SOLUTION MANUAL FOR MARKETING 2014 17TH

EDITION PRIDE AND FERRELL 1133939252

9781133939252
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CHAPTER 5
Marketing Research and Information Systems
TEACHING RESOURCES QUICK REFERENCE GUIDE
Resource Location
Purpose and Perspective IRM, p. 85
Lecture Outline IRM, p. 86
Discussion Starters IRM, p. 95
Class Exercises IRM, p. 96
Chapter Quiz IRM, p. 99
Answers to Discussion and Review Questions IRM, p. 100
Answers to Application Questions IRM, p. 102
Answers to Internet Exercises IRM, p. 104
Answers to Developing Your Marketing Plan IRM, p. 105
Comments on the Cases IRM, p. 106
Case 5.1 IRM, p. 106
Case 5.2 IRM, p. 107
Examination Questions: Essay Testing CD
Examination Questions: Multiple-Choice Testing CD
Examination Questions: True-False Testing CD
PowerPoint Slides Instructor’s website
Note: Additional resources may be found on the accompanying student and instructor websites at
www.cengagebrain.com.

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86 Chapter 5: Marketing Research and Information Systems

PURPOSE AND PERSPECTIVE

This chapter focuses on the information-gathering methods needed to make sound marketing decisions.
First, we discuss the role of marketing research in decision making and problem solving. We identify a set
of basic steps to follow when conducting a marketing research project: 1) locating and defining problems
or research issues, 2) designing the research project, 3) collecting data, 4) interpreting research findings,
and 5) reporting research findings. Then we turn to the methods of gathering marketing research data. We
describe various sources of secondary data. We explore primary data collection methods in detail,
focusing on sampling, survey methods, observation methods, and experimentation. We then discuss the
nature and role that databases, decision support systems, and the Internet play in collecting, organizing,
and interpreting marketing research data. Finally, we consider ethical and international issues in
marketing research.

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 Chapter 5: Marketing Research and Information Systems 87

LECTURE OUTLINE
I. The Importance of Marketing Research
A. Marketing research is the systematic design, collection, interpretation, and reporting of
information to help marketers solve specific marketing problems or take advantage of marketing
opportunities.
1. It is a process for gathering information not currently available to decision makers.
2. The purpose of marketing research is to inform an organization about customers’ needs and
desires, marketing opportunities for particular goods and services, and changing attitudes and
purchase patterns of customers.
B. Marketing research can help a firm better understand market opportunities, ascertain the potential
for success for new products, and determine the feasibility of a particular marketing strategy.
C. Marketing research is used by all sorts of organizations to help develop marketing mixes to match
the needs of customers.
D. Changes in the economy have changed marketers’ decision making strategies to focus more on
small-scale surveys and short-range forecasting. Businesses need speed and agility to survive and
to react quickly to changing consumer behavior.
E. The real value of marketing research is measured by improvements in a marketer’s ability to
make decisions.
1. Marketers should treat information in the same manner as other resources utilized by the
organization, and must weigh the costs of obtaining information against the benefits derived.
2. Information should be judged worthwhile if it results in marketing activities which improve
the organization’s ability to satisfy its target customers, leads to increased sales and profits, or
helps the organization achieve some other goal.
II. Types of Research
A. The nature and type of research varies based on the research design and the hypotheses under
investigation.
B. Marketing research involves two types of data.
1. Qualitative data yields descriptive non-numerical information.
2. Quantitative data yields empirical information that can be communicated through numbers.
C. Exploratory Research
1. When marketers need more information about a problem or want to make a tentative
hypothesis more specific, they conduct exploratory research.
2. More organizations are starting customer advisory boards, which are small groups of actual
customers who offer insights into their feelings and attitudes toward a firm’s products,
promotion, pricing, and other elements of marketing strategy.
3. A focus group brings together multiple people to informally discuss a certain topic in a group
setting led by a moderator.
a. Focus groups allow customer attitudes, behaviors, lifestyles, needs, and desires to be
explored in a flexible and creative manner.

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88 Chapter 5: Marketing Research and Information Systems

