This particular challenge, like everything in these litigations and in the whole history of the supposed new Amendment, brings into bold relief the one monumental error at the bottom of every thought that the new Amendment is in the Constitution, at the bottom of the varied absurdities which constantly appear in every brief, either for or against validity.
Without a single exception, the fifty-seven lawyers on these briefs base their every argument, no matter how those arguments may challenge one another, on the ridiculous sheer assumption that the Fifth Article is a great power of attorney to the state governments from the citizens of America. All these fifty-seven lawyers ignore the undeniable fact—mentioned continually in the “conventions” of the Seventh Article which wrote their own name, “conventions,” into the Fifth Article—that the Constitution is both federal and national. This first mistake, this ignoring of that fact, led all of them immediately into the fatal error of wholly ignoring the vitally important fact that the Fifth Article distinctly names those who already could make federal Articles, the state governments, and those whose exclusive right it always was and is to make national Articles, the people assembled in their “conventions.” Only because of these two mistakes, the next step comes in the guise of the absurd concept that the Fifth Article is a grant of any power of attorney, from the citizens of America, either to the “state legislatures” or the “conventions.” In this patent absurdity, all fifty-seven lawyers concur. That each of them does not see its patent absurdity is due entirely to the fact that not one of them states the proposition, that the Fifth Article is a grant, in the frankest mode of stating it. That frankest way is to state the proposition in these words: “In the Fifth Article the citizens of America, assembled in the ‘conventions’ of 1788, granted to the state legislatures and to themselves, the citizens of America, assembled in their ‘conventions,’ a quantum of power as attorneys in fact of the citizens of America. We fifty-seven lawyers only differ as to the extent of the power which the citizens of America grant to themselves and to the state governments. We, who support the new amendment, contend that the citizens of America grant to the state governments and to the citizens of America all the power of the citizens of America. On the other hand, we, who oppose validity, contend that the citizens of America grant to the state governments and to the citizens of America only some of the unlimited power of the citizens of America, the very power they were exercising when they made the grant which is the Fifth Article.”
When the common proposition of all those lawyers, that the Fifth Article “grants” power to those two grantees, is stated in this frank way, its patent absurdity is manifest. Every one of those lawyers knows that a grantor never can or does grant to himself either all or part of what he already has. Moreover, all those lawyers ought to know that the Tenth Amendment expressly declares that the entire Constitution, in which is the Fifth Article, grants no power of any kind except to the American government at Washington. Alone and unaided, this simple declaration makes it impossible that the Fifth Article grants any power to the state governments. Thus, even without the certain knowledge we bring from the conventions of 1788, the state governments disappear from the scene as attorneys in fact for the citizens of America in any matter. Each of those state governments is left with no power it did not have before the Fifth Article was made. Not one of them even keeps all of the power which it had before 1788. The citizens of America, the “conventions” in which they assembled, commanded otherwise. “When the American people created a national legislature, with certain enumerated powers, it was neither necessary nor proper to define the powers retained by the States. These powers proceed, not from the people of America, [the “conventions” named in the Seventh and the Fifth Articles] but from the people of the several states; and remain, after the adoption of the Constitution, what they were before, except so far as they may be abridged by that instrument.” So spoke Marshall from the Supreme Court Bench, in 1819, after he had come from one of those “conventions” in which he himself had stated: “It could not be said that the states derived any powers from that system, [the new Constitution then before the convention in Virginia] but retained them, though not acknowledged in any part of it.” (3 Ell. Deb. 421.)
Yet every brief of those fifty-seven lawyers bases its every argument on the sheer assumption, asserted by all, that the Fifth Article is a “grant” to the state legislatures which makes them attorneys in fact for the citizens of America. No brief can offer and no brief does offer the slightest proof in support of the assumption. But no brief asks for proof of the assumption or challenges the assumption. On the contrary, every brief makes the assumption and asserts it and on it rests every argument.
Because of this monumental error, every brief for the Amendment insists that the state legislatures, as attorneys in fact for the citizens of America with every power of the citizens of America, validly made the Eighteenth Amendment.
Because of this monumental error, every brief against the Amendment asserts that the state legislatures are attorneys in fact for the citizens of America but insists that the Fifth Article (the assumed power of attorney in a Constitution which expressly declares that no power is given to the state legislatures) grants to the state legislatures (as well as to the “grantors” themselves) only limited ability on behalf of the principal, the citizens of America. On this altogether unique argument, it is contended that the limited power of attorney does not confer ability to make an Amendment like the Eighteenth.
Because all briefs make the same monumental error, there is no challenge on the ground that the state legislatures, not a member of which is elected by the citizens of America, hold no power of attorney from the citizens of America to interfere in any way, in any matter, with the individual freedom of the American citizens. Because all briefs against the Amendment make the same monumental error, the fourth challenge (which was made and considered by the Court) is based upon the heretical doctrine—the heresy being clear from what we have heard in the “conventions” where we sat—that the Fifth Article does not mention a CONSTITUTIONAL mode in which the citizens of America, again assembled in their “conventions,” can take back from their American government any enumerated power of the First Article which they find oppressive to their individual rights and freedom. And, perhaps most amazing and amusing fact of all, because all briefs make the same monumental error, the briefs for the Amendment make no effort to support and the briefs against the Amendment make no attempt to challenge the clear paradox, on which the Eighteenth Amendment depends for its existence, that there never has been a citizen of America if it be true that the Fifth Article makes the state governments the attorneys in fact for the citizens of America with unlimited ability to interfere with the individual freedom of the citizens of America. Where such unlimited ability is in government, men are not “citizens” but “subjects.”
But we ourselves come from the “conventions” where the Americans knew that they entered as free men and left as citizens of America, not as “subjects” of any governments. Therefore, we need no lawyer to tell us—and no lawyer can deny our knowledge—that, if the state governments are the attorneys in fact for the American citizens and have ability either to interfere with or to grant power to interfere with the individual liberty of the American citizens, or, if any governments can interfere with that liberty on a matter not enumerated in the First Article, there never were American citizens and the early Americans entered their “conventions” free men but left those “conventions” as “subjects” of an omnipotent government.
CHAPTER XXIV
GOVERNMENTS CLAIM AMERICANS AS SUBJECTS
“Is the government of Virginia a state government after this government is adopted? I grant that it is a republican government, but for what purposes? For such trivial domestic considerations as render it unworthy the name of a legislature.” (3 Ell. Deb. 171.) So thundered Patrick Henry to the Americans assembled in convention in Virginia, while these Americans still heard the echo of his charge that the new Constitution made the state legislatures “weak, enervated and defenseless governments.”