Early in our education (p. 26) we were informed that our public statesmen and constitutional thinkers brought to the year 1917 the false “knowledge” that legislatures in America, if enough combined, had the omnipotence over individual freedom, which the early Americans denied to the British Parliament. Their false “knowledge” was undoubtedly caused by their failure to appreciate, if they knew or remembered, that America is a national union of men while there is also a subordinate and federal union of states. Ignoring this simple fact, they also ignored the important fact that the Constitution is both national and federal and contains Articles of both kinds. Blind to both important facts, they acquired their false “knowledge” from the fact that the “legislatures,” to whom they ascribed omnipotence over individual freedom, had made the first seventeen Amendments.
The fallacy of their deduction is mathematically demonstrable.
A constitutional Article which gives to government any power to interfere with individual human freedom IS the constitution of government of men. That is why the First Article WAS the constitution of the government of the nation of men. And, in turn, that is why the legal necessity of having it made by the men themselves, in their “conventions,” was “felt and acknowledged by all” Americans.
If one doubts that the First Article WAS the constitution of the government of men, test the truth of the statement in this way. First, assume that the “conventions” made no Article save the First. Then ask yourself if the whole American people would not have constituted their government with its great enumerated powers to interfere with their individual liberty. In the second place, make exactly the opposite assumption. Assume that the “conventions” made all the Articles from the Second to the Seventh, both inclusive, but did not make the First Article. Then ask yourself whether the whole American people would have constituted any government with a single power to interfere with their individual freedom.
Let us now apply exactly the same test to each of the first seventeen Amendments and then to the supposed Eighteenth Amendment.
Take any one of the first seventeen Amendments and assume that anything new which it put into the Constitution was the entire Constitution. Then ask yourself whether, if the Constitution consisted solely of the new matter in the Amendment, there would be any government of the whole American people with a single power to interfere with their individual human liberty. Take all the seventeen Amendments and assume that any change all of them made was the entire Constitution. Then ask yourself whether, if any new matter in the seventeen Amendments composed the entire Constitution, would there be any government of the whole American people with a single power to interfere with their individual human liberty.
Now make the same assumption about the supposed Eighteenth Amendment. Assume that it is the entire Constitution and that there are no other Articles. Immediately it is seen that, if the Eighteenth Amendment were the entire Constitution, there would be a government of the whole American people with an enumerated power to interfere with their individual human liberty.
Now we see the fallacy of the false “knowledge” which our statesmen and constitutional thinkers brought to the year 1917. Now we know the marvelous foresight of Hamilton when he stated his conviction that Amendments would relate to “the organization of the government, not to the mass of its powers.” None of the seventeen Amendments did relate “to the mass of its powers” to interfere with individual human liberty. That is why state legislatures, representing the federal members of the union of states, could make the federal or declaratory seventeen Amendments. The fact that those “legislatures” in 1787 could make Articles of that kind, as they had made them in 1781, did not deceive the Americans at Philadelphia into a false “knowledge” that those “legislatures” could make the First Article with its enumerated powers to interfere with the individual freedom of the members of the nation of men. The fact that the same “legislatures,” still representing the members of the subordinate union of states, still could make declaratory or federal Articles, and had made seventeen Articles of that kind, not one of which constituted new government power to interfere with individual liberty, should not have misled the statesmen and constitutional thinkers of our generation.
But it did.