,,citizen ,,or ,,subject8 ,,by ,,francis ,x4 ,,hennessy ,,of ,,the ,,new ,,york ,,bar ,illustration 8444 that this nation1 under ,god1 shall have a new birth of freedom2 and that government of the people1 by the people1 for the people1 shall not perish from the earth40 ,,new ,,york ,e4 ,p4 ,,dutton ,,company #fha ,,fifth ,,avenue ,copyright1 #aibc ,by ,e4 ,p4 ,dutton ,company ,all ,rights ,reserved ,,printed ,,in ,,the ,,united ,,states ,,of ,,america ,,author',s ,,note ,quotations from the ,constitution of the ,united ,states are from the 8,literal ,print10 ,government ,printing ,office1 ,washington1 ,d4 ,c41 #aibj4 ,the abbreviation 8,ell4 ,deb40 refers to ,elliot's ,debates1 #bnd ,edition1 #e vols41 ,j4 ,b4 ,lippincott ,co41 ,philadelphia1 #ahff4 ,the 8,federalist0 is quoted from the ,lodge ,edition1 ,g4 ,p4 ,putnam's ,sons1 ,new ,york1 #ahid4 ,wherever italics or capitals are used in a quotation and not directly stated to be those of the original author1 they are the italics and capitals of the present writer4 ,where the present writer interpolates his own words in a quotation1 they are included in square brackets4 ,,preface ,many ,americans are interested in the ,eighteenth ,amendment4 ,millions are interested in the ,american citizen4 ,it seems not to be known that the existence of one flatly denies the existence of the other4 ,this is not theory4 ,it is plain statement of a very simple fact4 ,if there is an ,american citizen1 the ,amendment never entered the ,constitution4 ,on the contrary1 if the ,amendment is in the ,constitution1 there never has been an ,america or an ,american citizen4 ,throughout this book the nation of free men is called 8,america40 ,this is done to distinguish the nation from the federation of states already existing and known as the ,united ,states1 when the whole ,american people created the nation and continued the federation as a subordinate part of one system of government4 ,the federation of states was proposed in #aggg and had complete existence in #agha4 ,the nation of men was created in #aghh4 ,on ,january #ad1 #aibb1 there was opened at ,williamsburg1 ,virginia1 the ,marshall-,wythe ,school of ,government and ,citizenship4 ,judge ,alton ,b4 ,parker1 former ,chief ,justice of the ,new ,york ,court of ,appeals and a former candidate for ,president1 delivered the opening address on 8,american ,constitutional ,government40 ,his eloquent address has since been made a public document and printed in the ,congressional ,record4 ,in it1 he warned us of the danger to ,america from those who do not understand our form of government and are coming here to destroy it4 8,as people of this class have been coming to us in large numbers from nearly every quarter of the globe1 we must take up the task of so educating all classes of our vast population1 as that they shall fully understand the importance of maintaining1 in its integrity1 our constitutional plan of government4 ,they should be taught in the first instance1 why it was that the people1 in the formative period of our government1 were bound to have1 and did at last secure1 a government which the people could control despite their legislatures1 whether representing the states or the federal government40 ,the existence of the ,eighteenth ,amendment is based on the sheer assumption that we have not a government of that kind4 ,by all who have discussed the ,amendment1 whether for or against it1 one false assumption has been made4 ,from that false assumption of all1 the advocates of the ,amendment have drawn their conclusion4 ,on the conclusion is based the existence of the ,amendment4 ,the conclusion itself is the direct negation of the simplest and most important fact in ,america4 ,moreover1 the conclusion itself means that the ,americans1 twelve years after they 8did at last secure0 the kind of government they 8were bound to have0 and of which ,judge ,parker spoke1 voluntarily created a 8government0 of the opposite kind and made themselves its absolute 8subjects40 ,and the conclusion is correct1 if the premise1 which is the false assumption of all1 be true4 ,of course1 the assumption is absolutely untrue4 ,but no one has seen its simple and patent untruth4 ,wherefore1 the first step in our education is for us to acquire knowledge of the plain fact that it is untrue4 ,because our leaders do not know the fact1 we must go to other teachers4 ,by the common false assumption1 the early ,americans--who 8did at last secure0 the kind of government they 8were bound to have0--are now charged with having committed the most monumental blunder in all history1 a blunder which destroyed their entire achievement4 ,rest assured6 ,they did not commit that blunder4 ,they themselves make that clear herein4 ,in so doing1 they teach us what1 with ,judge ,parker1 we agree that we all must know1 if ,america and the ,american citizen are to remain4 ,they are the best teachers in the world4 ,they know what they teach because they did it4 ,they do not weary or perplex us with theories or principles4 ,their teaching is the telling of simple facts4 ,best of all1 they tell us in their own simple words1 while they are talking to one another and engaged in the very accomplishment of the facts they teach4 ,it is a mere incident of their teaching that they settle the plain fact that the supposed ,eighteenth ,amendment is not in the ,constitution4 ,it is our own candid belief that very few ,americans will be found to prefer the existence of the ,amendment to the existence of ,america itself4 ,the early ,americans make amazingly clear that there is no ,america and no ,american citizen if the ,amendment is in the ,constitution4 ,the nation of men1 which we call ,america1 and the subordinate federation of states1 which we call the ,united ,states1 are bound together in one dual system4 ,they have a common name1 8,the ,united ,states of ,america40 ,they have a common ,constitution1 with national ,articles for the men and federal ,articles for the states4 ,they have a common government1 national for the men and federal for the states4 ,this is exactly the ,america of which ,judge ,parker spoke4 ,we want to keep it4 ,the early ,americans1 who made it1 will enable us to keep it1 if we listen to their teaching of the simple facts which they accomplished4 ,such a result would be some credit to the supposed ,eighteenth ,amendment4 ,even those most opposed to it would be compelled to acknowledge that its brief imaginary existence awoke us all to our first real concept of what ,america1 the nation of free men1 really is4 ,,francis ,x4 ,,hennessy4 #cdb ,madison ,avenue1 ,new ,york ,city4 ,march #agth1 #aibc4 ,,contents ,i4 ,,subjects ,,become ,,citizens ,page #a ,the ,american must know what a citizen is--,otherwise he will not remain a citizen--,if the ,american citizen exists1 there is no ,eighteenth ,amendment--,americans of #aggf knew distinction between 8citizen0 and 8subject0--,while legally 8subjects10 they had governed themselves as 8citizens0--,attempt to govern them as 8subjects0 causes ,revolution--,declare ,american concept1 no government interference with human liberty unless 8citizens0 grant government power--,make thirteen nations1 each composed of citizens--,its 8citizens10 in 8conventions10 constitute each government by grant of power to interfere with human liberty--8,democracy0 and 8,republic0 distinguished--,revolution to make ,american concept ,american law4 ,,ii4 ,,the ,,state ,,governments ,,form ,a ,,union ,,of ,,states ,page #ag ,revolution continues--,thirteen nations form league or federation of states--,members of federation act through respective attorneys-in-fact1 state legislatures--,legislatures constitute federal government and grant its federal powers to govern states--,distinction between legislatures' power to make federal ,articles and citizens' power to make national ,articles under which men are governed--,citizens' power exercised in #aggf and legislatures' power in #agha--,revolution won1 establishing ,american concept as ,american law4 ,,iii4 ,,americans ,,find ,,the ,,need ,,of ,a ,,single ,,nation ,page #be ,federation of states unsatisfactory--,general government1 with only federal power to govern states1 not able to secure what whole ,american people want--,they learn need of general government with some enumerated national powers to govern men4 ,,iv4 ,,the ,,birth ,,of ,,the ,,nation ,page #bi ,philadelphia ,convention assembles ostensibly to draft and propose purely federal ,articles--,it drafts and proposes a 8,constitution0 with both national and federal powers--,first ,article is the constitution of ,american national government because it grants all the enumerated powers to interfere with human liberty of ,american citizens--,fifth and ,seventh ,articles relate to the grant of national power1 though neither grant it--,other four ,articles neither grant nor relate to grant of national power--,fifth prescribes constitutional mode for its future grant by ,american citizens in 8conventions0--,also prescribes constitutional mode for future grant of federal power by state legislatures--,philadelphia knows and decides that legislatures can never grant national power and ,articles are sent to 8conventions0 of 8citizens10 as in #aggf--,whole ,american people become a nation--,american citizen first exists on ,june #ba1 #aghh1 when ,american citizens make their only grant of national powers--,states and their citizens and constitutions and governments are made subordinate to citizens of ,america--,these facts entirely forgotten in #aiag4 ,v4 ,,the ,,consent ,,of ,,the ,,governed ,page #ee ,education of personal experience1 from #agge to #agij1 accurately taught science of government to average ,american--,it taught him that citizens only can grant government power to interfere with human liberty1 though legislatures can grant federal power to govern states--,modern leaders lack that practical education and the accurate knowledge it taught the early ,american--,modern average ,american has sensed something curious about making of ,eighteenth ,amendment--,that he may understand what he senses and know why there is no such ,amendment1 must briefly consider the ,constitution4 ,,vi4 ,,the ,,conventions ,,give ,,the ,,consent ,page #fd ,in conventions1 whole ,american people themselves make ,constitution--8,felt and acknowledged by all0 that legislatures could never make ,first ,article because it constitutes government of men--,from early ,american1 modern ,american learns that grant of power to govern men is the constitution of the government of men--,because ,first ,article grants of that kind are enumerated1 ,american government known as government of enumerated powers--,primal security to human freedom that citizens1 not legislatures1 grant all power of that kind--,because this primal security known to early ,americans1 their 8conventions0 insist that ,constitution 7,tenth ,amendment7 declare that every power of that kind not granted by ,american citizens remains with ,american citizens--,our own leaders have not known this security or understood that all ungranted powers of that kind were reserved by ,american citizens to themselves4 ,,vii4 ,,people ,,or ,,government8--,,conventions ,,or ,,legislatures8 ,page #hj ,american nation a society of men like any other society of men--,herein called ,america to distinguish it from federation of united states which can make and are governed by federal parts of ,constitution--,like any society of men1 ,america created by its original human members in their 8conventions0--,their knowledge of that fact becomes our knowledge--,supreme ,court knows and states it--,citizen of ,america distinct from state citizen1 though the same human being--,distinction vitally important1 as ,supreme ,court explains--,only citizens of ,america can grant new power to interfere with their own human freedom--,all original ,american citizens know this--,many explain it to us1 ,daniel ,webster vehemently and clearly4 ,,viii4 ,,philadelphia ,,answers 8,,conventions1 ,,not ,,legislatures0 ,page #ie ,philadelphia knowledge and decision that legislatures of states1 members of the federation1 cannot make ,articles which create government power to interfere with freedom of men1 members of the nation--,the decision1 based on knowledge of basic ,american law1 is embodied in ,seventh ,article and proposing ,resolution at ,philadelphia in #aghg--;,human members of nation described as 8conventions0 in ,seventh ,article--,story of ,seventh ,article at ,philadelphia--,madison asks searching question of any ,american who thinks possible any other decision than the ,philadelphia decision--,now educated with the early ,americans1 we give the same answer as that of ,philadelphia1 while our leaders have given the opposite answer4 ,,ix4 ,,the ,,fifth ,,article ,,names ,,only 8,,conventions0 ,page #aaj ,philadelphia story of ,fifth ,article--,relates to future grants of national power by ,american citizens but makes no grant--,meaning to 8conventions0 must be meaning now--,madison writes it at ,philadelphia1 and he and many others from ,philadelphia are in 8conventions0 who made it--,its ,philadelphia story from ,may #bi to ,september #aj1 #aghg1 one week before end of ,convention4 ,x4 ,,ability ,,of ,,legislatures ,,remembered ,page #aae ,fifth ,article in last ,philadelphia week--,philadelphia1 previously concentrated on its own ,first ,article1 has so far forgotten that future ,articles will probably be federal1 which legislatures can make--,wherefore1 legislatures not yet mentioned in tentative ,fifth ,article--,madison and ,hamilton recall probability that all future ,articles will be federal and suggest a ,fifth ,article which mentions 8legislatures0 as well as 8conventions0--,full record of ,september #aj1 #aghg1 day of that ,madison suggestion--,added mention no support for modern error that ,fifth ,article a 8grant0--,moderns ignore that one supposed grantee is supposed grantor and that 8grant0 would make ,americans 8subjects0--,in language of ,fifth ,article1 ,philadelphia finds no suggestion of modern error and the ,article1 with its added mention of legislatures1 is passed without discussion--,having no suggestion of a 8grant10 it is known at ,philadelphia to be constitutional mode of future exercise of the two existing but different abilities of 8legislatures0 and 8conventions0--,madison1 ,wilson and ,marshall on this fact--,full ,philadelphia story of ,september #ae1 when ,fifth ,article finally considered--,defeat of ,gerry's motion to strike out 8by conventions in three-fourths thereof0--,modern error of thinking and acting as if that motion had been carried4 ,,xi4 ,,conventions ,,create ,,government ,,of ,,men ,page #ada 8,conventions0 of ,seventh ,article1 making ,constitution1 know same 8conventions0 of ,fifth ,article to be themselves1 the ,american citizens--,americans1 in 8conventions10 with ,american concept that government exists solely to secure individual and his freedom1 read and make ,fifth ,article--,madison hits hard modern concept of ,bolshevist ,russian and ,eighteenth ,amendment ,american that human beings are made for kings or legislatures or political entities--,conventions hear ,madison explain ,fifth ,article as prescribing procedure in which 8conventions0 can again assemble constitutionally to exercise their power and in which 8legislatures0 may act constitutionally in making future federal ,articles--,recognize its constitutional mode as exact ,revolutionary mode just followed by ,madison and others at ,philadelphia and that future ,congress should do exactly what ,philadelphia did and no more--,recognize ,fifth ,article settles how each 8convention0 vote shall count as one vote of ,american citizens and how many 8convention0 votes shall be necessary and sufficient to make a future ,article which 8conventions0 of ,american citizens alone can make--,recognize words 8in three-fourths thereof0 after word 8conventions0 most important words in ,fifth ,article and a great security to individual liberty--,average ,american now sees why ,eighteenth ,amendment ,tories seek escape from that security by asserting ,constitution created supreme will independent of ,american citizens1 i4e41 will of state legislatures4 ,,xii4 ,,two ,,articles ,,name 8,,conventions0 ,page #aga ,from #agge to #aghi1 all ,americans aim to secure individual welfare--,with this one aim1 8conventions0 continue to read ,fifth ,article and recognize statements of ,fifth and ,seventh1 as to 8conventions10 identical in nature--,recognize both ordain ,,when convention-made ,articles1 granting power to interfere with individual freedom1 shall validly constitute government of ,american citizens--,recognize 8conventions0 of ,seventh and ,fifth as whole ,american people of ,preamble--,recall ability of legislatures to make federal ,articles and know mention of 8conventions0 and 8legislatures0 grants no power to either--,state 8legislatures0 lesser reservee and 8conventions0 of ,american citizens most important reservee in ,tenth ,amendment--8,conventions0 recognize two exceptions in ,fifth ,article1 not as exceptions from power granted therein1 but as intentional refusal to provide a constitutional mode in which existing ability may be exercised to do what is mentioned in two exceptions--8,conventions0 finish reading ,fifth ,article and1 from its clear language1 know it is not a grant of power but a constitutional mode for the exercise of either of two existing powers1 one limited and the other unlimited4 ,,xiii4 ,,conventions ,,know 8,,conventions0 ,,are 8,,the ,,people0 ,page #ahj ,americans1 in their 8conventions10 explain and support and oppose the proposed ,articles--,whether for or against the ,articles1 their invariable and clear statements confirm the 8convention0 knowledge that the ,fifth is not a grant of power either to themselves1 8conventions10 or to the state 8legislatures0--,conventions check ,fifth ,article mention of 8legislatures0 and 8conventions0 with statement that proposed constitution is 8one federal and national constitution0--,henry insists that proposed ,articles make the state legislatures weak1 enervated and defenseless--8,abolish the state legislatures at once0--,wilson admits that the ,articles take power from the state legislatures and give them no new power--8,the diminution is necessary to the safety and prosperity of the people0--,madison explains the importance of his words1 8in three-fourths thereof10 after the word 8conventions10 as requiring more than a mere majority of ,american citizens for new interference with individual liberty--,hamilton states his own conviction that amendments will be to the federal and not the national part of the ,constitution and emphasizes the legal necessity that grants of national power must come from the people and not the legislatures--8,conventions0 reluctant to give even the enumerated national powers of the ,first ,article and insist on the ,tenth ,amendment declaration that all other power of that kind is reserved by themselves to themselves--8,in their hands it remains secure4 ,they can delegate it in such proportions1 to such bodies1 at such times1 and under such limitations1 as they think proper0--,in #aijg1 the ,supreme ,court states1 what the 8conventions0 knew1 that all powers not granted in the ,first ,article are reserved to the 8conventions0 of ,american citizens 8and can be exercised only by them or on further grant from them0--,the 8conventions10 having secured the liberty of ,american citizens from all government interference except under the ,first ,article grants1 end their great work4 ,,xiv4 ,,seventeen ,,articles ,,respect ,,human ,,freedom ,page #bab ,hamilton's conviction1 that all ,amendments would be of the federal kind which legislatures can make1 verified by the seventeen amendments prior to #aiag--;,as ,supreme ,court has repeatedly held1 the first ten ,amendments merely declared what was already in ,constitution--,a relevant and important declaration in the ,tenth is that the entire ,constitution gives no power of any kind to state legislatures--,amazing modern ,tory concept that these ten ,amendments are an ,american ,magna ,charta or compact between a master government and its 8subjects0--,madison and ,supreme ,court on the 8impious doctrine0 that ,americans are 8subjects0--,eleventh and ,twelfth ,amendments have naught to do with individual freedom--,thirteenth1 ,fourteenth and ,fifteenth neither exercise nor create government power to interfere with human liberty--,on the contrary1 their purpose and effect are to make human liberty universal--,sixteenth removes a federal limitation1 in favor of the states1 from a power the 8conventions0 gave to ,congress--,seventeenth relates only to the election of ,senators--,when #aiag opens1 ,congress has no power to interfere with individual liberty of ,american citizens which ,congress did not have in #agij--,when #aiag opens1 no legislatures1 since ,july #d1 #aggf1 have dared to interfere with the individual liberty of the ,american citizens outside the ,first ,article grants or have dared to attempt to create a new power so to interfere--,when #aiag opens1 we have not become 8subjects0 but still are citizens of ,america4 ,,xv4 ,,the ,,exiled ,,tory ,,about ,,to ,,return ,page #bca ,when #aiag begins1 relation of ,american citizen to all governments in ,america and relations of governments to one another just the same as in #agij--;,american government can interfere with the ,american citizen on matters enumerated in the ,first ,article--,no other governments can interfere with him at all--,the government of each state can interfere with its own citizens1 except as the ,american ,constitution forbids1 on matters in which the citizens of each state give their own government power to interfere--,no government1 either ,american government or state government1 can get any new power of that kind except directly from its own citizens--,no government can get any power of that kind from other governments--,new federal power of ,american government can be granted by members of federation1 the states1 acting through their respective attorneys-in-fact1 the state legislatures--,state legislatures are powerless to govern or to create power to govern ,american citizen--,in these respects1 supremacy of ,american citizens over all governments same in #aiag as in #agij--aiag leaders did not know1 what #agij average ,american knew1 that ,revolution had ended forever ,tory law that governments are master and ,americans are 8subjects40 ,,xvi4 ,,the ,,tory 8,,eighteenth ,,amendment0 ,page #bci ,december1 #aiag1 closing month of ,america's first year in ,world ,war for human liberty--,american citizens have but one government1 ,congress1 which can interfere with their human liberty in any matter--,congress knows it cannot interfere by making the command which is ,section #a of the ,eighteenth ,amendment--,amazing ,resolution in ,senate that legislative governments of state citizens be asked directly to interfere with human liberty of ,american citizen in matter not enumerated in ,first ,article--,resolution asks some state governments to give only ,american government a new enumerated power to interfere with freedom of ,american citizen1 the first new power of that kind since ,june #ba1 #aghh--,some leaders question 8wisdom0 of ,resolution--,no leader questions power of any governments 7except ,congress in the enumerated ,first ,article matters7 to interfere with freedom of ,american citizen--,no leader questions power of any or all governments to give a new enumerated power of that kind to the only ,american government or to any government--,no leader knows that1 in #aiag as in #aghg and in #agij1 only the 8conventions0 of ,american citizens can make the command or the grant of power--,house of ,representatives adds absurdity to absurdity--,adds to ,resolution that state governments1 while interfering with liberty of ,american citizen and granting only ,american government first new enumerated power so to interfere1 should also give themselves 7the granting governments7 the very power they assume to exercise over ,american citizens--,webb1 explaining to the ,house his proposed change in ,section #b of the ,amendment1 states this to be the meaning and purpose of the change--,article ,,iv contrasted with absurd modern error1 as to meaning of ,article ,v--,that modern error is sole basis of ,tory concept that any or all governments could make ,articles like ,first ,article or supposed ,eighteenth ,amendment--,article ,,iv guarantees to citizens of each state that their state government shall be republican1 getting from them its every power to interfere with their individual freedom--,senate ,resolution asks state governments1 outside each state1 to give each state government power to interfere with the freedom of its own citizens--,congress of #aiag acted on assumption that ,article ,v meant to enable ,congress to suggest any desired breach of the guarantee in the closing words of ,article ,,iv4 ,,xvii4 ,,the ,,tory ,,in ,,the ,,house ,page #bed ,despite our education with ,americans from #agge to #agij1 in #aiag1 when ,americans are at war for human liberty1 the only ,american government recognizes other governments 7the state legislatures7 as an omnipotent ,parliament with all ,american citizens as 8subjects0--,volstead ,act is only statute in ,america1 interfering with individual liberty1 which does not even pretend to be founded on direct grant of power from its citizens to the government which enacted it--,webb1 in the ,house1 states1 8,we thought it wise to give both the ,congress and the several states0 new power to command the ,american citizen on this matter not enumerated in the ,first ,article--,his tribute to the state governments1 as master governments of ,american citizen1 exactly the tribute paid by ,lloyd ,george to the power of the ,westminster ,parliament over its 8subjects0--,marshall1 ,hamilton1 ,madison1 the ,virginia ,convention of #aghh1 the ,supreme ,court repeatedly and even in #aijg1 flatly deny the concept of ,webb and the #aiag ,congress--,concept of latter merely repeats mistake of government counsel on which ,supreme ,court dwelt with emphasis in #aijg--;,ignores most important factor in ,tenth ,amendment1 8people0 or 8conventions0--,from the early ,americans1 8,who but the people can delegate powers8 ,what have the state governments to do with it80 and 8,how comes it1 sir1 that these state governments dictate to their superiors--to the majesty of the people80--,webb reads to the ,house a ,fifth ,article in which 8conventions0 does not appear--,madison tells ,webb and all of his ,tory concept1 8,these gentlemen must here be reminded of their error4 ,they must be told that the ultimate authority resides in the people alone1 and that it will not depend merely on the comparative ambition or address of the different governments1 whether either1 or which of them1 will be able to enlarge its sphere of jurisdiction at the expense of the other0--,webb closes in the ,house with an eloquent appeal to every other follower of ,mohammet4 ,,xviii4 ,,the ,,tory ,,in ,,the ,,senate ,page #bge ,calm and sound reasoning of ,federalist1 advocating the real ,constitution1 contrasted with irrelevant personal abuse by those supporting the imaginary new ,constitution--,latter1 because facts and law make their ,tory concept absurd1 revive 8impious doctrine of ,old ,world0 that human beings were made for political entities and governments--,senator ,sheppard and his eloquent claim that ,american citizens1 like other machinery1 must be kept in good condition for their government owner--,his 8discovery0 that the states1 political entities1 made the ,constitution of ,america1 the nation of men--,story of ,america 7from ,may #bi1 #aghg1 to ,july1 #aiag7 being a sealed book to him1 he does not know that our ,constitution is both federal and national--,supreme ,court1 in early days and in #aijg1 and ,webster and ,lincoln tell him his mistake--,not knowing the decision of ,gettysburg1 recorded at ,appomattox1 he chooses between ,lord ,north of #agge and ,calhoun and summons the latter to prove that the ,american people did not make their ,constitution and its grant of enumerated power to interfere with their individual freedom--,jefferson1 ,pendleton1 ,webster and many other ,americans correct ,sheppard's error of fact--,as the ,american people of #aggf accomplished their successful ,revolution against government1 may it not be the thought of ,sheppard and other ,tories that the ,eighteenth ,amendment has been established by a successful revolution of government against the people--,marshall again tells us of the ,american day when the legal necessity 8was felt and acknowledged by all10 that every power to interfere with human liberty must be derived from the people in their 8conventions0--,acting on the ,congress proposal of #aiag1 governments of state citizens command the ,american citizen and create a new government power to interfere with his individual liberty--,but no statesman has yet told us how or when1 prior to #aiag1 we became 8subjects40 ,,xix4 ,,are ,,we ,,citizens8 ,page #bih ,hamilton thinks it a prodigy that ,americans1 in 8conventions10 voluntarily constitute the enumerated ,first ,article government powers to interfere with their individual liberty--,marshall1 in ,supreme ,court1 declares 8conventions0 to be the only manner in which they can act 8safely1 wisely and effectively0 in constituting government of themselves1 by making such grants--,when proposed #aiag first new grant of that kind is supposedly made1 ,american people and their 8conventions0 are completely ignored--,the proposers have a ,fifth ,article which does not mention 8conventions0--,the proposers have the old ,tory concept1 that the people are the assets of the state and that government is the state--,still trying to find out how and when we became 8subjects10 we expect to get information from the litigations of #aibj--,we expect great counsel1 on one side1 to urge the facts we know--,we fear that other great counsel will urge1 in reply1 some fact or facts which we have not been able to ascertain--,we are certain that there is no ,eighteenth ,amendment1 if the facts we have learned are all the facts--,that we may listen intelligently to all the great counsel1 we review some of the facts we have learned4 ,,xx4 ,,lest ,,we ,,forget ,page #cjg 8,the important distinction so well understood in ,america1 between a constitution established by the people and unalterable by the government and a law established by the government and alterable by the government0--,our first glance at briefs of #aibj gives us hope that some modern leaders have acquired the knowledge of ,hamilton and his generation--,we find1 in one brief1 in ,marshall's words1 the ,supreme ,court statement of the fact that 8conventions0 of the people1 not states or their governments1 made the ,constitution with its ,first ,article grants of power to interfere with human liberty--,but this brief1 to our amazement1 is that of the foremost champion of the only other grant of that kind1 the ,eighteenth ,amendment1 a grant made entirely by government to government--,in #aibj1 seven litigations argued and reported under the one title 8,the ,national ,prohibition ,cases0--,distinguished counsel appear for many clients1 for the claimed omnipotent ,parliament of ,america1 for the ,american government which we used to know as our supreme government1 for a few state governments who did not wish to be part of the omnipotent ,parliament1 for those engaged in the lawful business of manufacturing1 etc41 the commodities named in the ,eighteenth ,amendment--,like the human right to breathe1 such manufacture1 etc41 was not the privilege of a citizen--,both rights are among the human rights men have before they create nations and give governments power to interfere with some or all of their human rights--,citizens of ,america1 giving their only ,american government its enumerated powers1 gave it no power to interfere with the human right mentioned in the new ,amendment--,human rights never are privileges of citizens--,citizens establish government to protect existing human rights--,only 8subjects0 get any rights or privileges from government--,all early ,americans knew these primal truths--,neither the ,french aristocrats1 before ,french ,revolution1 nor ,tories of #aggf in ,england or ,america knew them--,eighteenth ,amendment ,tories do not know them--,madison 7in #aghi7 and ,supreme ,court 7in #ahij7 knew that commodities named in new ,amendment are among those in which a human right 8of traffic exists0--,in litigations of #aibj1 no counsel appear on behalf of the human rights of ,american citizens--,but we know that no decision of our own ,supreme ,court1 established to secure our human rights1 although the decision may settle disputes between other litigants1 can change us from 8citizens0 into 8subjects40 ,,xxi4 ,,briefs ,,ignore ,,the ,,american ,,citizen ,page #cbe ,no counsel knows all are discussing whether ,americans1 twelve years after #aggf1 voluntarily became 8subjects0--,common concept of all that ,fifth ,article a 8grant0 of power to state governments 7of state citizens7 making them attorneys-in-fact for citizens of ,america--,discussion entirely as to extent of power 8granted0--,eighteenth ,amendment concept that ,fifth ,article 8grant0 made some governments of state citizens a supreme ,american ,parliament1 unrestrained master of every human right of all ,american citizens--,opposing concept that the ,fifth ,article 8grant0 made those state governments a ,parliament whose one limit is that it cannot interfere with the sovereignty of any political entity which is a state--,both concepts ignore supremacy of nation of men over federation of states--,both ignore dual nature of 8one national and federal ,constitution0--,both ignore 8conventions0 in ,seventh and ,fifth ,articles as the citizens of the ,american nation--,both ignore that each state 8legislature0 is attorney-in-fact for the citizens of its own state and that no legislatures are 7except ,congress in enumerated matters7 attorneys-in-fact for the citizens of ,america in any matter--,our facts1 brought from our education with the early ,americans1 all ignored by all counsel in the litigations--,the ,virginia ,convention itself and ,lee1 ,pinckney1 ,hamilton1 ,madison1 ,wilson1 ,iredell and others state what all counsel of #aibj entirely ignore4 ,,xxii4 ,,no ,,challenge ,,to ,,the ,,tory ,,concept ,page #cce ,eighteenth ,amendment rests on imaginary ,fifth ,article 8grant0 making the state governments of state citizens attorneys-in-fact for the citizens of ,america1 empowered to give away all human rights of the citizens of ,america--8,grant0 assumed in every brief--,no brief recognizes that one supposed 8grantee0 is supposed 8grantor0--,or that each of two supposed 8grantees0 was a competent maker of ,articles 7as proposed ,articles were respectively federal or national7 before and when the 8conventions0 made the ,fifth ,article--,or that ,philadelphia ,convention knew and held 8conventions0 existing ability competent to make any ,article and state legislatures1 existing ability incompetent ever to make ,articles like ,first ,article or ,eighteenth ,amendment--,or that ,tenth ,amendment declares no power given to state 8legislatures10 while all ability to make national ,articles 8reserved0 to 8conventions0 of 8the people0 of ,america--,no brief challenges sheer assumption of ,fifth ,article 8grant0 or supports assumption by any fact--,every brief1 for or against ,amendment1 is based on the sheer assumption--,no brief knows that enumerated powers of only ,american government to interfere with human freedom can be changed by no one save the citizens of ,america themselves in their 8conventions0--,madison's tribute to these 8conventions0 in which 8free inhabitants0 constitute new government power over themselves--,hamilton explains great danger to human liberty if 8legislatures0 or permanent government bodies could create such new government power--,that knowledge of his generation confirmed by story of government-made supposed ,eighteenth ,amendment--,our gratitude to that generation of men who 7#aggf7 made it and 7#aghh7 left it impossible that governments could create new government power to interfere with ,american human liberty--,our regret that modern leaders have not known this great and immutable protection to ,american liberty4 ,,xxiii4 ,,the ,,challenges ,,that ,,failed ,page #cej ,supreme ,court wisely writes no opinion in 8,national ,prohibition ,cases0--,in each of four numbered paragraphs1 ,court states its own negation of one challenge made to new ,amendment--,all four challenges are negatived in seventeen lines of statement--,first two challenges trifling and purely technical--,third challenge based on rights of the citizens of some particular state--,fourth challenge to 8extent0 of ,fifth ,article 8grant0 of power by 8conventions0 to 8conventions0 and 8legislatures0--,this challenge asserts 8grant0 which advocates of ,eighteenth ,amendment must and cannot prove--,court negative amazingly accurate--,all counsel have argued incessantly about 8extent0 of power 