b. They can provide companies with ideas for new products or be used for initial testing of
different marketing strategies for existing products.
c. A current trend is online focus groups in which participants sign in to a website and type
their comments and responses.
(1) Online focus groups can gather data from large and geographically diverse groups in
a less intensive manner than focus-group interviews.
(2) This method makes it more difficult to ask participants about a product’s smell or
taste or observe the participants’ nonverbal cues and body language.
d. Focus groups do have a few disadvantages, including personality issues with participants
and difficulties with motivating honest feedback. For these reasons, focus groups are best
used to uncover issues that can then be explored using quantifiable marketing research
techniques.
D. Conclusive Research
1. Conclusive research verifies insights through an objective procedure to help marketers make
decisions; it is used when the marketer has in mind one or more alternatives and needs
assistance in the final stages of decision making.
2. If marketers need to understand the characteristics of certain phenomena to solve a particular
problem, descriptive research is a good aid.
a. Descriptive studies can range from general surveys of customers’ educations,
occupations, or ages to specifics on how they use products or how often they purchase
them.
b. Descriptive studies generally demand in-depth knowledge and assume the problem or
issue is clearly defined.
3. Experimental research allows marketers to make causal deductions about relationships.
a. Experiments involve manipulating an independent variable and measuring the resulting
changes in a dependent variable.
b. Experimental research can provide much stronger evidence of cause and effect than data
collected through descriptive research.
III. The Marketing Research Process
A. To maintain the control needed to obtain accurate information, marketers approach marketing
research as a process with logical steps. These steps should be viewed as an overall approach to
conducting research rather than as a rigid set of rules to be followed in each project.
B. Locating and Defining Problems or Research Issues
1. The first step in launching a research study is problem or issue definition, which focuses on
uncovering the nature and boundaries of a situation or question related to marketing strategy
or implementation. The first sign of a problem is typically a departure from some normal
function, such as conflicts between or failures to attain objectives.
2. Marketing research often focuses on identifying and defining market opportunities or changes
in the environment. When an organization discovers a market opportunity, it may need to
conduct research to more precisely understand the situation so it can craft an appropriate
marketing strategy.

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 Chapter 5: Marketing Research and Information Systems 89

3. To pin down the specific boundaries of a problem or an issue through research, marketers
must define the nature and scope of the situation in a way which requires probing beneath
superficial symptoms.
C. Designing the Research Project
1. Once the problem or issue has been defined, the next step is research design, an overall plan
for obtaining the information needed to address it. This step requires formulating a hypothesis
and determining what type of research is most appropriate for testing the hypothesis.
2. Developing an Hypothesis
a. An hypothesis is an informed guess or assumption about a certain problem or set of
circumstances.
b. The hypothesis is based on all available insight and knowledge about the problem or
circumstances from previous research studies and other sources.
c. Sometimes several hypotheses are developed during a research project; these accepted or
rejected hypotheses become the study’s chief conclusions.
3. Research Reliability and Validity
a. In designing research, marketing researchers must ensure that research techniques are
both reliable and valid.
b. A research technique has reliability if it produces almost identical results in repeated
trials.
c. To have validity, the method must measure what it is supposed to measure, not
something else.
D. Collecting Data
1. The next step in the marketing research process is collecting data to help prove or disprove
the research hypothesis. The research design must specify the types of data to collect and how
the data is collected.
2. Types of Data
a. Primary data are observed and recorded or directly collected from respondents. This
type of data must be gathered through observation or by surveying people of interest.
b. Secondary data are compiled inside and outside the organization for some purpose other
than the current investigation.
3. Sources of Secondary Data
a. Marketers often begin the data collection phase of the marketing research process by
gathering secondary data.
b. Internal sources of secondary data can include the organization’s own database, which
may contain information about past marketing activities, as well as accounting records.
c. External sources of data include periodicals, government publications, unpublished
sources, online databases, or outside services.
d. New technologies like TiVo and services provided on the Internet are challenging
traditional sources of secondary data by offering year-round, up-to-the-minute data.
4. Methods of Collecting Primary Data

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90 Chapter 5: Marketing Research and Information Systems

a. The collection of primary data is a more lengthy, expensive, and complex process than
the collection of secondary data.
b. Sampling
(1) Because the time and resources available for research are limited, it is almost
impossible to investigate all members of a target market or other population.
(a) A population, or “universe,” includes all the elements, units, or individuals of
interest to researchers for a specific study.
(b) Researchers can project the reactions of a total market or market segment by
systematically choosing a limited number of units—a sample—to represent the
characteristics of a total population.
(2) Sampling in marketing research is the process of selecting representative units from
a total population. Most types of marketing research employ sampling techniques.
There are two basic types of sampling: probability sampling and non-probability
sampling.
(3) With probability sampling, every element in the population being studied has a
known chance of being selected for study.
(a) When marketers employ random sampling, all the units in a population have an
equal chance of appearing in the sample.
(b) Stratified sampling divides the population of interest into groups according to a
common attribute, and then a random sample is chosen within each group.
(4) Non-probability sampling is more subjective than probability sampling because
there is no way to calculate the likelihood that a specific population element will be
chosen. One type of non-probability sampling is quota sampling, in which
researchers divide the population into groups and then arbitrarily choose participants
from each group.
c. Survey Methods
(1) Marketing researchers often employ sampling to collect primary data through mail,
telephone, online, or personal interview surveys.
(a) Selection of a survey method depends on the nature of the problem or issue, the
data needed to test the hypothesis, and the resources, such as funding and
personnel, available to the researcher.
(b) Gathering information through surveys is becoming increasingly difficult
because fewer people are willing to participate.
(2) In a mail survey, questionnaires are sent to respondents, who are encouraged to
complete and return them.
(a) Mail surveys are used most often when the individuals in the sample are spread
over a wide area and funds for the survey are limited.
(b) A mail survey is less expensive than telephone surveys, as long as the response
rate is high enough to produce reliable results.
(c) The main disadvantages of this method are the possibility of a low response rate
and of misleading results if respondents differ significantly from the population
being sampled.

