We average Americans, therefore, come to the courtroom of 1920 with some knowledge that is a mathematical certainty. We know that everything done at Philadelphia by the “conventions” named in the Seventh Article was done with one dominant purpose—the security of individual human freedom. We know that, at Philadelphia and in those “conventions,” the old states and their governments, the federal government and its continuation in the new Constitution, the new nation and its Constitution and its government were only important as the American citizens considered that each or all would contribute to the security of American individual freedom. We know that, only in rare instances, such as that of Gerry, did a Tory mental attitude lead a man into the error (for any American after ’76) of thinking that political entities (such as states or nations or their governments) have the slightest importance except in so far as they contribute to the individual freedom of the citizens who create them and must control them, if an American is to remain a citizen. We know that every American, in those “conventions,” discussed and voted upon every mention of these political entities, with insistent realization that nothing anywhere in the Constitution was intended to disturb or did disturb the legal fact that only the citizens of America, in “conventions,” ever could say how much national power the new government should have, how much each old state should be allowed to retain over its own citizens and how much the citizens of America should reserve from all governments in America. We also know this legal fact to have been the most important legal fact in America to the Americans in those “conventions.” We know that it was the legal fact whose denial by the British Parliament caused the Revolution. We know that, from July 4, 1776, everything which the Americans did was solely to make it impossible that any one could ever deny this legal fact in America.

And we also know, something that has been entirely ignored since 1917, that these “conventions” knew that the “conventions” of the Seventh and the Fifth Articles were identically the same thing and were the most important reservee in the Tenth Amendment, “the people” of America, in their aggregate and collective capacity as Henry accurately put it.

With this simple and amazingly important knowledge of facts, a knowledge acquired by our education with the Americans who made themselves and their posterity free men instead of “subjects,” we come to the arguments and briefs of 1920. There we expect to learn how the opponents of the Eighteenth Amendment presented and its supporters answered these facts. Because these facts we do know, if they are all the facts, flatly deny the existence of that new national Article, made by governments alone.

If forbearance were the sole rule for conduct, if conscience permitted us to ignore the great danger to our own individual freedom in every matter, we would be absolutely silent as to the contents of all those briefs. But, that the supposed presence of the new national Article in the national Constitution of a free people may never be a precedent for other government making of national Articles, it is our duty to learn and state what those briefs all disclose.

Not one of them recognizes the identity of the “conventions” of the Fifth Article with the “conventions” of the Seventh. And all ignore the identity of the Fifth Article “conventions” with “We, the people” of America, in the Preamble, and with the most important reservee of the Tenth Amendment, “the people” of America.

Every argument, whether for or against the new national article, is based upon the sheer and absurd assumption that the “conventions” in their Fifth Article did make a grant to themselves, the “conventions,” and to the state governments. The advocates of the new Article assume that the “conventions” granted to themselves and to the state governments all the inalienable omnipotence of the American people themselves, in their aggregate capacity as the citizens of America, the very omnipotence the supposed grantors were exercising when they made the Fifth Article. The opponents of the new national Article assert the absurd assumption of a “grant,” but contend for diverse reasons—remarkable by reason of the fallacy of a “grant” on which each rests—that the “conventions” grant to themselves only a part of the omnipotence which they already had and were exercising when they made the supposed “grant.” On which theory, they urge that the supposed “grant” to the state governments, being identical with the supposed “grant” to the grantors themselves, is only part of the omnipotence which the grantors already had and does not include ability to make Articles like the Eighteenth Amendment.

Not one of these briefs recognizes or urges that the Fifth Article is not a “grant” of ability to make Articles whether federal or national. No brief knows the Fifth Article to be simply the ratification, by the whole American people, of a hitherto revolutionary mode of procedure as the future CONSTITUTIONAL mode in which may be exercised either the existing and limited ability of state legislatures to make federal Articles or the existing and unlimited ability of the “people” (the “conventions”) to make any Articles. No brief either recognizes or urges the absurdity of the thought that the “conventions” intended to grant or did grant to themselves, the “conventions,” any part of the omnipotence which the supposed grantors were actually exercising when making the supposed grant.