8granted0 by ,fifth ,article--,court negatives in statement which speaks of power 8reserved0 in ,fifth ,article--,concept of 8grant0 disappears--,court knows what 8conventions0 knew1 when they made ,fifth ,article1 when they insisted on ,tenth ,amendment ,declaration expressly stating the distinct reservees of the two existing powers 8reserved0 in ,fifth ,article--,supreme ,court of ,marshall's day knows it and ,supreme ,court of #aijg knows it--8,citizen or ,subject80--,eighteenth ,amendment answers 8,subject0--,real ,constitution answers 8,citizen0--8,conventions0 insisted on plain statement of correct answer--,counsel of #aibj do not know it--,their four challenges make plain that fact--,all challenges based on error that governments of state citizens are attorneys-in-fact for citizens of ,america--,in ,virginia ,convention and in ,supreme ,court1 ,marshall explains that powers of state governments 8proceed not from the people of ,america0 but from the citizens of each respective state--,no counsel of #aibj knows this important fact4 ,,xxiv4 ,,governments ,,claim ,,americans ,,as ,,subjects ,page #cga ,patrick ,henry1 opposing ,constitution in the 8conventions10 knows that it takes power from the state legislatures and gives them no power--,all modern leaders 8know0 that it gives those legislatures great power as attorneys-in-fact for the citizens of ,america--,many modern leaders 8know0 that it makes those legislatures an omnipotent ,parliament over the citizens of ,america--,no modern leaders remember #agha and #aghg existing ability of the state legislatures to make federal ,articles or ,articles not creating government power to interfere with human liberty--,common modern concept that ,fifth ,article is 8grant0 to these 8legislatures0 and to the very 8conventions0 which made the ,fifth ,article--,leading brief1 against ,amendment1 more than fifty times admits or asserts this imaginary and remarkable 8grant0--,some extraordinary concepts of our ,american institutions in briefs--,in a famous opinion1 ,marshall explains a fact and on it bases the entire decision of the ,supreme ,court--,the fact itself is that the ,constitution granted no power of any kind to the state legislatures--,no brief knows or urges this fact or any of the facts we learned in the 8conventions10 the facts on which we base our challenge to the ,eighteenth ,amendment concept that we are 8subjects0--,briefs for the ,amendment examined to find out why we are supposed to be 8subjects0--,amazing claim that1 when governments alone change the national part of the ,constitution1 ,supreme ,court has no power even to consider whether governments in ,america can make a change in the enumerated powers given to their own government by the citizens of ,america--,remarkable ,tory concept that the number of ,senators from each state is the only thing in ,america immune from government invasion1 if enough governments combine--,indignation of ,american citizen changes to mirth when he realizes this concept to be only basis of thought that he is a 8subject0 or that there is an ,eighteenth ,amendment--,american citizen1 seeking to find 7in the briefs for the ,amendment7 what happened1 between #aijg and #aiag1 to make him a 8subject10 startled to hear the answer1 8,nothing0--,citizen's amusement increased on learning1 in same briefs1 that whole ,american people1 in ,constitution which expressly declares it gives no power to state governments1 made those governments of state citizens irrevocable and omnipotent attorneys-in-fact for the citizens of ,america--,amusement increased by finding that main champion of ,tory concept quotes ,marshall's ,supreme ,court story of the making of the ,constitution1 but omits1 from the quotation1 the paragraph in which ,marshall points out that everyone knew why the 8legislatures0 could not make and only the 8conventions0 could make the national ,first ,article1 with its grant of enumerated power to interfere with human liberty--,curiosity added to mirth on finding this brief echo ,madison's own knowledge that his ,fifth ,article contains nothing but 8procedural provisions10 while brief bases its entire contention on mere assertion that ,fifth ,article is greatest grant of power ever made by free men to government4 ,,xxv4 ,,citizen ,,or 8,,eighteenth ,,amendment08 ,page #cig ,congress is only legislature with any power of attorney from the citizens of ,america--,at very beginning and very end of original ,constitution1 citizens of ,america expressly so state--,all briefs of #aibj based on asserted assumption denying those two statements and insisting ,fifth ,article is 8grant0 to governments of state citizens--,briefs for new ,amendment assert 8grant0 made governments of state citizens omnipotent master of everything in ,america 7including all human rights7 save number of ,senators from each state--,on this ,tory concept depends entirely existence of ,eighteenth ,amendment--,tory concept being absolute myth1 ,amendment disappears--,amusing to find ,tory briefs for ,amendment with ,american citations and quotations which annihilate ,tory concept--,unconscious humor of ,wheeler surpasses 8,comic ,blackstone0--,tory legions1 fighting under crescent of ,mohammet1 claim to be ,american and ,christian crusaders--,americans would have remained 8subjects0 if ,parliament1 passing the ,stamp ,act1 had said3 8,you subjects must obey this command we make but1 making it1 we do not legislate0--8,statement0 that citizens of ,america universally demanded this sole ,amendment which attempts to change the ,first ,article enumerated powers--8,proof0 that #dgdb ,tory members of governments of state citizens said 8,yes0 to the change--,jefferson and ,madison tell us that concentration of all power in legislatures 8is precisely the definition of despotic government10 that #agc 8despots would surely be as oppressive as one10 and that 8an elective despotism was not the government we fought for0--,calhoun contended one state might defy supreme will of citizens of ,america--,tories for ,amendment go far beyond doctrine finally repudiated by ,gettysburg--,on ,tory concept that we are 8subjects0 of omnipotent government1 assert that some governments of state citizens may dictate1 in all matters of human right1 what the citizens of ,america may and may not do--,echo from 8conventions0 which made ,fifth ,article1 8,how comes it1 sir1 that these state governments dictate to their superiors1 to the majesty of the people80 ,,xxvi4 ,,the ,,american ,,citizen ,,will ,,remain ,page #daf ,supreme ,court holds ,american people1 8for most important purposes10 chose to be one nation1 with only one government of the ,first ,article enumerated powers to interfere with human liberty--,america1 the nation of men1 and ,united ,states1 the subordinate federation of states--,tories for new ,amendment must prove that ,american people1 as one 8important0 purpose1 meant that governments of state citizens could interfere with every human right of ,american citizens--,reserved rights and powers of ,american citizens are entirely at their own direct disposal1 for exercise or grant1 8despite their legislatures1 whether representing the states or the federal government0--,american citizen must know this of his own knowledge or his human freedom will disappear--,emmett and ,webster and their generation knew it--,madison writes ,fifth ,article and states exactly what it is to the 8conventions0 which made it--,hughes unable to begin his ,tory argument for new ,amendment without adding to that ,madison statement what ,madison pointedly did not say--,senate now about to repeat #aiag blunder that governments of state citizens have aught to do with altering the national part of the ,american ,constitution1 which part is within the exclusive control of the citizens of ,america themselves--8,conventions0 are the people--8,legislatures0 are governments--8,citizen or ,subject80--,supreme ,court answer certain--,court's history and traditions show ,american concept of ,hamilton that this ,court bulwark of ,american citizen against government usurpation of power to interfere with human liberty--,webster forecast ,court decision on new and ,tory ,amendment1 answering 8,citizen or ,subject80--,all ,americans once knew same correct answer to same question by ,pendleton in ,virginia ,convention of #aghh1 8,who but the people can delegate power8 ,what have the state governments to do with it80 ,,appendices ,i4 ,,the ,,original ,,constitution ,,of ,,the ,,united ,,states ,page #dde ,,ii4 ,,the ,,resolution ,,which ,,proposed ,,the ,,constitution ,,to ,,the ,,conventions ,,of ,,the ,,people ,,of ,,america ,page #deh ,,iii4 ,,the ,,first ,,seventeen ,,amendments ,,to ,,the ,,constitution ,page #dfj ,,iv4 ,,the ,,alleged ,,eighteenth ,,amendment ,page #dfe ,v4 ,,the ,,nineteenth ,,amendment ,page #dff ,,citizen ,,or ,,subject8 ,,chapter ,i ,,subjects ,,become ,,citizens ,the average ,american of this generation does not understand what it means to be a citizen of ,america4 ,he does not know the relation of such a citizen to all governments in ,america4 ,he does not know the relations of those governments to one another4 ,if this ignorance should continue1 the citizen of ,america would disappear4 ,the ,american would become again a subject1 as he was when the year #aggf opened4 ,the supposed ,eighteenth ,amendment is not in the ,constitution unless the ,american already is a subject4 ,it is vital to every individual interest of the average ,american that he should know these things which he does not know4 ,happily for him1 his ignorance is not as that of the public leaders of his generation4 ,their concept of the ,american and his relation to governments in ,america is one which contradicts the most definitely settled and clearly stated ,american law4 ,on the other hand1 the average ,american merely has a mind which is a blank page in these matters4 ,as a result1 it is the greatest danger to his individual interest that their concept largely guides his attitude in public affairs of the utmost moment to him4 ,the ,americans of an earlier generation1 who created the ,american nation of men and all governments in ,america1 accurately knew the status of the ,american citizen and his relation to all governments4 ,their accurate knowledge was an insistent thing which guided their every act as a people in the period between #agge and #agij1 in which latter year the last of the ,americans became citizens of ,america4 ,their knowledge came to them from their own personal experience in those fifteen years4 ,they were a people1 born subjects of government1 who died citizens of a great nation and whose every government1 in ,america1 was their servant4 ,this great miracle they themselves had wrought in the fifteen years between #agge and #agij4 ,their greatest achievement1 as the discerning mind has always realized1 is what they did in the last four of those momentous years4 ,they brought to its doing their valuable experience and training of the previous eleven years4 ,that is why they succeeded1 so far as human effort can secure human liberty by means of written constitutions of government1 in securing to themselves and their posterity the utmost measure of protected enjoyment of human life and happiness4 ,that we1 their posterity1 may keep their legacy intact and transmit it to the generations to come1 it is necessary that we1 the average ,americans1 should share somewhat with them their amazingly accurate knowledge of the simple but vital facts which enabled them to create a nation and1 by its ,american ,constitution1 to secure to themselves1 its citizens1 protected enjoyment of life1 liberty and happiness4 ,when they were actually engaged in this work of creation1 it was truthfully said of them that 8,the ,american people are better acquainted with the science of government than any other people in the world40 ,for over a hundred years the history of ,america attested the truth of that statement4 ,as they were a simple people1 their knowledge of the science of government was derived from their accurate understanding of a few simple facts4 ,it is a certainty that we can keep their legacy by learning those same facts4 ,let us quickly learn them4 ,the accurate knowledge of them may best be acquired by briefly living again1 with those simple ,americans of an earlier generation1 through their days from #agge to #agij4 ,the individual ,americans of that generation were all born subjects of the ,british government4 ,we do not understand the meaning of that statement until we accurately grasp the vital distinction between a 8subject0 of a government and a 8citizen0 of a nation4 ,it is hardly necessary to point out1 but it is amazingly important to remember1 that a 8subject10 as well as a 8citizen10 is first of all a human being1 created by an omnipotent ,creator and endowed with human rights4 ,all would be well with the world1 if each human being always accurately knew the difference between right and wrong and if his accurate knowledge invariably controlled his exercise of his human freedom of will4 ,in that case1 no human government would be needed to prescribe and to enforce rules of personal conduct for the individual4 ,as such is not the case1 human government must exist4 ,its sole reason for existence1 therefore1 is that it may prescribe and enforce rules for those whom it can compel to obey its commands and that it may thus secure the utmost measure of protected enjoyment of human rights for those human beings whose government it is4 ,time does not permit and necessity does not require that we dwell upon the various types of government which have existed or which have been created supposedly to meet this human need4 ,it is sufficient to grasp the simple and important fact that government ability to say what men may or may not do1 in any matter which is exercise of human freedom1 is the very essence of government4 ,where a government has no ability of that kind1 except what the men of its nation grant to it1 where those men limit and determine the extent of that ability in their government1 the men themselves are citizens4 ,where a government claims or exercises any ability of that kind1 and has not received the grant of it directly from the men of the nation1 where a government claims or exercises any ability of that kind1 without any grant of it1 or by grant from government to government1 the men of that nation are subjects4 ,in the year #agge1 under the ,british law1 the ,parliament at ,westminster claimed the unqualified right to determine in what matters and to what extent laws should be made which would interfere with individual freedom4 ,from such decision of the legislative part of the ,british ,government there was no appeal save by force or revolution4 ,for this reason1 that every human being under that ,government must submit to any interference with individual freedom commanded by that ,legislature1 all ,british human beings were 8subjects40 ,and1 as all ,americans were then under that ,british ,government1 all ,americans were then 8subjects40 ,such was their legal status under the so-called ,british ,constitution4 ,curiously enough1 however1 until a comparatively short time prior to #agge1 such had not been the actual status of the ,americans4 ,in this sharp contrast between their legal and their actual status1 there will be found both the cause of their ,revolution and the source of their great and accurate knowledge of the sound principles of republican government which they later made the fundamental law of ,america4 ,from the day their ancestors had first been ,british colonists in ,america their legal status had been that of subjects of the ,british ,government4 ,but1 so long as they remained merely a few widely scattered sets of human beings in a new world1 struggling to get a bare existence from day to day1 they offered no temptation to the omnipotent ,british ,government to oppress them1 its subjects4 ,they still had to show the signs of acquiring that community wealth which has always been the temptation of government to unjust exaction from the human beings it governs4 ,for that reason1 their legal government concerned itself very little about them or their welfare4 ,it thus became their necessity to govern themselves for all the purposes for which they locally needed government as security to their individual welfare4 ,only thirteen years after the first permanent ,english settlement in ,virginia1 8,sir ,george ,yeardley1 then the ,governor of the colony1 in #afai called a general assembly1 composed of representatives from the various plantations in the colony1 and permitted them to assume and exercise the high functions of legislation4 ,thus was formed and established the first representative legislature that ever sat in ,america4 ,and this example of a domestic parliament1 to regulate all the internal concerns of the country1 was never lost sight of1 but was ever afterwards cherished until #aiag throughout ,america1 as the dearest birthright of freemen40 7#a ,ell4 ,deb4 #bb47 8,on the #aath of ,november1 #afbj1 those humble but fearless adventurers1 the ,plymouth colonists1 before their landing1 drew up and signed an original compact1 in which1 after acknowledging themselves subjects of the crown of ,england1 they proceed to declare3 #8,having undertaken1 for the glory of ,god1 and the advancement of the ,christian faith1 and the honor of our king and country1 a voyage to plant the first colony in the northern parts of ,virginia1 we do1 by these presents1 solemnly and mutually1 in the presence of ,god and of one another1 covenant and combine ourselves together into a civil body politic1 for our better ordering and preservation1 and furtherance of the ends aforesaid4 ,and by virtue hereof do enact1 constitute1 and frame1 such just and equal laws1 ordinances1 acts1 constitutions1 and officers1 from time to time1 as shall be thought most meet and convenient for the general good of the colony2 unto which we promise all due submission and obedience4' ,this is the whole of the compact1 and it was signed by forty-one persons4 8,it is1 in its very essence1 a pure democracy2 and1 in pursuance of it1 the colonists proceeded soon afterwards to organize the colonial government1 under the name of the ,colony of ,new ,plymouth1 to appoint a ,governor and other officers and to enact laws4 ,the ,governor was chosen annually by the freemen1 and had at first one assistant to aid him in the discharge of his trust4 ,four others were soon afterwards added1 and finally the number was increased to seven4 ,the supreme legislative power resided in1 and was exercised by1 the whole body of the male inhabitants1 every freeman1 who was a member of the church1 being admitted to vote in all public affairs4 ,the number of settlements having increased1 and being at a considerable distance from each other1 a house of representatives was established in #afci1 the members of which1 as well as all other officers1 were annually chosen40 7#a ,ell4 ,deb4 #be47 ,these are two examples typical of the way in which the ,english colonists1 for the first hundred years1 largely governed themselves by legislators chosen from among themselves4 ,in this manner1 while legally 8subjects0 of their ,european government1 these ,americans were actually 8citizens0 of their respective communities1 actually governed in their individual lives and liberties by governments which derived all their powers of government from these 8citizens40 ,in this manner1 through the best teacher in the world1 personal experience1 they learned the vital difference between the relation of 8subject0 and 8citizen0 to governments4 ,later1 the echo of that education was heard from ,lincoln when he pleaded that government of the people1 by the people and for them should not perish from the earth4 ,as early as #aged these ,americans began to feel the first real burden of their legal status as 8subjects40 ,their community wealth was beginning to attract the attention of the world4 ,as a result1 the legal ,government awoke to the fact of their existence and of its own omnipotent ability to levy upon that wealth4 ,the ,americans1 for more than a century educated in actual self-government1 quickly showed the result of that education to the accurate knowledge that no government can have any just power except by the consent or grant of those to be governed by the exercise of such power4 ,as far back as #aged1 deputies of the various ,american colonies1 where human beings had educated themselves to be free men1 assembled at ,albany in an endeavor to propose some compromise by which the ,american people would be enabled to preserve their human freedom against unjust interference by the ,westminster ,legislature4 ,we are all familiar with the failure of that endeavor4 ,we are all familiar with the successive steps of the continuing struggle between 8subjects10 educated to be 8citizens10 and an omnipotent government1 unshaken in its purpose to make their actual status the same as their legal one4 ,when the year #aggf dawned1 these ,americans were still 8subjects0 under the law of the ,british ,empire4 ,they were1 however1 8subjects0 in open rebellion against their government1 justifying their rebellion on the basic ,american legal principle that every just power1 even of a lawful government1 must be derived from the consent or grant of the human beings themselves who are to be governed4 ,on the memorable day in ,july of that year1 despairing of any success in getting the ,british ,government to recognize that basic principle1 and asserting1 for the first time in history1 that they themselves were collectively the possessors of the supreme human will in and for ,america1 they enacted the immortal ,statute which we know as the ,declaration of ,independence4 ,the ,declaration of ,independence1 which was the first political act of the ,american people in their independent sovereign capacity1 lays the foundation of our national existence upon this broad proposition3 8,that all men are created equal2 that they are endowed by their ,creator with certain inalienable rights2 that among these are life1 liberty1 and the pursuit of happiness40 7,justice ,bradley's opinion in ,slaughter ,house ,cases1 #af ,wall4 #cf1 at page #aae47 ,in this ,statute1 the ,american people clearly stated and definitely settled for all time the basic legal principle on which rests the validity of every constitutional article or statute law1 which either directly interferes or vests ability in governments to interfere with an ,american in the exercise of his human freedom4 ,there is nothing vague or ambiguous in their statement4 ,the legal principle1 so clearly stated and so definitely settled1 is that no government in ,america can have any just power of direct interference with individual freedom unless such power be derived by direct grant from the ,americans to be governed by the exercise of that power4 ,that ,statute has never been repealed4 ,the ,americans of that generation1 throughout all the momentous political battles of the next thirteen years1 when they were making and unmaking nations and creating a federation of nations1 and later subordinating it to a union of human beings1 never failed to obey that ,statute and to act in strict conformity to its basic ,american principle4 ,from the moment when that ,statute was enacted by the supreme will in ,america1 every ,american ceased forever to be a 8subject0 of any government or governments in the world4 ,it was not until #aiag that any government or governments dared to act as if the ,american were still a 8subject40 ,in that summer of #aggf1 as the ,americans were engaged with their former ,government in a bitter and protracted war1 they had little time or thought to give1 as one people1 to the constitution of a government best designed to secure to themselves the utmost possible measure of protected enjoyment of individual human freedom4 ,in their rebellion1 they had delegated the management of their common interests to a committee of deputies from each former colony1 which committee was called the ,congress4 ,by the declared supreme will of the whole ,american people1 the ,americans in each former colony now constituted an independent nation1 whose human members were now the 8citizens0 of that nation4 ,under the declared basic ,american legal principle1 it was imperative that any government should get its every valid power from its own citizens4 ,knowing this1 the ,congress1 almost immediately after the ,declaration of ,july1 made the formal suggestion to the citizens in each nation that they constitute a government for themselves and that they grant to such government ability to interfere with their own human freedom in such matters and to such extent as they deemed wise4 ,the manner in which the citizens of each nation acted upon this suggestion should have stamped itself so irrevocably upon the mind of ,america as never to have been forgotten by any later generation of ,americans4 ,the citizens of those nations were of the 8people who were better acquainted with the science of government than any other people in the world40 ,in each nation they were creating the very essence of security for a free people1 namely1 a government with limited ability to interfere with individual freedom1 in some matters1 so as to secure the greatest possible protected enjoyment of human liberty4 ,they knew1 as only human beings could know who were then offering their very lives to uphold the basic law of ,america1 that such ability could never be validly given to any government by government itself1 acting in any manner1 but only by direct action and grant of those later to be governed by the exercise of that ability4 ,what method did those citizens1 so thoroughly educated in the basic principles of republican government1 employ to secure the direct action of the human beings themselves in giving that ability of that kind to their respective governments8 ,they acted upon the suggestion from the ,congress of #aggf1 as ,marshall later expressed it from the ,bench of the ,supreme ,court1 8in the only manner in which they can act safely1 effectively and wisely on such a subject1 by assembling in convention0 in their respective states4 ,long before ,marshall voiced judicial approval of this ,american method of direct action by the people themselves1 in matters in which only the people themselves can validly act at all1 ,madison1 in the famous ,virginia convention of #aghh1 paid his tribute to these conventions of the people in each of the thirteen nations4 ,this was the tribute of ,madison3 8,mr4 ,chairman1 nothing has excited more admiration in the world than the manner in which free governments have been established in ,america2 for it was the first instance1 from the creation of the world to the ,american ,revolution1 that free inhabitants have been seen deliberating on a form of government1 and selecting such of their citizens as possessed their confidence1 to determine upon and give effect to it40 7#c ,ell4 ,deb4 #faf47 ,later herein there will be occasion to speak at greater length of this ,american method of direct action by the people themselves1 through the deliberative conventions of deputies chosen by the people and from the people for that one purpose1 giving to governments a limited ability to interfere with individual freedom4 ,at this point1 it is sufficient to say that1 since #aghi and until #aiag1 no government in ,america ever claimed to have acquired ability of that kind except through the action of such a convention or conventions or through the direct voting of its citizens themselves for or against the grant of such ability4 ,if we again turn our minds upon those later days of #aggf1 we find that the ,americans1 through the direct action of the people in each independent nation1 had become respectively citizens of what we now know as their respective states1 each of which was then a free nation4 ,those thirteen nations were then allied in war4 ,there did not yet exist even that political entity1 later created and known as a federation of those nations4 ,at that time and until quite some years after the ,revolution had ended1 there was no such thing as a 8citizen0 of ,america1 because the ,america we know1 the organized human membership society which is the ,american nation1 did not yet exist4 ,at that time and until the ,american nation did actually exist1 as a political entity1 there was no government in the world and no collection of governments in the world1 which1 on any subject or to any extent1 could interfere generally with the individual freedom of ,americans1 as ,americans4 ,in each of the thirteen ,american nations1 the citizens of that nation had vested their own government with some ability of that kind4 ,at this point1 it is well to digress for a moment in order that we may well understand that in none of these thirteen nations did its citizens vest in its government an unlimited ability to interfere with individual freedom4 ,all the citizens of those respective nations were then battling with a mighty ,government which claimed such unlimited ability over all of them1 as subjects1 and they were battling to establish forever in ,america the basic doctrine that no government of free men could ever have unlimited ability of that kind4 ,in each of the thirteen nations1 its citizens vested its government with ability of that kind only to a limited extent4 ,they did this in strict conformity to republican principles4 ,for the many who do not know1 it is well to state clearly the distinction between a pure democracy and a republic4 ,in both1 the human beings constitute the nation or the state and are its citizens4 ,in both1 the citizens themselves limit the matters and the extent in which they shall be governed at all in restraint of their individual freedom4 ,in both1 therefore1 it is accurate and truthful to state that the people govern themselves4 ,the actual difference lies in one fact4 ,in a democracy the people themselves assemble and themselves enact each specific rule of conduct or law interfering with individual freedom4 ,in a republic1 it is always possible that the citizens may assemble1 as in a pure democracy1 and enact any specific rule of conduct or law4 ,but1 in a republic1 its citizens generally prefer to act1 in such matters1 through attorneys in fact or representatives1 chosen by themselves for the special purpose of exercising a wise discretion in making such laws4 ,in a true republic1 however1 where the citizens are to remain free men1 they secure to themselves absolute control of their representative lawmakers through two most effective means4 ,in the first place1 they ordain that their attorneys in fact for the purpose of law-making1 generally called their legislators1 shall be selected by themselves from time to time1 at comparatively short intervals4 ,this precaution enables the people1 through new attorneys in fact1 quickly to repeal a law of which they do not approve4 ,in the second place1 the people1 in constituting their government1 limit the law-making ability of these temporary attorneys in fact or legislators4 ,this is the most important fact in a free republic4 ,later herein there will be explained the marvelous and effective manner in which this particular security for human freedom was later achieved by the citizens of the ,republic which we know as ,america1 when they constituted their government4 ,at present1 there is to be mentioned the general method which the citizens of each of those thirteen nations1 in #aggf1 employed to achieve this particular security4 ,in each nation the citizens constituted a legislature to be their only attorney in fact for the purpose of making valid laws4 ,in this legislative department they did not vest enumerated powers to interfere with individual freedom4 ,but in it they did vest whatever ability of that kind1 under the ,american doctrine of human liberty1 they thought a government of free men or citizens ought to have4 ,they did not1 however1 grant unlimited ability to make laws interfering with individual freedom4 ,when constituting their government they named many matters in which no laws could be made1 such as laws abridging the right of free speech1 laws suspending the privilege of habeas corpus1 etc4 ,outside these named matters1 they granted law-making ability of that kind to whatever extent ,american principles of human liberty determined a government ought to have4 ,the extent of that ability1 so to be determined1 they left to the legislature to ascertain in the first instance4 ,but to the judicial department they gave the right finally to ascertain and decide whether1 in any particular law1 the legislative department had exceeded its granted ability4 ,in living again the education days of the ,americans1 who later created and constituted the republican nation which is ,america1 we have come now to the close of the eventful year #aggf4 ,we find ourselves1 at that time1 viewing this status of the ,american human being and his relation to all governments4 ,with his fellow ,americans1 he has declared that they are not the subjects of any government or governments in the world4 ,with his fellow ,americans1 on many battlefields1 he is fighting their former ,government1 which still claims that they are its subjects4 ,if he is a ,virginian1 he and his fellow ,virginians1 with the consent of their fellow ,americans1 have constituted themselves a free and independent nation of human beings and have given to their law-making attorney in fact1 the legislature of ,virginia1 some ability to make laws in restraint of the individual freedom of ,virginians1 in such matter and to such extent1 as the citizens of ,virginia have deemed wise4 ,in each of the other twelve nations the situation is the same4 ,in no nation1 in ,america1 has any government servant and attorney in fact of the people any ability whatever to interfere with human freedom in any matter or to any extent1 except such ability of that kind as has been given to that government by direct grant from its citizens4 ,nowhere1 in ,america1 has any government any power whatever1 in any matter or to any extent1 to make a valid command restraining the human freedom of the individual ,american as an ,american4 ,all ,americans are fighting throughout ,america with the armies of the only government in the world which claims such ability4 ,all ,americans everywhere are determined to win that war and keep it the basic law of ,america that no government ever shall have ability of that kind unless the whole ,american people1 by direct grant from themselves1 shall give it to a general ,american government4 ,there is yet no republic of ,america4 ,there are yet no citizens of ,america4 ,there are only citizens of thirteen respective nations1 which nations are allied in an existing war4 ,the affairs of the allied nations are being directed by a committee of delegates from the different nations1 called the ,congress4 ,the first ,committee or ,congress of that kind1 known in history as the ,first ,continental ,congress1 had met at ,philadelphia from ,september #e to ,october #bf1 #aggd1 and 8recommended peaceful concerted action against ,british taxation and coercion40 ,the second ,committee1 known as the ,second ,continental ,congress1 had assembled1 also at ,philadelphia1 on ,may #aj1 #agge1 and had assumed direction of the war4 ,,chapter ,,ii ,,the ,,state ,,governments ,,form ,a ,,union ,,of ,,states ,we have now lived with the ,american of an earlier generation through the days in which he ceased to be a subject of any government1 and in which he established forever in ,america the basic law that no government can exercise or possess any ability to interfere with his individual freedom except by direct grant from its citizens4 ,we have seen him1 in each of the former colonies1 create a nation1 become one of its citizens and1 with his fellow citizens of that nation1 give to its government some ability of that kind4 ,when we recall it to be the tribute of history that these ,americans were better acquainted with the science of government than any other people in the world1 it is well to reflect for a moment upon the significant exhibition of that knowledge during the days through which we have just lived with them4 ,when the suggestion came from ,philadelphia1 in the summer of #aggf1 that the ,americans in each former colony constitute a government for their own nation and give to it a limited ability to govern themselves in restraint of their individual freedom1 it is recorded history that ,americans generally knew that a gift of that kind to government could never be validly made by governments4 ,it 8was felt and acknowledged by all0 that only its own citizens ever could grant ability of that kind to any government4 ,as the people of ,new ,england had been the most thoroughly trained in the actual experience of self government1 we naturally find them acting upon and clearly stating the ,american legal principle that legislatures never can give ability of that kind to government4 ,the records of ,concord1 ,massachusetts1 for ,october #ba1 #aggf1 show how clearly this was understood by the ,americans of that generation4 ,after the ,philadelphia suggestion had been