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 Chapter 5: Marketing Research and Information Systems 91

(d) Premiums or incentives which encourage respondents to return questionnaires

have been effective in developing panels of respondents who are regularly
interviewed by mail.
(3) In a telephone survey, an interviewer records respondents’ answers to a
questionnaire. A telephone depth interview combines the traditional focus group’s
ability to probe with the confidentiality provided by a telephone survey.
(a) Telephone surveys and interviews have some advantages over mail surveys,
including higher rates of response, speed, and the ability to gain rapport with
respondents and ask probing questions.
(b) Telephone surveys and interviews have several disadvantages.
(i) Few people like to participate in telephone surveys which limit participation
and distort representation.
(ii) Telephone surveys are limited to oral communication; visual aids or
observation cannot be included.
(iii) Interpreters of results must make adjustments for subjects who are not at
home, do not have telephones, have unlisted numbers, or screen or block
calls.
(4) In a personal interview survey, participants respond to questions face to face.
(a) One such research technique is the in-home (door-to-door) interview, which
takes place in the respondent’s home.
(b) Shopping mall intercept interviews involve interviewing a percentage of
individuals passing by certain “intercept” points in a mall.
(c) An on-site computer interview is a variation of the mall intercept interview, in
which respondents complete a self-administered questionnaire displayed on a
computer monitor.
d. Online and Social Media Surveys
(1) In an online survey, questionnaires can be transmitted to respondents either through
e-mail or through a website.
(a) Because e-mail is semi-interactive, recipients can ask for clarification of specific
questions or pose questions of their own.
(b) The potential advantages of online surveys are quick response and lower cost
than traditional mail, telephone, and personal interview surveys if the response
rate is adequate.
(2) Marketers can also use social networking sites and other digital media forums to
identify trends in interests and consumption patterns.
(a) Often consumers choose to go to a particular social media site or blog and then
take the survey, which eliminates randomness and makes it more difficult to
obtain a representative sample.
(b) By “listening in” on these conversations, marketers may be able to identify new-
product opportunities and consumer needs.
(c) This type of online data can be gathered at little incremental cost compared to
alternative data sources.

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92 Chapter 5: Marketing Research and Information Systems

(3) Crowdsourcing takes tasks usually performed by a marketer or researcher and

outsources them to a crowd, or potential market, through an open call. In the case of
digital marketing, crowdsourcing is often used to obtain the opinions or needs of the
crowd (or potential markets).
(4) It is also important for organizations to harness all of their internal information, and
internal social networks can be helpful.
(5) Marketing research is likely to rely heavily on online surveys in the future.
(6) There are some ethical issues to consider when using digital marketing research, such
as unsolicited e-mail, privacy concerns, and obtaining a sample that is representative
of the desired population.
e. Questionnaire Construction
(1) Questions must be clear, easy to understand, and directed toward a specific objective.
(2) A common mistake in constructing questionnaires is to ask questions which interest
researchers but yield no useful information to accept or reject a hypothesis.
(3) Questions are usually of three kinds: open-ended, dichotomous, and multiple-choice.
(4) Researchers must be careful not to ask questions which may be considered too
personal or require an admission of activities likely to be condemned by others.
f. Observation Methods
(1) In using observation methods, researchers record individuals’ overt behaviors, taking
note of physical conditions and events. Direct contact with subjects is avoided.
(2) Observation may include the use of ethnographic techniques, such as watching
customers interact with a product in a real-world environment.
(3) Observation may also be combined with interviews.
(4) Data gathered through observation can sometimes be biased if the person is aware of
the observation process.
(a) An observer can be placed in a natural market environment, such as a grocery
store, without biasing or influencing shoppers’ actions.
(b) If the presence of a human observer is likely to bias the outcome or if human
sensory abilities are inadequate, mechanical means may be used to record
behavior.
(5) Observation is straightforward and avoids a central problem of survey methods:
motivating respondents to state their true feelings or opinions. However, results tend
to be descriptive.
E. Interpreting Research Findings
1. After collecting data to test hypotheses, marketers need to interpret research findings.
2. The first step in drawing conclusions from most research is displaying the data in table
format.
3. Next, the data must be analyzed: statistical interpretation focuses on what is typical and
what deviates from the average.
4. Data require careful interpretation by the marketer.

