These opponents were led by Hughes. In this litigation, he should not have forgotten that there are limits to the powers of every government in America. In the following January, he appeared in the same Court, to prove that there is limit to the power of the supreme legislature in America, the Congress.
That Congress had passed a statute, known as the “Corrupt Practices Act.” In it, certain practices, at federal primary and other elections, were prohibited and made criminal offenses. His client had been tried and convicted by a jury as guilty of one of these practices in a primary election for the nomination to the Senate of America. On the appeal to the Supreme Court, Hughes urged that, as our American government is a government of enumerated powers, incidentally a fact which his claim for the state governments in the National Prohibition Cases flatly denies. Congress could not validly pass the statute, under which his client had been convicted, unless the power to pass a statute in that particular matter was found in some enumerated power in the Constitution. The Constitution clearly gave Congress power to pass laws concerning “elections” for federal officers. But, urged Hughes, the Americans of 1788, the “conventions” in the Fifth and Seventh Articles, did not know anything about “primary” elections. Therefore, urged Hughes, Congress has not the power to make the same thing a penal offense at “primary” elections, which Congress can make a penal offense at the regular elections. By a divided Court, this argument, based on the claim of limited power in the supreme legislature to prohibit what a candidate for Senator may do, was sustained and the conviction was reversed.
It is amazing, therefore, to turn to the Eighteenth Amendment brief of the same briefer, a few months earlier, and to find him contending for his clients therein, twenty-four governments of state citizens, an absolute omnipotence to interfere with individual freedom of American citizens on every subject. And it is startling to find, in this brief, audacious denial of any right in the Supreme Court even to consider whether these governments of state citizens have that omnipotence over the American citizen.
In the case of the candidate for Senator, it was his concept and his claim that the Supreme Court can decide that the supreme legislature in America had not the power to make a certain command to candidates for seats in the American Senate. This is the doctrine that the only government of the American citizens is a government of enumerated powers. In the Eighteenth Amendment litigation, the following is his contention, that thirty-six governments of state citizens (the inferior legislatures in America) have unlimited power, without any constitutional restraint, to make commands to the American citizens on any matter whatsoever:
“We submit that the conception involved in the bill of complaint, that an amendment duly submitted by Congress on the vote of two thirds of each House, and duly ratified by the legislatures of three fourths of the States, is still subject to judicial review, and may be held for naught through judicial action by virtue of a process of implied restrictions upon the amending power—restrictions which thus set up by judicial decree would be unalterable by any constitutional process—is a conception of the most extravagant character and opposed to the fundamental principles of our government. No principle of judicial action can possibly be invoked for sustaining such an authority. The propriety and advisability of amendments, which are not prohibited by the express exceptions in Article V, are necessarily confided to those through whose action the amendments are to be made.”
We are quite accustomed to have men like Anderson maintain that governments of state citizens have outlawed for the citizens of America a traffic which Madison hoped would take deep root everywhere in America, a rightful traffic by human beings “so recognized by the usages of the commercial world, the laws of Congress, and the decisions of courts.” (Leisy v. Harden, 135 U.S. 100.)
When Americans were fighting on the battlefields of the Revolution for human liberty, Walter Butler stirred up the House of the Six Nations to make a home attack. It was natural, therefore, when Americans in 1918 were fighting on the battlefields of Europe for human liberty, that Anderson and men of his type should stir up the Houses of thirty-six nations to make a similar home attack. Americans will probably always have Butlers and Andersons to stir up home attacks, when Americans are away on the battlefields.
But it is a grave matter when one who has sat on the Bench of the Supreme Court later contends that the Court has no ability even to review an attempted effort of the legislatures of state citizens to command the citizens of America on a matter not enumerated in the First Article.
From the “conventions” of the early American citizens, we bring the knowledge that it is the bounden duty of the Supreme Court to determine that the governments of state citizens have no power whatever to interfere with the individual freedom of American citizens in any matter whatsoever. From those “conventions,” we bring the certain knowledge that the main purpose of the establishment of the Supreme Court, as one department of the only and limited government of American citizens, was that the Supreme Court might protect every individual liberty of the American citizen from usurpation of power by all governments in America.
Any concept to the contrary is the most Tory doctrine ever stated as American law since July 4, 1776. It is blind to the fact that, by the Constitution, the whole American people, “in their aggregate capacity,” created a new nation of men and set it above the existing and continued federation of states; to the fact that the whole American people made that Constitution one with national Articles, relating to the government of men, and with federal Articles, relating to the government of states; and to the fact that the whole American people knew and settled that only “conventions” of themselves could make national Articles, although state legislatures, as attorneys in fact for their respective states, could make federal Articles; and to the fact that the Tenth Amendment names two distinct reservees of existing power, “the states respectively,” who are the members of the subordinate federation, and “the people,” who are the members of the supreme nation of men; and to the fact that the Fifth Article grants no power whatever but mentions the “state legislatures,” who act for the members of the federation, and the “conventions,” who alone can ever act for the members of the supreme nation, when the latter are to make a change in their part of the Constitution, the national part.