made1 the ,massachusetts legislature framed a constitution and sent it to the ,massachusetts townships for approval4 ,on that ,october #ba1 #aggf1 the people of ,concord refused to act upon it4 ,their reason was that government ability to interfere with human freedom could never come from legislatures but must always come directly from the citizens themselves4 ,let the ,americans of ,concord1 in their own words1 impart some of their knowledge to the ,americans of this generation4 8,resolved secondly1 that the supreme ,legislative1 either in their proper capacity or in joint committee1 are by no means a body proper to form and establish a ,constitution or form of government for reasons following1 viz43 ,first1 because we conceive that ,constitution in its proper idea intends a system of principles established to secure the subject in the possession of and enjoyment of their ,rights and ,privileges against any encroachment of the ,governing ,part4 ,secondly1 because the same body that forms a ,constitution have of consequence a power to alter it4 ,thirdly1 because a ,constitution alterable by the ,supreme ,legislative is no security at all to the subject against the encroachment of the ,governing ,part on any or on all their ,rights and ,privileges40 7,see ,constitutional ,review1 ,april1 #aiah1 p4 #ig47 ,the people of ,concord or ,new ,england were not alone in this knowledge4 ,on this we have the later testimony of ,marshall from the ,bench of the ,supreme ,court4 ,speaking of that day1 a few years after #aggf1 when the whole ,american people created their nation and gave enumerated powers of that kind to its government1 he said3 ,but when1 8in order to form a more perfect ,union10 it was deemed necessary to change this alliance into an effective government1 possessing great and sovereign powers1 and acting directly on the people1 the necessity of referring it to the people1 and of deriving its powers directly from them1 was felt and acknowledged by all4 7,m',culloch v4 ,maryland1 #d ,wheat4 #caf47 ,fixing this knowledge of that day firmly in our mind1 let us go on with the remarkable ,americans of that generation through the next period in which the relation of government to government and of nation to nation was changed1 but in which the status of the citizen of each nation and his relation to all governments remained exactly what he and his fellow citizens of that nation had made it4 ,on ,november #ae1 #aggg1 there came from the ,congress at ,philadelphia another suggestion1 this time a proposal to the thirteen nations that they1 already allied in an existing war1 should form a permanent union or federation of nations4 ,with that proposal went a drafted set of constitutional ,articles1 having for their purpose the establishment of a government 7to be called a ,congress7 for the proposed federation1 some of which ,articles would give to that government ability to govern the members of the union1 the thirteen nations4 ,the proposal and the constitutional ,articles were sent1 for ratification or rejection1 to the legislature of each nation as its proper attorney in fact in creating a federal union of nations and in giving federal ability to govern1 which federal ability never directly interferes with individual freedom4 ,let us reflect upon the accurate knowledge of the science of government again shown by the ,americans of that generation in that proposal4 ,only a few short months earlier there had come1 from the same men at ,philadelphia1 the proposal that national government be established in each nation4 ,these men at ,philadelphia had been subjects of the ,british ,government until ,july1 #aggf4 ,all government ability to interfere with human freedom1 then as now1 under ,british law1 had its source in a legislature1 the ,westminster ,parliament4 ,and yet these men at ,philadelphia1 in the summer of #aggf1 had accurately known that1 under basic ,american law1 such government ability could only have one valid source1 direct action by the citizens themselves assembled in conventions4 ,acting on this knowledge in the summer of #aggf1 the suggestion that government in each state be given national power to govern1 namely1 ability directly to interfere with individual freedom1 had come as a suggestion to the citizens of each nation for their own direct action4 ,that suggestion had been followed1 and thus had been exercised1 for the first time since ,americans ceased to be subjects1 the inherent and inalienable and always existing ability of the citizens of a free nation to make any kind of constitutional ,articles of government1 including the national kind which give government any power to interfere with individual freedom4 ,when1 therefore1 these same men at ,philadelphia made their proposal of ,november1 #aggg1 that other constitutional ,articles of government be made in ,america1 the proposed ,articles of ,union between nations1 it might have been natural that this proposal also should have suggested ratification of these ,articles by the people themselves4 ,it would have seemed all the more natural1 when we remember that one of the leaders at ,philadelphia in that time was ,jefferson1 the historic champion of human individual freedom against all governments4 ,but the ,americans of that generation and their leaders were not as the leaders of our own time4 ,they knew very accurately the difference between a national ,article of government1 which gave ability to interfere with human freedom1 and a federal ,article1 which gave no ability of that kind but only ability to govern nations or states1 as political entities4 ,with this accurate knowledge of the vital distinction between a national and a federal ,article1 they naturally knew that either the people themselves or the legislative attorney in fact of the nation1 which makes all agreements for the nation with other nations1 may validly make a federal ,article4 ,therefore1 they sent the proposed ,articles of ,confederation between nations 7not one of which gave national power to the proposed federal government7 to the legislatures of the respective nations for ratification or rejection on behalf of the nations4 ,as ,marshall later summed up the knowledge which prompted that sending of those federal articles to the legislatures3 ,to the formation of a league1 such as was the ,confederation1 the ,state sovereignties were certainly competent4 7,m',culloch v4 ,maryland1 #d ,wheat4 #caf47 ,each state legislature acted favorably upon the proposed articles and ratified them4 ,by ,july #i1 #aggh1 the legislatures of ten states had ratified4 ,the legislatures of ,new ,jersey and ,delaware followed before the end of ,february1 #aggi4 ,the legislature of ,maryland did not ratify until ,march #a1 #agha4 ,it is well for the average ,american of the present generation1 at this point1 to fix firmly in his mind that this legislative ratification of these federal ,articles was the important exercise of an existing and recognized ability of state legislatures to make all constitutional articles of a federal nature1 which never confer any government ability directly to interfere with human freedom4 ,it is well for the same ,american also to fix firmly in his mind that it was the exercise of an ability to make constitutional articles entirely distinct from the other existing ability to make them1 which had been exercised1 in each nation1 directly by the citizens themselves1 in 8conventions10 in the preceding year of #aggf4 ,in that year1 there had been exercised the inherent and inalienable and always existing ability of citizens of a nation1 assembled in conventions of deputies chosen for that express purpose1 to make any kind of constitutional article1 whether it confers federal or national power on government4 ,in the years #aggg to #agha1 there had been exercised the recognized and existing but limited ability of state legislatures to make federal articles1 an ability clearly then known not to include the ability to confer upon government national power to interfere with individual freedom4 ,living with those ,americans through their great days1 we have now reached the day in #agha when they were all citizens of some nation but were not all citizens of the same nation4 ,the great ,republic1 ,america1 had not yet been born4 ,the legal status of the ,american as an individual1 and his relation to all governments was exactly the same as it had been since #aggf4 ,each ,american was the citizen of some nation4 ,his individual freedom could be directly interfered with only by some law of the legislature of that single nation under a valid grant1 from him and his fellow citizens1 of power to enact that law on that subject4 ,neither the legislature of any other nation in ,america1 nor the legislatures of all other nations in ,america1 nor the government of nations which those legislatures had created and endowed with federal powers1 the ,congress of the ,federation1 could singly or collectively issue a single command to him1 interfering in any manner with his human freedom1 or could give to any government or governments a power to issue such a command4 ,there were existing and recognized by all in ,america two distinct and different abilities--one limited and the other unlimited--to make constitutional articles4 ,one was the limited ability of state legislatures4 ,they could give federal power to a government1 but they could not give any national power or power directly to interfere with human freedom4 ,the other was the unlimited ability of the citizens of any nation4 ,they could give any kind of power1 federal or national1 to their own government4 ,each ability1 at a different time1 had been evoked to exercise by a distinct proposal from the same ,americans at ,philadelphia1 the ,second ,continental ,congress1 which had under its direction the conduct of the ,revolutionary ,war4 ,dormant for the time being1 but existing over all other ability in ,america1 was the supreme will of the collective people of ,america1 who had not yet created their own great ,republic or become its citizens or given to its government its enumerated powers to interfere with their individual freedom4 ,this was the legal status of the ,american1 and his relation to all governments1 and the relation of governments in ,america to one another1 when the ,treaty of ,peace was concluded with ,england on ,september #c1 #aghc1 and was later ratified by the ,federal ,congress on ,january #ad1 #aghd4 ,,chapter ,,iii ,,americans ,,find ,,the ,,need ,,of ,a ,,single ,,nation ,living over the great days of our forefathers1 we now approach the greatest of all4 ,it comes four years after the end of the ,revolution4 ,not satisfied with a mere union of their states1 the whole ,american people1 in #aghg1 proposed to form the great nation of men1 ,america4 ,on ,june #ba1 #aghh1 it is created by them4 ,on ,march #d1 #aghi1 its only government1 now also the government of the continued union of states1 begins to function4 ,between ,may #bi1 #aghg1 and ,march #d1 #aghi1 the whole ,american people did their greatest work for individual liberty4 ,that was their greatest day4 ,most ,americans of this generation know nothing about that period4 ,still more is it to be regretted that our leaders in public life1 even our most renowned lawyers1 do not understand what was achieved therein for human freedom4 ,it is of vital importance to the average ,american that he always know and understand and realize that achievement4 ,that he do so1 it is not in the slightest degree essential that he be learned in the law4 ,it is only necessary that he know and understand a few simple facts4 ,the experience of five years since #aiag teaches one lesson4 ,it is that ,americans1 who have not the conviction that they are great constitutional thinkers1 far more quickly than those who have that conviction1 can grasp the full meaning of the greatest event in ,american history4 ,the reason is plain4 ,back in the ages1 there was a time when scientific men 8knew0 that the earth was flat4 ,because they 8knew0 it1 the rest of men assumed that it was so4 ,and1 because they 8knew0 it1 it was most difficult to convince them that their 8knowledge0 was false 8knowledge40 ,in a similar way1 our statesmen and constitutional thinkers came to the year #aiag with the 8knowledge0 that legislatures in ,america1 if enough of them combined1 had exactly the omnipotence over the individual freedom of the ,american which had been denied to the ,british ,parliament by the early ,americans4 ,naturally1 it is difficult for them to understand that their 8knowledge0 is false 8knowledge40 ,for us who have no false knowledge to overcome1 it is comparatively simple to grasp what those other plain ,americans of #aghg and #aghh meant to accomplish and did accomplish4 ,why should it not be simple for us8 ,with those other plain ,americans1 we have just been through their strenuous years which immediately preceded their greatest days of #aghg and #aghh4 ,they were a simple people as are we average ,americans of this generation4 ,from living with them through those earlier days1 we have come to know their dominant purpose4 ,they sought to secure to themselves and to their posterity the greatest measure of protected enjoyment of human life1 liberty and happiness against interference from outside ,america and against usurpation of power by any governments in ,america4 ,certainly1 it ought not to be difficult for us to grasp accurately and quickly what they meant to do and what they did do in their last and greatest achievement in the quest of that protected enjoyment of human freedom4 ,but1 with all our happy predisposition accurately to understand the meaning of the facts in #aghg and #aghh1 that understanding cannot come until we know the facts themselves4 ,let us1 therefore1 live through those years with those other plain ,americans of whom we are the posterity4 ,only then can we understand their legacy of secured liberty to us and keep it against usurpation by those who do not understand4 ,so long as the former subjects continued their ,revolution1 it was only natural that ,americans should not realize how inadequately a mere federation of states would serve really to secure the protected enjoyment of individual human freedom4 ,but1 as soon as that war had ended1 discerning men began quickly to realize that fact4 ,jealousies between nations1 jealousies in abeyance while those nations were fighting a common war for independence1 quickly had their marked effect upon the relations of these nations to one another and upon the respect which they showed to the commands of the government of the federation of which all those nations were members4 ,as a matter of fact1 those commands1 because the governing powers of that government were wholly federal1 were tantamount to nothing but requisitions4 ,those requisitions were honored largely by ignoring them4 ,there was no way of enforcing respect for them or compelling observance of them4 ,the plan of a purely federal union of nations permitted no method of enforcement save that of war upon whatever nation or nations might refuse obedience to a requisition4 ,such a war would have been repugnant to the mind of every patriotic ,american4 ,this was only one of the many defects coming from the fact that ,americans1 in spirit one people or nation1 had no political existence as one nation and had no general national government1 with general powers over all ,americans1 to command respect at home and abroad for the individual freedom of the ,american4 ,there is neither time nor necessity for dwelling further upon the fact1 quickly brought home to the ,american people after the close of their ,revolution1 that a purely federal government of the states was no adequate security for their own freedom4 ,let the words of one of themselves1 apologizing for the inadequacy of that government1 attest their quick recognition that it was inadequate4 ,they are the words of ,jay in ,the ,federalist of #aghg4 ,this is what he said3 8,a strong sense of the value and blessings of union induced the people1 at a very early period1 to institute a federal government to preserve and perpetuate it4 ,they formed it almost as soon as they had a political existence2 nay1 at a time when their habitations were in flames1 when many of their citizens were bleeding1 and when the progress of hostility and desolation left little room for those calm and mature inquiries and reflections which must ever precede the formation of a wise and well-balanced government for a free people4 ,it is not to be wondered at1 that a government instituted in times so inauspicious1 should on experiment be found greatly deficient and inadequate to the purpose it was intended to answer40 7,fed41 ,no4 #b47 ,,chapter ,,iv ,,the ,,birth ,,of ,,the ,,nation ,living through those old days1 immediately after the peace with ,england of #aghc1 we find that public and official recognition of a fatal defect in the federal form of union came from the inability of its federal government1 which had no power over commerce1 to establish a uniform regulation of trade among the thirteen ,american nations themselves and between them and foreign nations4 ,discerning men1 such as ,madison and ,washington and others1 already recognized other incurable defects in any form of union which was solely a union of nations and not a union of the ,american people themselves1 in one nation1 with a government which should have national1 as well as federal1 powers4 ,taking advantage of the general recognition that some central power over commerce was needed1 the legislature of the nation of ,virginia appointed ,james ,madison1 ,edmund ,randolph and others1 as commissioners to meet similar commissioners to be appointed by the twelve other nations4 ,the instructions to these commissioners were to examine into the trade situation and report to their respective nations as to how far a uniform system of commerce regulations was necessary4 ,the meeting of these commissioners was at ,annapolis in ,september1 #aghf4 ,only commissioners from the nations of ,virginia1 ,delaware1 ,pennsylvania1 ,new ,jersey and ,new ,york attended4 ,the other eight nations were not represented4 ,madison and ,hamilton were both present at ,annapolis and figured largely in what was done there4 ,it is an interesting and important fact that these two played a large part from its very inception in the peaceful ,revolution which brought to an end the independent existence of thirteen nations--a ,revolution which subordinated these nations1 their respective national governments1 and their federation to a new nation of the whole ,american ,people1 and to the ,constitution and the government of that new nation4 ,at every stage of that ,revolution1 these two men were among its foremost leaders4 ,recorded history has made it plain that ,madison1 more than any other man in ,america1 participated in planning what was accomplished in that ,revolution4 ,he drafted the substance of most of the ,articles in what later became the ,constitution of the new nation4 ,by the famous essays 7nearly all of which were written by himself or ,hamilton7 in ,the ,federalist1 explaining and showing the necessity of each of those ,articles1 he contributed most effectively to their making by the people of ,america1 assembled in their conventions4 ,he actually drew1 probably in conference with ,hamilton1 what we know as the ,fifth ,article1 which will later herein be largely the subject of our exclusive interest4 ,the ,annapolis commissioners made a written report of their recommendations4 ,this report was sent to the respective legislatures of the five nations1 which had commissioners at ,annapolis4 ,copies were also sent to the ,federal ,congress and to the ,executives of the other eight nations in the federation4 ,the report explained that the commissioners had become convinced that there were many important defects in the federal system1 in addition to its lack of any power over commerce4 ,the report recommended that the thirteen nations appoint 8commissioners1 to meet at ,philadelphia on the second ,monday in ,may next1 to take into consideration the situation of the ,united ,states2 to devise such further provisions as shall seem to them necessary to render the constitution of the federal government adequate to the exigencies of the ,union2 and to report such an act for that purpose1 to the ,united ,states in ,congress assembled as1 when agreed to by them1 and afterwards confirmed by the legislature of every state1 will effectually provide for the same40 ,the ,annapolis recommendation was acted upon by the legislatures of twelve nations4 ,each nation1 except ,rhode ,island1 appointed delegates to attend the ,philadelphia ,convention to begin in ,may1 #aghg4 ,madison himself1 in his introduction to his report of the debates of the ,philadelphia ,convention1 gives his own explanation of why ,rhode ,island did not send delegates4 8,rhode ,island was the only exception to a compliance with the recommendation from ,annapolis1 well known to have been swayed by an obdurate adherence to an advantage1 which her position gave her1 of taxing her neighbors through their consumption of imported supplies--an advantage which it was foreseen would be taken from her by a revisal of the ,articles of ,confederation40 ,this is mentioned herein merely to bring home to the minds of ,americans of the present generation the reality of the fact1 now so difficult to realize1 that there were then actually in ,america thirteen independent nations1 each having its powerful jealousies of the other nations and particularly of its own immediate neighbors4 ,the actual reality of this fact is something which the reader should not forget4 ,it is important to a correct understanding of much that is said later herein4 ,it is often mentioned in the arguments that accompanied the making of our ,constitution1 that the nation of ,new ,jersey was suffering from exactly the same trouble as the nation of ,rhode ,island was causing to its neighbors4 ,almost all imported supplies consumed by the citizens of ,new ,jersey came through the ports of ,new ,york and ,philadelphia and were taxed by the nations of ,new ,york and ,pennsylvania4 ,interesting though it would be1 it is impossible herein to give in detail the remarkable story of the four months' ,convention at ,philadelphia in #aghg4 ,it began on ,may #ad and its last day was ,september #ag4 ,it is recommended to every ,american1 who desires any real knowledge of what his nation really is1 that he read1 in preference to any other story of that ,convention1 the actual report of its debates by ,madison1 which he himself states were 8written out from my notes1 aided by the freshness of my recollections40 ,it is possible only to refer briefly but accurately to those actual facts1 in the history of those four months1 which are pertinent to the object of this book4 ,at the very outset1 it is well for us ,americans to know and to remember the extraordinary nature of the recommendation which had come from ,annapolis and of the very assembling of that ,philadelphia ,convention4 ,the suggestion and the ,convention were entirely outside any written law in ,america4 ,every one of the thirteen colonies was then an independent nation4 ,these nations were united in a federation4 ,each nation had its own constitution4 ,the federation had its federal constitution4 ,in none of those constitutions was there any provision whatever under which any such convention as that of ,philadelphia could be suggested or held4 ,the federal ,constitution provided the specific mode in which ability to amend any of its federal ,articles could be exercised4 ,such provision neither suggested nor contemplated any such convention as that to be held at ,philadelphia4 ,for these reasons1 ,madison and ,wilson of ,pennsylvania and other leading delegates at that ,convention stoutly insisted that the ,philadelphia ,convention had not exercised any power whatever in making a proposal4 8,the fact is1 they have exercised no power at all2 and1 in point of validity1 this ,constitution1 proposed by them for the government of the ,united ,states1 claims no more than a production of the same nature would claim1 flowing from a private pen40 7,wilson1 ,pennsylvania ,state ,convention in #aghg1 #b ,ell4 ,deb4 #dgj47 8,it is therefore essential that such changes in government be instituted by some informal and unauthorized propositions1 made by some patriotic and respectable citizen or number of citizens40 7,madison1 ,fed4 ,no4 #dj47 ,but there was a development even more remarkable on the second day of this unauthorized ,convention4 ,the ,convention was presided over by ,washington4 ,among the other delegates were ,hamilton of ,new ,york1 ,madison and ,randolph and ,mason of ,virginia1 ,franklin and ,wilson and ,robert ,morris and ,gouverneur ,morris of ,pennsylvania1 and the two ,pinckneys of ,south ,carolina4 ,madison himself1 speaking of the delegates in his ,introduction to his report of the ,debates1 says that they were selected in each state 8from the most experienced and highest standing citizens40 ,the reader will not forget that each of these men came under a commission from the independent government of a sovereign and independent nation1 twelve such independent governments and nations being represented in that ,convention4 ,in the face of this important fact1 it is amazing to realize the startling proposition offered for consideration1 on ,may #cj1 #aghg4 ,on that day1 the ,convention having gone into a ,committee of the ,whole1 ,randolph1 commissioned delegate from the independent government and nation of ,virginia1 moved1 on the suggestion of ,gouverneur ,morris1 commissioned delegate from another independent government and nation1 that the assembled delegates consider the three following resolutions3 8#a4 ,that a union of the states merely federal will not accomplish the objects proposed by the ,articles of ,confederation--namely1 common defense1 security of liberty1 and general welfare4 8#b4 ,that no treaty or treaties among the whole or part of the states1 as individual sovereignties1 would be sufficient4 8#c4 ,that a national government ought to be established1 consisting of a supreme legislative1 executive1 and judiciary40 7#e ,ell4 ,deb4 #acb47 ,if we wish to realize the sensational nature of those resolutions1 let us assume for a moment a similar convention of delegates assembled in the ,city of ,new ,york4 ,let us assume that the delegates have been commissioned respectively by the governments of ,america1 ,great ,britain1 ,ireland1 ,canada1 ,australia1 ,new ,zealand1 ,france1 ,belgium and other nations4 ,let us assume that the ostensible and proclaimed purpose of the convention1 stated in the commissions of the delegates1 is that it frame a set of federal ,articles for a league or federation of the independent nations represented and report the drafted ,articles to the respective governments for ratification or rejection4 ,let us then assume that1 on the second day of the convention1 ,lloyd ,george1 on the suggestion of ,charles ,e4 ,hughes1 calmly proposes that the convention1 as a ,committee of the ,whole1 consider three resolutions1 exactly similar to those proposed by ,randolph on ,may #cj1 #aghg4 ,imagine the amazement of the world when it found that the resolutions were to the effect that the convention should draft and propose a constitution of government which would create an entirely new nation out of the human beings in all the assembled nations1 and create a new national government for the new nation1 and destroy forever the independence and sovereignty of each represented nation and its government and subordinate them to the new national and supreme government4 ,this was exactly the nature of the startling resolutions of ,randolph4 ,moreover1 before that one day closed1 the ,committee of the ,whole actually did resolve 8that a national government ought to be established consisting of a supreme legislative1 executive and judiciary40 ,the vote was six to one4 ,massachusetts1 ,pennsylvania1 ,delaware1 ,north ,carolina1 ,virginia and ,south ,carolina voted 8aye40 ,from that day on1 the ,convention continued to prepare a proposal involving the destruction of the complete independence of the existing nations and of the governments which respectively commissioned the delegates to the ,convention4 ,from that day on1 the ,convention concerned itself entirely with the drafting of constitutional ,articles which would create a new nation1 ,america1 the members thereof to be all the ,american people1 and would constitute a national government for them1 and give to it national powers over them1 and make it supreme1 in its own sphere1 over all the existing nations and governments4 ,it is interesting and instructive to know that all this startling purpose1 later completely achieved by appeal to the existing ability of the possessors of the supreme will in ,america1 the people1 assembled in their conventions1 had not been the conception of a moment4 ,we find ,madison1 by many credited with the most logical mind of his remarkable generation1 carefully planning1 long before the meeting of the ,convention1 a quite detailed conception of the startling proposal of ,randolph4 ,in a letter from ,madison to ,randolph1 dated ,april #h1 #aghg 7#e ,ell4 ,deb4 #ajg71 he speaks of 8the business of ,may next10 and of the fact 8that some leading propositions at least would be expected from ,virginia10 and says1 8,i will just hint the ideas that have occurred1 leaving explanations for our interview40 ,when we remember the remarkable manner1 entirely novel in the history of political science1 in which our ,constitution creates a new nation and its supreme national government and yet keeps alive the former independent nations and their federation1 the next sentence of that letter is of absorbing interest4 ,it reads1 8,i think1 with you1 that it will be well to retain as much as possible of the old ,confederation1 though ,i doubt whether it may not be best to work the valuable articles into the new system1 instead of engrafting the latter on the former40 ,when we read the detailed story of the ,philadelphia ,convention and study its product1 our ,constitution1 there worded and later made by the people1 we realize that ,madison's idea1 expressed in the quoted sentence1 was accurately carried out largely through his own efforts4 ,turning now to a later paragraph in that same ,april letter1 we marvel at the foresight1 the logical mind and the effective ability of the writer in later securing almost the exact execution of his idea by the entire people of a continent1 even though that idea was the destruction of the independence of their respective nations and of their existing respective governments4 ,that paragraph reads3 8,i hold it for a fundamental point1 that an individual independence of the states is utterly irreconcilable with the idea of an aggregate sovereignty4 ,i think1 at the same time1 that a consolidation of the states into one simple republic is not less unattainable than it would be inexpedient4 ,let it be tried1 then1 whether any middle ground can be taken1 which will at once support a due supremacy of the national authority1 and leave in force the local authorities so far as they can be subordinately useful40 ,this remarkable letter then goes on1 paragraph by paragraph1 to suggest that1 in the new ,articles1 the principle of representation be changed1 so as not to be the same for every state2 the new government be given 8positive and complete0 national power 8in all cases where uniform measures are necessary02 the new government keep all the federal powers already granted2 the judicial department of the new government be nationally supreme2 the legislative department be divided into two branches2 the new government have an executive department2 there be an ,article guaranteeing each state against internal as well as external dangers4 ,in other words1 the letter reads like a synopsis of the principal provisions of our present ,constitution1 although the letter was written over a month before the ,philadelphia ,convention began to draft that ,constitution4 ,one paragraph in that remarkable letter is very important as the first of many similar statements1 with the reasons therefor1 made by ,madison in the ,philadelphia ,convention1 in the ,virginia convention which ratified the ,constitution and in ,the ,federalist which urged its ratification4 ,madison was writing his letter within a few short years after the ,american people had made their famous ,statute of #aggf4 ,he knew its basic law that every ability in government to interfere with individual freedom must be derived directly by grant from those to be governed4 ,he knew that governments could give to government federal power to prescribe rules of conduct for nations4 ,he also knew that governments could not give to government any power to prescribe rules of personal conduct which interfered with the exercise of individual human freedom4 ,in other words1 he knew the existing and limited ability of legislatures to make federal ,articles and that such limited legislative ability was not and never could be1 in ,america1 competent to make national ,articles4 ,he also knew the existing ability of ,americans themselves1 assembled in their conventions1 to make any kind of constitutional ,article1 whether it were federal or national4 ,he knew that the limited ability had been exercised in making the federal ,articles of the existing federation and that the unlimited ability had been exercised1 in each existing nation1 in making its national ,articles4 ,with this accurate knowledge always present in his mind and repeatedly finding expression by him in the ensuing two years1 it is natural that we find in his remarkable letter of #aghg1 after his summary of what ,articles the new ,constitution ought to contain and nearly every one of which it does contain1 the following significant statement3 8,to give the new system its proper energy1 it will be desirable to have it ratified by the authority of the people1 and not merely by that of the legislatures40 ,from such a logical ,american1 it is expected that we should find accurate echo again and again of this deference to basic ,american law in such later expressions as his statement in ,the ,federalist1 ,number #cg1 8,the genius of republican liberty seems to demand 444 that all power should be derived from the people40 ,having thus grown well aware of the tremendous part played by ,madison in shaping the substance of the ,constitution of government under which we ,americans live1 let us return to the ,philadelphia ,convention in which he figured so prominently and which worded and proposed the ,articles of that ,constitution4 ,in the seven ,articles1 which were finally worded by that ,convention1 there are but three which concern themselves at all with the vesting of national power in government4 ,they are the ,first1 the ,fifth and the ,seventh4 ,the ,first ,article purports to give1 in relation to enumerated matters1 all the national power which the ,constitution purports anywhere to grant to its only donee of power to make laws interfering with human freedom1 the national ,legislature or ,congress4 ,indeed1 the opening words of that ,first ,article explicitly state that1 8,all legislative ,powers herein granted shall be vested in a ,congress of the ,united ,states1 which shall consist of a ,senate and ,house of ,representatives40 ,then the remaining sections of that ,article go on to enumerate all the powers of that kind1 the national powers1 which are granted in the ,constitution by the donors1 the ,american people or citizens1 assembled in their conventions4 ,if there be any doubt in the mind of any ,american that the ,first ,article contains the enumeration of all national powers granted by the ,constitution1 the statements of the ,supreme ,court1 voiced by ,marshall1 ought to dispel that doubt4 ,this instrument contains an enumeration of powers expressly granted by the people to their government4444 ,in the last of the enumerated powers1 that which grants1 expressly1 the means for carrying all others into execution1 ,congress is authorized 8to make all laws which shall be necessary and proper0 for the purpose4 7,gibbons v4 ,ogden1 #i ,wheat4 #a47 ,this 8last0 of the enumerated powers1 as ,marshall accurately terms it1 is that granted in the last paragraph of ,section #h of the ,first ,article4 ,it is because the ,first ,article ,,is the constitution of government of the ,american citizen that his government has received its tribute as a government of enumerated powers4 ,this fact is clearly explained in the ,supreme ,court in ,kansas v4 ,colorado1 #bjf ,u4 ,s4 #df4 ,indeed1 we need no ,marshall to make us fully understand that when human beings constitute a government1 the one important thing which they do is to grant government power to interfere1 within a limited discretion1 with their own individual freedom by issuing commands in restraint of the exercise of that freedom4 ,anything else that the government is authorized to do is a mere incident of its existence as a government4 ,the power to issue commands interfering with human freedom is the substance and essence