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 Chapter 5: Marketing Research and Information Systems 93

5. Managers must understand the research results and relate them to a context that permits
effective decision making.
F. Reporting Research Findings
1. The final step in marketing research is to report the research findings. The marketer must take
a clear, objective look at the findings to see how well the gathered facts answer the research
question or support or negate the initial hypotheses.
2. The report of the research results is usually a formal, written document.
3. Bias and distortion can be a major problem if the researcher is intent upon obtaining
favorable results. Marketing researchers must be very careful with their word choices.
IV. Using Technology to Improve Marketing Information Gathering and Analysis
A. Technology is making information for marketing decisions increasingly accessible.
B. Consumer feedback is an important aspect of marketing research, and new technology such as
digital media is enhancing this process.
1. In the case of negative feedback, marketers can communicate with consumers to address
problems or complaints more easily than with traditional marketing channels.
2. Companies can understand what features of their product mixes should be promoted or
modified.
C. Marketing Information Systems
1. A marketing information system (MIS) is a framework for the day-to-day management and
the structuring of information regularly gathered from sources inside and outside an
organization. It provides a continuous flow of information about prices, advertising,
expenditures, sales, competition, and distribution expenses.
2. The main focus of the marketing information system is data storage and retrieval as well as
computer capabilities and management’s information requirements.
3. An effective marketing information system starts by determining the objective of the
information by identifying decision needs which require certain information. The
organization can then specify an information system for continuous monitoring to provide
regular, pertinent information about external and internal environments.
D. Databases
1. A database is a collection of information arranged for easy access and retrieval.
2. Databases, usually accessed through a computer system, allow marketers to tap an abundance
of useful information to make marketing decisions. Databases may contain internal sales
reports, newspaper articles, company news releases, government economic reports,
bibliographies, and more.
3. Customer Relationship Management (CRM) employs database marketing techniques to
identify different types of customers and develop specific strategies for interacting with each
customer.
a. Identify and build a database of current and potential customers.
b. Deliver differential messages according to each consumer’s preference and
characteristics through established and new media channels.

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94 Chapter 5: Marketing Research and Information Systems

c. Track consumer relationships to monitor the costs of retaining individual customers and
the lifetime value of their purchases.
4. Marketers must distinguish between active customers, those likely to continue buying from
the firm and inactive customers, those likely to defect.
a. Identify profitable inactive customers who can be reactivated.
b. Remove inactive unprofitable customers from the customer database.
c. Identify active customers who should be targeted with regular marketing activities.
5. Marketing researchers can also use commercial databases developed by information research
firms to obtain useful information for marketing decisions.
6. Single-source data is information provided by a single firm about household demographics,
purchases, television viewing behavior, and responses to promotions, such as coupons and
free samples.
E. A marketing decision support system (MDSS) is customized computer software which helps
marketing managers anticipate the effects of certain decisions.
V. Issues in Marketing Research
A. The Importance of Ethical Marketing Research
1. It is essential that professional standards be established by which research may be judged
reliable because marketing managers and other professionals increasingly rely on marketing
research, marketing information systems, and new technologies to make decisions,.
2. Organizations like the Marketing Research Association have developed codes of conduct and
guidelines to promote ethical marketing research.
3. Consumer privacy has also become a significant issue as firms now have the ability to
purchase and collect data on customer demographics, interests, and more personal matters.
a. This information has allowed companies to predict customer behavior more accurately
but also may infringe upon consumer privacy
b. While such data enable companies to offer more personalized services, policy makers
fear that it could also allow them to discriminate among consumers who do not appear
“valuable” or use consumers’ online behavior to identify them personally.
B. International Issues in Marketing Research
1. The marketing research process described in this chapter is used globally, but to ensure
research is valid and reliable, data-gathering methods may be modified to allow for
differences in sociocultural, economic, political, legal, and technological forces in different
world regions (global issues will be discussed in further detail in chapter 9).
2. Experts recommend a two-pronged approach to international marketing research.
a. The first phase involves a detailed search for and analysis of secondary data to gain
greater understanding of a particular marketing environment and to pinpoint issues that
must be taken into account in gathering primary research data.
b. The second phase involves field research using many of the methods described in the
chapter, including focus groups and telephone surveys, to refine an organization’s
understanding of specific customer needs and preferences.

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 Chapter 5: Marketing Research and Information Systems 95

(1) Specific differences among countries can have a profound influence on data
gathering.
(2) Primary data gathering may have a greater chance of success if the organization
employs local researchers who better understand how to approach potential
respondents in their own language.

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96 Chapter 5: Marketing Research and Information Systems

DISCUSSION STARTERS
Discussion Starter 1: Sources of Secondary Data
ASK: What is held every 10 years in the United States as required by the Constitution and yields crucial
data for marketers?
The answer is the U.S. Census.
ASK: Why is it called the U.S. Census and not the U.S. Sample?
Every person in the U.S. must be counted. It is a full accounting of the population and yields a treasure
trove of information for marketers. For example, you can visit the Census Bureau website and get very
specific details about the population in a given town, such as total population, percentages of males and
females, breakdowns by age, home ownership, and income levels. The same information can be obtained
by state, region and the nation. Visit the following link for more information:
http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml.
When U.S. Census data is fresh, as it is now because the most recent census was conducted in 2010,
marketers have access to accurate information from a very reliable source. The data may be used in a
variety of ways for planning purposes.