No brief recognizes that one of the supposed grantees is the supposed grantor. No brief seems to know that the supposed grantees were respectively competent makers of certain kinds of Articles even before the Fifth Article was written at Philadelphia. No brief seems to know—or to sense the decisive effect of the fact—that, within the twelve years which immediately preceded the supposed “grant,” each of the two respective makers of Articles, who are mentioned in the Fifth Article, had exercised its respective ability to make Articles of a certain kind. No brief seems to know that one of the supposed grantees, the “conventions,” at the very moment of the supposed “grant,” was exercising its own unlimited ability to make Articles of every kind. For all that the briefs disclose, in the decisive effect of the two facts upon the supposed validity of the Eighteenth Amendment, the “state legislatures” might never have made the federal Articles of 1781 and the “conventions” might never have made the federal and national Articles of 1788.

No brief urges the greatest legal decision made at Philadelphia in 1787 as binding legal authority that the state “legislatures” of the Fifth Article never can, while the Fifth Article “conventions” always can, make a national Article like the First Article or the Eighteenth Amendment. One brief does suggest that decision as authority for the absurd proposition that the Fifth Article mentions no CONSTITUTIONAL mode in which even the exclusive ability of the “conventions” of the American citizens can be again exercised to make Articles like the First Article and the Eighteenth Amendment. In urging that absurd proposition, the briefer wholly ignores the fact that the Philadelphia Convention, which made that legal decision, reached its conclusion by ascertaining what were and still are the respective abilities (to make Articles) of the state “legislatures” and the “conventions,” both of which are named as future makers in the Fifth Article.

No brief recognizes the fact (or urges any argument based upon it) that the Constitution is both a federal and a national Constitution. For which reason, no brief points out that the Tenth Amendment expressly reserves the ability to make federal Articles to the state “legislatures” and the exclusive ability to make national Articles to the “conventions.” For which reason, no brief points out that each of the two reservees, named in the Tenth Amendment, is mentioned separately in the Fifth Article as a possible maker of future articles, whenever a proposed future Article is of the kind which the existing ability of the proposed maker is competent to make.

No brief, against the new Amendment, challenges the sheer and absurd assumption that the Fifth Article is a “grant.” No brief, for the new Amendment, offers or suggests the slightest fact in support of that sheer assumption.

Every brief for the new Amendment, on the fallacy of the sheer assumption that the Fifth Article is a grant, contends that the Article makes a fractional part of the state legislatures an omnipotent Parliament for the American people, a Parliament not restrained by any constitutional limitations in state or national constitutions but a Parliament which can do what it will with every individual right of every human being in America. These briefs neither know nor care that their concept of the Fifth Article means that the “conventions” of the American citizens, twelve years after the Declaration of Independence, intended to make and did make themselves absolute “subjects” of governments, not one of whose legislators was to be elected by Americans in their capacity as American citizens. The foremost of these briefs were written by eminent “constitutional” lawyers who had, as clients, the very governments which claimed this omnipotence over individual Americans as their “subjects.”

Every brief, against the new Amendment, not only admitted but asserted the absurd assumption that the Fifth Article is a “grant” to the grantors and to the state governments. In the foremost brief against the new Amendment, that absurd assumption is asserted or mentioned over fifty times. On this absurd assumption, every argument, in these briefs, as well as in the opposing briefs, is based. In this respect, there was but one difference between any brief and another. That difference was in reference to the extent of the supposed “grant” which the grantors made to themselves and to the state governments.

Not one brief, presented in these litigations of 1920, knew or urged the undoubted fact that, because our government is both federal and national, if it wants new power to interfere with the freedom of the American citizen, that government can get that power in only one CONSTITUTIONAL mode, through the “conventions” named in the Fifth Article. No briefer knew the legal necessity that all power of that kind must be obtained directly from the citizens of America, assembled in their “conventions.” We ourselves know that there was a day in America when that legal necessity “was felt and acknowledged by all.” It is almost impossible for us, therefore, educated as we are in the experience of the Americans who did know, to believe these statements about these briefs. Yet the briefs speak for themselves.

Before, however, we turn to verify the statements by the briefs themselves, it is well that we recall one amazing question and answer, during the arguments of 1920 in the Supreme Court, which question and answer overwhelmingly demonstrate that none of these “constitutional” lawyers knew or cared about the facts we know.

