If this briefer or any lawyer were asked, on behalf of a client, to accept a bill of sale from an alleged attorney in fact of the owner of a cow, he would not seek, in any procedural provisions which prescribed how an attorney in fact can execute an instrument for his principal, to find the authority of the alleged attorney to sell the cow.
Why then, in an Article with naught but procedural provisions and two limitations on power to make Articles, do he and all his associates seek to find, and assert that they do find, grant of authority to the inferior governments of state citizens to give away every liberty which the citizens of America hold most dear?
CHAPTER XXV
CITIZEN OR “EIGHTEENTH AMENDMENT”?
It is our invincible knowledge that the Fifth Article is not a power of attorney to any one to act for us, the citizens of America, in regard to any individual right which the American citizen has. In our capacity as American citizens and in “conventions” of the very kind named in that Fifth Article, we gave the only power of attorney, which we have ever given to any government to act for us in making commands to interfere with any of our individual rights. That power of attorney is the First Article. We made it in the same “conventions.” In it, we gave to our Congress our only power of attorney of that kind. In it, with futile effort to keep modern “constitutional thinkers” from monumental error, we said, at the very beginning of the one Article which is our only power of attorney, that to our Congress alone the Constitution gives any powers to make commands that interfere with our individual rights. “All legislative powers herein granted shall be vested in a Congress, etc.” (Art. I, Section I. U.S. Cons.)
In those same “conventions” (named in the Fifth Article) we insisted, again in futile effort to keep modern “constitutional thinkers” from monumental error, that there be written the exact declaratory statement that the entire Constitution gave no power (to act for us, the citizens of America, in any matter) to any donee except our new general government, the government of the First Article enumerated powers. And, in those “conventions,” we insisted that there be written into that Constitution the accurate declaratory statement that all powers to act for us in any matter, except the powers of that kind we gave to that one limited general government, we retained exclusively to ourselves, the citizens of America, that they might be exercised only by ourselves or upon further grant from ourselves. Those two important declaratory statements were written into that Constitution in the shape of the Tenth Amendment.
That we ourselves might have a CONSTITUTIONAL mode of procedure in which constitutionally we could make that future exercise or further grant of those powers which we reserved to ourselves, we named ourselves—the “conventions” of the kind in which we sat—in the Fifth Article and provided therein the CONSTITUTIONAL mode in which we could again do exactly what we were then doing in the same kind of “conventions.” It was impossible for us in those conventions, “being a people better acquainted with the science of government than any other people in the world,” to anticipate that modern “constitutional thinkers” should make the ludicrous mistake of inferring, from that mention, that we—the “conventions”—granted to ourselves—the “conventions”—all or some of the very power we were then exercising in those “conventions.” Nor did we anticipate, inasmuch as we (in those “conventions”) never forgot that this new Constitution was to be federal as well as national, that modern “constitutional thinkers” would make another monumental error in assuming that a similar mention of the existing ability of state legislatures (the ability to make federal or declaratory Articles) was a grant to those governments of our own power to make national ones. Even if we had possessed (in those “conventions”) the vision to see the future that was 1920, we would have felt that the Statute of ’76, the opening words of the First Article and the explicit declarations of the Tenth Amendment made any such error impossible for modern “constitutional thinkers.”
Yet, one or more of such errors are the basis of every argument in every brief of the fifty-seven lawyers of 1920.
They are the basis of the Root briefs and the other briefs against, as they are the basis of the Hughes briefs and the other briefs for, the validity of the supposed new Amendment. Not a single one of the briefs fails to assume, without the slightest foundation, that the state governments, not a member of which is elected by the citizens of America, are attorneys in fact for the citizens of America. Wherever one brief differs from another in this respect, it is only in urging some difference in the extent of the power of attorney made to those governments by the citizens of America in the Fifth Article.
For which reason, we, who have come from the days of those early Americans, strong in the knowledge that we are citizens and not “subjects,” are now satisfied that none of these modern “constitutional thinkers” can disturb our certain knowledge. It is a matter of no concern to us that some of them, because they did not have our knowledge, failed to win their litigations for their clients. It is, however, a matter of great concern to us that supporters of the Eighteenth Amendment should be found maintaining, as if it was an axiom needing no proof, that we are “subjects” of the governments they represented.
We need spend very little further time in the briefs of those who so maintain. We have no patience with their Tory concept of the relation of men to governments. We KNOW that Tory concept never has been American law since the Statute of ’76. But it would not be proper to leave their briefs without one glance at some of their heresies, which are flatly contradicted by everything we have learned in our education. As a matter of fact, not one of these heresies can stand accurate and simple statement without exposing its own absurdity.