Discussion Starter 2: Marketing Analytics

ASK: What is the fastest growing area of marketing research?
The answer is marketing analytics. Many of the new analytic firms assist organizations in understanding
consumer web use to optimize website design. In the following link, the CEO of one of the leading
optimization firms discusses how information is used.
http://www.youtube.com/watch?v=KrqjXgid2MY

Discussion Starter 3: Market Research

In using observation methods, researchers record individuals’ overt behavior, taking note of physical
conditions and events. Direct contact with subjects is avoided. Observation may include the use of
ethnographic techniques, such as watching customers interact with a product in a real-world environment.
http://www.youtube.com/watch?v=KosJK_ZMMu0
This clip from the movie, Big, starring Tom Hanks is a classic for portraying ethnographic field research.
In the movie, Tom Hanks is a kid trapped in an adult’s body. The business executive in the movie brings
Hanks to FAO Schwartz to study his reaction to various toys. Discuss how this is an effective way to gain
consumer insights into the psyche of key target markets.

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 Chapter 5: Marketing Research and Information Systems 97

CLASS EXERCISES
Class Exercise 1: The Marketing Research Process
The objective of this class exercise is to apply the marketing research process to solving a marketing
problem.
Prompt for Students:
You are considering opening a new “Fluff-and-Fold” laundry pick-up, cleaning, and delivery service
for students. You are uncertain whether sufficient demand exists, and you have questions about when
students will need your service most and what level of service they will require. You realize that
marketing research can help solve your information needs. You must now decide how to best answer
these questions.
1. Define the problem.
2. Design the research project.
3. After consulting any secondary data available, you decide to conduct an exploratory study with
students in your classes. Develop open-ended questions to ask other students that will provide
information regarding your hypotheses.
4. Having gained some insight into the problem, you are now ready to conduct a descriptive study.
You decide to conduct a survey to further test your refined hypotheses. However, you have
several decisions to make regarding this study.
a. What type of sampling approach (random, stratified, area, quota) will you use and why?
b. What survey method (mail, telephone, personal interview) will you use and why?
c. How will you construct the questionnaire? Develop open-ended, dichotomous, or
multiple-choice questions that will test your hypotheses. Remember to remain impartial and
inoffensive.
Answers:
1. The answers to this question will depend on how the students view the opportunity on your
campus. Typical problem statements might include “We don’t know if a sizable, profitable
market exists for Fluff-and-Fold,” or “We don’t know which dorms at what times offer good
opportunities for our service.” You might suggest that focus groups could help define the problem
more clearly.
2. Most students will take the example and adapt it. However, you might push them further by
asking, “Can you be any more specific about the target market? For instance, do you expect more
underclassmen will use the service? More males or females?” Other typical hypotheses might
involve service expectations (one-day pick-up and delivery) and daily operation issues (primary
demand on weekends versus weekdays).
3. This may be a good time to explain how a focus group can help resolve or clarify research
problems. You may even want to set up a focus group discussion in class. After students have
developed a few open-ended questions (for example, “How much would you be willing to pay for
Fluff-and-Fold service?”), you might want to allow time for students to gather from one another
information related to the questions. You might also point out that inexpensive data collection
such as focus groups or polling customers can ensure better marketing decisions.
4. Observation, combined with interviews, may be an efficient way to determine what times
students will need the service. However, observation alone will not assess true feelings or
opinions.

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98 Chapter 5: Marketing Research and Information Systems

In part a), perhaps the best way to select a sample is through the use of stratified sampling,
especially if demand is likely to vary by classification (freshmen, etc.). The student directory
should provide this information. However, quota sampling, which is nonprobabilistic, may suffice
for exploratory research.
In part b), mail surveys may be the cheapest (because of campus mail) and may be suitable for the
short surveys most students will develop. However, response rate may be low. Phone surveys
might increase the response rate, but finding students at home may be problematic. Personal
interviews conducted at central meeting points on campus might help overcome refusals but
might also introduce interviewer and sample bias.
In part c), you may want to illustrate the problems associated with double-barreled, leading, non-
mutually exclusive, and exhaustive questions, among others. You might even have students
collect data by using these questions.

