(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.

CHAPTER XXIII
THE CHALLENGES THAT FAILED

The validity of the Eighteenth Amendment (seven litigations being heard together) was argued on March 8, 1920, and for several days thereafter.