When we average Americans look over the great array of counsel and the respective clients whose causes they champion, one fact lends no encouragement to our hope that we may learn the merits of the claim that, somehow between 1907 and 1917 we became subjects and lost our status as free men. Although each client is represented by his own distinguished attorneys and although eminent counsel argue and file briefs, as amici curiæ, on behalf of the state governments which claim that we are subjects and on behalf of some of the litigating other states and individuals, no amicus curiæ files any brief on behalf of us, the citizens of America, the reservees of the Tenth Amendment, the “conventions” of the Seventh and the Fifth Articles.
There is, however, this comfort. If, because the counsel in opposition to the new Amendment do not know and urge our legal protection against any new constitution of national government except by ourselves, the citizens of America, the “conventions” of the Fifth Article, and if, because of such ignorance on the part of counsel, the Court should not be called upon either to consider or pass upon our protection, no decision of the Court will be intended to have—as no decision of the Court could have—any effect upon our protection. If counsel fail to bring before the Court the legal facts which demonstrate that the new Amendment is not in the Constitution unless we Americans are “subjects,” our day in Court is merely postponed. And when that day shall come, when that Court is addressed by counsel who do represent the citizens of America and who accurately know the constitutional protection which we have for all our rights, there is not the slightest danger that the Court, established and maintained by us for the sole purpose of protecting our individual rights against usurpation by government, will decide that we are subjects and that governments can create new government power to interfere with the freedom of the individual American citizen.
Meanwhile, let us examine the briefs of March, 1920. In them, despite our regret that not one of them was written in our behalf, it may be possible, it ought to be a certainty, that we will hear something about the “when” and the “how,” after 1907, we are supposed to have lost our status as free men and citizens of America.
CHAPTER XXI
BRIEFS IGNORE THE AMERICAN CITIZEN
There is one man whose skill as an artist could do justice to the atmosphere in which all the briefs of that March must have been written. Unfortunately, the reports of the death of that man are no longer greatly exaggerated. It is unfortunate that the man who pictured the sensations of a Yankee in King Arthur’s Court could not have lived to reverse the feat. Only his genius could picture one of the Americans of 1790 living in the atmosphere of the briefs of 1920 for the new Amendment and learning therein that the Americans of his own day never became citizens of America. Only the unique word-artist, who defined a cauliflower as a cabbage with a college education, could adequately state the startling fact that not one of the briefers knew that all were assembled in the court room of March, 1920, seriously to debate whether the Americans in 1788 voluntarily surrendered their status as free men and, repealing their Statute of ’76, declared themselves and their posterity subject to a legislative government superior to what they called their supreme legislature, a legislative government “invested with power to legislate for us in all cases whatsoever.”
Because Mark Twain is dead, we must get from those briefs, without his aid, the knowledge that the new Article depends entirely on the extraordinary concept that the Fifth Article constituted a hitherto unknown government of all American citizens, not our government of enumerated First Article powers but an entirely distinct government—not a member of it chosen by American citizens—“invested with power to legislate for us in all cases whatsoever.”
In other words, we are to learn from the briefs for the new Article that our supposed only and supreme American government is, and that all American citizens are, subject to the omnipotence of a still more supreme legislative government, consisting of the state legislative governments on whose behalf some of the most distinguished lawyers of 1920 appeared. It is the clear concept of those lawyers that upon the will of the governments they represented, a will subject to the restraint of no Constitution in America, depends entirely what measure of human freedom we individual American citizens may enjoy. This concept stands out clear and sharply defined in their briefs, although neither they nor their opponent lawyers grasp the fact. On the fact that the Fifth Article mentions their client governments, the state legislatures, they base the entire claim that the Eighteenth Amendment is in our Constitution. On this mention rests their extraordinary assumption that the Fifth Article is a “grant” of power to those governments—and to the very “conventions” which made the Fifth Article—to make new Articles of every kind, whether federal to govern states or national to interfere with the freedom of the individual.
Furthermore, we are to learn, from the briefs of the lawyers against the new Article, that they all assert, like their opponents, that the Fifth Article is a grant of power to the grantors and to the state governments. To our amazement, in the briefs of the lawyers against the new Article, we shall find no knowledge of or insistence upon the important fact that the Constitution is both a federal and a national Constitution. Most amazing of all, in no brief of any lawyer, shall we find the faintest recognition of the decisive fact that the “conventions” of the Fifth Article are the American citizens themselves, while the state “legislatures” of the Fifth Article are respectively the attorneys in fact for respective citizens of other political entities than the nation which is America. Most briefs, for the new Amendment, will dwell upon the fact that the people of America, not the states, made the Constitution. Yet, although it is equally true to say that the whole people of America or the “conventions” of the Seventh Article made the Constitution, no briefer will know that the “conventions” of the Fifth Article are also the whole people of America, while the state “legislatures” never are the attorneys in fact for the citizens of America, who never chose a single member of those “legislatures.”
That all those lawyers, who debated the extent of the imaginary “grant” of power in the Fifth Article, may do themselves strict justice, let us accurately state a few indisputable facts before we consider their briefs.
It is a fact that the subject matter of the first section command and the second section grant, in the Eighteenth Amendment, is the exercise of a human right, not the privilege of a citizen of America or the citizen of any state.