The Supreme Court had listened, for several days, to many clever arguments against the new national Article. The arguments had challenged validity on the ground that the new Article infringed upon the political freedom of some political entity, such as a state or its government. Sometimes the arguments had challenged validity on the ground that the new Article infringed upon the liberty of the citizens of some particular state. No argument had challenged validity on the one patent and unanswerable ground that the “conventions” of 1788 had provided that no national Article, which (like the First Article and the Eighteenth Amendment) directly interferes with or grants power to interfere with individual liberty of the American citizen, could ever be CONSTITUTIONALLY made, except in the one CONSTITUTIONAL mode of procedure, in which the only competent makers of national Articles can make such Articles, the “conventions in three fourths of” the states, mentioned in the Fifth Article.

Rice of Rhode Island, one of the many prominent lawyers against validity, was urging his particular argument. Ignoring the citizens of America in the “conventions” of the Fifth Article, he claimed that no power in America could interfere with individuals in Rhode Island, outside the First Article matters, without the consent of Rhode Island itself. He was interrupted by the Court. In substance, this is the question and answer that followed: Justice Brandeis: “The court is now fully acquainted with the nature of the arguments of the various counsel as to why the new Article has not been validly made. The Court would like to know, In what way do counsel think that the new Article could be constitutionally made?” And the answer of Rice, undoubtedly voicing the conviction of all his colleagues, for none of them had any other answer to volunteer, was: “In no way.”

Fresh from the “conventions,” which knew that they could have made what is supposed to be the Eighteenth Amendment, we could make the correct answer to that question. Our answer is that the “conventions” of the whole American people could have made this new Article in 1788 just as they did make the First Article of exactly the same kind. They could have made it, not because any Constitution gave them the power to make it. They could have made it because, in its making, they would have exercised exactly the same existing ability which they exercised when they destroyed the power of the British Government over themselves in 1776, which they exercised when they ended the complete independence of each state in 1788 and which they exercised when they made all the Articles of 1788. When they did each of these things, they had prescribed no “constitutional” mode of procedure in which they might constitutionally exercise that exclusive ability of their own. By the declaration of the Tenth Amendment, they reserved that exclusive ability to themselves. And, in the Fifth Article, they prescribed, for the first time, exactly the same mode, in which they were then exercising that exclusive ability, as the future CONSTITUTIONAL mode for its further exercise. As Marshall stated, in the Supreme Court, there is but one way in which they can exercise it, “safely, effectively, and wisely,” by assembling in their “conventions” in their respective states.

If the accuracy and truth of this sole possible correct answer to the question of 1920 is so well known to us, certainly it should have been known to at least one of the “constitutional” lawyers of 1920. Moreover, every “constitutional” lawyer of 1920 should have known that the mention of state governments in the Fifth Article was not intended to make them omnipotent over the individual rights of the American citizen or to provide an unsafe, ineffectual and unwise way or any way in which government in America could create new government power to interfere with individual freedom.

Madison wrote the Fifth Article. Immediately after he had secured its proposal from Philadelphia, in the Virginia convention he paid his famous tribute to the “conventions”—but not to the “state legislatures”—which he mentions in his Fifth Article. “Mr. Chairman, nothing has excited more admiration in the world than the manner in which free governments have been established in America; for it was the first instance, from the creation of the world to the American Revolution, that free inhabitants have been seen deliberating on the form of government, and selecting such of their citizens as possessed their confidence, to determine upon and give effect to it.” (3 Ell. Deb. 616.)

But, whatever the ignorance of our constitutional lawyers, we know why Madison, in his Fifth Article, mentions these “conventions” in which free inhabitants are seen deliberating on new grants or constitutions of government power to interfere with individual freedom. When future grants of such power are suggested, there is to be a CONSTITUTIONAL mode prescribed for the reassembling of such “conventions” to make or refuse the grants.

Our experience with Madison and his colleagues would educate these “constitutional” lawyers to keen realization that the Americans of old knew the vital distinction, so important to individual liberty, between permanent and existing state legislatures and these “conventions” of the American people themselves, chosen for the one purpose of answering “Yes” or “No” to a particular question previously carefully considered by all the American citizens.

Let these “constitutional” lawyers spend a moment with Hamilton, on Friday, March 14, 1788, when he was urging the American people to adopt the Constitution with that Fifth Article.

