Citizen or subject?

It is our invincible knowledge that the Fifth Article is not a power of attorney to any one to act for us, the citizens of America, in regard to any individual right which the American citizen has. In our capacity as American citizens and in “conventions” of the very kind named in that Fifth Article, we gave the only power of attorney, which we have ever given to any government to act for us in making commands to interfere with any of our individual rights. That power of attorney is the First Article. We made it in the same “conventions.” In it, we gave to our Congress our only power of attorney of that kind. In it, with futile effort to keep modern “constitutional thinkers” from monumental error, we said, at the very beginning of the one Article which is our only power of attorney, that to our Congress alone the Constitution gives any powers to make commands that interfere with our individual rights. “All legislative powers herein granted shall be vested in a Congress, etc.” (Art. I, Section I. U.S. Cons.)

In those same “conventions” (named in the Fifth Article) we insisted, again in futile effort to keep modern “constitutional thinkers” from monumental error, that there be written the exact declaratory statement that the entire Constitution gave no power (to act for us, the citizens of America, in any matter) to any donee except our new general government, the government of the First Article enumerated powers. And, in those “conventions,” we insisted that there be written into that Constitution the accurate declaratory statement that all powers to act for us in any matter, except the powers of that kind we gave to that one limited general government, we retained exclusively to ourselves, the citizens of America, that they might be exercised only by ourselves or upon further grant from ourselves. Those two important declaratory statements were written into that Constitution in the shape of the Tenth Amendment.

That we ourselves might have a CONSTITUTIONAL mode of procedure in which constitutionally we could make that future exercise or further grant of those powers which we reserved to ourselves, we named ourselves—the “conventions” of the kind in which we sat—in the Fifth Article and provided therein the CONSTITUTIONAL mode in which we could again do exactly what we were then doing in the same kind of “conventions.” It was impossible for us in those conventions, “being a people better acquainted with the science of government than any other people in the world,” to anticipate that modern “constitutional thinkers” should make the ludicrous mistake of inferring, from that mention, that we—the “conventions”—granted to ourselves—the “conventions”—all or some of the very power we were then exercising in those “conventions.” Nor did we anticipate, inasmuch as we (in those “conventions”) never forgot that this new Constitution was to be federal as well as national, that modern “constitutional thinkers” would make another monumental error in assuming that a similar mention of the existing ability of state legislatures (the ability to make federal or declaratory Articles) was a grant to those governments of our own power to make national ones. Even if we had possessed (in those “conventions”) the vision to see the future that was 1920, we would have felt that the Statute of ’76, the opening words of the First Article and the explicit declarations of the Tenth Amendment made any such error impossible for modern “constitutional thinkers.”

Yet, one or more of such errors are the basis of every argument in every brief of the fifty-seven lawyers of 1920.

They are the basis of the Root briefs and the other briefs against, as they are the basis of the Hughes briefs and the other briefs for, the validity of the supposed new Amendment. Not a single one of the briefs fails to assume, without the slightest foundation, that the state governments, not a member of which is elected by the citizens of America, are attorneys in fact for the citizens of America. Wherever one brief differs from another in this respect, it is only in urging some difference in the extent of the power of attorney made to those governments by the citizens of America in the Fifth Article.

For which reason, we, who have come from the days of those early Americans, strong in the knowledge that we are citizens and not “subjects,” are now satisfied that none of these modern “constitutional thinkers” can disturb our certain knowledge. It is a matter of no concern to us that some of them, because they did not have our knowledge, failed to win their litigations for their clients. It is, however, a matter of great concern to us that supporters of the Eighteenth Amendment should be found maintaining, as if it was an axiom needing no proof, that we are “subjects” of the governments they represented.

We need spend very little further time in the briefs of those who so maintain. We have no patience with their Tory concept of the relation of men to governments. We KNOW that Tory concept never has been American law since the Statute of ’76. But it would not be proper to leave their briefs without one glance at some of their heresies, which are flatly contradicted by everything we have learned in our education. As a matter of fact, not one of these heresies can stand accurate and simple statement without exposing its own absurdity.

Some of us are familiar with the book known as “The Comic Blackstone.” We have thought of it often as we read the briefs of those for validity of the new Amendment—the government constitution of government power to interfere with the individual freedom of American citizens. There is, however, a vital difference between the book and those briefs. The book was a conscious effort to be humorous. Unconscious humor has never failed to surpass conscious and intended humor.

