We average Americans, therefore, to complete our education, now turn to the arguments of these lawyers and to their briefs, with somewhat of chagrin at our own unaided ability to ascertain the “when” and “how” we became subjects and our Constitution, in its national Articles and aspect, became the creature of legislative governments, although the American people originally created it to be the master of all governments.
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.”