of government4 ,that is why all the national powers of any ,american government are included in whatever ability its legislature has to make valid commands of that kind4 ,the letter which went from the ,philadelphia ,convention1 with the proposed ,constitution1 accurately expresses this fact in the words1 8,individuals entering into society must give up a share of liberty to preserve the rest40 7#a ,ell4 ,deb4 #ag47 ,by surrender of some of their liberties is meant their grant of power to make commands or laws interfering with those surrendered liberties4 ,whenever government is constituted1 8the people must cede to it some of their natural rights1 in order to vest it with requisite powers40 7,jay1 ,fed4 ,no4 #b47 ,we thus know for a certainty that the ,first ,article of our ,constitution is the only one which purports to vest in government any national powers4 ,the ,second ,article deals entirely with the executive department1 the authority of the president and that department to enforce valid laws1 the election of the president and vice-president1 etc4 ,the ,third ,article deals with the authority of the judicial department including authority to declare what laws have been validly passed1 etc4 and with the manner of the appointment of the members of that department1 etc4 ,the ,fourth ,article contains miscellaneous declaratory statements of certain things which the citizens of ,america make the fundamental law of ,america4 ,the ,sixth ,article contains other declaratory statements of what is also made the fundamental law of ,america4 ,this leaves to be considered only the ,fifth and the ,seventh ,articles4 ,like the ,first ,article1 they relate to the vesting of national power in our ,american national government2 but1 unlike the ,first ,article1 neither of them purports to grant any such power to any government4 ,they deal with the manner of its grant by the only competent grantors of power of that kind1 the 8conventions0 of the ,american people1 called by that name1 8conventions10 in the ,fifth and ,seventh ,articles4 ,as the ,seventh ,article was intended by those who worded it to accomplish its purpose simultaneously with and by reason of its ratification1 and as its purpose was the main object of the ,convention which framed all the ,articles1 we will consider it before the ,fifth4 ,the ,seventh is merely the explicit declaratory statement of those whose 8expressed authority 444 alone could give due validity to the ,constitution10 the ,americans themselves assembled in their conventions1 that when the ,americans1 assembled in nine of those thirteen conventions1 have answered 8,yes0 to the entire proposed ,constitution1 the ,american nation shall instantly exist1 all ,americans in those former nations where those nine conventions assembled shall instantly be the citizens of the new nation1 and all the grants of national power1 expressed in the ,first ,article of that ,constitution1 shall have been validly made as the first important act of that collective citizenship4 ,we now consider for a moment the ,fifth ,article1 the only remaining one which relates to grant of national power4 ,that ,fifth ,article does not relate to grant of national power alone4 ,it also relates to grant of federal power4 ,it relates to the future grant of either of those vitally distinct kinds of power4 ,it is further proof of the logical mind of the man who wrote that extraordinary letter of ,april1 #aghg1 and who largely1 in substance1 planned the entire system of a constitution of government1 both federal and national1 which is embodied in our ,constitution4 ,madison and his associates1 in ,the ,federalist and in the ,philadelphia ,convention and in the various ratifying conventions1 repeatedly stated their knowledge that the proposed ,constitution could not possibly be perfect4 ,with the utmost frankness1 they expressed the sane conviction that it would be contrary to all human experience1 if it were found perfect in the working out of an entirely new and remarkable dual system of government of a free people by themselves1 ,for this reason1 the ,fifth ,article was worded so as to prescribe a constitutional mode of procedure in which the existing ability of the ,american citizens to make any kind of ,article1 whether national or federal1 could thereafter be invoked to exercise and be exercised4 ,it was also worded so as to provide a constitutional mode of procedure in which there could be likewise invoked to exercise and be exercised the existing limited ability of the state legislatures to make articles which were not national4 ,as a matter of fact1 it was only at the last moment1 in the ,convention1 that ,madison and ,hamilton1 remembering this limited ability of those legislatures1 wrote into ,article ,v any mention of it and its future constitutional exercise4 ,as the story of the ,first1 ,fifth and ,seventh ,articles1 at ,philadelphia in #aghg1 will be more fully treated hereinafter1 we leave them now to continue the brief story of the voluntary and direct action of the ,americans themselves1 by which they created the nation that is ,america1 became its citizens and1 as such1 vested its only government with its enumerated national powers4 ,when the ,philadelphia ,convention1 on ,september #ag1 #aghg1 had completed its voluntary task of wording the proposed ,constitution of a nation and its supreme government of enumerated powers1 the proposed ,constitution was referred to the ,american people1 for their own approval or rejection1 assembled in their conventions4 ,in many respects1 the ,philadelphia ascertainment of the legal necessity that it must be referred to those people themselves and the ,philadelphia decision to that effect1 following that ascertainment1 constitute the most important and authoritative legal reasoning and decision ever made in ,america since ,july #d1 #aggf4 ,both reasoning and decision were naturally based upon the fact that the ,first ,article purports to give national powers to ,congress to make laws1 interfering with the individual freedom of the citizens of ,america4 ,in the face of that decisive fact1 it was impossible for the ,americans at ,philadelphia1 who had worded that proposed ,article with its grant of enumerated powers of that kind1 to have made any other legal decision than a reference of such an ,article to the ,american people themselves assembled in their conventions1 as the only competent grantors of any national power4 ,the ,americans at ,philadelphia were human beings of exactly the same type as all of us4 ,they had their human ambitions and differences of opinion and jealousies4 ,they were not supermen any more than we are4 ,they were grappling with tremendous problems along an uncharted way in the comparatively new science of self government by a free people1 sparsely settled along the extensive easterly coast of a continent and1 at the time1 citizens of thirteen distinct and independent nations4 ,their personal ambitions and differences of opinion and jealousies1 for themselves and their respective nations1 made the problem1 which they set themselves to solve1 one almost unparalleled in history4 ,if they had wholly failed in their effort1 as men with any other training and dominant purpose in life would certainly have failed1 no just historian would ever have attributed such failure to any lack of intelligence or ability or patriotism on their part4 ,it was1 however1 their fortune and our own that their training and dominant purpose in life had been unique in history4 ,among them were men1 who only eleven years earlier1 at that same ,philadelphia1 in the name and on behalf of the ,american people1 had enacted the ,statute of #aggf4 ,as their presiding officer1 in their effort of #aghg1 sat the man who had led the same ,american people in their successful effort1 by the sacrifices of a ,valley ,forge and the battlefields of the ,revolution1 to make the declarations of that ,statute the basic principle of ,american law4 ,prominent in the ,convention was ,hamilton1 who had left college at seventeen to become a trusted lieutenant of the leader in that war which did make that ,statute our basic law4 ,among the delegates were quite a few others who had played similar parts in that same war for that same purpose4 ,most of the delegates had played some part1 entailing personal sacrifice and effort1 in that same war and for that same purpose4 ,with such an education in the school whose training men find it impossible to ignore1 the school of actual life1 it was mentally impossible that this body of men could either forget or ignore or disobey the basic ,american law1 which then commanded them and still commands us1 that no government in ,america can ever have or exercise any valid national power to interfere with human freedom except by direct grant from its citizens themselves4 ,if the education of the leaders of the present generation had been the same1 ,american history of the last five years could have been differently written in a later chapter herein4 ,because the ,convention was educated to know the ,statute of '#gf1 the proposed grant of enumerated national powers in the ,first ,article was necessarily referred to the only competent grantors1 the ,american people themselves1 assembled in their conventions4 ,familiar as we are with the result of their effort to solve their great problem1 a result told in the history of the ensuing one hundred and thirty-five years in ,america1 it seems fitting here to have ,madison describe the closing moment of that ,philadelphia ,convention1 in his own words3 8,whilst the last members were signing1 ,dr4 ,franklin1 looking toward the president's chair1 at the back of which a rising sun happened to be painted1 observed to a few members near him1 that painters had found it difficult to distinguish1 in their art1 a rising from a setting sun4 #8,i have1' said he1 #8often and often1 in the course of the session1 and the vicissitudes of my hopes and fears as to its issue1 looked at that behind the president1 without being able to tell whether it was rising or setting2 but now1 at length1 ,i have the happiness to know that it is a rising1 and not a setting sun4'0 7#e ,ell4 ,deb4 #efe47 ,the story of the actual making of that ,constitution by the people of ,america1 assembled in their conventions1 is a marvelous story4 ,no ,american can fully grasp what an ,american really is unless he personally reads that story1 not as told even by the most gifted writer1 but as told by the recorded debates in the very conventions themselves of the very ,americans who created the nation which is ,america1 made themselves its citizens and1 as its citizens1 made the only valid grants of enumerated national power1 the grants in the ,first ,article4 ,in a later chapter1 somewhat of that story will be told1 mostly in the very words of those who made those grants4 ,at this point1 we are concerned only to set out the hour and the moment when ,american human beings1 as such1 in their greatest ,revolution1 exercised their exclusive ability to give their one government some national power to interfere with individual freedom4 ,each of them was already a citizen of one of the existing nations4 ,it was1 however1 as ,american human beings1 always collectively the possessors of the supreme will in ,america1 and not as citizens of any nation1 that they assembled in the conventions and1 in the exercise of that supreme will1 created a new and one ,american nation1 by becoming its charter members and citizens4 ,that was the first and immediate effect of the signing of that ,constitution in the ninth convention of the ,american people1 the convention in ,new ,hampshire1 on ,june #ba1 #aghh4 ,that is the actual day of the birth of the ,american nation as a political entity4 ,it is the day on which the ,american citizen1 member of the ,american nation1 first existed4 ,while it is true that there yet was no actual government of the new nation1 it cannot be denied that legally1 from that ,june #ba1 #aghh1 there did exist an ,american nation1 as a political society of human beings1 and that its members were the human beings in the former nations of ,delaware1 ,pennsylvania1 ,new ,jersey1 ,georgia1 ,connecticut1 ,massachusetts1 ,maryland1 ,south ,carolina1 and ,new ,hampshire4 ,the very moment the ,americans in those nine former nations had signed that ,constitution of government1 they had constituted themselves a nation and had become its citizens4 ,simultaneously therewith1 as its citizens1 they had made their grant of enumerated national powers to interfere with their own human freedom4 ,simultaneously therewith1 they had destroyed forever the absolute independence of their nine nations2 they had kept alive those nations1 as partially independent political societies1 each to serve certain purposes of its members who still remained citizens of that political society as well as citizens of the new nation2 they had taken from the government of each of those nations much of its national power1 had given to each such government no new power whatever1 but had left with it much of its former national power over its own citizens2 they had kept alive the federation of nations1 now a federation of partially independent states2 they had made their own new national government also the federal government of that continuing federation and their own national ,constitution also the federal ,constitution of that continued federation2 they had subordinated all those nine states and the government of each and of the federation to their own supreme will1 as the citizens of the new nation1 expressed in its ,constitution4 ,this was the meaning of the second section of the ,sixth ,article in the document1 which they had signed1 which reads3 8,this ,constitution1 and the ,laws of the ,united ,states which shall be made in pursuance thereof2 and all ,treaties made1 or which shall be made1 under the ,authority of the ,united ,states1 shall be the supreme ,law of the ,land2 and the ,judges in every ,state shall be bound thereby1 any ,thing in the ,constitution or ,laws of any ,state to the ,contrary notwithstanding40 ,the makers of the new nation are identified by the opening words of the document3 8,we the ,people of the ,united ,states1 in ,order to form a more perfect ,union1 establish ,justice1 insure domestic ,tranquillity1 provide for the common defence1 promote the general ,welfare1 and secure the ,blessings of ,liberty to ourselves and our ,posterity1 do ordain and establish this ,constitution for the ,united ,states of ,america40 ,it would be diverting1 were it not somewhat pathetic1 to hear that the ,constitution was made by the states4 ,from that quoted ,preamble alone1 volumes might be written to show the absurdity of such thought4 ,it identifies the makers as 8people0 and not as political entities4 ,it expressly says that its makers1 8the people10 ordain it 8in order to form a more perfect ,union40 ,the states already had a perfect union of states4 ,but the human beings or 8people0 of all ,america had no union of themselves4 ,the only 8people0 in ,america1 who had no union of themselves1 identify themselves unmistakably when they say1 8,we the people of the ,united ,states1 in ,order to form a more perfect ,union1 etc40 ,they are the 8people0 or human beings of ,america1 the whole people of ,america1 the collective possessors of the supreme will which had enacted the ,statute of '#gf4 ,if this fact had been kept clearly in mind by our modern leaders and lawyers1 the history of the supposed ,eighteenth ,amendment would never have been written4 ,when the whole ,american people assembled in their conventions in their respective geographic states1 they did not assemble therein as the citizens of their respective states4 ,it is true that the ,americans1 who assembled in any particular convention1 happened to be citizens of a particular state4 ,but they were also part of the whole ,american people1 whose act as a whole people had freed all the colonies and had permitted the ,americans in each colony to constitute a nation for themselves4 ,and1 when the ,americans in each convention assembled1 it was to decide whether that part of the ,american people1 which resided in that state1 would agree with the ,american people residing in other states to become members and citizens of an entirely different society of men and grant to the government of the new society power to interfere with the individual rights of the members of the new society4 ,how could the 8citizens0 of an independent nation1 in their capacity as such citizens1 become 8citizens0 of an entirely different nation1 with an entirely different human membership or citizenry8 ,if the individual members of a large athletic club in the ,city of ,new ,york should assemble in its club house to determine whether they1 as individual human beings1 should join with the human members of a number of other athletic clubs and create a large golf club1 with a large human membership1 and become members of that large golf club1 would any of them entertain the absurd thought that he was becoming a member of the golf club in his capacity as a member of his existing and smaller athletic club8 ,this is exactly what happened when the ,american people as a whole assembled in their conventions and decided to become members or citizens of the new and larger political society of men1 while still remaining members and citizens of their respective smaller societies of men4 ,the vital distinction between the citizen of ,america and the citizen of a state1 although oftentimes one is the same human being1 is probably known to many of the modern leaders and lawyers who have considered and argued about the supposed ,eighteenth ,amendment4 ,but it has been wholly ignored in every argument for or against the existence of that ,amendment4 ,as a matter of fact1 that vital distinction has always been so important a part of our ,american institutions that it has been the subject-matter of repeated decisions in the ,supreme ,court4 ,it is a distinction amazingly important1 in substance1 to individual freedom in ,america4 ,so true is this that one of the most important ,amendments ever made to the federal part of our ,constitution was primarily intended to require that every state must extend to the 8privileges or immunities of citizens0 of ,america the same respect and protection which the ,american ,constitution had previously only required that each state must extend to the citizens of the other states4 ,when the conventions made the original constitution1 ,section #b of ,article ,,iv commanded that 8,the ,citizens of each ,state shall be entitled to all ,privileges and ,immunities of ,citizens in the several ,states40 ,after the ,civil ,war had closed1 it quickly was realized that this federal command of the ,constitution did not protect the citizens of ,america in any state4 ,and so this command was added to the federal part of the ,constitution by the ,fourteenth ,amendment1 namely1 that 8,no ,state shall make or enforce any law which shall abridge the privileges or immunities of citizens0 of ,america4 ,it would be idle to repeat here the famous ,supreme ,court decisions in which that ,court has been obliged to dwell upon the important result accomplished by this vital change in the federal part of our ,constitution4 ,in such cases as the ,slaughter ,house ,cases1 #af ,wall4 #cf1 ,paul v4 ,virginia1 #h ,wall4 #afh1 ,re ,kemmler1 #acf ,u4,s4 #dcf1 ,u4,s4 v4 ,cruikshank1 #ib ,u4,s4 #edb1 ,blake v4 ,mc,clung1 #agb ,u4,s4 #bci1 ,maxwell v4 ,sow1 #agf ,u4,s4 #eha and numerous other cases the important decisions have turned entirely upon the vital distinction between a citizen of ,america and a citizen of a particular state1 even though the same man had the two capacities4 ,each decision turned upon the fact that the protection given to him in one capacity1 by some constitutional provision1 did not extend to him in the other capacity4 ,if all this had not been forgotten and ignored during the five years which began in #aiag1 the story of that five years would have been entirely different4 ,everyone would have known that the respective attorneys in fact for societies or states could not grant new power to interfere with the individual freedom of the members of an entirely different society1 ,america4 ,there never was a day at ,philadelphia in #aghg when the clear-minded ,americans did not remember and realize this vital distinction between ,americans1 in their capacity as members of their respective existing societies1 and ,americans1 in their capacity as members of the prospective society of the whole ,american people4 ,there never was a day when they did not realize that the members of the proposed new and supreme society of men would never have but one attorney in fact for any purpose1 the government at ,washington1 while the members of each small and inferior society would still have1 as they already had1 in their capacity as such members1 their own attorney in fact1 their own government4 ,one instance alone is sufficient to show how that ,philadelphia ,convention never forgot these important things4 ,when the ,committee of ,detail1 on ,august #f1 #aghg1 reported to the ,convention the first draft ever made of our ,constitution1 the ,preamble read3 8,we1 the people of the states of ,new ,hampshire1 ,massachusetts1 etc40 7enumerating all the states71 8do ordain1 declare1 and establish1 the following constitution for the government of ourselves and our posterity40 7#e ,ell4 ,deb4 #cgf47 ,but1 so that future generations1 like our own1 should not ignore the fact that it was not the people of the respective states but the whole people of ,america who made the ,constitution1 before the proposal was made from ,philadelphia1 the ,preamble1 identifying the makers of the ,constitution1 was changed to read1 8,we1 the people of the ,united ,states10--the whole people of the new nation1 ,america4 ,in the ,virginia convention1 ,patrick ,henry put the clear fact all in one pithy statement4 ,he made that statement in one of his eloquent arguments against ratification of the ,constitution4 ,many ,americans today do not know that ,patrick ,henry was the most zealous opponent of the proposed ,constitution4 ,he was a citizen of the nation of ,virginia4 ,his human liberty as an individual could not be interfered with by any government or governments in the world except the ,virginia government and only by it1 under grant of national power to it from him and his fellow citizens of ,virginia4 ,that is exactly the status which he wished to retain for himself and which he insisted was the best security for individual freedom of all ,americans in ,virginia4 8,this is an ,american government1 not a ,virginia government60 he exclaimed4 ,nothing could more clearly express his knowledge1 the common knowledge of all in that day1 that he and his fellow ,americans in that convention were being asked as ,americans1 not as citizens of ,virginia1 to constitute a new nation of the ,american people and a national government for that people4 ,that is why the ,tenth ,amendment1 responsive to the demand of that ,virginia convention and other similar conventions of the ,american people1 names the citizens of the respective states as one class of reservees and the citizens of ,america as the great reservee and 8most important factor0 in the ,tenth ,amendment4 ,this is the plain meaning of the language of that ,tenth ,amendment1 to those who know what ,america is1 where that language reads 8to the states respectively1 or to the people40 ,the word 8respectively0 is pointedly present after the word 8states0 and it is pointedly absent after the word 8people40 ,nothing could make more clear1 to those who do not forget that the citizens of each state were the state itself1 that the words 8to the states respectively0 mean to the respective peoples or citizens of each state and that the words 8or to the people0 mean to the people or citizens of ,america1 in that capacity4 ,,chapter ,v ,,the ,,consent ,,of ,,the ,,governed ,we average ,americans have now lived with those earlier ,americans through the years in which they were educated to their making of the ,american nation1 to their constitution of its only general government with national powers4 ,we have been with them in those early days when legally they were subjects1 inasmuch as their ,british ,legislature at ,london had unlimited ability1 not delegated by them1 to interfere with the individual human freedom of each of them and all of them4 ,we have realized that1 in those very early days1 despite their legal status1 those ,americans were actually and in substance citizens of their own respective communities1 inasmuch as the legislatures which actually did interfere with such freedom were the legislatures of their own choosing to which they themselves delegated such powers of interference4 ,we have been with them when their ,british ,government began its attempt to exercise its omnipotent ability4 ,we have seen the inevitable result1 the ,american ,revolution1 by a people1 educated through actual experience in self government1 against the attempt of any government to exercise a national power not directly granted by its citizens4 ,we have seen their invincible determination1 in an eight year war of sacrifice1 that no government in ,america shall ever have any national power except by direct grant from its citizens4 ,we have seen them1 in their ,statute of '#gf--never repealed--declare this principle to be the basic law of ,america4 ,we have been with them when the ,americans in each former colony constituted for themselves a government and gave it limited ability to interfere with their individual freedom4 ,living with them at that time1 we have realized how accurately they then grasped the vital fact that the granting of such national ability is the constitution of government and that no people ever are free or self-governing unless every grant of that kind is made directly by the citizens of the nation themselves4 ,we have realized that1 in constituting their respective national governments1 the citizens of each of those nations withheld from its government many possible national powers1 such1 for example1 as those mentioned in the various ,bills of ,rights or ,declarations of human liberty in the different written constitutions of those nations4 ,we have realized--a vital legal fact never to be forgotten--how accurately those ,americans and their governments knew that not all of those sovereign legislatures of those independent nations could1 even together1 exercise or grant a single one of those possible national powers reserved by the people to themselves4 ,we have also realized--again a legal fact which should have sunk deep into our souls--that the very national powers1 which the citizens of each of those nations had granted to its legislative government1 were to be exercised only by that legislative government and could not be delegated by it to any other government or governments4 8,the powers delegated to the state sovereignties were to be exercised by themselves1 not by a distinct and independent sovereignty created by themselves40 7,marshall1 ,m',culloch v4 ,maryland1 #d ,wheat4 #caf47 ,we have lived with those ,americans in those ,revolutionary days when the legislative governments of their thirteen nations created 8a distinct and independent sovereignty0 to govern a federal union of those nations but not to govern1 by the exercise of national powers1 the human beings who were the ,american people4 ,we have seen those legislative governments then aware of their existing ability1 each as the representative or attorney in fact of its own nation for all federal purposes1 to vest federal powers in a federal government4 8,to the formation of a league1 such as was the ,confederation1 the state sovereignties were certainly competent40 7,marshall1 ,m',culloch v4 ,maryland1 #d ,wheat4 #caf47 ,but those legislative governments knew that they could not delegate to any government even those limited national powers 8delegated to the state sovereignties0 by their respective citizens4 8,the powers delegated to the state sovereignties were to be exercised by themselves1 not by a distinct and independent sovereignty created by themselves40 7,marshall1 supra47 ,as to the national powers not delegated but reserved by the people to themselves1 the legislative governments of that day 7as well as the ,american people7 knew what the ,supreme ,court still knew in #aijg as to national powers similarly withheld from the later national government of ,america3 ,the powers the people have given to the ,general ,government are named in the ,constitution1 and all not there named1 either expressly or by implication1 are reserved to the people and can be exercised only by them1 or upon further grant from them4 7,justice ,brewer in ,turner v4 ,williams1 #aid ,u4 ,s4 #bgi47 ,we have been with those ,americans in the few short years in which they learned that the maximum of protected enjoyment of individual freedom could never be obtained through a general government possessing naught but federal powers1 the only kind of power which any ,american government can ever obtain through grants made by governments or1 in any way1 except by direct grant from its citizens themselves4 ,we have been with those ,americans through the greatest ,revolution of all1 when their leaders and the average ,americans themselves1 still determined to obtain that maximum protected enjoyment of individual human liberty and awake to the knowledge that it could not be obtained through a general government with naught but federal powers1 rose again to the great occasion4 ,we have been with them when1 outside of all then existing constitutions and outside of all written ,american law except the ,statute of '#gf1 those ,americans1 at the suggestion of their ,american leaders1 made themselves the members of one great political society of human beings1 the nation which is ,america4 ,we have been with them when they gave the government of ,america1 by direct grant from themselves1 such enumerated national powers to command them1 the citizens of ,america1 as they--not the state governments--deemed wise and necessary to protect their human liberty against all oppressors1 including all governments4 ,we have been with them--and we have marveled--while they themselves actually made1 by their own action1 their amazingly effective distribution of all delegated powers to interfere with individual freedom4 ,we have seen that they gave to the new government1 the only government of the citizens of ,america1 naught but enumerated national powers1 with the ability to make all laws necessary for the proper execution of those enumerated powers1 and reserved to themselves alone--not to any government or governments in the world--all other possible national powers over the self-governing people1 the citizens of ,america4 ,we have seen how they1 the citizens of ,america1 the possessors of the supreme will in ,america1 then ended the complete independence of each of the thirteen nations but reserved to the citizens of each nation much of their former ability to exercise their own national powers of government over themselves1 through their own delegation of such power to their only attorney in fact for such purpose1 their own legislature4 ,we have seen those ,american citizens1 while destroying the complete independence of those former nations1 incorporate the former federation of states into their own system of a society or nation of all the human beings of ,america4 ,we have seen them1 in the constitution of their own national government1 make it also the federal government of that federation and leave with it such federal powers as they themselves deemed wise4 ,we know1 therefore1 as they knew in #agij when their great distribution of power had become effective1 that no legislature in ,america could exercise a national power not granted by its own citizens1 and that no legislature or legislatures in ,america could give any national power to any government4 ,we average ,american citizens of this present generation must now feel qualified to understand the ,constitution and its settled distribution of all national powers to interfere with individual freedom4 ,if these ,americans could use their knowledge intelligently to make that amazing ,constitution to protect our human liberty and their own1 it cannot be beyond us1 now also taught by their experience1 to understand the protection which that ,constitution gave to them and gives to us against even the usurpation of our own governments4 ,only by that understanding may we hope to keep that legacy of protection4 ,no longer1 now that we have acquired that understanding1 can we make the great mistake of believing that the public leaders or lawyers of this generation are qualified to teach us anything about that protection4 ,the experience of our leaders and lawyers has given them an entirely different education1 in the science of government1 than was the education of these earlier average ,americans and their leaders1 than is our own education in having lived over again the days in which all valid grants of national power in constitutions of ,american government were made by the people themselves because people and governments alike knew that such grants could never be made by governments4 ,the experience of public leaders and lawyers in ,america1 for the past thirty years1 has been almost exclusively concerned with property and with law and ,constitutions in relation to property4 ,in the ,supreme ,court1 in the ,slaughter ,house ,cases1 #af ,wall4 #cf at page #aaf1 ,justice ,bradley points out that the ,declaration of ,independence was the first political act of the ,american people in their independent sovereign capacity and that therein they laid the foundation of national existence on the basic principle that men are created with equal and inalienable rights to 8life1 liberty and the pursuit of happiness40 ,he then goes on to state that 8,rights to life1 liberty1 and the pursuit of happiness are equivalent to the rights of life1 liberty1 and property40 ,we thus realize that the education of the ,americans1 who made all our constitutions1 trained them to make ,articles of government which would secure protected enjoyment of these three human rights4 ,and we have learned that to those ,americans1 life and liberty came before property in importance4 ,on the other hand1 the leaders and lawyers of the present generation have been educated to think that property is the one important right which constitutions are made to protect4 ,wherefore it would be extraordinary if any of them knew that the ,american people constituted all their governments1 and made their distribution of national powers among those governments and reserved to themselves many national powers1 all for the main purpose of securing individual life and liberty1 and then1 the enjoyment of property4 ,that these leaders and lawyers1 so educated by experience1 have not known these things or understood at all the constitutional ,articles1 an accurate understanding of whose meaning depends upon a knowledge which their education has withheld from them1 the story of the last five years amply demonstrates4 ,in its detail1 that story and that demonstration will be later dwelt upon herein4 ,fortunately1 we average ,americans of this generation have not received any wrong education in the relative importance of human life and liberty to property in the eyes of the ,american people who constituted all governments in ,america1 and in the constitutions which those people made to secure all three human rights against even the usurpations of delegated power by the very governments which those constitutions created4 ,our wrong education in that respect has undoubtedly been attempted4 ,the events of the last five years1 however1 while demonstrating the thoroughly wrong education of our leaders1 have also shown that the average ,americans still sense something extraordinary about governments exercising undelegated power over citizens of which they are not the governments and about governments claiming ability to give to themselves and to other governments undelegated national powers to interfere with individual human freedom4 ,it has been entirely the result of the wrong education of our leaders and 8constitutional0 lawyers that we have not been told the legal fact that1 and the constitutional reason why1 these extraordinary performances on the part of governments in ,america have been just as void as they are extraordinary4 ,now that we have turned from the unsound teaching of those wrongly educated leaders and lawyers and have educated ourselves by living with the earlier ,americans through their making of all our constitutions of government1 we are ready to approach1 with clear and understanding minds1 a brief consideration of the great ,constitution proposed at ,philadelphia and made by the citizens of ,america4 ,only by such brief but accurate consideration can we ever realize the distribution of delegated national powers between a supreme government--legislating for all ,american citizens--and lesser governments1 each legislating only for its own citizens and without any power to legislate