L I F E Too 1st Edition Felyx Lawson

Visit to download the full and correct content document:

https://ebookmeta.com/product/l-i-f-e-too-1st-edition-felyx-lawson/
More products digital (pdf, epub, mobi) instant
download maybe you interests ...

Stuffed F I L T H 1 1st Edition Hannah Murray

https://ebookmeta.com/product/stuffed-f-i-l-t-h-1-1st-edition-
hannah-murray/

Feast F I L T H 3 1st Edition Hannah Murray

https://ebookmeta.com/product/feast-f-i-l-t-h-3-1st-edition-
hannah-murray/

Too Hard 1st Edition I A Dice

https://ebookmeta.com/product/too-hard-1st-edition-i-a-dice/

S I L F Santa I d Like to F A BBW Billionaire Boss

Christmas Romance A Filthy Dirty Christmas 1st Edition
Lana Love

https://ebookmeta.com/product/s-i-l-f-santa-i-d-like-to-f-a-bbw-
billionaire-boss-christmas-romance-a-filthy-dirty-christmas-1st-
edition-lana-love/
Too Strong Hayes Brothers Book 4 1st Edition I A Dice

https://ebookmeta.com/product/too-strong-hayes-brothers-
book-4-1st-edition-i-a-dice/

Bad Girl Wicked 2 1st Edition Piper Lawson Lawson Piper

https://ebookmeta.com/product/bad-girl-wicked-2-1st-edition-
piper-lawson-lawson-piper/

Good Girl Wicked 1 1st Edition Piper Lawson Lawson

Piper

https://ebookmeta.com/product/good-girl-wicked-1-1st-edition-
piper-lawson-lawson-piper/

Beautiful Sins (The Enemies Trilogy #2) 1st Edition

Piper Lawson [Lawson

https://ebookmeta.com/product/beautiful-sins-the-enemies-
trilogy-2-1st-edition-piper-lawson-lawson/

John Grey 07 Too Much of Water 1st Edition L. C. Tyler

https://ebookmeta.com/product/john-grey-07-too-much-of-water-1st-
edition-l-c-tyler/
Another random document with
no related content on Scribd:
 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