tax” to those who imposed the federal limitation.

Nevertheless, when the income tax law of 1894 had been enacted, its opponents again carried to the Supreme Court the claim that it violated the federal limitation on the power of direct taxation, because it did not apportion the tax among the states. And the Supreme Court, by a divided vote and on the ground that a tax on the income from land was a tax on the land itself and consequently a direct tax, held the Income Tax Law of 1894 to be void. It was by reason of this decision that the Sixteenth Amendment was proposed and adopted, making thefederalchange in the Constitution that lifted thefederallimitation from the national power of direct taxation insofar as a tax on incomes was concerned.

In these decisions, as in the many others which have followed the same clear American concept of duty and power, the Supreme Court has always known and followed the reason stated by Hamilton for its existence as part of thelimitedgovernment of the one American people.

InFederalist, Nos. 78 and 81, appealing to the Americans to make the Constitution, Hamilton points out that the Constitution does not authorize the Supreme Court to exercise its will to make the law what the Court thinks itought to be, but does impose upon the Court the duty of exercising its judgment to ascertain what the lawhas been madeby those competent to make it. And then he points out that the Supreme Court, in this Constitution of a self-governing people, is made the great bulwark of the people against legislativeencroachment upon the rights or powers of the people reserved to themselves.

This knowledge of Hamilton has been the knowledge of the Supreme Court from its institution. It has been reiterated and explained and expounded in that Court from the days of Marshall to our own day. It has become part and parcel of the great traditions of that Court, which are the foundation of the great respect which the average American citizen pays to its decisions and its authority as his own great protection against usurpation of power by other departments of his various governments.

And so the average American citizen will look forward with certainty to the decision of that Court when therealchallenge is made to the existence of the Eighteenth Amendment by an American who does know and assert the plain facts which mean that either there is no Eighteenth Amendment or there never has been an American citizen. Itissimple fact that the existence of the Eighteenth Amendment, that government-made constitution of government of men, is absolutely incompatible with the existence of a citizen of America. Itissimple fact that the Fifth Article did not grant to state governments or to any governments the ability to make Articles like the First Article or the Eighteenth Amendment, or else the Fifth Article made all Americans “subjects” of a part of the state governments, with omnipotent ability in those governments to legislate for Americans “in all matters whatsoever.”

And it is simple fact that the Supreme Court must and will—when the real challenge is at last made—decide that the Eighteenth Amendment is not in thenationalpart of the American Constitution because it was made by governments and not by the “conventions”of the Fifth Article. Otherwise, in the face of history, in the face of the record of the “conventions” of the American citizens, and in the face of all that the Supreme Court has hitherto decided, the Court must decide that the American citizen has never existed. The possibility that there should be such a decision is absolutely beyond conception.

What the decisionwillbe was long ago foreshadowed and forecast by Daniel Webster. It would almost seem as if Webster had heard the Sheppard claim that the states made the Constitution and that the states had then agreed between themselves that the governments of thirty-six of the states, in combination, could command the American citizen in any matter of his individual freedom. It would almost seem as if Webster had heard Hughes deny, while his associate lawyers for the Eighteenth Amendment still asserted with Sheppard, that the Constitution was a compact between states and then had heard them all insist that the Fifth Article was a “grant” which made thirty-six governments of state citizens an omnipotent Parliament over all citizens of America.

“When the gentleman says, the Constitution is a compact between the states, he uses language exactly applicable to the old Confederation. He speaks as if he were in Congress before 1789. He describes fully that old state of things then existing. The Confederation was, in strictness, a compact; the states, as states, were parties to it. We had no other general government. But that was found insufficient, and inadequate to the public exigencies. Thepeoplewere not satisfied with it, and undertook to establish a better.Theyundertook to form a general government which would stand on a new basis—not a confederacy,not a league, not a compact between states, but a constitution; a popular government, founded in popular election, directly responsible to the people themselves, and divided into branches, with prescribedlimits of power, and prescribed duties.Theyordained such a government;theygave it the name of a constitution; and thereintheyestablished a distribution of powers between this, their general government, and their several state governments. Whentheyshall have become dissatisfied with this distribution,theycan alter it.Their own power over their own instrument remains.But untiltheyshall alter it, it must stand astheirwill, and is equally binding on the general government and on the states.” (Webster’s concluding remarks in the reply to Hayne, 4Ell. Deb.518.)

Is not the same doctrine certain from the Court which knew the whole Constitution so well that it decided, in the important case of Barron v. Mayor of Baltimore, supra, p. 376, that the entire Constitution gave no power of any kind to the state governments? Is not the same doctrine certain from the Court which held:

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. (Turner v. Williams, 194U. S.279 at 296.)

When the real challenge to the Eighteenth Amendment is presented before that Court, it will be necessary for the defenders of the Amendment to abandon the disguise in which they attempt to conceal the real nature of their Tory concept. No one of them hasbeen bold enough to state in words the real claim about the Fifth Article. That real claim is that the Article is a “grant” and that the “grant” gives to thirty-six governments of state citizens unrestricted ability to interfere with the freedom of the American citizen on every subject enumerated in the First Article and on every subject not enumerated in the First Article. That is not the way any defender of the Amendment states his claim. It is always stated that those thirty-six governments can change the Constitution by putting into it anything which the American citizens, assembled in their “conventions,” can put into it. Our education with the Americans in the “conventions” has taught us that both statements are exactly the same statement. If the thirty-six state governments can make the command to the American citizens which is embodied in the First Section of the Eighteenth Amendment, by putting that command into thenationalpart of our Constitution, any thirty-six state legislatures can make any command to the American citizens on any subject enumerated or not enumerated in the First Article. The claim, that the Fifth Article “grants” to the thirty-six state governments the right to put the command in the Constitution, is identical with the claim that the Fifth Article “grants” to the state governments the right to make the command to the citizens of America. A legislative command to human beings, interfering with their individual freedom, is a legislative command by whatever name it may be called. Mere omission to call a legislative command by the usual names, an “Act” or “Statute,” cannot alter its essential nature.

From June 21st, 1788, the birthday of the American nation of men, there has been but one possible answerto the question which is the title of this book. That one answer was known to everyone in the “conventions” which made the Fifth Article. The Americans in those conventions all knew that they were becoming “citizens” of America, not “subjects” of any governments. They knew that they were dispensing part of the power of the American citizens to Congress in the First Article;and that the rest of that power they were reserving to themselves. They knew that they were giving no power whatever to the state governments with whomtheynever deal except to command those governments.

That is why Pendleton, in the Virginia convention, made his statement of fact in the oratorical form of a question, because the one answer to the question was known and “felt and acknowledged by all.” His statement of fact, made in the oratorical form of a question, is, in substance, exactly the title of this book:

“Who but the people can delegate powers?... What have the state governments to do with it?” (3Ell. Deb.37.)

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