for ,american citizens4 ,only by such consideration can we realize the importance to us of the legal fact that the citizens of ,america1 when making that distribution of granted national powers1 reserved to themselves alone all other national powers to legislate for ,american citizens except those national powers granted and enumerated in ,article ,i of our ,constitution to the only national government of the citizens of ,america4 ,,chapter ,,vi ,,the ,,conventions ,,give ,,the ,,consent ,the proposal which came from ,philadelphia in #aghg was absolutely without precedent in history4 ,simply stated it was that1 outside of all written law save the ,statute of '#gf1 the entire ,american people1 who were not one nation or its citizens1 should make themselves one nation and the supreme nation in ,america2 that1 simultaneously with the birth of this new nation1 they should destroy the complete independence of each existing society or nation1 in some one of which each ,american was a member or citizen1 but keep alive each such society or former nation1 subject to the supreme will of the citizens of the new nation2 that they should keep alive the federation of those old nations also subject to the supreme will of the citizens of the new nation2 that they should leave with each former nation 7now to be a subordinate state7 and to its citizens much of its own and their own national power to govern themselves on many matters without interference from any government or governments outside of that state2 that they should leave with those continuing states and their governments their existing and limited ability to give federal power to government by making federal ,articles in the ,constitution of federal government2 that they should1 as the citizens of ,america1 give to no state or states or their respective governments any new power of any kind1 leaving to the citizens of each state to determine 7within the limits fixed by the ,constitution of the ,american citizens7 how much power its own national government should have to interfere with the individual freedom of its own citizens2 that--most unique and marvelous conception of all--these citizens of ,america1 simultaneously with the birth of the new nation and in their capacity as its citizens1 should grant to its government1 the only government of those citizens of ,america1 definite and enumerated national powers to interfere with their individual freedom2 and that--probably the most important and the least remembered feature of the whole proposal--all other possible national powers over themselves1 as citizens of ,america1 should be reserved exclusively to themselves and be exercised or granted by them alone1 8in the only manner in which they can act safely1 effectively1 and wisely1 on such a subject1 by assembling in ,convention40 7,marshall1 in the ,supreme ,court1 ,m',culloch v4 ,maryland1 #d ,wheat4 #caf47 ,we have not forgotten that these ,americans1 to whom that proposal was made1 did act upon it in that only effective way1 by assembling in their conventions4 ,to the formation of a league1 such as was the ,confederation1 the state sovereignties were certainly competent4 ,but when1 8in order to form a more perfect ,union10 it was deemed necessary to change this alliance into an effective government1 possessing great and sovereign powers1 and acting directly on the people1 the necessity of referring it to the people1 and of deriving its powers directly from them1 was felt and acknowledged by all4 ,the government of the ,union1 then1 7whatever may be the influence of this fact on the case17 is1 emphatically1 and truly1 a government of the people4 ,in form and in substance it emanates from them4 ,its powers are granted by them1 and are to be exercised directly on them1 and for their benefit4 7,marshall1 ,m',culloch v4 ,maryland1 #d ,wheat4 #caf47 ,in view of the startling fact that our leaders and 8constitutional0 lawyers have neither felt nor acknowledged the necessity that new national powers of that government1 new powers to interfere directly with the individual freedom of its citizens1 must be derived 8directly0 from those citizens1 in the only effective way in which they can act1 on such a subject1 by assembling in their conventions1 it is the duty of ourselves1 the average ,american citizens of this generation1 to insist that they learn this legal fact4 ,when they shall have learned what all ,americans once knew1 the freedom of the ,american individual will be as secure as it was in #agij4 ,no legislature1 no matter whence comes a suggestion to the contrary1 will dare to issue any command except to its own citizens1 and only to them in matters on which those citizens have granted power to that legislature to command them4 ,that we may intelligently so insist1 and that our insistence may be made in the proper place and at the proper time1 let us briefly consider on what subjects1 in the making of our ,constitution1 our predecessors1 as ,american citizens1 granted their enumerated national powers to our only government of all ,americans4 ,like those predecessors1 assembled in their conventions1 we find all those enumerated powers in the ,first ,article of the ,constitution proposed from ,philadelphia4 ,in substance they are the war power2 the power of making treaties2 the power of regulating commerce between ourselves and all people outside of ,america and between the citizens of the different states2 the power of taxation2 and all other incidental and supplementary powers necessary to make laws in the execution of these enumerated and granted powers4 ,noticeably absent from these enumerated powers granted to the only general government of the citizens of ,america is that power1 then existing and still in the national government of each nation or state1 known 7rather inaccurately7 as the police power or the power to pass any law1 in restraint of individual human freedom1 reasonably designed1 in the judgment of that particular legislature1 to promote the general welfare of its own citizens4 ,it seems hardly necessary1 at this moment1 to refer to the innumerable decisions of the ,supreme ,court that such power was not among those enumerated and granted to the ,american government by its citizens4 ,it was solely because such power had definitely not been granted by them to it that the government of the ,american citizens made its famous proposal that a portion of such power1 in relation to one subject1 be granted to it in the supposed ,eighteenth ,amendment of our ,constitution4 ,as a matter of fact1 the police power of any government is really all its power to pass any laws which interfere with the exercise of individual freedom4 ,in that respect1 the ,american people made a marked distinction between the quantum of that kind of power which they granted to their one general national government and the quantum they left in the national government of the citizens of each state4 ,the quantum they granted to their own government was definitely enumerated in the ,first ,article4 ,on the other hand1 except for the limitations which they themselves imposed upon the respective governments of each state1 they left the citizens of each state to determine what quantum the government of that state should have4 ,in other words1 the police power of the ,american ,congress is strictly limited to the enumerated powers of that kind granted by the citizens of ,america4 ,and1 although the fact does not seem to be generally known1 it is because the ,first ,article vests in the sole ,legislature of the whole ,american people nothing but enumerated powers to interfere with the freedom of the individual ,american that our ,american government has received its universal tribute as a government of nothing but enumerated powers over a free people1 who are its citizens4 ,in the ,constitution are provisions in separate ,articles for the three great departments of government1--legislative1 executive1 and judicial4 ,but there is this significant difference in the grants of powers to these departments3 the ,first ,article1 treating of legislative powers1 does not make a general grant of legislative power4 ,it reads3 8,article one1 section one4 ,all legislative powers herein granted shall be vested in a ,congress10 etc42 and then1 in ,article #h1 mentions and defines the legislative powers that are granted4 ,by reason of the fact that there is no general grant of legislative power it has become an accepted constitutional rule that this is a government of enumerated powers4 7,justice ,brewer1 in the ,supreme ,court1 ,kansas v4 ,colorado1 #bjf ,u4 ,s4 #df47 ,among the national powers1 which are enumerated in the ,first ,article1 there is one which 7whenever operative7 approximates the extensive police power of a state government to interfere with the freedom of its citizens4 ,that is the war power of the ,government of ,america4 ,as the purpose of the ,constitution of the ,american ,government is to protect the freedom of the ,american and as such freedom needs effective protection from foreign attack1 the ,americans of that earlier generation made the war power of their government almost as unlimited as that of a despotic government4 ,all history and their own human experience had taught them that the war power1 if it was to be effective for their protection1 must be practically unlimited4 ,if we grasp this extent of the ,american war power1 we realize why our sole ,american government1 without the grant of a new national power to it1 could validly enact what we know as the ,war ,time ,prohibition ,statute1 although without such a new grant1 it was powerless to enact what we know as the ,volstead ,act or ,national ,prohibition for time of peace4 ,it is because the citizens of each state1 in their ,constitution of their national government1 had given to it a general 7although specifically limited7 ability to interfere with their own human freedom in most matters1 that each state government could validly make prohibition laws for its own citizens4 ,it is because the ,american citizens had not given to their government any such general ability to interfere with their freedom1 that the ,american ,government1 for any time except that of war1 could not validly enact ,national ,prohibition for the ,american people without a new grant of a new national power directly from its own citizens4 ,in the days of those earlier ,americans1 the legal necessity of deriving such power directly from the ,american citizens themselves was 8felt and acknowledged by all40 ,in our day1 among our leaders and our 8constitutional0 lawyers1 there was none so humble as to know or honor this basic legal necessity4 ,the other enumerated national powers1 which ,american citizens ever gave their national government1 are few in number1 although they vested a vast and necessary ability in that government to protect the freedom of its citizens and promote their happiness and welfare by laws in certain matters4 ,for our present purpose1 they need only be mentioned4 ,they require no present explanation4 ,they are the power to make all treaties with foreign nations or governments2 the power to regulate commerce1 except the commerce within any one particular state2 and the power of taxation4 ,having now some accurate conception of the limited and specific quantum of national power which ,american citizens consented to grant in those earlier days1 it is pertinent to our inquiry1 as to whether we 7their posterity7 have again become subjects1 to dwell briefly upon the reluctance with which they made even those grants4 ,in considering that attitude1 it is essential always to keep in mind the status of the citizens of each state1 at that time1 and their relation to their own national government and the relation of each state to the federal government of all the states4 ,under the existing system of governments1 the citizens of each state were subject to no valid interference whatever with their own individual freedom except by laws of a legislature1 every member of which they themselves elected and to which they themselves granted every power of such interference which that legislature could validly exercise4 ,to those free men in those free states1 men educated in the knowledge of what is real republican self-government1 these two facts meant the utmost security of their human rights4 ,no government or governments in the world1 except their own one state government could interfere at all directly with those rights1 and they had given to1 and they could take from1 that government any power of that kind4 ,as for the respective states and the relation of each to the federal government of all1 each state had an equal voice in the giving to or taking from that government any federal power and each had an equal voice1 in the federal legislature1 in exercising each valid federal power4 ,these existing facts1 respectively of vast importance to the citizens of each state and to its government1 influenced1 more than any other facts1 the framing of the new ,articles1 particularly the ,first ,article1 at ,philadelphia and the opposition to those ,articles in the conventions in which the people of ,america assembled4 ,the ,first ,article1 as we know it1 starts with the explicit statement that all national powers1 which are granted by ,americans in that ,constitution1 are granted to the only ,american legislature1 ,congress4 ,it then provides how the members of each of the two bodies in that legislature shall be elected4 ,it then enumerates the granted powers1 confining them to specific subjects of interference with the human freedom of the ,american citizen4 ,it then1 for the particular security of that human freedom1 imposes specific restraints upon that legislature even in the exercise of its granted national powers4 ,finally1 it prohibits the further exercise of specific powers by any state government4 ,no ,american1 who reads the debates of the ,philadelphia ,convention of #aghg1 can fail to realize that the grant of any national power1--power to interfere with human freedom--is the constitution of government4 ,the ,first ,article was the subject of almost all the discussion of those four months at ,philadelphia4 ,seemingly invincible differences of desire and opinion1 as to who should elect and the proportion 7for citizens of the new nation and for states of the continuing federation7 in which there should be elected the members of the legislature which was to exercise the granted national powers1 almost ended the effort of that ,convention4 ,this was in the early part of ,july4 ,for exhausting days patriotic men had struggled to reconcile the conflict of desire and opinion in that respect4 ,one element1 mainly from the larger states1 insisted that the members 7from each state7 of both branches of the new legislature should be proportioned to the number of ,americans in that state4 ,the other element1 mainly from the smaller states1 insisted that the ,americans in each state should have an equal representation in each branch of the new legislature4 ,each element was further divided as to who should choose the members of that legislature4 ,some held that the people should choose every member4 ,others held that the state legislatures should choose every member4 ,still others held that each state should1 by its legislature1 choose the members of one branch1 so that those members might speak for that state1 and that the ,american people themselves1 divided into districts1 should choose the members of the other branch1 so that those members might speak for the general citizens of ,america4 ,mason of ,virginia1 later one of the great opponents of the adoption of all the ,articles1 insisted that election by the people was 8the only security for the rights of the people40 7#e ,ell4 ,deb4 #bbc47 ,madison 8considered an election of one branch1 at least of the legislature by the people immediately1 as a clear principle of free government40 7#e ,ell4 ,deb4 #afa47 ,wilson of ,pennsylvania 8wished for vigor in the government1 but he wished that vigorous authority to flow immediately from the legitimate source of all authority40 7#e ,ell4 ,deb4 #afj47 ,later he said1 8,if we are to establish a national government1 that government ought to flow from the people at large4 ,if one branch of it should be chosen by the legislatures1 and the other by the people1 the two branches will rest on different foundations1 and dissensions will naturally arise between them40 7#e ,ell4 ,deb4 #afg47 ,dickenson of ,delaware 8considered it essential that one branch of the legislature should be drawn immediately from the people1 and expedient that the other should be chosen by the legislatures of the states40 7#e ,ell4 ,deb4 #afc47 ,gerry of ,massachusetts1 consistent ,tory in his mental attitude toward the relation of government to people1 insisted that 8the commercial and moneyed interest would be more secure in the hands of the state legislatures than of the people at large4 ,the former have more sense of character1 and will be restrained by that from injustice40 7#e ,ell4 ,deb4 #afi47 ,on ,june #be1 ,wilson1 at some length1 opposed the election of senators by the state legislatures4 ,he stated that3 8,he was opposed to an election by state legislatures4 ,in explaining his reasons1 it was necessary to observe the two-fold relation in which the people would stand--first1 as citizens of the general government2 and1 secondly1 as citizens of their particular state4 ,the general government was meant for them in the first capacity2 the state governments in the second4 ,both governments were derived from the people2 both meant for the people2 both therefore ought to be regulated on the same principles4444 ,the general government is not an assemblage of states1 but of individuals1 for certain political purposes4 ,it is not meant for the states1 but for the individuals composing them2 the individuals1 therefore1 not the states1 ought to be represented in it40 7#e ,ell4 ,deb4 #bci47 ,there came a day1 early in that memorable ,july1 when all hope of continuing the ,convention was almost abandoned1 by reason of the difference of desire and opinion on this one subject4 ,let us average ,americans of this generation remember that this one subject was merely the decision whether the people were to choose all the members of the legislature which was to exercise granted national powers to interfere with the human freedom of the citizens of ,america4 ,happily for all of us1 there were many patriotic as well as able leaders at ,philadelphia4 ,from their patriotism and ability they evolved the compromise1 on that question1 which is expressed in their ,first ,article4 ,when it came from ,philadelphia1 it provided that each state should have equal representation in the ,senate1 senators to be chosen by the state legislatures1 and that the ,house of ,representatives should consist of members chosen directly by the citizens of ,america1 in districts proportioned to the number of those citizens in it4 ,no one has read the recorded debates of the ,convention which proposed and the conventions which adopted our ,constitution without learning that the ,americans in those conventions knew that the grant of enumerated national powers in the ,first ,article ,,was the constitution of the ,american government of men4 ,in and out of the ,philadelphia ,convention1 the greatest and most persistent attack upon its proposal was the insistent claim that it had acted wholly without authority in proposing an ,article which purported to grant any such national power to interfere with the human freedom of all ,americans4 ,since ,july #d1 #aggf1 no legislature or legislatures in the world had possessed any national powers over all ,americans4 ,the ,americans in each existing nation elected every member of the one legislature which had any such power over them4 ,it was felt and stated at ,philadelphia1 it was felt and urged and insisted upon1 sometimes with decency and reason1 sometimes with bitterness and rancor and hatred1 between the closing day at ,philadelphia and the assembling of various ,americans in each state1 that the ,americans in each state would be unwilling to give any such national power over themselves to any legislature whose members were not all elected by the people in that state4 ,in all the conventions which adopted the ,constitution1 the one great object of attack was the grant even of enumerated powers of a national kind to a legislature whose members would not all be chosen by the ,americans in the state in which the convention was held4 ,the record of the ,virginia convention fills one entire volume of ,elliot's ,debates4 ,almost one-half of the pages of that volume are claimed by the eloquent attacks of ,patrick ,henry upon those grants of enumerated powers in that ,first ,article4 ,the basis of all his argument was the fact that this grant of national power in the ,first ,article would make him and all his fellow ,virginians1 for the first time since the ,declaration of ,independence1 citizens of a nation--not ,virginia--who must obey the laws of a legislature only some of whose members ,virginians would elect4 8,suppose10 he says1 8the people of ,virginia should wish to alter0 this new government which governs them4 8,can a majority of them do it8 ,no2 because they are connected with other men1 or1 in other words1 consolidated with other states4 ,when the people of ,virginia1 at a future day1 shall wish to alter their government1 though they should be unanimous in this desire1 yet they may be prevented therefrom by a despicable minority at the extremity of the ,united ,states4 ,the founders of your own ,constitution made your government changeable3 but the power of changing it is gone from you4 ,whither is it gone8 ,it is placed in the same hands that hold the rights of twelve other states2 and those who hold those rights have right and power to keep them4 ,it is not the particular government of ,virginia3 one of the leading features of that government is1 that a majority can alter it1 when necessary for the public good4 ,this government is not a ,virginian1 but an ,american government40 7#c ,ell4 ,deb4 #ee47 ,how forceful and effective was this objection1 we average ,americans of this generation may well realize when we know that the ,constitution was ratified in ,virginia by the scant majority of ten votes4 ,in ,new ,york and ,massachusetts and other states1 the adoption was secured by similar small majorities4 ,in ,north ,carolina1 the first convention refused to adopt at all4 ,furthermore1 it is recorded history that1 in ,massachusetts1 in ,virginia1 in ,new ,york1 and elsewhere1 the vote of the people would have been against the adoption of the ,constitution1 if a promise had not been made to them by the advocates of the ,constitution4 ,it was the historic promise that ,congress1 under the mode of procedure prescribed in ,article ,v1 would propose new declaratory ,articles1 suggested by the various conventions and specifically securing certain reserved rights and powers of all ,americans from all ability of government to interfere therewith4 ,this historic promise was fulfilled1 when the first ,congress of the new nation proposed the suggested declaratory ,articles and ten of them were adopted4 ,these are the ,articles now known as the first ten ,amendments4 ,it has been settled beyond dispute1 in the ,supreme ,court1 that every one of the declarations in these ten ,articles was already in the ,constitution when it was originally adopted by the citizens of ,america4 ,the most important declaration in those amazingly important ten declarations1 which secured the adoption of our ,constitution1 is the plain statement that every national power to interfere with the human freedom of ,americans1 not granted in ,article ,i1 was reserved to the ,american people themselves in their capacity as the citizens of ,america4 ,that is the explicit statement of what we know as the ,tenth ,amendment4 ,in itself1 that statement was but the plain and accurate echo of what was stated by the ,american people 7who made the enumerated grants of such powers in ,article ,i7 in the conventions where they made those grants4 ,their statement was nowhere more accurately expressed1 in that respect1 than in the resolution of the ,virginia ,convention1 which ratified the ,constitution4 ,that resolution began1 8,whereas the powers granted under the proposed constitution are the gift of the ,,people1 and every power ,,not ,,granted thereby remains with ,,them1 and at ,,their will1 etc40 7#c ,ell4 ,deb4 #fec47 ,after the same statement had been expressly made 7with authoritative effect as part of the original ,constitution7 in that ,article which we know as the ,tenth ,amendment1 it was again and again echoed1 in the plainest language1 from the ,bench of the ,supreme ,court4 ,as far back as #agie1 in the case of ,vanhorne's ,lessee vs4 ,dorrance1 #b ,dall4 #cjd1 ,justice ,patterson stated that the ,constitution of ,england is at the mercy of ,parliament1 but 8in ,america1 the case is widely different40444 ,a ,constitution 8is the form of government1 delineated by the mighty hand of the people1 in which certain first principles of fundamental laws are established4 ,the ,constitution is certain and fixed2 it contains the permanent will of the people1 and is the supreme law of the land2 it is paramount to the power of the legislature1 and can be revoked or altered only by the authority that made it4 ,the life-giving principle and the death-dealing stroke must proceed from the same hand4444 ,the ,constitution fixes limits to the exercise of legislative authority1 and prescribes the orbit within which it must move4444 ,whatever may be the case in other countries1 yet in this there can be no doubt1 that every act of the legislature1 repugnant to the ,constitution1 is absolutely void40 ,to us average ,americans1 who have lived with those earlier ,americans through the days in which they constituted their nation and distributed all granted national powers between governments in ,america and reserved all other general ,american national powers exclusively to themselves1 the ,virginia ,resolution1 the ,tenth ,amendment1 and the quoted language of the ,circuit ,court are in strict conformity with the education we have received4 ,what1 however1 are we to think of the ,tory education of so many of our leaders and 8constitutional0 lawyers1 who have calmly accepted and acted upon the amazing assumption that state governments in ,america can exercise and can grant to other governments any or all general national powers to interfere with the human freedom of ,american citizens1 including even the national powers expressly reserved by those citizens to themselves in the ,tenth ,amendment8 ,if they adopt their familiar mental attitude that all these statements were made more than a hundred years ago and have no meaning or weight now1 we refer them to the ,supreme ,court1 in #aijg1 when it stated3 ,the powers the people have given to the ,general ,government are named in the ,constitution1 and all not there named1 either expressly or by implication1 are reserved to ,,the ,,people and can be exercised only by ,,them1 or ,,upon ,,further grant from them4 7,justice ,brewer in ,turner v4 ,williams1 #aid1 ,u4 ,s4 #bgi47 ,for ourselves1 we average ,americans turn now to examine in detail how clearly the ,americans at ,philadelphia in #aghg did know and obey the basic law of ,america that all national powers to interfere with individual freedom are the powers of the people themselves and can be exercised only by them or upon direct grant from them4 ,we find their knowledge1 in that respect1 evidenced by an examination of the reasoning by which they reached the correct legal conclusion that their proposed grants of general national powers1 in their ,first ,article1 could only be made by the citizens of ,america themselves1 assembled in their 8conventions0--that grants of such powers could not be made even by all the legislatures of the then independent states4 ,,chapter ,,vii ,,people ,,or ,,government8--,,conventions ,,or ,,legislatures8 ,it is no longer open to question that by the ,constitution a nation was brought into being1 and that that instrument was not merely operative to establish a closer union or league of states4 7,justice ,brewer1 in ,supreme ,court1 ,kansas v4 ,colorado1 #bjf ,u4 ,s4 #df at page #hj47 ,instructed by living through the education of the earlier ,americans to their making of that ,constitution1 we accurately know that they themselves1 by their own direct action1 brought that new nation into being4 ,through our course in their education1 we have their knowledge that only the men1 who are to be its first members1 can create a new political society of men1 which is exactly what any ,american nation is4 8,individuals entering into society must give up a share of liberty to preserve the rest40 ,so said the letter which went from ,philadelphia with the proposed ,articles whose later adoption created the new nation and vested the delegated and enumerated national powers of its government to interfere with the liberty of its citizens1 7#a ,ell4 ,deb4 #ag47 ,furthermore1 through our own personal experience1 we understand how all societies of men are brought into being4 ,there are few of us who have not participated in the creation of at least one society of men4 ,most of us have personally participated in the creation of many such societies4 ,for which reason1 we are quite well acquainted with the manner in which all societies of men are brought into being4 ,we know that ourselves1 the prospective members of the proposed society1 assemble and organize it and become its first members and constitute the powers of its government to command us1 its members1 for the achievement of the purpose for which we create it4 ,for one simple reason1 the ,americans1 through whose education we have just lived1 were 8better acquainted with the science of government than any other people in the world40 ,that reason was their accurate knowledge that a free nation1 like any other society of individuals1 can be created only in the same manner and by its prospective members and that the gift of any national powers to its government can only be by direct grant from its human members4 ,this is the surrender 8of a share of their liberty1 to preserve the rest40 ,the knowledge of those ,americans is now our knowledge4 ,for which reason1 we know that they themselves created that new nation and immediately became its citizens and1 as such1 gave to its government all the valid and enumerated national powers of that government to interfere with their and our human freedom4 ,we know that they did all these things1 by their own direct action1 8in the only manner1 in which they can act safely1 effectively or wisely1 on such a subject1 by assembling in conventions40 ,thus1 whatever may have been the lack of knowledge on the part of our leaders and 8constitutional0 lawyers for the last five years1 we ourselves know1 with knowledge that is a certainty1 that the ratifying conventions of #aghg and #aghh ,,were the ,american people themselves or the citizens of the new nation1 ,america1 assembled in their respective states4 ,our ,supreme ,court has always had the same knowledge and acted upon it4 ,the ,constitution of the ,united ,states was ordained and established1 not by the states in their sovereign capacities the respective peoples or citizens of each ,state but emphatically1 as the preamble of the ,constitution declares1 by 8the people of the ,united ,states0 namely the one people of ,america4444 ,it was competent to the people to invest the general government with all the powers which they might deem proper and necessary2 to extend or restrain these powers according to their own good pleasure1 and to give them a paramount and supreme authority4444 ,the people had a right to prohibit to the states the exercise of any powers which were1 in their judgment1 incompatible with the objects of the general compact between the citizens or members of the new nation1 to make the powers of the state governments1 in given cases1 subordinate to those of the nation1 or to reserve to themselves those sovereign authorities which they might not choose to delegate to either4 7,supreme ,court1 ,martin v4 ,hunter's ,lessee1 #a ,wheat4 #cjd1 at p4 #cbd47 ,instructed by experience1 the ,american people1 in the conventions of their respective states1 adopted the present ,constitution4444 ,the people made the ,constitution and the people can unmake it4 ,it is the creature of their will1 and lives only by their will4 ,but this supreme and irresistible power to make or to unmake resides only in the whole body of the people1 not in any subdivisions of them4 7,marshall1 in ,supreme ,court1 ,cohens v4 ,virginia1 #f ,wheat4 #bfd47 ,the ,constitution was ordained and established by the people of the ,united ,states for themselves1 for their own government1 and not for the government of the individual states4 ,each state established a constitution for itself1 and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated4 ,the people of the ,united ,states framed such a government for the ,united ,states as they supposed best adapted to their situation1 and best calculated to promote their interests4 ,the powers they conferred on this government were to be exercised by itself2 and the limitations on power1 if expressed in general terms1 are naturally1 and1 we think1 necessarily1 applicable to the government created by the instrument4 ,they are limitations of power granted in the instrument itself2 not of distinct governments1 framed by different persons and for different purposes4 7,marshall1 in ,supreme ,court1 ,barron v4 ,mayor of ,baltimore1 #g ,peters1 #bdc47 ,when the ,american people created a national legislature1 with certain enumerated powers1 it was neither necessary nor proper to define the powers retained by the states4 ,these powers proceed1 not from the people of ,america1 but from the people of the several states2 and remain1 after the adoption of the ,constitution1 what they were before1 except so far as they may be abridged by that instrument4 7,marshall1 in the ,supreme ,court1 ,sturges v4 ,crowninshield1 #d ,wheat4 #abb47 ,we average ,americans know and will remember the clear distinction1 the substantial distinction1 recognized by the great jurist1 between 8the people of ,america0 and 8the people of the several states10 although they happen to be the same human beings acting in different capacities1 as members of different political societies of men4 ,it is a matter of constant mention in the ,supreme ,court that we ourselves1 in addition to our capacity as human beings1 have two other distinct capacities1 that of citizen of ,america and that of citizen of our respective state2 that1 as citizens of ,america1 we alone validly give to its government any power to command us1 and1 as citizens of our particular state1 we alone validly give to its government all its national power to command us4 ,the decisions of the ,supreme ,court1 in that respect1 are mentioned elsewhere herein4 ,meanwhile1 we average ,americans understand these matters perfectly and will not forget them4 ,we are quite accustomed1 while retaining our status as free human beings1 to be members of many different societies of men and1 as the members of some particular society1 to give to its government certain powers to interfere with our freedom4 ,we have in our political system a government of the ,united ,states and a government of each of the several states4 ,each one of these governments is distinct from the others1 and each has citizens of its own who owe it allegiance1 and whose rights1 within its jurisdiction1 it must protect4 ,the same person may be at the same time a citizen of the ,united ,states and a citizen of a state1 but his rights of citizenship under one of these governments will be different from those he has under the other4444 ,experience made the fact known to the people of the ,united ,states that they required a national government for national purposes4444 ,for this reason1 the people of the ,united ,states 444 ordained and established the government of the ,united ,states1 and defined its powers by a ,constitution1 which they adopted as its fundamental law1 and made its rules of action4 ,the government thus established and defined is to some extent a government of the states in their political capacity4 ,it is also1 for certain purposes1 a government of the people4 ,its powers are limited in number1 but not in degree4 ,within the scope of its powers1 as enumerated and defined1 it is supreme and above the states2 but beyond1 it has no existence4 ,it was erected for special purposes and endowed with all the powers necessary for its own preservation and the accomplishment of the ends its people had in view4444 ,the people of the ,united ,states resident within any state are subject to two governments1 one state1 and the other national2 but there need be no conflict between the two4 ,powers which one possesses1 the other does not4 ,they are established for different purposes1 and have separate jurisdictions4 ,together they make one whole1 and furnish the people of the ,united ,states with a complete government1 ample for the