Class Exercise 2: Solving Data Collection Problems

This exercise is designed to prompt students to think about how to solve data collection problems.
Students should discuss the merits of alternative data collection methods as they solve each problem.
Obviously, each problem can be solved by more than one collection method. The students should decide
which data collection procedure is best for each situation and be able to defend their choices.
Prompt for Students:
What is the most appropriate data collection method for each of the following research questions?
1. How do consumers in South Dakota feel about Christmas shopping?
2. How do JCPenney customers feel about JCPenney’s customer service?
3. What is the opinion of U.S. consumers toward a Chrysler advertisement that questions the quality
of Japanese cars?
4. How many people nationwide currently live in apartments?
5. How do Sears charge customers view that company’s new pricing policy?
Answers:
1. Telephone interviews or possibly focus group interviews
2. Mall intercept interviews
3. Telephone interviews
4. This information can be obtained most easily in a census report. However, if census information
is too dated to be useful, the next best source might be the U.S. Department of Housing. Overall,
this type of data is usually available in secondary form from government or industry sources.
5. A mail survey of Sears charge customers

Class Exercise 3: Designing a Research Study

Recommended as a group activity
Prompt for Students:

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 Chapter 5: Marketing Research and Information Systems 99

In this chapter you were introduced to the various techniques used by marketers to collect data from
consumers. In this exercise your group is asked to design a research study to address the following
scenario.
You have been hired by a small used-CD shop to survey its customers about what other types of products
they should stock. The owners have considered the following: comic books, anime, collectible figures,
posters, used DVDs, used video games, and used musical instruments. The owners are uncertain which
products to add to their inventory.
Step 1: Define the problem.
Step 2: Design the research project.
a. Who do you need to collect the data from?
b. What is the best way to collect this data?
c. How would you analyze this data?
Step 3: Design a questionnaire for your client. Justify why you are asking each question.

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Another random document with
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 CHAPTER XIX
ARE WE CITIZENS?