We recall our search to know “when” and “how,” between 1907 and 1917, we became subjects. We remember the first glance at the briefs of 1920. We remember the tribute of one to the simple truth 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.” We wonder why the author of this tribute did not challenge the monumental error of the concept that the Fifth Article (when it mentions the “conventions” of the American citizens, the greatest principal in America, and also mentions the state governments, each as the attorney in fact of another and distinct principal, the citizens of its own state) is a grant from the great principal to itself and these mentioned attorneys in fact of others. But we now know why the author of the tribute made no such challenge. He is Hughes, who rests his entire argument on the monumental error. We remember, as we glance at the briefs, that another one challenged the doctrine on which Sheppard proposed that the Eighteenth Amendment be sent to governments of state citizens, that such governments might interfere with the freedom of American citizens. We remember the Sheppard doctrine as the Calhoun heresy that the states, political entities, made the Constitution which we, the citizens of America, actually made in our “conventions.” We remember how refreshed we were to find, in our first glance at the briefs, this statement: “The Constitution is not a compact between states. It proceeds directly from the people. As was stated by Mr. Chief Justice Marshall in M’Culloch v. Maryland, 4 Wheat. 316, &c.” We remember our thought, when we had just come from those “conventions,” to find this statement in that brief. We remember how we anticipated this briefer telling the Court why the states or their governments, who could not make the First Article, were incompetent to make the only other supposed grant of power to interfere with our liberty, the Eighteenth Amendment. Now that we have finished with the briefs of 1920, we recognize how absurd was our expectation. The statement that the states, which are mere political entities, did not make the Constitution, the quotation from Marshall, supporting this truth and showing that the states did not make it because the states and their governments cannot make national Articles, are both from the brief of this same Hughes, the champion of his government clients and their claimed ability to make national Articles.

We find some considerable amusement in comparing the speech of Sheppard, proposer of the Eighteenth Amendment, and the brief of Hughes, champion of the Eighteenth Amendment. If government was to carry through a successful revolution against free men and acquire the omnipotence denied to the British Parliament, it would have been well for the proposers of the Revolution and the champions of it to have agreed at least upon one fact, whether the states, political entities, or the citizens of America, in their “conventions,” made the Constitution—which was to secure the American citizen against all usurpation of power by governments.

But, once we sense the certainty that this revolution of government against free citizens cannot be successful, once we realize the certain decision of the Supreme Court when the real challenge is made to the disguised revolution, we can forget the attempted tragedy of human liberty. Then we shall know that the entire story of the last five years is an inexhaustible mine of humor. And, among the briefs of those who championed this revolution of government against human being, we shall find no mean rival (in unconscious humor) to any other part of that story.

We recall, at our first introduction to all the briefs, the epitome of all the knowledge we had just brought from the early conventions: “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.” We recall how pleased we were to know that the Court must hear another champion of individual liberty, who also must have come from the “conventions” in which we had sat. We recall how, in his brief, this truthful tribute to the Statute of ’76 was immediately followed by the quotation from that Statute, which includes these words: “That to secure these Rights, [the Rights of men granted by their Creator] 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 in such form, as to them shall seem most likely to effect their Safety and Happiness.”

In our eager anticipation to hear his argument and see his brief, how were we, fresh from the “conventions” in which sat some of the men who had written that Statute eleven years earlier, to know that the briefer understood their language to read as follows: “That to secure these rights of human beings, granted by their Creator, governments are instituted among men, deriving their just powers from the consent of the state governments. That whenever any Form of Government becomes destructive of these ends, it is the right of the state governments to alter or abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form as to the state governments shall seem most likely to effect the welfare of those who control the state governments.”

That this is the meaning of that Statute to this briefer, we may realize when we know that the tribute to the Statute and the quotation from the Statute are in the brief of Wheeler, counsel for the political organization which managed the new revolution of government against people and dictated the proposal that governments should constitute new government of men in America. Now we grasp why this briefer said that, in the fact that the Declaration of Independence could “never be amended, revoked or withdrawn,” the Statute of ’76 “ranks with the Magna Charta.” To this briefer, the Statute of ’76, like the Great Charter of old, is the ruler government dispensing privileges to its subjects, the people. That is why this briefer, with his Tory concept of the relation of government to human beings, does not know that the Statute of ’76 is the revocation of the principle on which Magna Charta rested, the doctrine that the government is the State and the people are its assets.

This briefer, like all his associates, does not know the great change which the American people made in the picture of American government. We are all familiar with the picture, “His Master’s Voice.” When those Americans were born, from whose “conventions” we have come, the listener in that picture was “the people” of the Preamble and the Tenth Amendment in our Constitution. The voice of the master was the voice of government. When those Americans died, they had changed the picture. The listener had become the governments in America, the voice of the master had become “the people” of America, its citizens. The new painting of the picture was on July 4, 1776. That the listener might never deface the truth of the new picture, the Constitution of 1787 was proposed at Philadelphia and later made by the master in the picture. The proposal of Wheeler and his associates and the action of governments on that proposal are the unlawful attempt to change the picture back to what it had been before the Statute of ’76.