protection of all their rights at home and abroad4 7,justice ,waite1 in ,supreme ,court1 ,united ,states v4 ,cruikshank1 #ib ,u4 ,s4 #edb47 ,it must seem remarkable to us average ,americans1 with the education we have acquired at this point1 to realize that our leaders and 8constitutional0 lawyers have not known why only we ourselves1 in our capacity as citizens of ,america1 can give any new national power to interfere with our freedom and that we1 for such new giving1 must act1 in the only way in which the citizens of ,america 8can act safely1 ,,effectively1 or wisely1 on such a subject1 by assembling in convention10 in our respective states1 the very 8conventions0 mentioned for valid grant of such national power in the ,fifth ,article of the ,constitution made by the citizens of ,america1 so assembled in such 8conventions40 ,before dwelling briefly upon the accurate appreciation of that legal fact displayed by those first citizens in everything connected with the making of that ,constitution and that ,fifth ,article1 let us realize how well the leaders and great constitutional lawyers of other ,american generations between that day and our own did know this settled legal fact4 ,after the ,americans in nine states had created the new nation and had become its citizens and had 7in that capacity7 granted the national powers of its ,first ,article1 the ,americans in ,virginia assembled to determine whether they also would become citizens of the new nation4 ,as the president of the convention1 in which they assembled1 they chose ,edmund ,pendleton1 then ,chancellor of ,virginia4 ,very early in the debates1 ,henry and ,mason1 great opponents of the ,constitution1 attacked it on the ground that its ,preamble showed that it was to be made by the people of ,america and not by the states1 each of which was then an independent people4 ,henry and ,mason wanted those peoples to remain independent4 ,they wanted no new nation but a continuance of a mere union of independent nations4 ,they knew that a constitution of government ordained and established by the one people of ,america1 assembled in their respective 8conventions10 as the ,preamble of this ,constitution showed it to be1 created an ,american nation and made the ratifying ,americans1 in each state1 the citizens of that new nation4 ,for this reason1 the opening thunder of ,henry's eloquence was on that ,preamble4 8,my political curiosity1 exclusive of my anxious solicitude for the public welfare1 leads me to ask1 ,who authorized them to speak the language of ,we1 the people1 instead of1 ,we1 the states8 ,states are the characteristics and the soul of a confederation4 ,if the states be not the agents of this compact1 it must be one great1 consolidated1 national government1 of the people of all the states40 7,henry1 #c ,ell4 ,deb4 #bb47 ,the learned ,pendleton1 sound in his knowledge of basic ,american law and quick to grasp the plain meaning of the ,fifth ,article of the new ,constitution1 quickly answered ,henry4 8,where is the cause of alarm8 ,we1 the people1 possessing all power1 form a government1 such as we think will secure happiness2 and suppose1 in adopting this plan1 we should be mistaken in the end2 where is the cause of alarm on that quarter8 ,in the same plan we point out an easy and quiet method of reforming what may be found amiss4 ,no1 but say gentlemen1 we have put the introduction of that method in the hands of our servants1 who will interrupt it for motives of self-interest4 ,what then8444 ,who shall dare to resist the people8 ,no1 we will assemble in convention2 wholly recall our delegated powers or reform them so as to prevent such abuse2 and punish those servants who have perverted powers1 designed for our happiness1 to their own emolument4444 ,but an objection is made to the form2 the expression1 ,we1 the people1 is thought improper4 ,permit me to ask the gentlemen who made this objection1 ,,who ,,but ,,the ,,people ,,can ,,delegate ,,powers8 ,who but the people have the right to form government8444 ,what have the state governments to do with it80 7#c ,ell4 ,deb4 #cg47 ,we average ,americans know and will remember that this learned ,american lawyer1 only twelve years earlier a subject of an omnipotent legislature1 already knew the basic ,american principle to be that the delegation of national power was the constitution of government of a free people and that only the people1 assembled in convention1 could delegate such power and that the state governments1 under basic ,american law1 never can have the ability to delegate that kind of power4 ,we regret that our 8constitutional0 lawyers1 all born free citizens of a free republic1 have not the same accurate knowledge of basic ,american law4 ,but the knowledge of ,henry and of ,pendleton1 that the document under consideration was the ,constitution of a nation whose citizens alone could give to its government any valid power to interfere with their human freedom1 was the knowledge of all in that and the other 8conventions10 in which the one people of ,america assembled and adopted that ,constitution4 ,let us note another distinct type in that ,virginia convention1 the famous ,light-horse ,harry ,lee of the ,revolution4 8,descended from one of the oldest and most honorable families in the colony1 a graduate of ,princeton ,college1 one of the most daring1 picturesque1 and attractive officers of the ,revolution1 in which by sheer gallantry and military genius he had become commander of a famous cavalry command1 the gallant ,lee was a perfect contrast to the venerable ,pendleton40 7,beveridge1 ,life of ,marshall1 ,vol4 ,i1 page #chg47 ,lee also replied to ,henry's attack on the expression 8,we1 the people0 and not 8,we1 the states40 ,in his reply1 there was shown the same accurate knowledge of basic ,american law4 8,this expression was introduced into that paper with great propriety4 ,this system is submitted to the people for their consideration1 because on them it is to operate1 if adopted4 ,it is not binding on the people until it becomes their act40 7#c ,ell4 ,deb4 #db47 ,in the ,massachusetts convention1 ,general ,william ,heath1 another soldier of the ,revolution1 showed his accurate conception of the legal fact of which we average ,americans have just been reading in the decisions of our ,supreme ,court4 8,mr4 ,president1 ,i consider myself not as an inhabitant of ,massachusetts1 but as a citizen of the ,united ,states40 7#b ,ell4 ,deb4 #ab47 ,in the ,north ,carolina convention1 ,william ,goudy seems to have had some prophetic vision of our own immediate day4 ,speaking of the document under discussion and clearly having in mind its ,first ,article1 this is the warning he gave us3 8,its intent is a concession of power1 on the part of the people1 to their rulers4 ,we know that private interest governs mankind generally4 ,power belongs originally to the people2 but if rulers all governments be not well guarded1 that power may be usurped from them4 ,people ought to be cautious in giving away power4444 ,power is generally taken from the people by imposing on their understanding1 or by fetters40 7#d ,ell4 ,deb4 #aj47 ,in that same ,north ,carolina convention1 ,james ,iredell1 later a distinguished judge of our ,supreme ,court1 in replying to the common attack that the ,constitution contained no ,bill of ,rights1 displayed clearly the general accurate knowledge that1 in ,america1 any grant of national power to interfere with human freedom is the constitution of government and that the citizens of any nation in ,america are not citizens but subjects1 if even a single power of that kind is exercised by government without its grant directly from the citizens themselves1 assembled in their conventions4 8,of what use1 therefore1 can a ,bill of ,rights be in this ,constitution1 where the people expressly declare how much power they do give1 and consequently retain all that they do not8 ,it is a declaration of particular powers by the people to their representatives1 for particular purposes4 ,it may be considered as a great power of attorney1 under which no power can be exercised but what is expressly given40 7#d ,ell4 ,deb4 #adh47 ,when we average ,americans read the debates of those human beings1 the first citizens of ,america1 one thing steadily amazes us1 as we contrast it with all that we have heard during the past five years4 ,some of those first citizens were distinguished lawyers or statesmen1 quite well known to history4 ,some of them bore names1 then distinguished but now forgotten4 ,most of them1 even at that time1 were quite unknown outside of the immediate districts whence they came4 ,all of them1 twelve years earlier1 had been 8subjects0 in an empire whose fundamental law was and is that its legislative government can exercise any power whatever to interfere with human freedom and can delegate any such power to other governments in that empire4 ,the object of the ,american ,revolution was to change that fundamental law1 embodying the ,tory concept of the proper relation of government to human being1 into the basic law of ,america1 embodying the ,american concept of that relation declared in the great ,statute of '#gf1 that no government can have any power of that kind except by direct grant from its own citizens4 ,during that ,revolution1 human beings in ,america1 in conformity with their respective beliefs in the ,tory or the ,american concept of the relation of human being to government1 had been divided into what history knows as the ,tories and the ,americans4 ,many of the human beings1 assembled in those conventions of ten or twelve years later1 had been sincere ,tories in the days of the ,revolution4 ,yet1 if we average ,americans pick up any volume of their recorded debates in those 8conventions10 we cannot scan a few pages anywhere without finding the clearest recognition1 in the minds of all1 that the ,american concept had become the basic ,american law1 that the ,tory concept had disappeared forever from ,america4 ,all of them knew that1 so long as the ,statute of '#gf is not repealed and the result of the ,revolution not reversed1 no legislatures in ,america can exercise any power to interfere with human freedom1 except powers obtained by direct grant from the human beings over whom they are to be exercised1 and that no legislatures can give to themselves or to another legislature any such power4 ,it was common in those 8conventions0 of long ago to illustrate some argument by reference to this admitted legal fact and the difference between the fundamental law of ,great ,britain and of ,america1 in these respects4 ,in that ,north ,carolina convention1 the same ,iredell1 after pointing out that the ,american concept of the relation of citizen to all governments had become basic ,american law1 contrasts that fact with the fundamental law of ,great ,britain where 8,magna ,charta itself is no constitution1 but a solemn instrument ascertaining certain rights of individuals1 by the legislature for the time being2 and every article of which the legislature may at any time alter40 7#d ,ell4 ,deb4 #adh47 ,in the ,pennsylvania convention1 on ,december ,i1 #aghg1 one of the most distinguished lawyers of that generation made a memorable speech1 expressing the universal knowledge that the ,american concept had taken forever the place of the ,tory concept in fundamental ,american law4 ,we commend a careful study of that speech to those of our public leaders and 8constitutional0 lawyers1 who for five years have been acting on the assumption that the ,tory concept has again become our fundamental ,american law4 ,we average ,americans1 after living with those earlier ,americans1 are not surprised to listen to the statements of ,wilson4 8,the secret is now disclosed1 and it is discovered to be a dread1 that the boasted state sovereignties will1 under this system1 be disrobed of part of their power4444 ,upon what principle is it contended that the sovereign power resides in the state governments8444 ,the proposed system sets out with a declaration that its existence depends upon the supreme authority of the people alone4444 ,when the principle is once settled that the people are the source of authority1 the consequence is1 that they may take from the subordinate governments powers which they have hitherto trusted them1 and place those powers in the general government1 if it is thought that there they will be productive of more good4 ,they can distribute one portion of power to the more contracted circle1 called state governments2 they can also furnish another proportion to the government of the ,united ,states4 ,who will undertake to say1 as a state officer1 that the people may not give to the general government what powers1 and for what purposes1 they please8 ,how comes it1 sir1 that these state governments dictate to their superiors--to the majesty of the people80 7#b ,ell4 ,deb4 #ddc47 ,we average ,americans1 legally bound 7as ,american citizens7 by no command 7interfering with our human freedom7 except from our only legislature at ,washington and then only in those matters in which we ourselves1 the citizens of ,america1 have directly given it power to command us1 now intend insistently to ask all our governments1 the supreme one at ,washington and the subordinate ones in the states of which we are also citizens1 exactly the same question which ,wilson asked4 ,daniel ,webster asked almost exactly the same question of ,hayne and history does not record any answer deemed satisfactory by the ,american people4 ,webster believed implicitly in the concept of ,american law stated by those who made our ,constitution4 ,like them1 and unlike our 8constitutional0 lawyers1 he knew that the ,tory concept of the relation of men to their government had disappeared from ,american basic law4 8,this leads us to inquire into the origin of this government1 and the source of its power4 ,whose agent is it8 ,is it the creature of the state legislatures1 or the creature of the people8444 ,it is1 sir1 the people's constitution1 the people's government--made for the people1 made by the people1 and answerable to the people4 ,the people of the ,united ,states have declared that this ,constitution shall be the supreme law4 ,we must either admit the proposition1 or dispute their authority4 ,the states are1 unquestionably1 sovereign1 so far as their sovereignty is not affected by this supreme law4 ,but the state legislatures1 as political bodies1 however sovereign1 are yet not sovereign over the people4444 ,the national government possesses those powers which it can be shown the people have conferred on it1 and no more4444 ,we are here to administer a ,constitution emanating immediately from the people1 and trusted by them to our administration4444 ,this government1 sir1 is the independent offspring of the popular will4 ,it is not the creature of state legislatures2 nay1 more1 if the whole truth must be told1 the people brought it into existence1 established it1 and have hitherto supported it1 for the very purpose1 amongst others1 of imposing certain salutary restraints on state sovereignties4444 ,the people1 then1 sir1 erected this government4 ,they gave it a constitution1 and in that constitution they have enumerated the powers which they bestow upon it4444 ,sir1 the very chief end1 the main design for which the whole constitution was framed and adopted1 was to establish a government that should not be obliged to act through state agency1 depend on state opinion and state discretion4444 ,if anything be found in the national constitution1 either by original provisions1 or subsequent interpretation1 which ought not to be in it1 the people know how to get rid of it4 ,if any construction be established1 unacceptable to them1 so as to become practically a part of the constitution1 they will amend it at their own sovereign pleasure4 ,but while the people choose to maintain it as it is--while they are satisfied with it1 and refuse to change it--who has given1 or who can give1 to the state legislatures a right to alter it1 either by interference1 construction1 ,,or ,,otherwise8444 ,sir1 the people have not trusted their safety1 in regard to the general constitution1 to these hands4 ,they have required other security1 and taken other bonds40 7,from ,webster's reply to ,hayne1 ,u4 ,s4 ,senate1 ,january1 #ahcj4 #d ,ell4 ,deb4 #dih et seq47 ,we average ,americans1 now educated in the experience of the average ,american from #aggf to the beginning of #aghg1 find much merit and comfort in ,webster's understanding of basic ,american law4 ,he had a reasoned and firm conviction that ,americans really are citizens and not subjects4 ,his conviction1 in that respect1 while opposed to the convictions of our leaders and 8constitutional0 lawyers1 has seemed to us quite in accord with the convictions of earlier leaders such as ,iredell and ,wilson and the others1 and also with the decisions of our ,supreme ,court4 ,briefly stated1 it has become quite clear to us that the ,american people1 from #aggf to #aghg1 were fixed in their determination to make our basic ,american law what the conviction of ,webster and the leaders of every generation prior to our own knew it to be4 ,let us go back1 therefore1 to the ,americans in the ,philadelphia convention of #aghg1 who worded the ,constitution which is the supreme law of ,america1 and ascertain how their knowledge of fundamental ,american law dictated the wording of their proposed ,seventh ,article4 ,,chapter ,,viii ,,philadelphia ,,answers 8,,conventions1 ,,not ,,legislatures0 ,we recall how clearly the ,americans at ,philadelphia1 in #aghg1 knew that any grant of national power to interfere with the freedom of individuals was the constitution of government4 ,we recall the bitter conflict of opinion1 threatening the destruction of the assembly1 over the manner of choosing the members of the legislature to exercise whatever powers of that kind the citizens of ,america might grant4 ,we recall the great opposition to the proposal of a grant of any power of that kind and to the particular proposal of each of the enumerated powers of that kind1 all embodied in the ,first ,article4 ,we have thus come to know with certainty that the minds of the ,americans at ,philadelphia1 during those strenuous four months1 were concentrated mainly upon a proposal to grant some national power to interfere with the human freedom of all ,americans4 ,in other words1 we have their knowledge that their proposed ,first ,article1 by reason of its grants of such power1 would constitute a new nation and government of men1 if those grants were validly made by those competent to make such grants4 ,under which circumstances1 we realize that it became necessary for them to make a great legal decision1 in the construction of basic ,american law1 and1 before making that decision1 which was compelled to be the result of judgment and not of will1 accurately to ascertain one important legal fact4 ,indeed1 their decision was to be the actual conclusion reached in the effort to ascertain that legal fact4 ,this was the single question to which they must find the right answer3 8,under our basic ,american law1 can legislatures ever give to government any power to interfere with the human freedom of men1 or must every government in ,america obtain its only valid powers of that kind by direct grant from its own citizens80 ,it is easy for us to state that they should have known that the answer to that question was expressly and authoritatively given in the ,statute of '#gf4 ,it was there plainly enacted that every just power of any government must be derived from the direct grant of those to be governed by its exercise4 ,yet our own leaders for the last five years have not even asked the question1 much less known the right answer4 ,at ,philadelphia1 in #aghg1 they did know it4 ,they had no doubt whatever about it4 ,we shall see that quickly in our brief review of the record they made at ,philadelphia in ascertaining and deciding1 as a legal necessity1 to whom their ,first ,article and its enumerated grants of national power must be sent and1 when we boast of how quickly we knew the answer1 we should admit that we did not know it until after we had lived again with them through their experience of the preceding ten or twelve years which had educated them1 as it has just educated us1 to that knowledge4 ,furthermore1 many of us average ,americans will be unable to explain1 until later herein1 why1 during the last five years1 our own leaders have not known the right answer4 ,the ,statute of '#gf has not been wholly unknown to them4 ,the record of the ,philadelphia ,convention and the ratifying conventions has not been entirely a closed book to them4 ,the important and authentic statements of ,webster and other leaders of past generations have been read by many of them4 ,if they did not understand and know the correct answer1 as we now realize they have not known1 let us not withhold from the ,americans at ,philadelphia our just tribute of gratitude that they did accurately know1 when it was amazingly important to us that they should know4 ,when those ,americans came to answer that question1 there were facts which might have misled them as other similar facts of lesser importance have undoubtedly misled our leaders4 ,in #aggf1 from that same ,philadelphia had gone a suggestion that a constitution of government1 with ,articles granting power to government1 be made in each former colony4 ,in #aghg1 there had gone from that same ,philadelphia a proposal that a constitution of a general government for ,america be made1 with ,articles granting power to that government4 ,the proposal of #aggf had suggested that the proposed ,articles be made by the people themselves1 assembled in conventions4 ,the proposal of #aggg had suggested that the proposed ,articles be made by the legislative governments of the states4 ,both proposals1 even as to the makers of the respective ,articles1 had been acted upon4 ,all the ,articles1 although some had been made by the people themselves and others by legislatures1 had been generally recognized as valid law4 ,some of the men at ,philadelphia in #aghg had been members of the proposing ,second ,continental ,congress1 when the respective proposals of #aggf and #aggg had gone from ,philadelphia4 ,when1 in #aghg1 they were called upon to find and state1 as their legal decision1 the correct answer to their important question1 it was necessary for them to ascertain1 as between state 8legislatures0 and the people themselves1 in 8conventions10 which could validly make the ,articles which had been worded and were about to be proposed4 ,it would not1 therefore1 have been beyond the pale of our own experience if the earlier proposals had misled them and they had made the wrong answer to the question which confronted them4 ,furthermore1 as we have already noted1 although we can little realize the influence of such a fact upon men seeking the correct legal answer to an important question1 their whole proposal was a new adventure for men on an uncharted sea of self-government4 ,under all of which circumstances1 let us again pay them their deserved tribute that they went unerringly to the only correct answer4 ,we know that the essence of that answer is expressed in the ,seventh ,article proposed from ,philadelphia4 ,only one answer was possible to ,americans of that generation4 ,they had been 8subjects0 and had become 8citizens40 ,they knew the vital distinctions between the two relations to government4 ,the ,convention which framed the ,constitution was1 indeed1 elected by the state legislatures4 ,but the instrument1 when it came from their hands1 was a mere proposal1 without obligation1 or pretensions to it4 ,it was reported to the then existing ,congress of the ,united ,states1 with the request that it might 8be submitted to a convention of delegates1 chosen in each state by the people thereof1 under the recommendation of its legislature1 for their assent and ratification40 ,this mode of proceeding was adopted2 and by the ,convention1 by ,congress1 and by the state legislatures1 the instrument was submitted to the people4 ,they acted upon it in the only manner in which they can act safely1 effectively1 and wisely1 on such a subject1 by assembling in convention4 ,it is true1 they assembled in their several states2 and where else should they have assembled8 ,no political dreamer was ever wild enough to think of breaking down the lines which separate the states1 and of compounding the ,american people into one common mass4 ,of consequence1 when they the ,american people act1 they act in their states4 ,but the measures they adopt do not1 on that account1 cease to be the measures of the people themselves1 or become the measures of the state governments4 ,from these conventions the ,constitution the ,first ,article grants of power to interfere with individual freedom derives its whole authority4 ,the government proceeds directly from the people2 is 8ordained and established0 in the name of the people4444 ,it required not the affirmance1 and could not be negatived1 by the state governments4444 ,to the formation of a league1 such as was the ,confederation1 the state sovereignties were certainly competent4 ,but1 when a general government of ,america was to be given any national power to interfere with the individual freedom of its citizens1 as in the ,first ,article of #aghg and in the ,eighteenth ,amendment of #aiag1 acting directly on the people1 the necessity of referring it to the people1 and of deriving its powers directly from them1 was felt and acknowledged by all4 ,the government of the ,union1 then1 7whatever may be the influence of this fact on the case17 is1 emphatically1 and truly1 a government of the people4 ,in form and in substance it emanates from them4 ,its powers are granted by them1 and are to be exercised directly on them1 and for their benefit4 7,marshall in the ,supreme ,court1 ,m',culloch v4 ,maryland1 #d ,wheat4 #caf47 ,marshall was one of the ,americans who had been at ,valley ,forge in #aggh1 and at other places whose sacrifices made it the basic law of ,america that all power over ,american citizens must be derived by direct grant from themselves4 ,later1 he was prominent in the ,virginia convention where all ,americans in ,virginia knew and acted upon this basic law4 ,these facts qualified him to testify1 from the ,bench of the ,supreme ,court1 that all ,americans then knew and acknowledged the binding command of that basic law4 ,under such circumstances1 it was impossible that the ,americans at ,philadelphia should not have known and obeyed that law in the drafting of their proposed ,seventh and ,fifth ,articles4 ,both of these ,articles1 the ,seventh wholly1 and the ,fifth partly1 deal with the then future grant of national power over the people and its only legal gift by direct grant from the people themselves1 assembled in their 8conventions40 ,both ,articles name the people of ,america1 by the one word 8conventions40 ,that ,philadelphia should not have strayed from the legal road clearly marked by the ,statute of '#gf was certain when we recall how large a part ,madison played at ,philadelphia1 and particularly how he personally worded and introduced1 in the closing hours at ,philadelphia1 what we know as its ,fifth ,article4 ,as to his personal knowledge of this basic law1 we recall his letter of ,april1 #aghg1 where he said1 8,to give the new system its proper energy1 it will be desirable to have it ratified by the authority of the people1 and not merely by that of the legislatures40 ,and we recall his later words1 when urging ,americans to adopt the ,constitution with its ,fifth and ,seventh ,articles1 he said of the ,seventh1 8,this ,article speaks for itself4 ,the express authority of the people alone could give due validity to the ,constitution10 to its grants of power over the people in its ,first ,article4 7,fed4 ,no4 #dc47 ,that we may fix firmly in our own minds the knowledge which all ,americans then had1 which our leaders never acquired or have entirely forgotten1 let us briefly review what the earlier ,americans did at ,philadelphia in obedience to that knowledge of basic ,american law4 ,on ,may #bh1 ,randolph of ,virginia 8opened the main business0 of the ,convention4 ,he proposed fifteen resolutions embodying the suggestion of what should be in the different ,articles4 ,resolution ,number #ae was that such ,articles should be submitted to 8conventions10 8to be expressly chosen by the people1 to consider and decide thereon40 7#e ,ell4 ,deb4 #abh47 ,the first short debate on this ,resolution took place on ,june #e4 ,in it ,madison stated that he 8thought this provision essential4 ,the ,articles of ,confederation themselves were defective in this respect1 resting1 in many of the states1 on the legislative sanction only40 ,the resolution was then postponed for further consideration4 ,on ,june #ab1 8,the question was taken on the #aeth ,resolution1 to wit1 referring the new system to the people of the ,united ,states for ratification4 ,it passed in the affirmative40 7#e ,ell4 ,deb4 #ahc47 ,this was all in the ,committee of the ,whole4 ,on ,june #ac1 that ,committee made their full report1 in which the ,randolph ,resolution ,number #ae was embodied in words as ,resolution ,number #ai of the report4 ,on ,june #af1 while the ,convention was again sitting as a ,committee of the ,whole1 the great struggle was on between the conflicting opinions as to how and in what proportion should be elected the future legislators who were to exercise the granted powers over ,americans4 ,on that day1 the discussion centered on the relative merits of the ,randolph national proposals and a set of federal ,articles amending the existing ,federal ,constitution4 ,in supporting ,randolph1 ,wilson of ,pennsylvania stated that 8he did not fear that the people would not follow us into a national government2 and it will be a further recommendation of ,mr4 ,randolph's plan that it is to be submitted to them1 and not to the legislatures1 for ratification40 7#e ,ell4 ,deb4 #aif47 ,on ,july #bc1 ,resolution ,number #ai came up for action4 ,remembering how insistent many of the delegates were that the general government should be kept a purely federal one1 it is not surprising to find ,oliver ,ellsworth of ,connecticut opening the short debate with a motion that the ,constitution 8be referred to the legislatures of the states for ratification40 ,but it will also be remembered that the powers to be granted in the new ,articles had not yet been settled4 ,the nationalists in the ,convention1 intent on having some national ,articles1 knew that the proposed ratification must be by the people themselves1 8felt and acknowledged by all0 to be the only competent grantors of national powers4 ,colonel ,mason of ,virginia 8considered a reference of the plan to the authority of the people as one of the most important and essential of the resolutions4 ,the legislatures have no power to ratify it4 ,they are the mere creatures of the state constitutions1 and cannot be greater than their creators4444 ,whither1 then1 must we resort8 ,to the people1 with whom all power remains that has not been given up in the constitutions derived from them4 ,it was of great moment that this doctrine should be cherished1 as the basis of free government40 7#e ,ell4 ,deb4 #ceb47 ,rufus ,king of ,massachusetts1 influenced undoubtedly by the error of thinking that the ,convention meant to act within the ,articles of ,confederation1 was inclined to agree with ,ellsworth 8that the legislatures had a competent authority1 the acquiescence of the people of ,america in the ,confederation being equivalent to a formal ratification by the people4444 ,at the same time1 he preferred a reference to the authority of the people1 expressly delegated to conventions1 as the most certain means of obviating all disputes and doubts concerning the legitimacy of the new ,constitution40 7#e ,ell4 ,deb4 #cee47 ,madison 8thought it clear that the legislatures were incompetent to the proposed changes4 ,these changes would make essential inroads on the state constitutions2 and it would be a novel and dangerous doctrine1 that a legislature could change the constitution under which it held its existence40 7#e ,ell4 ,deb4 #cee47 ,ellsworth's motion to send to the state legislative governments1 and not to the people themselves1 assembled in 8conventions10 was lost by a vote of seven to three4 ,resolution ,number #ai1 that the new ,articles must be sent to the people themselves was adopted by a vote of nine to one1 ,ellsworth and ,king both voting for it4 7#e ,ell4 ,deb4 #cef47 ,this impressive discussion1 now continued for over a month of #aghg1 with its display of accurate knowledge of the distinction between sending ,articles to legislatures and 8referring0 them to the people1 makes quite amusing what we shall hear later in #aiag4 ,it will come from the counsel of the political organization which dictated that governments should make the supposed ,eighteenth ,amendment4 ,after he kindly tells us that history has proven that these ,americans of #aghg 8builded more wisely than they knew10 meaning 8than he knew10 he shall later impart to us the remarkable information that 8the framers in the ,constitutional ,convention knew very little1 if anything1 about referendums40 ,the ,resolutions1 which had now become twenty-three in number1 on ,july #bf1 were referred to the ,committee of ,detail to prepare ,articles in conformity therewith4 ,on ,august #f1 that ,committee made its report of twenty-three worded ,articles4 ,in ,article ,,xxii was embodied the requirement that the ,constitution should be submitted 8to a convention chosen in each state1 under the recommendation of its legislature1 in order to receive the ratification of such convention40 ,this provision1 the ,philadelphia answer and always the only legal answer to the question as to who can validly grant power to interfere with individual freedom1 was later seen not properly to belong in the ,constitution itself4 ,for which reason1 it was taken out of the ,constitution and embodied in a separate ,resolution which went with the ,constitution from ,philadelphia4 ,in ,article ,,xxi1 the first draft of our ,article ,,vii1 it was provided3 8,the ratification of the conventions of ---- states shall be sufficient for organizing this ,constitution40 7#e ,ell4 ,deb4 #cha47 ,the month of ,august was passed in the great debates on the proposed grants of national power and the other proposed ,articles4 ,when the ,convention was drawing to a close on ,august #cj1 ,articles ,,xxi and ,,xxii were reached4 ,gouverneur ,morris of ,pennsylvania 8moved to strike out of ,article ,,xxi the words1 #8conventions of the1' after #8ratification1' leaving the states to pursue their own modes of ratification40 ,rufus ,king 8thought that striking out #8conventions1' as the requisite mode1 was equivalent to giving up the business altogether40 ,madison pointed out that1 8,the people were1 in fact1 the fountain of all power40 ,the motion of ,morris was beaten4 ,an attempt was made to fill the blank in ,article ,,xxi with the word 8thirteen40 8,all the states were #8,no' except ,maryland40 ,the blank was then filled by the word 8nine0 the vote being eight to three4 ,the two articles were then passed1 the vote thereon being ten to one4 7#e ,ell4 ,deb4 #dii-ejb47 ,on ,september #aj1 the beginning of the last business week of the ,convention1 ,gerry of ,massachusetts moved to reconsider these two ,articles4 ,the short discussion was not in connection with any matter in which we are now interested4 ,his motion was lost4 ,the entire set of worded ,articles was then referred to a committee for revising the style and arrangement of the ,articles agreed upon4 7#e ,ell4 ,deb4 #ece47 ,on ,wednesday1 ,september #ab1 that ,committee reported our ,constitution1 with its seven ,articles1 as we know them except for some slight changes made during the discussions of the last three or four days of the ,convention4 ,in these seven ,articles1 the language of the earlier ,article ,,xxii did not appear4 ,as it really was the statement of the correct legal conclusion of the ,convention that its proposed ,articles1 because they would grant power to interfere with individual freedom1 must necessarily be made by the people themselves1 its proper place was outside the ,constitution itself and in a special ,resolution of the same nature as every ,congress resolution proposing an amendment to that ,constitution4 ,that was the view of the ,committee and1 on ,thursday1 ,september #ac1 the ,committee reported such special ,resolutions1 in the very words of the former ,article ,,xxii4 8,the proceedings on these ,resolutions are not given by ,mr4 ,madison1 nor in the ,journal of the ,federal ,convention4 ,in the ,journal of ,congress1 ,september #bh1 #aghg1 ,volume #d1 p4 #gha1 they are stated to have been presented to that body1 as having passed in the ,convention on ,september #ag immediately after the signing of the ,constitution40 7#e ,ell4 ,deb4 #fjb47 ,this is the ,resolution3 8,,resolved1 ,that the preceding ,constitution be laid before the ,united ,states in ,congress assembled2 and that it is the opinion of this ,convention1 that it should afterwards