We wonder if Hughes and Wheeler and Sheppard and Webb realize how far they have gone beyond the Calhoun idea that was repudiated forever at Gettysburg! In the old days, the Calhoun doctrine was that a single state, although but a political entity, could do as it pleased in its own affairs, even to leaving the Union without reference to the wishes of the citizens of America. That question was settled forever by the result at Gettysburg. The modern claim, the sole claim upon which the Eighteenth Amendment depends for existence, is that a state government, if it combines with enough other state governments, can go outside its own jurisdiction, outside the citizenship which chose the legislators in it, and issue its omnipotent command telling the citizens of America what they may do and may not do, “in all matters whatsoever.”
But we leave the Court of 1920, quite satisfied that the modern “constitutional thinkers,” who filed their briefs therein, have not exactly the American concept of the relation of government to human beings, which would have located them at Valley Forge, with Marshall, in the Winter of 1778.
We leave that Court, however, quite satisfied that the Court itself still has the knowledge which Marshall had, the knowledge stated in the Tenth Amendment and by the decision of that Court in 1907, that all the powers not granted by the Constitution to the general government at Washington “are reserved to the people and can be exercised only by them or, upon further grant from them.”
We do not forget the question of the Court, the question which none of the lawyers could answer, “In what way do counsel believe that the Eighteenth Amendment could be made CONSTITUTIONALLY?”
We do know the answer to that question. The Americans, in the “conventions” we just left, wrote the answer in the Fifth Article in the words which are the most important words in the Article and one of our greatest securities to human liberty, “by conventions in three fourths thereof.”
The “conventions” which mentioned themselves, the “conventions,” in the Fifth Article, are the same “conventions” which demanded that the declaration be made that every power, not granted in that Constitution to the government at Washington, remained where it had been. As the state governments had been incompetent to make the First Article or the Eighteenth Amendment, they remained incompetent to make either of them.
If we needed any assurance that the Supreme Court still retains the accurate conceptions of these early Americans, we find it in one of the most significant facts in the whole remarkable story of the last five years.
We do not need to recall how every lawyer dwells continuously upon the fact that the Fifth Article is a “grant” of power to make new Articles. We do not need to refresh our mind with the recollection that the Root brief referred to the Fifth Article over fifty times as a “grant” of such power. We know that every argument in every brief was based on the stated assumption that the Fifth Article was a “grant” and that it made the legislatures of state citizens attorneys in fact for the citizens of America, who elect none of the members of those legislatures.
Did this monumental error of all the lawyers have any effect upon the accurate knowledge of the Supreme Court? Did this insistence upon the absurd assumption that the Fifth Article is a “grant,” in which “conventions” grant something to themselves and to the state governments, lead the Court into the error of calling it a “grant?”
Read the conclusions of the Court, as they were stated by Judge Van Devanter. The opening sentence of that statement sweeps aside every assumption that the Fifth Article is a “grant.” Can our knowledge, brought right from the old “conventions,” be put more completely than in the one statement: “Power to amend the Constitution was RESERVED by Article V.”