If time permitted, our sense of humor would keep us long with the briefs of Wheeler and his associates. It was their thought that the doctrine of Christ could be made a better Christianity by a substitution of the prohibition of Mohammed for the temperance of Christ. This natural modesty on their part made certain that we would find, in the Wheeler brief, this tribute to the good intentions of the Americans of those early “conventions,” accompanied by an humble tribute to the much greater wisdom of the briefers. “The people, under this form of government may, of course, do unwise things. This is the alleged danger of a republican or democratic form of government. If the electorates are not intelligent, moral and patriotic, our government will fail. Our forefathers took that chance in choosing a form of government that was controlled entirely by the people. History proves that they builded more wisely than they knew. The people have kept step with advancing civilization under the same construction of our Constitution. This last advance in the prohibition of the beverage liquor traffic, which is one of the greatest evils that ever cursed humanity, is additional evidence of the wisdom of our forebears. It is generally recognized as the greatest piece of constructive legislation that was ever adopted by a self-governing people.” The finest passage in the “Comic Blackstone” does not approach this in its excellence as unconscious humor.

Educated with “our forefathers” who “took that chance in choosing a form of government that was controlled entirely by the people,” we call the attention of Wheeler to one of his many mistakes by rewriting his next sentence, as he should have written it: “History proves that they builded more wisely than Wheeler or his associates knew or are able to understand.”

Our forefathers knew that, wherever men are citizens, neither state governments nor any governments are “the people” or can surrender rights of “the people” or can constitute new governments of “the people” interfering with their individual freedom and, therefore, when those “conventions” of old did choose and establish a form of government “that was controlled entirely by the people,” they were not stupid enough to think that the American government would be that kind of a government if it could be controlled entirely by legislatures, which never are the people. It is rather ridiculous to find Hughes, associate champion of Wheeler for the new Amendment, contending that the people never are the legislature, while Wheeler contends that a government is controlled entirely by the people when it is controlled entirely by legislatures. But, it is to be expected, when men work in association on a common unsound basis, that one champion should frequently contradict another as to fact, and that even the same champion should often contradict himself as to fact.

And so we find the Wheeler brief stating that the new Amendment, made entirely by governments without any authority from the people about whom he prates, “is generally recognized as the greatest piece of constructive legislation that was ever adopted by a self-governing people”; and we turn over the pages of the brief and we find the remarkable proposition that these state legislatures, when making the Eighteenth Amendment, were not legislating, but were “a body of representatives sitting in a conventional capacity.” Of course, we now learn, by this latter statement, that the greatest piece of “constructive legislation” the world ever knew was not legislation at all. But we also learn a more important thing. It would have been of great advantage to the British Parliament in 1765, if it had only known the Wheeler concept of our American security for human freedom. Think how remarkable it would have been to have passed a Stamp Act which would have been universally respected and obeyed by the American people of that time! All the British Parliament should have done was to announce: “This is not passed by us as a legislature. In issuing this command to the American people, we are a ‘body of representatives sitting in a conventional capacity.’” Having exactly the same attitude mentally as Lord North in 1775, this Wheeler would have been a better Minister for the English King. He would have been able to keep for him the American “subjects” of the British Legislature.

“Article V itself shows that the representative or convention idea was in the minds of the framers of the Constitution. If the legislatures of two thirds of the states should apply to Congress, then Congress would be obliged to call a convention for proposing Amendments to the Constitution. Then, also, when it came to the matter of ratification, this question could be considered by conventions in the various states. A review of the proceedings of the constitutional convention, as well as a study of the political and governmental bodies at the time at which the provision providing for amending the federal Constitution was adopted, revealed the fact that these men thought in terms of conventions ... and that the clear intent of the framers was to ratify proposed amendments by bodies sitting in the capacity of conventions. The Court will not find any able exponent of the theories of government of that time, however, who even asserted that the people could be considered as a portion of the legislature. This can be shown most clearly by an examination of the proceedings of the constitutional convention, as reported by Mr. Madison and particularly by examining the various proposals advanced in that convention for the ratification of the Constitution.”