He was discussing the mode which that Constitution provided for the election of the Chief Executive of the new nation. The mode was that the American citizens, in each state, should elect a temporary convention of delegates to deliberate upon and cast the votes of Americans in that state for some American as President. We sense, at once, the striking similarity between the temporary body, thus to be chosen for that purpose, and the temporary body or convention also to be chosen to pass upon the other single question, a “Yes” or “No” to some particular proposed new grant of government power to interfere with individual freedom. The danger to individual liberty would necessarily be much less in having a permanent government body, the legislature, cast the vote of the Americans in its state for an Executive, than in having the same permanent government body or legislature say the “Yes” or “No” of the Americans in that state to a new grant of government power to interfere with the individual liberty of all Americans. Therefore, if we find Hamilton dwelling upon the danger of state legislatures casting American votes for the American Executive, we can be quite certain that neither Madison nor Hamilton nor their colleagues mentioned the existing ability of legislatures to make federal Articles (when these men worded and made their Fifth Article) in order that their words might be twisted away from any possible English meaning and say that the citizens of America appointed these state governments, not a member of which is chosen by the citizens of America, to be their omnipotent attorney in fact for every purpose in the world, forever.

This is what Hamilton had to say on the danger to liberty, if permanent state legislative governments, instead of special American delegates chosen for that purpose, should even elect the American President: “The mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents.”

(Incidentally we recall that the mode of procedure, which is the Fifth Article, never received one word of censure from any opponent on any ground, except that it left to government the ability to reassemble the “conventions” of the people. It was claimed that, even if the people found the First Article power oppressive to their individual freedom, government would never reassemble their “conventions” for the purpose of permitting them to withdraw any of those grants.)

Hamilton proceeded as follows: “It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided.”

(We average Americans remember that the trust of making or refusing new power to interfere with individual freedom would always be infinitely more important.)

“This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture.... A small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations. It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder.... The precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief.... And, as the electors,” like the conventions for granting or refusing national power, “chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.”

(We recall Marshall’s echo of this in his later statement, speaking of the Fifth and Seventh Article “conventions,” “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.”)

Hamilton went on: “Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter.... But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President [or any grant of new power to interfere with individual freedom] to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it, in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment,” or a proposed grant of new power to interfere with individual liberty.... “Thus without corrupting the body of the people, the immediate agents in the election [or the grant] will at least enter upon the task free from any sinister bias. Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it. The business of corruption, when it is to embrace so considerable a number of men, requires time as well as means. Nor would it be found easy suddenly to embark them, dispersed as they would be over thirteen States [now forty-eight States] in any combinations founded upon motives, which though they could not properly be denominated corrupt, might yet be of a nature to mislead them from their duty.” (Fed. No. 68.)

If Hamilton had been alive to watch the supposed legislative making of the Eighteenth Amendment, he would have seen the manner of that supposed making justify everything he said about the danger of letting permanent government bodies have anything to do with individual liberty, except the proper duty of each legislature to make laws for its own citizens on matters committed to that legislature by those citizens. And, from what we have just quoted, the “constitutional” lawyers of 1920 certainly should have known that, when Hamilton was alive, he and his associates, by their mention of those “legislatures” in the Fifth Article, never subjected themselves and their posterity, ourselves, to an omnipotent ability to do what those governments might will with our individual rights, “in all matters whatsoever.”

It has been our custom, as average American citizens, to rely upon our leaders to know and urge, at the proper time and place, our protection under our American Constitution. We have seen the danger of such reliance in the record of our Congress of 1917. As many of our leaders are most renowned lawyers, the danger of that reliance is emphasized, if the briefs of those leaders and lawyers in 1920 disclose that they did not and do not know all these legal facts which are so clear and also so essential to our protection as American citizens. That we may ascertain whether these briefs do disclose this ignorance and do emphasize the danger of such reliance, we must later examine the briefs themselves. But, that we may come to such an examination, properly prepared, it is necessary that we should know the nature of the litigations before the Court and what were the arguments against validity upon which the Court was asked to pass. In no other way, can we acquire our own knowledge that the Supreme Court has yet to hear and consider the real challenge to the supposed new Article in which governments attempt to exercise ungranted power and to grant new power to interfere with the individual freedom of the American citizen. As we well know, that one real challenge is that the new Article was not made by those who alone can make it, that it was not made as it can be CONSTITUTIONALLY made, by the makers of that kind of Article named in the Fifth Article, the “conventions” of the Seventh and the Fifth Articles, the “We, the people” of the Preamble and “the people” of the Tenth Amendment.