“The establishment of a Constitution, in time of profound peace, by

the voluntary consent of a whole people, is a prodigy.” (Fed. No. 85).
Those were the words of Hamilton, in a final appeal to the people of
America, as they were about to assemble in their “conventions.”
As he thought it a prodigy that their voluntary consent should be
secured to that constitution of government contained in the First
Article, he frankly added that he looked forward “with trembling
anxiety” to their own determination as to whether or not they would
give that necessary consent to the enumerated grants in that First
Article. We know how the patriotic efforts of himself and Madison and
his other colleagues were later rewarded by the giving of that
consent. We know where those average Americans of that day gave
that consent, where they made that constitution of their national
government which is that First Article. “It is true, they assembled in
their several states—and where else should they have assembled?
No political dreamer was ever wild enough to think of breaking down
the lines which separate the states, and of compounding the
American people into one common mass. Of consequence, when
they act, they act in their states. But the measures they adopt do not,
on that account, cease to be the measures of the people
themselves, or become the measures of the state governments.”
In the many other Supreme Court decisions, telling the tale of the
completion of the “prodigy” and all stating the same legal fact, is
there a more apt and accurate expression of the knowledge of the
American people, who were better acquainted “with the science of
government than any other people in the world,” that the
“conventions” in the respective states, assembled to constitute their
American government by grants like those in the First Article and the
Eighteenth Amendment, are the Americans themselves and that the
state governments never are the American people themselves and
never represent those people for national purposes. It was natural
that such apt and accurate expression of that concept should have
been voiced by Marshall in the Supreme Court. He had been one of
those people, fighting on the battle-field with them to wrest from all
governments in the world any ability to constitute government by
making grants like those in the First Article or the Eighteenth
Amendment. He had been one of those people in one of those
“conventions,” in their respective states, where they made the only
Article of that kind which ever entered their and our national
American Constitution. Later it became his privilege and duty (and
our great good fortune) to explain who alone could make and did
make that First Article and who alone can ever validly make Articles
like it or the Eighteenth Amendment, namely, the American people
themselves, assembled in convention in their respective states.
When, therefore, we read the Fifth Article, made by him and his
fellow Americans in those “conventions,” we recognize at once and
we will never forget or ignore their mention of themselves, in the very
word by which he and they then described themselves,
“conventions” in their respective states.
In making the Eighteenth Amendment grant of power to interfere
with American freedom, we—the American citizens and
“conventions” of this generation—have been ignored as completely
as if we were not named in the Fifth Article.
We have been trying to ascertain “when” and “how” the American
human beings, now ourselves, ceased to be “citizens of America”
and again became “subjects” of governments. We have gone to the
record of our Congress on those days in 1917, in which it acted on
the assumption that the “when” and “how” were already history. We
have found no Senator or Congressman who vouchsafed any
information or displayed any knowledge of this matter, so vitally
important to us who were born citizens and free men. We have seen
the leader of the House advocates of the new constitution of
government, the Eighteenth Amendment, read a Fifth Article in which
the “conventions” of those who made it and the First Article are not
mentioned. We have seen the leader of the same advocates in the
Senate complacently assert the repudiated thought that the states
made the First Article, our constitution of our government. We have
seen him follow up this error with the Tory mistake of assuming that
the government of the state is the state. We have seen him point out,
to our American amazement, the remarkable and hitherto unknown
fact, never mentioned by the people who made the Fifth Article, that
the state governments are the only tribunal in which our national
constitution of government can be changed, that those governments
are a tribunal in which new enumerated power can be given by
government to government to interfere with our own individual
freedom.
Fresh from our education with the Americans who made that Fifth
Article in “conventions” of the very kind mentioned therein, we see
that those legislators of 1917 know naught of American history or law
or constitution of government of men, that from them we cannot
learn “when” or “how” we ceased to be “citizens” and became
“subjects.” But, there assembled in the Supreme Court in March,
1920, many renowned “constitutional” lawyers. Some came to
challenge, some to uphold the new Amendment, the new
government-made constitution of government right to interfere with
individual human freedom.
To the reading of all their briefs and arguments we bring our
knowledge that the new Amendment never entered our Constitution
unless we were “subjects” before 1917 or unless the new
Amendment was itself a revolution (by government against citizens)
which made us “subjects.”
We expect the lawyers against the new Amendment to challenge
its existence with the facts and knowledge we bring from our
education with the Americans who made themselves free men and
citizens.
We expect the lawyers for the new Amendment to point out the
day and the manner in which they claim that government of the
American people by the American people did disappear from
America.
 Unless these lawyers for the Amendment do point out that day and
manner and sustain their claim as to both, we know that the
existence of the new Amendment is successfully challenged by the
facts which we have acquired in our education. Before we listen to
the expositions of these facts by the lawyers against the new
Amendment, let us briefly review the facts themselves as they bear
upon the supposed existence of the new Amendment.
When 1776 opened, the American people were subjects in
rebellion against their omnipotent government. By direct action of
themselves, in July, 1776, they made themselves free men, made
their former colonies independent states and made each of
themselves a citizen of some one of those states. Almost
immediately, the Statute of ’76 having declared the actual fact that
the supreme will in America was possessed by the American people,
at their suggestion and with their permission, the citizens of each
state constituted their own government with its national powers to
interfere with the individual freedom of its own citizens. In strict
conformity to the Statute of ’76 and to the sole American concept of
the relation between government and human being, those grants of
power to interfere with individual freedom, like every other grant of
that kind until the Eighteenth Amendment, were made by the
respective citizens to their respective governments.
In 1777 the committee of the American people known as the
Second Continental Congress proposed a union of states or political
entities and a general government to govern states but not to
interfere directly with the human freedom of the individual. Because
there is a vital distinction between the ability to govern states and the
ability to interfere with individual freedom, those Americans knew
that states or political entities could make federal Articles but that
only citizens could ever validly make national Articles. It was
impossible for these Americans not to know this difference between
the respective abilities of states and citizens of America. Their
Statute of ’76 had declared this sole American concept of the law
controlling the relation of government to human being. They were
actually engaged in their Revolutionary War for the very purpose of
making it forever American law that no governments could ever grant
national power in any matter. Because, therefore, the proposed
Articles of 1777 were only federal Articles with grants of federal
power, it was “felt and acknowledged by all” that the state
legislatures were competent to make those Articles. So we recall,
with intent to remember, that those federal Articles were made in the
exercise of that legislative government ability to make federal
Articles, which is mentioned in our own Fifth Article.
In 1787, from the same Philadelphia, there came the proposal that
the American people, collectively the possessors of the supreme will
in America, create a new nation, with themselves as its members or
citizens and, as its members, constitute its government with national
powers to interfere with their own individual freedom. Because the
legal necessity of deriving powers of that kind from the people
themselves was “felt and acknowledged by all,” the inevitable legal
decision was reached at Philadelphia that the existing ability of
legislative governments to make federal Articles neither then did nor
ever could include the ability to make national Articles like the First
Article and the supposed Eighteenth Amendment. By reason of that
legal necessity and its then recognition by all, because the First
Article contained grants of national power, “by the convention, by
Congress, and by the state legislatures, the instrument was
submitted to the people. They acted upon it in the only manner in
which they can act safely, effectively, and wisely on such a subject,
by assembling in convention.” The reasoning and the decision itself
were embodied in Article VII and in the Resolution which went from
Philadelphia with the proposed seven Articles, including the Fifth
Article.
As the Supreme Court has definitely settled, the Tenth
Amendment merely declares what was in that original proposed
Constitution. Therefore the Constitution gave no new government
ability anywhere except to the government at Washington. It gave to
that government only specific ability to govern human beings, in
certain matters. It merely reserved to each state government some
of its former ability to govern its own citizens. It gave neither to any
state government nor to all state governments collectively any new
ability to govern. And it reserved to the American people themselves
all ability to exercise or to grant any national power to interfere with
the freedom of American citizens except those enumerated powers
in the First Article. The Supreme Court has definitely settled that this
reservation of such power exclusively to themselves, by the makers
of the Fifth Article, is the most important factor in our constitutional
distribution of that kind of power among our American government,
our state governments and, most important of all, ourselves, the
citizens of America. For which reason, until this generation, it has
always been axiomatic that the mention of that exclusive ability of
our own, “conventions” of Americans in their respective states, is the
most important factor in the Fifth Article.
In strict conformity with the Statute of ’76 and without usurping the
reserved powers of the most important factor in both the Tenth
Amendment and the Fifth Article, seventeen federal changes were
made, between 1789 and 1917, in the federal part of our
Constitution, which is both a federal and a national Constitution. The
situation in 1917 was exactly the same as it had been since July 4,
1776, when it was known even to the humble townsmen of Concord
that governments could not make national Articles in American
constitutions. Or rather, the situation in 1917 was the same unless,
somewhere prior to 1917, the Statute of ’76 had been repealed and
the most important factor in both Articles had been eliminated from
the Fifth Article and Tenth Amendment of the American Constitution,
which is the security of the American citizen against usurpation of
power even by governments in America.
We know that Gerry moved to strike that important factor from the
Fifth Article in September, 1789, and that he failed in his effort. We
know that Webb and the legislative advocates of the new Eighteenth
Amendment had a Fifth Article in which that most important factor
was not present. Apparently they based their government proposal
and government ratification of the Eighteenth Amendment upon a
Fifth Article which did not contain that most important factor, the
reference of the makers of the Fifth Article to themselves as the
makers of all future Articles of a national kind, the reference of those
makers to themselves in the words “conventions” of the American
people, assembled in their respective states.
 Keeping all these settled facts clearly in our minds, we now take
up the arguments and the briefs in which, in March, 1920, the
constitutional lawyers of America, who disputed the presence of the
new Amendment in our Constitution, should have presented these
irresistible facts. Then we shall take up the arguments and briefs of
those other renowned lawyers in which they presented those other
facts (still unknown to us average Americans) which can alone refute
our knowledge that the new Amendment never went into our
Constitution, because we are still citizens and governments are yet
unable to create government power to interfere with our individual
freedom.
 CHAPTER XX
LEST WE FORGET