We recognize immediately, in this extract from the briefs of 1920, our own exact knowledge brought from those “conventions.” And, when this briefer challenges the existence of the Eighteenth Amendment on the ground that the people who made it showed “in Article V itself” that “the convention idea was in the minds of the framers” and “when it came to the matter of ratification,” a “Yes” or “No” was to be considered by “conventions” in the various states, we are amazed to find no upholder of the Eighteenth Amendment replying to this attack upon its validity. The challenge to validity again and again touches on the monumental error of the Tory concept behind all claim to validity. The challenge puts its finger at once upon the absurd assumption, on which the Eighteenth Amendment wholly depends for existence, the assumption that the Americans we have just left ever considered the “people” as the “legislature” or the “legislature” as the “people.” The challenge emphasizes the fact we all know, that the “conventions” knew that “conventions” were the “people” and that “legislatures” never were the “people.” But we are mistaken in believing that this clear challenge was not met by some “constitutional thinker” in his effort to uphold the new supposed NATIONAL Article, made by the governments or “legislatures” which the old “conventions” so well knew were not the “people.” In the brief of one champion of the new NATIONAL Article, we find this clear reply to the challenge. And we notice how the reply is not mere assertion. No one can deny the tremendous “support,” in history and in decision and in the Fifth Article itself, for the full reply that the Fifth Article states definitely that “the only agency which is authorized to ratify the Amendment is the state legislatures!”

We have only one comment to make on the challenge itself and the destructive reply to it, that the state legislatures are the “only agent” authorized by the Fifth Article to amend our NATIONAL Constitution. It is an interesting comment. Both the challenge and the reply are from the brief of Wheeler, counsel for the political organization which directed that governments make this new national government of men.

This Wheeler believes that the Statute of ’76 is “one great muniment of our liberty which can never be amended, revoked or withdrawn.” He says so in his brief. He also maintains that his state governments, not one of their members elected by us as citizens of America, have omnipotent power over our every liberty, except that they cannot change the number of senators from each State. At one point in his brief he “proves” overwhelmingly that the citizens of America universally demanded his new Article, the Eighteenth Amendment. His proof is—and we cannot deny the fact which he asserts as proof—that, in the year 1918, when Americans were in the Argonne Forest in France, four thousand seven hundred and forty-two Tories in forty-five state legislatures said “Yes” to this new command to the one hundred million American citizens on a subject not among the matters enumerated in our First Article. That his “proof” might be perfect (for the claim that the making of the command was demanded by the citizens of America) he fails to mention the fact that not one of those four thousand odd Americans, who were not the Americans in the Argonne or in our training camps preparing to fight for human liberty, was elected for any purpose by the citizens of America.

Reflecting upon this briefer’s admiration for the Statute of ’76 and upon his knowledge that the “legislatures” never are the people, while the “conventions” of the Fifth Article are the “people,” we wonder if he ever read a certain statement of the early American who wrote the Statute of ’76. It is a statement from Thomas Jefferson quoted by Madison, author of the Fifth Article, when he was urging the American people or “conventions” to make that Fifth Article. Jefferson was talking about a constitution, in which “all the powers of government ... result to the legislative body,” as they result (under the modern assumption as to what the Fifth Article says) to the state governments, the new omnipotent legislature of the American people. This is what Jefferson had to say, what Madison approved: “The concentrating these in the same hands, is precisely the definition of despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one.... As little will it avail us, that they are chosen by ourselves. An elective despotism was not the government we fought for.” (Fed. No. 48.)

It is clearly the view of Wheeler and all his associates that the early Americans did fight their Revolution so that we might have, in these modern days, an elective despotism of four thousand seven hundred and forty-two despots. That form of government is probably relieved from the odium of the Madison and Jefferson attack, by the “alleviation” that we ourselves, the citizens of America, those to be governed by this “elective despotism,” do not elect or choose even one of the despots!

We cannot linger longer with these amazing briefs of the champions of the Eighteenth Amendment. From the viewpoint of unconscious humor, we have become rather enamored of the Wheeler idea that “state governments” and “the people of America” expressed the same thought to the latter when they made the Fifth Article. Since we read Wheeler’s brief, we have been trying the same method with some famous statements of great Americans. For example, we have this new excerpt from Washington’s famous Farewell Address: “The basis of our political system is the right of the ‘state governments’ to make or alter the people’s Constitution of government. And the Constitution which at any time exists, till changed by an explicit and authentic act of ‘the legislatures of three fourths of the states’”—(Washington said ‘the whole people’)—“is sacredly obligatory upon all.”

And we like particularly the improved Wheeler concept of the rather crude Gettysburg speech of Lincoln. In its new form, altered by the Wheeler idea, it is wonderful to hear the appeal of Lincoln that we, who were not among the dead at Gettysburg, should play our part “that government of the people, by the state governments, and for those who control the state governments, shall not perish from the earth.”

