We average Americans again ask whether the Congress, chosen to fulfill the guarantee of the Fourth Article, understood the meaning of the Fifth Article to be that it could suggest and originate any desired breach of that guarantee?

In the second place, we would like to ask another question of the Congress which proposed that Second Section and of all who uphold the validity and the sanity of the Eighteenth Amendment. This other question is about the two distinct powers, in relation to Prohibition, which the legislature of every state must have, if the Amendment is in the Constitution? The question is simple. When such legislature passes an act like the Mullan-Gage Law in New York, who determines which of the two distinct powers the state legislature exercises? Is it the power granted by the citizens of that state and revocable by them? Or is it the power granted by governments outside that state, over which the citizens of that state have not the slightest control? The query is a pertinent one. It is not beyond reasonable assumption that the citizens of New York may amend their state constitution and forbid their legislature to enact any statutes interfering with the freedom of the citizens of New York, in any way, on the matter which is the subject of the Eighteenth Amendment. Such a step on the part of the citizens of New York would be absolutely valid. It is not forbidden even by the remarkable Eighteenth Amendment. Such a step would immediately deprive the legislature of the State of New York of any power from New York citizens to pass such law. Moreover, it would end that Law itself, if that Law was passed in the exercise of the power, in such matters, granted by the citizens of New York. If it were determined, however, that the Mullan-Gage Law had been passed by the New York legislature in the exercise of power delegated to it by governments outside of New York, the Mullan-Gage Law would still remain a valid statute. This would mean, of course, that the republican form of government guaranteed to the citizens of New York, by the Fourth Article, had come absolutely to an end. Our particular query, at this point, is obviously one of considerable importance to us American citizens, each of whom happens to be also a citizen of some state to which the citizens of America made the guarantee of the Fourth Article and imposed on the very Congress, which originated the Eighteenth Amendment, the duty of having that guarantee fulfilled.

There are other equally pertinent questions which we might ask about this unique Section 2 of the Eighteenth Amendment. We will leave them for the present, so that we may continue the story of the travel of the proposed new Article through the two Houses of the Congress which suggested that governments exercise and give government ability to exercise this new power over American citizens, not enumerated in the First Article. We come now to the days on which the House of Representatives and the Senate discussed the Joint Resolution. In the recorded eloquence of the advocates of the proposal, we shall find much to remind us of the prevailing attitude in the British Parliament toward us in 1775. But, in that eloquence, we shall look in vain for any echo of the Philadelphia of 1787 or of the “conventions” in which Americans once assembled and gave their only government its only enumerated powers to interfere with their individual freedom.

CHAPTER XVII
THE TORY IN THE HOUSE

“Let facts be submitted to a candid world.” They have “combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws; giving” their “assent to their acts of pretended legislation;. .. For. .. declaring themselves invested with power to legislate for us in all cases whatsoever.”

It is doubtful if our Congress of 1917 ever read the above language. It is certain that such Congress, reading those words, would heed them just as little as all advocates of the supposed Eighteenth Amendment have heeded the express commands of the Americans who uttered those words.

For the information of those who think that governments in America can validly make grants of national power, like those in the First Article and the Eighteenth Amendment, we state that the quoted words are from the complaint of the American people against their British Government on July 4, 1776. For their information, we also state that, on that famous July day, all Americans ceased forever to be “subjects” of any government or governments in the world. For their information, we also state that it will require more than a combination of our American government and the state governments to subject us American citizens to a jurisdiction foreign to our Constitution and unacknowledged by our laws, the jurisdiction of the state governments, none of which has aught to do with the citizens of America.

It is a known legal fact, decisively settled in the Supreme Court, that the jurisdiction of the American government over the American citizen and the jurisdiction of the state government over the state citizen are as distinct and foreign to each other as if the two citizens were two human beings and the territory of the state were outside of America.

We have in our political system a government of the United States and a government of each of the several states. Each one of these governments is distinct from the other and has citizens of its own who owe it allegiance and whose rights, within its jurisdiction, it must protect. The same person may be, at the same time, a citizen of the United States and a citizen of a state, but his rights of citizenship under one of these governments will be different from those he has under the other. (Justice Waite in United States v. Cruikshank, 92 U. S. 542.)

The two governments in each state stand in their respective spheres of action, in the same independent relation to each other, except in one particular, that they would if their authority embraced distinct territory. That particular consists in the supremacy of the authority of the United States where any conflict arises between the two governments. (Justice Field in Tarble’s Case, 13 Wall. 397.)