be submitted to a convention of delegates chosen in each state by the people thereof1 under the recommendation of its legislature1 for their assent and ratification2 and that each convention1 assenting to and ratifying the same1 should give notice thereof to the ,united ,states in ,congress assembled4 8,,resolved1 ,that it is the opinion of this ,convention1 that1 as soon as the conventions of nine states shall have ratified this ,constitution1 the ,united ,states in ,congress assembled should fix a day1 etc40 7#e ,ell4 ,deb4 #eda47 ,this ,resolution is the most authoritative statement of the legal conclusion reached by these leaders of a people then 8better acquainted with the science of government than any other people in the world40 ,the conclusion itself was compelled by accurate knowledge that the government of 8citizens0 can validly obtain only from the citizens themselves1 by their direct grant1 any power to interfere with their individual freedom4 ,the expression of that knowledge1 in the ,resolution1 is1 in many respects1 one of the most important recorded legal decisions ever made in ,america4 ,we average ,americans1 educated with those ,americans at ,philadelphia through their experience of the years between #agge and #aghg1 cannot misunderstand the meaning and importance of that decision4 ,instructed by our review of their actions and their reasoning at ,philadelphia in reaching that conclusion and making that legal decision1 we know1 with an accurate certainty1 that it was their declaration to the world and to us that no proposal from ,philadelphia suggested that ,americans again resume the relation of 8subjects0 to any government or governments4 ,our minds impressed with this accurate knowledge that such was not their purpose1 we now prepare to complete our education as ,american citizens1 not subjects1 by reading the ,philadelphia story and language of their ,fifth ,article1 their only other ,article which even partly concerned the future grant of new government power to interfere with individual ,american freedom4 ,by reason of our education1 we will then come to the reading of the language of this ,article1 as the ,americans read it and understood it when they made it in their 8conventions0 that followed the proposing convention of ,philadelphia4 ,being educated 8citizens0 and not 8subjects10 we ourselves will no longer1 as our leaders have done for five years1 mistake the only correct and legal answer to the indignant outburst of ,madison1 who wrote this ,fifth ,article at ,philadelphia4 8,was1 then1 the ,american ,revolution effected1 was the ,american ,confederacy formed1 was the precious blood of thousands spilt1 and the hard-earned substance of millions lavished1 not that the people of ,america should enjoy peace1 liberty1 and safety1 but that the governments of the individual states1 that particular municipal establishments1 might enjoy a certain extent of power1 and be arrayed with certain dignities and attributes of sovereignty8 ,we have heard of the impious doctrine in the ,old ,world1 that the people were made for kings1 not kings for the people4 ,is the same doctrine to be revived in the ,new1 in another shape--that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form80 7,fed4 ,no4 #de47 ,the ,american answer1 from the people of ,america assembled in the conventions that ratified that ,fifth ,article1 was a clear and emphatic 8,no40 ,the ,tory answer of the last five years1 from our leaders and our governments1 has been an insistent 8,yes40 ,no one1 however1 with any considerable degree of truthfulness1 can assert that there has come from the ,american people themselves1 during the last five years1 any very audible 8,yes40 ,to whatever extent individual opinions may differ as to the wisdom or legality of the new constitution of government of men1 made entirely by governments1 no unbiased observer has failed to note one striking fact4 ,by a very extensive number of ,americans otherwise law-abiding1 ,americans in all classes of society1 the new government edict1 the government command to 8subjects10 has been greeted with a respect and obedience strikingly similar to the respect and obedience with which an earlier generation of ,americans received the ,stamp ,act and the other government edicts between #agfe and #aggf4 ,when the ,americans of that earlier generation were denounced by the government which had issued those edicts to its 8subjects10 one of the latter1 five years before ,americans ceased to be 8subjects0 of that government1 stated3 8,is it a time for us to sleep when our free government is essentially changed1 and a new one is forming upon a quite different system--a government without the least dependence upon the people80 ,it may be but a coincidence that1 while our ,american government was announcing its recognition of the wide-spread ,american disrespect for the new government edict1 it is only a few days since throughout ,america there resounded many eulogies of the ,samuel ,adams1 who made that statement in the ,boston ,gazette of ,october #g1 #agga4 ,in those eulogies1 there was paid to him the tribute that he largely helped to bring about the amazing result of ,american desire for individual freedom which culminated in the assembling of the ,americans in the 8conventions0 which ratified the proposed ,constitution4 ,we have already sensed that the existence of the supposed ,eighteenth ,amendment depends entirely upon an amazing modern meaning put into the ,fifth ,article made in those conventions4 ,let us1 therefore1 who are ,americans now educated in the experience of the ,americans who assembled in those 8conventions10 sit therein with them and there read the story and the language of the ,fifth ,article as they read it when they made it4 ,,chapter ,,ix ,,the ,,fifth ,,article ,,names ,,only 8,,conventions0 ,it has been the misfortune of our prominent ,americans of this generation that they read the ,fifth ,article with preconceived notions of its meaning4 ,to the error of that method of reading it1 we average ,americans will not pay the tribute of imitation4 ,we know that its meaning to those who made it in the 8conventions0 of the earlier century is the meaning which it must have as part of the supreme law of the land4 ,that we may read it as they read it and get its clear and only possible meaning1 as they got it1 we shall briefly review the story of its wording and its proposal at ,philadelphia4 ,that ,convention immediately preceded the assembling of the people in their own 8conventions40 ,in each of their 8conventions10 among the people assembled1 were some who had been prominent at ,philadelphia1 such as ,madison and ,randolph and ,mason in ,virginia1 ,hamilton in ,new ,york1 ,wilson in ,pennsylvania and the ,pinckneys in ,south ,carolina4 ,moreover1 between the ,philadelphia proposal and the assembling of these conventions1 ,madison and ,hamilton1 proposer and seconder of the ,fifth ,article at ,philadelphia1 had been publishing their famous essays1 now collectively known as ,the ,federalist1 in the ,new ,york newspapers to explain the ,articles worded at ,philadelphia and to urge their adoption4 ,under which circumstances1 it is clear that1 if we want to read and know the meaning of the ,fifth ,article as it was understood in those conventions1 the ,fifth ,article which named those same 8conventions10 we must complete our education by an accurate and brief review of the story of that ,article at ,philadelphia4 ,only in that way shall we average ,americans of today be in the position in which were the ,americans who made that ,article4 ,when we read that story of ,philadelphia1 in relation to the ,fifth ,article1 one thing stands out with amazing clarity and importance4 ,we already know how that ,convention1 until its last days1 was concentrated upon the hotly debated question of its own proposed grants of national powers in the ,first ,article4 ,in the light of which continued concentration1 it is not surprising to learn that1 until almost the very last days1 the delegates forgot entirely to mention1 in their tentative ,fifth ,article1 the existing and limited ability of state legislatures to make federal or declaratory ,articles1 and mentioned only 8conventions0 of the people1 who alone could or can make national ,articles4 ,the first suggestion of what we now know as the ,fifth ,article was on the second day1 ,may #bi1 when the ,randolph ,resolution #ac read 8that provision ought to be made for the amendment of the ,articles of union whensoever it shall seem necessary40 ,this wording was the exact language of ,resolution #ag of the report of the ,committee of the ,whole4 ,it was adopted by the ,convention on ,july #bc4 ,three days later1 with the other ,resolutions1 it was referred to the ,committee of ,detail 8to prepare and report the ,constitution40 ,on ,august #f1 this ,committee1 in the first draft of our ,constitution1 reported the following3 8,art4 ,,xix4 ,on the ,application of the legislatures of two-thirds of the states in the ,union1 for an amendment of this ,constitution1 the legislature of the ,united ,states shall call a convention for that purpose40 ,we see clearly why the delegates1 their minds concentrated on their own proposed grants of national powers1 mentioned only the people themselves1 the 8conventions0 of the 8,seventh0 and 8,fifth0 ,articles1 who alone can make national ,articles1 and forgot to mention legislatures1 because the latter never can make national ,articles4 ,that kind of ,article was the only thing they were then thinking about4 ,naturally1 it then escaped their attention that1 if they proposed a wise and proper distribution of national power between the new ,american government and the respective existing state governments1 almost every future ,article1 if not every one1 would be of the federal kind1 which legislatures or governments could validly make1 as they had made all the ,articles of the existing federation4 ,clearly for that reason this ,article ,,xix never even mentioned the existing and limited ability of legislatures4 ,between this report of ,august #f and ,august #cj1 the ,convention was again entirely occupied with the grants of national power and the election of the legislators to exercise it or1 in other words1 with what is now the ,first ,article4 ,on ,august #cj1 ,article ,,xix was adopted without any debate4 ,we are now aware that the ,convention was within two weeks of its end and no one had mentioned1 in what is now the ,fifth ,article1 the state governments or legislatures as possible makers of federal ,articles1 if and when such ,articles were to be made in the future4 ,it was not until ,september #aj1 ,monday of the last ,convention week1 that ,article ,,xix again came up for action1 when ,gerry of ,massachusetts moved to reconsider it4 ,his purpose1 as he himself stated it1 was to object because it made it possible that1 if the people in two-thirds of the states called a convention1 a majority of the ,american people assembled in that convention 8can bind the ,union with innovations that may subordinate the state constitutions altogether40 ,hamilton stated that he could see 8no greater evil1 in subjecting the people in ,america to the major voice than the people of any particular state40 ,he went on to say that he did think the ,article should be changed so as to provide a more desirable 8mode for introducing amendments10 namely1 drafting and proposing them to those who could make them4 ,in this respect he said3 8,the mode proposed was not adequate4 ,the state legislatures will not apply for alterations1 but with a view to increase their own powers4 ,the national legislature will be the first to perceive1 and will be most sensible to1 the necessity of amendments2 and ought also to be empowered1 whenever two-thirds of each branch should concur1 to call a convention4 ,there could be no danger in giving this power1 as the people would finally decide in the case40 7#e ,ell4 ,deb4 #eca47 ,roger ,sherman of ,connecticut then tried to have the ,article provide that the national government might also propose amendments to the several states1 as such2 such amendment to be binding if consented to by the several states1 namely1 all the states4 ,for reasons that will appear in a moment1 this clear attempt to enable the states1 mere political entities1 and their legislatures1 always governments1 to do what they might wish with the individual freedom of the ,american citizen--thus making him their subject--was never voted upon4 ,it was1 however1 seconded by ,gerry of ,massachusetts4 ,its probable appeal to ,sherman1 always a strong opponent of the national government of individuals instead of the federal government of states1 was that it would make it difficult to take away any power from ,connecticut1 unless ,connecticut wished to give it up4 ,its appeal to ,gerry1 consistently a ,tory in his mental attitude to the relation of government and human being1 was undoubtedly the fact that it would permit government or governments to do what they might wish with individual freedom4 ,it does not escape the attention of the average ,american that our governments and leaders1 during the last five years1 have not only displayed the mental attitude of ,gerry but have also acted as if the proposal1 which he urged1 had been put into what is our ,fifth ,article4 ,only on that theory can we average ,americans1 with our education1 understand why governments in ,america have undertaken to exercise and to vest in our government a national power over us1 which power neither is enumerated in the ,first ,article nor was ever granted by the citizens of ,america to their only government2 nor can we understand why our leaders have assumed that governments in ,america1 which are not even the government of the ,american citizens1 can do either or both of these things4 ,we know1 if governments and leaders do not1 that neither thing can ever be possible in a land where men are 8citizens0 and not 8subjects40 ,,chapter ,x ,,ability ,,of ,,legislatures ,,remembered ,living through the days of that ,convention1 we have now seen three months and ten days of its sincere and able effort to word a ,constitution which would 8secure the ,blessings of ,liberty0 to the individual ,american4 ,we have seen them spend most of their time in the patriotic endeavor to adjust and settle how much1 if any1 national power to interfere with individual freedom that ,constitution shall give to its only donee1 the new and general government4 ,in other words1 we have seen the mind and thought and will of that ,convention almost entirely concentrated1 for those three months and ten days1 upon the ,article which is the constitution of government1 the ,first ,article1 with its enumerated grants of general power to interfere with the human rights of the ,american citizen4 ,keeping in mind the object of that intense concentration1 the ,first ,article grants of power of that kind1 we average ,americans note1 with determined intent never to forget1 the effect of that concentration upon the wording of our ,fifth ,article up to that tenth day of ,september4 ,we note1 with determined intent never to forget1 that1 from ,may #cj to ,september #aj1 the only maker of future changes mentioned was the 8people0 of ,america1 the most important reservee of the ,tenth ,amendment1 the 8conventions0 of the ,american people named in both the ,seventh and the ,fifth ,articles4 ,as this fact and its tremendous meaning have never been known or mentioned in the sorry tale of the five years from #aiag to #aibb1 we average ,americans are determined to dwell upon it briefly so that we cannot escape an accurate appreciation of the short remaining story of the one week at ,philadelphia1 in #aghg1 in relation to our ,fifth ,article4 ,only a week earlier1 because the ,first ,article did grant enumerated powers to interfere with individual rights1 the ,convention had known that the seven articles must go to the people directly to say their 8,yes0 or 8,no0 to those grants of the ,first ,article4 ,for that reason the ,convention 7considering limited legislative ability to make federal ,articles and omnipotent ability of the 8people0 to make all ,articles7 had decided that it ,,must propose the mode of ratification by the 8people10 the 8conventions0 of the ,seventh and the ,fifth ,articles4 ,as ,marshall later authoritatively stated in the ,supreme ,court1 the legal necessity of deriving national powers from the people themselves1 the 8conventions10 was then known and acknowledged by all4 ,it was natural1 therefore1 up to that ,september #aj1 that a convention1 concentrated entirely upon grants of that kind1 when wording its ,article with a mode of procedure for making future changes1 should have forgotten any changes except of the kind on which its own mind was concentrated and should have mentioned in its amending ,article1 up to ,september #aj1 no maker of future changes except the people themselves1 8conventions0 of the ,seventh and the ,fifth ,articles4 ,and1 at this point1 we average ,americans note1 again with intent never to forget1 that if the one competent maker of such ,articles1 the 8conventions10 had remained the only maker of ,articles mentioned in the ,fifth ,article1 even the great 8constitutional0 lawyers of #aibj would never have made the monumental error of assuming that the ,fifth ,article was a grant of power 7to those who made it and all the original ,constitution7 to make future ,articles4 ,even they would have noticed and applied to their reading of the ,fifth ,article the well known legal fact that grantors never can and never do grant to themselves what they already have or a part of it4 ,therefore1 noting and remembering these significant facts1 we turn with interest to the short story of how those able ,americans at ,philadelphia1 their minds no longer exclusively concentrated on their own enumerated grants1 remembered that there was another maker of ,articles with existing but limited ability to make federal or declaratory ,articles4 ,and1 with interest1 we shall learn how this last week thought caused the ,convention to change the ,fifth ,article by adding a mention of that existing limited ability and prescribing the mode of its future constitutional exercise4 ,that we average ,americans may never be misled by inaccurate statements of the short story of how the mention of that limited ability was added to the mention of the unlimited ability of the 8people0 or 8conventions0 of the ,fifth ,article1 it is fitting that the full record of the story be given verbatim4 ,it adds not a little to our amusement that the story is copied from the brief of the leading 8constitutional0 lawyer of #aibj who championed the validity of the ,eighteenth ,amendment on the remarkable assumption and error1 common to all his associates and his opponents1 that the new mention changed the ,fifth ,article into a grant of ability to those legislatures instead of what its author1 ,madison1 knew and stated that ,article to be1 a 8mode of procedure0 for the future constitutional exercise either of that existing limited ability or the other existing unlimited ability of the 8people0 or 8conventions0 of the ,seventh and ,fifth ,articles4 ,this is the record of that ,september #aj1 as copied from that brief1 beginning immediately after ,hamilton had voiced his opinion that there could be no danger in letting ,congress propose an ,amendment 8as the people would finally decide in the case40 8,mr4 ,madison remarked on the vagueness of the terms1 #8call a ,convention for the purpose' as sufficient reason for reconsidering the ,article4 ,how was a ,convention to be formed8 by what rule decide8 what the force of its acts8 8,on the motion of ,mr4 ,gerry to reconsider 8,n4 ,h4 div4 ,mas4 ay4 ,ct4 ay4 ,n4 ,j4 no4 ,pa4 ay4 ,del4 ay4 ,md4 ay4 ,va4 ay4 ,n4 ,c4 ay4 ,s4 ,c4 ay4 ,geo4 ay4 7,ayes--#i2 noes--#a2 divided--#a47 8,mr4 ,sherman moved to add to the article #8or the ,legislature may propose amendments to the several ,states for their approbation1 but no amendments shall be binding until consented to by the several ,states4' 8,mr4 ,gerry #b;ded4 the motion4 8,mr4 ,wilson moved to insert #8two thirds of' before the words #8several ,states'--on which amendment to the motion of ,mr4 ,sherman 8,n4 ,h4 ay4 ,mas4 7no74 ,ct4 no4 ,n4 ,j4 7no74 ,pa4 ay4 ,del4 ay4 ,md4 ay4 ,va4 ay4 ,n4 ,c4 no4 ,s4 ,c4 no4 ,geo4 no4 7,ayes--#e2 noes--#f74 8,mr4 ,wilson then moved to insert #8three fourths of' before #8the several ,sts4' which was agreed to nem3 con3 8,mr4 ,madison moved to postpone the consideration of the amended proposition in order to take up the following1 8#8,the ,legislature of the ,u4,s4 whenever two thirds of both ,houses shall deem necessary1 or on the application of two thirds of the ,legislatures of the several ,states1 shall propose amendments to this ,constitution1 which shall be valid to all intents and purposes as parts thereof1 when the same shall have been ratified by three fourths at least of the ,legislatures of the several ,states1 or by ,conventions in three fourths thereof1 as one or the other mode of ratification may be proposed by the ,legislature of the ,u4,s4' 8,mr4 ,hamilton #b;ded4 the motion4 8,mr4 ,rutlidge said he never could agree to give a power by which the articles relating to slaves might be altered by the ,states not interested in that property and prejudiced against it4 ,in order to obviate this objection1 these words were added to the proposition3 #8provided that no amendments which may be made prior to the year #ahjh1 shall in any manner affect the #d #e sections of the ,,vii article4' ,the postponement being agreed to1 8,on the question ,on the proposition of ,mr4 ,madison ,mr4 ,hamilton as amended 8,n4,h4 divd4 ,mas4 ay4 ,ct4 ay4 ,n4,j4 ay4 ,pa4 ay4 ,del4 no4 ,md4 ay4 ,va4 ay4 ,n4,c4 ay4 ,s4,c4 ay4 ,geo4 ay4 7,ayes--#i2 noes--#a2 divided--#a470 ,,ii ,farrand1 #eeh1 #eei4 ,no ,american citizen1 now living or in the generations to come1 if he values at all the human liberty which the entire ,constitution was established to secure1 can spend too much time in reading and understanding that short record4 ,it is the record left by ,madison himself1 even though it be copied from the brief of the leading 8constitutional0 lawyer of #aibj who maintained his whole argument for the ,eighteenth ,amendment on the ground that we have been 8subjects0 of an omnipotent government1 his clients1 since the day1 ,june #ba1 #aghh1 when that ,fifth ,article was enacted by the ,american people to secure 8the ,blessings of ,liberty for themselves and their posterity40 ,as we shall later find herein1 it is the claim of all who believe the new ,amendment to be in our ,constitution1 although they have hitherto not understood their own claim1 that the words of the ,article1 which appear in that short record1 are the words which changed the ,american individuals1 free men from ,july #d1 #aggf1 into subjects of an omnipotent government1 composed of the legislative governments of a fractional part of the states4 ,moreover1 as we shall also later learn herein1 this absurd and amazing claim is based wholly on the monumental error of assuming1 without the faintest suggestion or proffer of support for such an assumption1 that the new wording of the ,fifth ,article1 as proposed by ,madison on ,september #aj1 changed the amending ,article into a grant of ability to make every kind of ,article4 ,the monumental error fails to see that ,madison merely added to the previous mention of the unlimited ability of the people or 8conventions0 a similar mention of the existing limited ability of the state legislative governments to make federal ,articles or ,articles which neither exercise nor grant power to interfere with human freedom4 ,moreover1 as we shall also learn later herein1 the extraordinary and unfounded assumption 7that the amending ,article was changed on ,september #aj into a grant of ability to make ,articles instead of a recognition and mention of two existing different abilities1 one of which had always been mentioned therein7 has been hitherto concurred in by every one who has challenged the validity of the ,eighteenth ,amendment4 ,they have only differed from the supporters of the new ,amendment in contending that the impossible grant1 absurdly imagined to have been made by the grantors to themselves as well as to state legislatures1 was a grant of limited ability but did not include the ability to make an amendment such as the ,eighteenth4 ,when we do come later herein to the briefs and arguments of the opponents and supporters of the supposed ,eighteenth ,amendment1 we shall look in vain to find therein the faintest suggestion of a claim that there is anything in the record of ,september #aj1 #aghg1 to justify their extraordinary and unfounded assumption that the ,fifth ,article1 on that day1 was changed so as to make it a grant of power from the 8conventions0 of the people to the 8conventions0 of the whole ,american people and to the state legislatures4 ,on the contrary1 we shall find every opponent of the supposed new ,amendment making easy the way of its supporters by joining in the common assumption of all and predicating every argument against the new ,amendment on the same extraordinary assumption that the ,fifth ,article is a grant of power to the grantors and to the state governments4 ,not once1 in any brief or argument of the most renowned lawyers in ,america1 shall we find even the faintest knowledge of two facts which must be so if the ,fifth ,article is a grant of power to the two supposed grantees4 ,that each of the two facts is a patent absurdity will not alter the logic that they must be facts1 if the ,fifth ,article is a grant to those two grantees4 ,the first patently absurd fact is that1 if the ,fifth ,article is a grant1 the 8conventions0 of #aghh granted to themselves1 the supposed grantors1 exactly the same omnipotent power to make all ,articles1 which the grantors 7a supposed grantee7 were exercising at the very moment when they made the ,fifth ,article4 ,the second patently absurd fact1 if the ,fifth ,article is a grant1 is that the whole people of ,america1 assembled in their 8conventions10 after eleven years as free men1 voluntarily relinquished that status to become1 as the whole people of ,america1 8subjects0 of the same legislative governments who are one of the supposed donees of the absurd and imaginary grant4 ,this remarkable fact follows as the logical conclusion of the concept that the 8conventions0 granted to the 8conventions0 and to the state governments1 with ,congress to determine which shall exercise it1 the very omnipotent power which the people themselves 7the supposed grantors7 were then exercising in their 8conventions0 and which eleven years before they had denied to the ,british ,parliament4 ,when we later realize that none of our modern leaders saw either absurd fact to be the certain result of the concept that the ,fifth ,article is a grant1 we average ,americans ought certainly to be convinced that1 if we wish to keep our individual rights in any matter1 it is going to be necessary for us to understand for ourselves how our ,constitution secures those rights to us4 ,forewarned of such necessity1 we return with renewed interest to the examination of the record of the day on which it is assumed that ,madison suggested that the ,fifth ,article should be changed into a 8grant0 and then proposed to the ,american people1 so that they might voluntarily relinquish their status as free men and become 8subjects0 of a government with omnipotent ability to legislate in restraint of their individual freedom 8in all matters whatsoever40 ,it ought not to detract from our amusement that this remarkable proposal of such a 8grant0 7as our modern leaders see it7 was to go to the ,american people in each state and there be approved by that people with the knowledge that the people in that particular state1 on the occasion of a future proposal1 might not elect a single member of the legislative governments who would exercise that omnipotent power over their every individual right4 ,our amusement is not lessened when we find that the supposed 8grant0 was suggested by ,madison and seconded by ,hamilton4 ,the ,philadelphia ,convention was being held in the ,america which had just emerged from an eight year ,revolution to establish the doctrine that no government could be omnipotent in its ability to interfere with individual freedom4 ,the ,convention itself had devoted three months and ten days1 before the day in question1 to bitter dispute about giving even enumerated powers of that kind to the ,american government mentioned in the ,first ,article4 ,it is therefore1 with great amusement but with serious intent never to forget1 that we note that not a single voice was raised in the ,convention either to uphold or to protest this supposed and absurd 8grant0 of omnipotence to an entirely different government4 ,on the contrary1 as we note with intent never to forget1 the newly worded ,article was treated by the ,convention as if every important matter in it had been settled before the state governments were even mentioned in it as makers of the kind of ,articles which they already had the power to make1 federal ,articles4 ,as soon as the newly worded ,article had been suggested by ,madison and ,hamilton1 the ,article which ,madison himself describes as a constitutional mode for the exercise of existing abilities to make ,articles1 only one change 7utterly unimportant now7 was suggested in the new wording4 ,this was the suggestion that the ,article should not provide a constitutional mode in which existing ability to interfere with slavery could be constitutionally exercised prior to the year #ahjh4 ,this change was immediately made by the ,convention4 ,then1 without the slightest objection to any other part of the supposed absurd 8grant10 the ,convention approved the newly worded ,article4 ,from the absence of one word of protest we quite clearly realize that no man in that ,convention so misconstrued the simple statement of ,madison's ,fifth ,article as to read into it an imaginary 8grant0 of any ability whatever to the state legislative governments4 ,we realize that these men1 who were accurate thinkers1 knew that the 8conventions0 named in this ,madison ,article were exactly the same 8conventions0 which ,philadelphia had already named in what we know now as the ,seventh ,article4 ,we realize that they knew at once1 when ,madison proposed his ,article1 that the 8conventions0 named in it1 like the same 8conventions0 named in the ,seventh1 were 8,we1 the people0 of ,america1 named in the ,preamble4 ,and1 from a moment's reflection1 we are aware that the delegates at ,philadelphia immediately knew that ,madison was not making the absurd suggestion that the ,american people1 the 8conventions0 of the ,seventh and ,madison's new ,article1 should grant1 in the very 8conventions0 of the ,seventh1 to themselves1 anything whatever of power1 either all or part of the power which they would be then exercising in those 8conventions40 ,from which it follows1 as the night the day1 that the delegates also knew that if ,madison's ,article was not a grant by the 8conventions0 to the 8conventions10 it was not a grant to the 8legislatures40 ,for which reason we will not dwell at all upon the obvious fact that there is not the slightest suggestion of a word of grant in the ,fifth ,article4 ,before emphasizing the absurdity of the thought that the ,americans at ,philadelphia ever intended the plain statement of the ,fifth ,article to be a 8grant0 of power of any kind1 it seems proper that we should grasp at once what it clearly was understood by them to be4 ,their understanding and knowledge of its meaning become very clear to us1 when we read it1 as they heard it from ,madison1 fresh from their great debate as to the grant of enumerated powers in their ,first ,article and their proposal of a ratification by 8conventions0 as the only valid mode of ratification for an ,article which grants power to interfere with human freedom4 ,we recall now that1 when ,madison suggested his ,fifth ,article to them1 on ,september #aj1 the echoes were still ringing of the sound statements of ,madison and others that ,philadelphia must propose a mode of ratification by the people or 8conventions0 because legislatures never could be competent1 in ,america1 to make ,articles which did constitute government by granting power to interfere with human freedom4 ,when we read ,madison's ,fifth ,article1 with the same statements still fresh in our minds1 we realize at once how the delegates at ,philadelphia recognized1 in the ,madison ,article1 the meaning of every reference to the duties imposed upon1 not the powers granted therein1 to ,congress4 ,the delegates had met at ,philadelphia with purpose and intent to draft and propose constitutional ,articles in their judgment best designed to secure human liberty to ,americans1 and then1 after they had drafted their ,articles and knew the nature of such ,articles1 whether national or federal1 to propose a mode of ratification in which their proposed ,articles would be made by those competent to make them4 ,when ,september #aj had come they had finished their work of drafting their ,article1 which constituted government1 the ,first ,article4 ,for the purpose of reaching their decision as to the valid mode of ratification for an ,article of that kind1 they had considered and discussed the existing unlimited ability of the 8people0 or 8conventions0 to make all ,articles1 and the existing limited ability of the state legislatures to make some4 ,the unerring decision which they had made was that their ,articles would not be validly made1 because the ,first ,article constituted national government of men1 unless they proposed a mode of ratification by the 8conventions0 of the ,american people4 ,we note1 with intent to remember1 that they were well aware that drafting and proposing an ,article did not make it valid or part of a ,constitution and that proposing a mode of ratification did not make it a valid mode1 unless the ratifiers were competent to make the proposed ,article4 ,we recall that ,wilson1 who appears in the brief record of ,september #aj1 later made clear the knowledge of those at ,philadelphia that their proposal of ,articles and their proposal of a mode of ratification could not make either valid1 that the making of a proposal is not the exercise of any power4 ,in the ,pennsylvania convention he said3 8,i come now to consider the last set of objections that are offered against this ,constitution4 ,it is urged that this is not such a system as was within the powers of the ,convention2 they assumed the power of proposing4444 ,i never heard1 before1 that to make a proposal was an exercise of power4444 ,the fact is1 they have exercised no power at all2 and1 in point of validity1 this ,constitution1 proposed by them for the government of the ,united ,states1 claims no more than a production of the same nature would claim1 flowing from a private pen40 7#b ,ell4 ,deb4 #dfi-dgj47 ,now1 if ,wilson and the other delegates at ,philadelphia1 on ,september #aj1 knew that to make a proposal was no exercise of power1 they clearly understood that ,madison's ,fifth ,article1 when it stated that ,congress might propose an ,amendment and ,congress might propose a mode of ratification1 was an ,article which purported to grant no power to ,congress4 ,if we recall the truth1 which ,madison so often expressed1 that it is the privilege of any citizen or body of citizens to propose that existing power be exercised1 we realize that1 if the ,fifth ,article had not mentioned ,congress as the maker of either proposal1 ,congress would still have had full ability to make either or both proposals at any time4 ,as the delegates at ,philadelphia knew this as well as we now know it1 as we have been helped to our appreciation of it by them and their statements1 it is apparent how instantly they knew that the mention of ,congress1 as the proposer of an ,amendment and as the proposer of its mode of ratification1 meant that ,congress alone was to be left with--not given--the duty which they had assumed themselves to perform at ,philadelphia4 ,that duty1 as they knew and we now know1 was to draft a proposed ,article and1 after it had been worded1 to examine it and its nature and 7with the validity of their ultimate proposal absolutely determined by that nature7 then to propose the ,article and a mode of ratification for it which would mean ratification by those competent to ratify an ,article of its particular kind4 ,in other words1 they knew that1 whenever ,congress performed the duty they had just performed themselves1 after an ,article had been drafted1 it would be legally necessary for ,congress1 as it had been for them at ,philadelphia1 to consider the existing and different abilities of the 8people0 or 8conventions0 and the state legislatures to make ,articles1 and from that consideration to ascertain a competent ratifier for the particular ,article they had drafted and1 the validity of the ratification to depend entirely on the accuracy of their ascertainment and not on their own proposal of ratification1 to propose a mode of