We wonder if Hughes and Wheeler and Sheppard and Webb realize how far they have gone beyond the Calhoun idea that was repudiated forever at Gettysburg! In the old days, the Calhoun doctrine was that a single state, although but a political entity, could do as it pleased in its own affairs, even to leaving the Union without reference to the wishes of the citizens of America. That question was settled forever by the result at Gettysburg. The modern claim, the sole claim upon which the Eighteenth Amendment depends for existence, is that a state government, if it combines with enough other state governments, can go outside its own jurisdiction, outside the citizenship which chose the legislators in it, and issue its omnipotent command telling the citizens of America what they may do and may not do, “in all matters whatsoever.”

But we leave the Court of 1920, quite satisfied that the modern “constitutional thinkers,” who filed their briefs therein, have not exactly the American concept of the relation of government to human beings, which would have located them at Valley Forge, with Marshall, in the Winter of 1778.

We leave that Court, however, quite satisfied that the Court itself still has the knowledge which Marshall had, the knowledge stated in the Tenth Amendment and by the decision of that Court in 1907, that all the powers not granted by the Constitution to the general government at Washington “are reserved to the people and can be exercised only by them or, upon further grant from them.”

We do not forget the question of the Court, the question which none of the lawyers could answer, “In what way do counsel believe that the Eighteenth Amendment could be made CONSTITUTIONALLY?”

We do know the answer to that question. The Americans, in the “conventions” we just left, wrote the answer in the Fifth Article in the words which are the most important words in the Article and one of our greatest securities to human liberty, “by conventions in three fourths thereof.”

The “conventions” which mentioned themselves, the “conventions,” in the Fifth Article, are the same “conventions” which demanded that the declaration be made that every power, not granted in that Constitution to the government at Washington, remained where it had been. As the state governments had been incompetent to make the First Article or the Eighteenth Amendment, they remained incompetent to make either of them.

If we needed any assurance that the Supreme Court still retains the accurate conceptions of these early Americans, we find it in one of the most significant facts in the whole remarkable story of the last five years.

We do not need to recall how every lawyer dwells continuously upon the fact that the Fifth Article is a “grant” of power to make new Articles. We do not need to refresh our mind with the recollection that the Root brief referred to the Fifth Article over fifty times as a “grant” of such power. We know that every argument in every brief was based on the stated assumption that the Fifth Article was a “grant” and that it made the legislatures of state citizens attorneys in fact for the citizens of America, who elect none of the members of those legislatures.

Did this monumental error of all the lawyers have any effect upon the accurate knowledge of the Supreme Court? Did this insistence upon the absurd assumption that the Fifth Article is a “grant,” in which “conventions” grant something to themselves and to the state governments, lead the Court into the error of calling it a “grant?”

Read the conclusions of the Court, as they were stated by Judge Van Devanter. The opening sentence of that statement sweeps aside every assumption that the Fifth Article is a “grant.” Can our knowledge, brought right from the old “conventions,” be put more completely than in the one statement: “Power to amend the Constitution was RESERVED by Article V.”

Where is the “grant” all the lawyers have been talking about? Where is the “grant” on which the Eighteenth Amendment depends for existence? Where is the “grant” which makes the state legislatures of state citizens attorneys in fact, for any purpose, for the American citizens? Before the Constitution, in which is the Fifth Article, there was no citizen of America. And, as the exclusive ability of “conventions” to make NATIONAL Articles (like the ability of state legislatures to make Articles which are not national) “was reserved by Article V,” the state governments, as imaginary attorneys for ourselves, disappear entirely from the scene. We remain free citizens. We have not become “subjects.”

This comforting knowledge is emphasized when we find that, as the Supreme Court states its Fourth Conclusion, again the accurate statement is that the ability to make the new Article “is within the power to amend RESERVED by Article V of the Constitution.”

That is our own knowledge. We have brought from the conventions, in which we have sat with the early Americans, their knowledge that the ability of the “conventions” to make Articles of that kind, their exclusive ability to do so, was reserved to those “conventions,” the assembled citizens of America. We know that the Tenth Amendment expressly so declares. Therefore, when we go to the Supreme Court, with our contention that we still are citizens and that a revolution by government against the people, a revolution to make us “subjects,” must be repudiated by the Supreme Court which we have established to protect our human liberty against all usurpation by governments, our challenge will be in the words of Wilson, uttered in the Pennsylvania Convention where Americans first set their names to the Fifth Article:

“How comes it, sir, that these state governments dictate to their superiors—to the majesty of the people?”