“The important distinction so well understood in America, between

a Constitution established by the people and unalterable by the
government, and a law established 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. If
Madison 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 the federal Articles 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 the national Article—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 knew that Constitution, that enumerated
grant of national power over themselves, to be “unalterable by
government.” And that we and all later 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 of national power, 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 of national power and mentioned the
legislatures, in the Fifth Article, as competent future makers of
Articles that do not constitute new national government.
Because we have lived through the experience of the Americans
to whom the tribute was paid, we know the distinction between a
constitution of national government, “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,” as sole makers of national Articles, and the similar
mention of the “legislatures” as competent makers of federal Articles.
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 was once so 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 utter legislative
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 Statute was the
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
privileges granted by 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 whatever national
powers those governments ever have. Except for the grants of such
power 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. As citizens, 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 the People to alter or to
abolish it, and to institute new Government, laying its foundation on
such principles and organizing its powers on such form, as to them
shall seem most likely to effect their Safety 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 our own knowledge that this Statute can never be
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 made our Constitution, “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 government national
powers, we average Americans recognize, in the following challenge
of this brief, 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 proceeds
directly from the people. As was said by Mr. Chief Justice Marshall in
McCulloch v. Maryland, 4 Wheat. 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 bold relief 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., the direct action of the people themselves, as, for example, in
the ‘conventions’ whence, as he already stated, our Constitution
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 make federal Articles 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 the federal Articles of 1781
but, when it was proposed to constitute government of men, to vest
the national powers of the national First 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 states respectively,” 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 in America. 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
to make any constitutional Articles; but it has, in the Fifth Article, left
with that agent the mere ability to draft and propose a 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,”
to ascertain and propose which 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, 4 Wheat. 122.)
That is why anything which these “legislatures” do, when it comes
in conflict with a valid action of our legislature, the Congress, must
always yield. We have the supreme will in America, and when our
agent, 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 detract from the ability of those legislatures
to make federal Articles 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 the federal
Articles 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 those federal Articles 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 is granted in 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 briefs of 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,” 253 U.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 on behalf 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 government with its enumerated powers 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 no constitutional ability
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 all legitimate
industry in a business in which it was the human right 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 the same. 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 breathe is 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 of other citizens 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 citizens thereof had 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 which they gave
it and can take back from it) to make that kind of a command to them
in 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 are the
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.” (4 Ell. 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
commodity in 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, 135 U. 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 from unlawful
usurpation 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, as amici 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, no
amicus curiæ files 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, because the counsel in
opposition to the new Amendment do not know and urge our legal
protection against any new constitution of national government
except by ourselves, the citizens of America, the “conventions” of the
Fifth Article, and if, because of 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 and maintained 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