ratification in which that ,article would be made by those competent to make it4 ,with the meaning and effect of a 8proposal0 so clearly known to them all1 with their own immediate recent experience in the performance of the very duty which ,madison's ,fifth ,article left the duty of ,congress in the future1 it was a simple matter for these delegates at ,philadelphia to know exactly what was the only possible meaning of ,madison's words1 when the same 8shall have been ratified by three fourths at least of the legislatures of the several states1 or by conventions in three fourths thereof1 as one or the other mode of ratification may be proposed by the legislature of the ,u4 ,s40 ,how accurately ,madison himself knew all this1 how accurately he knew that the ,philadelphia proposal would validate neither proposed ,articles nor proposed mode of ratification1 and that ,congress proposal in the future would never validate either proposed ,article or proposed mode of ratification1 he has not left to speculation4 ,it was the charge of the opponents of the proposed ,constitution that the ,philadelphia ,convention had exceeded its powers in proposing those ,articles4 ,madison defended himself and his ,philadelphia associates in ,the ,federalist1 ,number #dj1 published in the ,new ,york ,packet on ,friday1 ,january #ah1 #aghh4 ,with his logical mind1 he echoed the knowledge of ,wilson and his other colleagues1 who had drafted and proposed the ,articles and proposed their ratification by the 8people0 or 8conventions0 of the ,seventh and the ,fifth ,articles4 ,it was his knowledge1 as it was their knowledge1 that the ,philadelphia proposals were1 as the future ,congress proposals would be1 no exercise of power and that the validity of any ,article1 proposed at ,philadelphia or proposed by ,congress1 must always depend1 not merely upon its being ratified in the mode proposed respectively by ,philadelphia or by ,congress1 but also--and immeasurably the most important test of valid ratification--upon its being ratified by ratifiers competent to make the particular ,article4 ,it was his knowledge1 as it was their knowledge1 as it is now our knowledge1 that if a proposed ,article directly interfere with or grant power to interfere with human freedom1 as the ,first ,article1 or the ,eighteenth ,amendment1 it can never be validly made by government but only by the 8people0 of the ,tenth ,amendment2 the 8conventions0 of the 8,seventh0 and 8,fifth0 ,articles4 ,among other things1 in his defense of himself and his ,philadelphia associates1 this is what ,madison said of them3 8,they must have reflected1 that in all great changes of established governments1 forms ought to give way to substance2 that a rigid adherence in such cases to the former would render nominal and nugatory the transcendent and precious right of the people to #8abolish or alter their governments as to them shall seem most likely to effect their safety and happiness1' since it is impossible for the people spontaneously and universally to move in concert towards their object2 and it is therefore essential that such changes be instituted by some informal and unauthorized propositions made by some patriotic and respectable citizen or number of citizens4 ,they must have recollected that it was by this irregular and assumed privilege of proposing to the people plans for their safety and happiness that the states were first united against the danger with which they were threatened by their ancient government2 that committees and congresses were formed for concentrating their efforts and defending their rights2 and that conventions were elected in the several states for establishing the constitutions under which they are now governed2444 ,they must have borne in mind that as the plan to be framed and proposed was to be submitted to the people themselves1 the disapprobation of the supreme authority would destroy it forever2 its approbation blot out antecedent errors and irregularities40 ,and so we come from that ,september #aj1 #aghg1 with the accurate knowledge that ,madison then proposed and ,hamilton seconded and all the delegates adopted the first amending ,article which ever mentioned the state governments as makers of any future ,amendments4 ,and we know that they did so with the unmistakable intent and understanding that it changed not at all the existing inability of any governments in ,america to create1 for themselves or for other governments1 any national power to interfere with the citizens of ,america in the exercise of their human freedom4 ,and we also come from that record with the certain knowledge that the ,madison ,fifth ,article of ,september #aj merely provided that1 when future ,articles were suggested1 the ,congress should play the part which the ,philadelphia ,convention was playing1 which part involved no exercise of power of any kind1 and that such part of ,congress should consist in merely proposing an ,article and proposing its mode of ratification4 ,and we also come from that day with the equally certain knowledge1 which we do not intend to forget1 that ,madison himself knew clearly that the valid ratification of future ,articles would depend1 as he knew the valid ratification of the ,philadelphia ,articles did depend1 not on the fact that ratification was in the mode proposed but on the fact that the proposer of a mode of ratification should propose a mode in which the proposed ,article could be made by those competent to make an ,article of its particular kind4 ,for these reasons1 if the supporters of the ,eighteenth ,amendment expect us1 now educated with those earlier ,americans up to and including the record of ,september #aj1 #aghg1 to believe that the ,madison ,fifth ,article1 first worded on that day1 purported to grant or was understood and intended by ,madison and his colleagues to grant any power to the state legislative governments in ,america over ourselves1 the citizens of ,america1 we shall hereafter listen1 with naught but amusement1 to these amateur 8constitutional0 thinkers and their effort to change legal fact into fiction by assumption4 ,confirmed by our education with ,madison and the others who had all to do with the wording and the making of that ,fifth ,article of ,september #aj1 #aghg1 we recognize1 even if these 8constitutional0 thinkers do not recognize1 that we ourselves are the 8conventions0 of the ,fifth ,article in which sit the ,american people to exercise their exclusive ability to grant to government any power to interfere with their individual freedom4 ,we have now1 even if these 8constitutional0 thinkers never have had1 the knowledge of the legal necessity that power of that kind must be derived from ourselves1 the 8people0 of the ,tenth ,amendment and the 8conventions0 of the ,seventh and the ,fifth ,articles--the necessity in #aghg 8felt and acknowledged by all40 ,we know1 as ,marshall knew in one of those 8conventions0 of #aghh and as he knew and stated on the ,bench of the ,supreme ,court1 that there is but one way in which we1 the citizens of ,america1 can act safely or effectively or wisely on the subject of new interference with our individual freedom1 by assembling in our 8conventions10 the 8conventions0 of the ,fifth as well as the ,seventh ,article4 ,and so1 with our knowledge and certainty that the ,madison ,fifth ,article of ,september #aj never could change the status of the free ,american into that of the subject of an omnipotent government1 we come to the last business day of the ,philadelphia ,convention1 ,september #ae1 the only other day on which the ,madison ,fifth ,article1 with its mention of legislative ability to make federal ,articles but not national ,articles1 was ever considered at ,philadelphia4 ,on that day the ,committee of ,style reported the seven ,articles which we now know as our ,constitution4 ,the ,madison amending ,article1 except that 8the legislature of the ,u4 ,s40 was called 8the ,congress10 was identical with that of ,september #aj4 ,as it is important that we ,americans shall never be told anything about the record of ,september #aj or ,september #ae1 in relation to this ,madison ,fifth ,article1 which is not something that is in the record1 that we may be given no distorted version of what happened in that ,convention about the only ,article which ever mentioned state 8legislatures0 as makers of some future ,articles1 we shall have again the pleasure of reading the entire record of ,september #ae4 ,again we read it from the brief of the great 8constitutional0 lawyer of #aibj who argued on the assumption that this ,article1 worded by ,madison1 was intended to make us and did make us1 the citizens of ,america1 the subjects of an omnipotent government1 composed mostly of the client governments whom he represented in the ,court ,room of #aibj4 ,this is his record of the full story of ,september #ae in relation to the ,fifth ,article of ,madison1 from which record this 8constitutional0 lawyer and his associates hope to derive--how we know not--some support for this belief and this argument4 8,mr4 ,sherman expressed his fears that three fourths of the ,states might be brought to do things fatal to particular ,states1 as abolishing them altogether or depriving them of their equality in the ,senate4 ,he thought it reasonable that the proviso in favor of the ,states importing slaves should be extended so as to provide that no ,state should be affected in its internal police1 or deprived of its equality in the ,senate4 8,col4 ,mason thought the plan of amending the ,constitution exceptionable and dangerous4 ,as the proposing of amendments is in both the modes to depend1 in the first immediately1 and in the second1 ultimately1 on ,congress1 no amendments of the proper kind would ever be obtained by the people1 if the government should become oppressive1 as he verily believed would be the case4 8,mr4 ,govr4 ,morris ,mr4 ,gerry moved to amend the article so as to require a ,convention on application of two thirds of the ,sts4 8,mr4 ,madison did not see why ,congress would not be as much bound to propose amendments applied for by two thirds of the ,states as to call a ,convention on the like application4 ,he saw no objection however against providing for a ,convention for the purpose of amendments1 except only that difficulties might arise as to the form1 the quorum etc4 which in ,constitutional regulations ought to be as much as possible avoided4 8,the motion of ,mr4 ,govr4 ,morris and ,mr4 ,gerry was agreed to nem3 con 7see3 the first part of the article as finally past7 8,mr4 ,sherman moved to strike out of art4 ,v4 after #8legislatures' the words #8of three fourths' and so after the word #8,conventions' leaving future ,conventions to act in this matter1 like the present ,conventions according to circumstances4 8,on this motion 8,n4,h4 divd4 ,mas4 ay4 ,ct4 ay4 ,n4,j4 ay4 ,pa4 no4 ,del4 no4 ,md4 no4 ,va4 no4 ,n4,c4 no4 ,s4,c4 no4 ,geo4 no4 7,ayes--#c2 noes--#g2 divided--#a47 8,mr4 ,gerry moved to strike out the words #8or by ,conventions in three fourths thereof' 8,on this motion 8,n4,h4 no4 ,mas4 no4 ,ct4 ay4 ,n4,j4 no4 ,pa4 no4 ,del4 no4 ,md4 no4 ,va4 no4 ,n4,c4 no4 ,s4,c4 no4 ,geo4 no4 7,ayes--#a2 noes--#aj47 8,mr4 ,sherman moved according to his idea above expressed to annex to the end of the article a further proviso #8that no ,state shall without its consent be affected in its internal police1 or deprived of its equal suffrage in the ,senate' 8,mr4 ,madison ,begin with these special provisos1 and every ,state will insist on them1 for their boundaries1 exports1 etc4 8,on the motion of ,mr4 ,sherman 8,n4,h4 no4 ,mas4 no4 ,ct4 ay4 ,n4,j4 ay4 ,pa4 no4 ,del4 ay4 ,md4 no4 ,va4 no4 ,n4,c4 no4 ,s4,c4 no4 ,geo4 no4 7,ayes--#c2 noes--#h47 8,mr4 ,sherman then moved to strike out art4 ,v4 altogether 8,mr4 ,brearley #b;ded the motion1 on which 8,n4,h4 no4 ,mas4 no4 ,ct4 ay4 ,n4,j4 ay4 ,pa4 no4 ,del4 divd4 ,md4 no4 ,va4 no4 ,n4,c4 no4 ,s4,c4 no4 ,geo4 no4 7,ayes--#b2 noes--#h2 divided--#a47 8,mr4 ,govr4 ,morris moved to annex a further proviso--#8that no ,state1 without its consent shall be deprived of its equal suffrage in the ,senate' 8,this motion being dictated by the circulating murmurs of the small ,states was agreed to without debate1 no one opposing it1 or on the question1 saying no40 #aa ,farrand #fbi-fca4 ,at once we notice with interest that these men1 renowned as the marvelous leaders of a people better acquainted with the science of government than any other people in the world1 men who have spent three entire months and fifteen days in their wonderful effort to frame a constitution which will secure 8the ,blessings of ,liberty0 to all ,american individuals and their posterity1 still have no knowledge whatever1 the weird and marvelous knowledge of #aiag and #aibj1 that this ,madison ,fifth ,article gives to the state governments the very omnipotence which the ,american people1 by a successful ,revolution1 had just wrested from the ,british ,parliament4 ,we note with interest ,mason's objection to the ,madison 8mode of procedure0 in which may thereafter be exercised the limited ability of these very state governments to make federal ,articles and the unlimited ability of the people or conventions to make national ,articles4 ,mason's objection1 having direct reference to the grant of national powers in the ,first ,article and his fear 7the continued and expressed fear for the next two years in the 8conventions0 of the ,seventh and the ,fifth ,articles7 that the people may find these enumerated powers oppressive1 is that1 if the people do find them oppressive1 ,congress1 which has these powers1 will never propose an ,amendment to take any of these powers away from ,congress4 ,for which reason ,morris and ,gerry moved to amend the ,article so that1 if ,congress does not propose an ,amendment for which there seems to be a demand1 the legislatures of two thirds of the states may insist that ,congress call a convention and that such convention may propose an ,amendment4 ,this suggestion was carried4 ,we next find ,sherman moving to strike out the words 8three fourths0 after the word 8legislatures0 and after the word 8conventions40 ,this motion was defeated4 ,we next find1 and we fix firmly in our mind with intent never to forget1 that ,gerry moved to strike out of ,madison's ,article all reference to the 8people0 of the ,preamble and the ,tenth ,amendment1 the 8conventions0 of the ,seventh and the ,fifth ,article1 as the makers of any future ,articles or changes in the ,constitution4 ,his motion was 8to strike out the words #8or by conventions in three fourths thereof4'0 ,as almost every one1 during the last five years1 including the sponsor of the ,eighteenth ,amendment in the ,house of ,representatives1 seems to have had an edition of our ,constitution1 in which the ,fifth ,article does not contain these words1 and as everyone1 during the same five years1 has argued and acted as if these words were not in the ,fifth ,article or have no meaning whatever of the slightest importance1 we intend to note and never forget that ,gerry's motion to strike these words out was beaten by a vote of ten to one4 ,as we know1 the 8people0 of ,america themselves are identified by the word 8conventions0 in this ,fifth ,article1 just as they are identified by the same word in the ,seventh ,article4 ,as we know1 we ourselves--the posterity of the 8people0 of the ,preamble--are identified by this word 8conventions0 in the ,fifth ,article1 just as we are identified in the ,tenth ,amendment as the most important reservee thereof by the word 8people40 ,wherefore our interest in this motion of ,gerry and its overwhelming defeat is only exceeded by our absolute amazement1 for the last five years1 at the universal ignorance of the fact that it was defeated and of the fact that we are mentioned in the ,fifth ,article as the only competent makers of any new ,articles which either directly interfere or grant power to interfere with our individual freedom4 ,we do not know1 and to an extent we do not care1 what was the purpose of ,gerry4 ,gerry was always an opponent of a ,constitution which vested national power in a general government4 ,he was an advocate of the continued complete independence of each state and its government and of a mere federal union of states with a purely federal constitution4 ,he was also always a consistent ,tory in his mental attitude as to the relation of human being to government4 ,if he had been successful in striking out any mention of ourselves1 the 8people0 or 8conventions10 leaving only the mention of the state legislatures1 with their existing ability to make federal ,articles1 it would have been impossible that any further national power 7beyond the grants of the ,first ,article7 be vested in the general government or taken from each state government1 as only we ourselves could make national ,articles like the ,first4 ,we surmise that a mixture of his ,tory mental attitude and his opposition to a general national government 7which minimized the importance and diminished the independent sovereignty of each state government7 prompted his motion4 ,that his motion was overwhelmingly defeated is the only important fact for us ,american citizens4 ,we shall not forget it even if our leaders and our 8constitutional0 thinkers forget it and ignore it4 ,we have no further interest in the short record of that ,september #ae4 ,no other change was made in the ,madison ,fifth ,article except to take out of it any constitutional mode of procedure for the exercise of the existing ability of ourselves1 the 8people0 or 8conventions10 to deprive any state of an equal representation in the ,senate with every other state4 ,we still can do that1 but we have no constitutional mode of procedure under the ,fifth ,article by which we can exercise our ability to do it4 ,this change was not1 however1 as so many have absurdly thought1 an exception to an imaginary power which we ourselves1 the 8conventions0 of the ,seventh ,article and the 8people0 of the ,preamble and the ,tenth ,amendment1 in those very 8conventions10 8granted0 to ourselves1 the same 8people0 and 8conventions0 mentioned in the ,fifth ,article4 ,it was a recognition of our existing ability1 about to be exercised in those 8conventions10 the ability of the supreme will in ,america to deprive any state of its equal representation in the ,senate2 and it was our own exclusion of that ability from any constitutional exercise4 ,the reflecting mind will remember that1 in the heated arguments at ,philadelphia1 there was strong sentiment in favor of asking us1 the people of ,america1 the 8conventions0 of the ,seventh ,article1 to exercise our exclusive ability in that very respect and make the ,senate a body composed of members elected from larger proportions of the people than the members of the ,house of ,representatives4 ,it was the recollection of that effort which prompted the request that our exclusive ability to do that very thing should not be provided with a constitutional mode of future exercise4 ,we average ,americans may now leave1 in our present education1 the entire story of that wonderful ,convention at ,philadelphia4 ,we leave it with a knowledge of our ,constitution we never had until we had lived with those ,americans through the actual record of those three months and seventeen days from the end of ,may to ,september #ag1 #aghg4 ,we bring from it a knowledge that brooks no contradiction4 ,we are certain that nothing in any of the ,articles proposed at ,philadelphia purported to give the state legislatures any power of any kind whatever1 in the ,fifth ,article or anywhere else1 either to interfere with the individual freedom of the ,american citizen or to grant the power of such interference to themselves or to our only government1 the ,congress4 ,we bring from that ,convention the knowledge that1 unless something in the conventions of the ,american people1 the 8conventions0 of the ,seventh ,article and the ,fifth ,article1 changed the free men of ,america1 the citizens of ,america1 into subjects of an omnipotent legislative government1 we ourselves in #aibc are still the citizens of ,america and possessors of the supreme will in ,america and are subjects of no government or governments in the world4 ,,chapter ,,xi ,,conventions ,,create ,,government ,,of ,,men ,the ,constitution is a written instrument4 ,as such its meaning does not alter4 ,that which it meant when adopted it means now4 ,being a grant of powers to a government its language is general4444 ,while the powers granted do not change1 they apply from generation to generation to all things to which they are in their nature applicable4 ,this in no manner abridges the fact of its changeless nature and meaning4 ,those things which are within its grant of power1 as those grants were understood when made1 are still within them1 and those things not within them remain still excluded4 7,justice ,brewer1 in the ,supreme ,court1 ,south ,carolina v4 ,united ,states1 #aii ,u4 ,s4 #dcg1 at p4 #ddh47 ,it is not only the same in words1 but the same in meaning1 and delegates the same powers to the government1 and reserves and secures the same rights and privileges to the citizen2 and as long as it continues to exist in its present form1 it speaks not only in the same words2 but with the same meaning and intent with which it spoke when it came from the hands of its framers1 and was voted on and adopted by the people of the ,united ,states4 7,scott v4 ,sandford1 #ai ,how4 #cic1 p4 #dbf47 ,from which common sense statements of what always has been both reason and law1 we know that whatever the ,fifth ,article meant to those who made it1 in the conventions named in it as well as in the ,seventh ,article1 it means today4 ,there is no better way in which we can grasp its meaning to the ,american people assembled in those conventions1 than by sitting with them and reading it as they read it1 with their fresh knowledge of all the wonderful things in which they had participated from the ,statute of '#gf to the proposal from ,philadelphia of #aghg4 ,as we have just lived through all that period with them1 we are in a wonderful position to read it and understand it as they understood it4 ,moreover1 we are in a wonderful position to listen to the statements of the men in those 8conventions40 ,in those statements1 whether by advocates or opponents of the ,constitution1 we shall find the invincible negation--without one dissent--of the absurd assumption that ,madison's ,fifth ,article is a 8grant0 of any ability to make ,articles4 ,in those statements1 we shall find all discussion of that ,fifth ,article centering upon the one question1 i4e41 whether it provides a practical mode of procedure in which the exclusive ability of the 8people0 or 8conventions0 can defend individual rights by withdrawal of some part of the power of interference therewith granted in the ,first ,article4 ,mason had pointed out at ,philadelphia that the procedural provisions of the ,fifth ,article--and it consists entirely of procedural provisions for the exercise of existing powers--left the drafting and proposal of ,amendments entirely to governments4 ,for which reason1 in the 8conventions10 ,henry and all the great opponents of the ,constitution argued that1 if the individual ,americans found the granted national powers of the ,first ,article dangerous to human liberty1 the 8people0 or 8conventions0 would never get the constitutional opportunity to exercise their ability to withdraw4 8,you0--the 8you0 being the individual ,americans assembled in one convention--8therefore1 by a natural and unavoidable implication1 give up your rights to the general government4444 ,if you give up these powers10 the enumerated powers of the ,first ,article1 8without a bill of rights1 you will exhibit the most absurd thing to mankind that ever the world saw--a government that has abandoned all its powers--the powers of direct taxation1 the sword1 and the purse4 ,you have disposed of them to ,congress1 without a bill of rights--without check1 limitation1 or control4 ,and still you have checks and guards2 still you keep barriers--pointed where8 ,pointed against your weakened1 prostrated1 enervated state government6 ,you have a bill of rights to defend you against the state government1 which is bereaved of all power1 and yet you have none against ,congress1 though in full and exclusive possession of all power6 ,you arm yourselves against the weak and defenseless10 the state legislatures mentioned in the ,fifth ,article1 8and expose yourselves naked to the armed and powerful4 ,is not this a conduct of unexampled absurdity80 ,so thundered ,henry in the ,virginia convention4 7#c ,ell4 ,deb4 #ddf47 8,to encourage us to adopt it1 they tell us that there is a plain1 easy way of getting amendments4 ,when ,i come to contemplate this part1 ,i suppose that ,i am mad1 or that my countrymen are so4 ,the way to amendment is1 in my conception1 shut4 ,let us consider this plain1 easy way40 ,then follows the verbatim statement of the ,madison ,fifth ,article as proposed from ,philadelphia4 8,hence it appears that three fourths of the states must ultimately agree to any amendments that may be necessary4 ,let us consider the consequence of this4 ,however uncharitable it may appear1 yet ,i must tell my opinion--that the most unworthy characters may get into power and prevent the introduction of amendments4 ,let us suppose--for the case is supposable1 possible1 and probable--that you happen to deal those powers to unworthy hands2 will they relinquish powers already in their possession1 or agree to amendments8 ,two thirds of the ,congress1 or of the state legislatures1 are necessary even to propose amendments4444 ,to suppose that so large a number as three fourths of the states will concur is to suppose that they will possess genius1 intelligence1 and integrity1 approaching to miraculous4 ,it would indeed be miraculous that they should concur in the same amendments1 or even in such as would bear some likeness to one another2 for four of the smallest states1 that do not collectively contain one tenth part of the population of the ,united ,states1 may obstruct the most salutary and necessary amendments4 ,nay1 in these four states1 six tenths of the people may reject these amendments4444 ,so that we may fairly and justly conclude that one twentieth part of the ,american people may prevent the removal of the most grievous inconveniences and oppression1 by refusing to accede to amendments4 ,a trifling minority may reject the most salutary amendments4 ,is this an easy mode of securing the public liberty8 ,it is1 sir1 a most fearful situation1 when the most contemptible minority can prevent the alteration of the most oppressive government2 for it may1 in many respects1 prove to be such40 7#c ,ell4 ,deb4 #dh47 ,so thundered ,henry against the weakness of the ,madison procedure in which only by proposal from governments could there be constitutionally evoked the exclusive ability of the citizens of ,america to dictate how much power to interfere with individual freedom should be left for the citizens of each state to use in governing themselves1 and how much power of that kind should be retained by the individual people of ,america themselves4 ,henry was opposing a ,constitution in which the individual people of ,america were dictating that their general government1 the ,congress1 should have only the enumerated powers of that kind which are in the ,first ,article4 ,in it1 they were dictating that each state government1 except as the ,american people forbade it1 should have just so much of that kind of power as the citizens of that particular state should grant that government4 ,and in it1 they were dictating that the people of ,america themselves1 the most important factor and reservee of the ,tenth ,amendment1 should retain all other power of that kind to be granted only by themselves1 the 8conventions0 of the ,madison ,fifth ,article4 ,throughout all his thunder against that ,constitution1 ,henry1 like every other opponent of that ,constitution1 never questioned that this was the exact distribution of power to interfere with individual freedom which was dictated in the ,constitution4 ,his only complaint1 and their only complaint1 was that the ,madison ,fifth ,article1 because its constitutional procedure could only be evoked by a proposal from governments1 was no protection to human liberty against the granted power of that kind in the ,first ,article4 ,the absurd thought of our modern 8constitutional0 thinkers 7contradicting the plain statement of the ,tenth ,amendment and contradicting everything that was said in the 8conventions0 that made the ,fifth ,article7 is that the ,article itself is a 8grant0 of omnipotent power to governments 7the legislative governments of the states7 to interfere with individual freedom4 ,when we contrast the knowledge of ,henry and his colleagues with the modern absurdity1 we echo ,henry's words and exclaim1 8,we suppose that we are mad1 or that our modern constitutional thinkers are so40 ,if ,henry had read into that ,fifth ,article1 if the opponents of the proposed ,constitution had read into it1 any 8grant0 of ability to state governments1 certainly it was an absurdity for him to refer to those governments as 8weakened1 prostrated1 enervated0 by the proposed ,constitution4 ,and so1 educated in the experience of those ,americans who assembled in those 8conventions0 named in the ,seventh and ,fifth ,articles1 we sit with them in the conventions of that earlier day and read that ,fifth ,article with them1 while they decide to make it with the six other ,articles4 ,living through their experience1 like them we have become 8a people better acquainted with the science of government than any other people in the world10 so far as government is intended to secure individual liberty and happiness4 ,when we sit with them1 we intend not to forget1 as they never did forget in those conventions1 that this was the sole purpose of the ,constitution they considered and made1 the purpose of securing individual liberty and happiness4 ,in this respect1 they differed in their whole philosophy of government with the new school of thought that1 in our day1 has its different manifestations of exactly the same philosophy of government on the part of the ,bolshevik in ,russia and the minority in ,america which has dictated that government enactment of the new constitution of government1 known as the ,eighteenth ,amendment4 ,the ,americans of '#gf and '#hg set the individual liberty and freedom of man above everything in this world except the ,divine ,will of the ,creator of man4 ,in the ,preamble of their ,constitution1 they echo the declarations of their ,statute of '#gf4 ,their creed was that the laws of right and wrong are immutable2 that the ,creator made the individual man and granted human freedom to him2 that such freedom is inherently subject only to the ,divine ,will1 the immutable law of right and wrong1 but that it may voluntarily become subject1 by the will of the individual man1 to the exercise of powers of interference which only he and his fellow men themselves can ever validly grant to government4 8,but what is government itself1 but the greatest of all reflections on human nature8 ,if men were angels1 no government would be necessary4 ,if angels were to govern men1 neither external nor internal controls on government would be necessary4 ,in framing a government which is to be administered by men over men1 the great difficulty lies in this3 ,you must first enable the government to control the governed2 and in the next place1 oblige it to control itself40 7,madison or ,hamilton1 ,fed4 ,no4 #ea47 ,when we sit in the conventions of #aghg and #aghh with the ,americans who had this common concept of the only purpose of government of men1 their concept is our own as we read with them the language of the ,fifth ,article4 ,and it is impossible for us1 as it is impossible for them1 to find concealed in that language the thought of a 8grant0 to government1 a 8grant0 which would challenge this concept of the very purpose of government4 ,they are sitting in 8conventions0 assembled to determine whether ,american individuals will enter into the new society of men1 which is to be ,america4 ,they have received the ,fifth ,article from ,americans in ,philadelphia1 who have accompanied the proposal of that ,fifth ,article with a letter which states1 8,individuals entering into society must give up a share of liberty1 to preserve the rest40 ,this statement is recognized by the ,americans1 in the 8conventions0 where we sit1 as the exact statement of the concept of the sole purpose of a government of men4 ,with that concept and that letter before us1 how can we or the ,americans with whom we sit find in the ,fifth ,article the remarkable idea that ,americans1 entering the society of ,america1 are to give up all their liberties to the state governments in order that ,americans may preserve the rest of their liberties8 ,in these modern days1 however1 there has asserted itself1 in ,bolshevik ,russia and in the ,america of which we are the citizens1 two distinct manifestations of an entirely different concept of the purpose of government than was the concept of the ,americans in the 8conventions40 ,although the manifestation of the new concept by the ,bolshevik in ,russia has been different from the manifestation of the new concept by an aggressive and organized minority in ,america1 the new concept1 at the bottom of each manifestation1 is exactly the same4 ,it is the concept that the purpose of constituting a government of men is to secure the welfare of the state or community or nation and not the liberty and happiness of the individuals who compose the nation4 ,this is the exact concept of the ,bolshevik ,russian and the ,eighteenth ,amendment ,american4 ,to neither of them would the words of that letter from ,philadelphia convey the slightest meaning1 the words 8individuals entering into society must give up a share of liberty1 to preserve the rest40 ,in their mutual concept1 the individual has no liberty which government need respect4 ,in the ,bible of their concept1 men cannot find the words which declare the basic ,american principle1 that every just power of government must come from the individuals who are to be governed by its exercise4 ,it is1 however1 a misnomer to call this common concept of the ,bolshevik ,russian and the ,eighteenth ,amendment ,american a new concept4 ,it is identical with the old concept known as 8,socialism10 the concept that community welfare1 the prosperity and power and strength of a nation1 are more important things than individual liberty and happiness and enjoyment of human freedom4 ,it is a concept which sets the state 7a political entity created by men7 and the welfare of the state above what the ,americans of '#gf and '#hg knew and proclaimed to be superior to all human creations1 namely1 the individual man1 the noblest creation of the ,divine ,creator4 ,in other words1 the common concept of the ,bolshevik ,russian and the new ,amendment ,american is but the reaction to the century-old concept whose repudiation was the main theme of the ,declaration of ,independence1 the concept that individual men1 the creation of ,god1 are made for kings or governments or political entities4 ,to those who hold such a concept there comes no shock when they are asked to imagine that the language of the ,fifth ,article implies a grant of ability to the state governments to do what those governments will with the liberties of the citizens of ,america4 ,but we are sitting in 8conventions0 of ,americans of a different type1 ,americans who1 eleven years earlier1 have repudiated forever the concept that men are made for kings or governments or political entities4 ,and1 if we wish to know what the ,americans in these conventions think of the concept of the ,bolshevik ,russian and the ,eighteenth ,amendment ,american1 we get our wish from the man who wrote the language of the ,fifth ,article4 8,we have heard of the impious doctrine in the ,old ,world10 the reactionary doctrine of modern ,russia and of our own aggressive minority1 manifested in two different disguises1 8that the people were made for kings1 not kings for the people4 ,is the same doctrine to be revived in the ,new1 in another shape--that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form8444 ,as far as the sovereignty of the states can not be reconciled to the happiness of the people1 the voice of every good citizen must be1 ,let the former be sacrificed to the latter4 ,how far the sacrifice is necessary1 has been shown4 ,how far the unsacrificed residue will be endangered1 is the question before us40 ,this is the language of ,madison1 in ,the ,federalist1 ,number #de1 asking the individual ,americans to make the ,constitution to secure their individual happiness4 ,it will amaze us later herein to hear the thought of our modern 8constitutional0 thinkers that his ,fifth ,article makes the state governments 7from whom that ,constitution took sovereignty to secure the individual happiness of the ,american citizen7 a supreme and omnipotent government of the ,american citizens1 a government knowing no will but its own4 ,meanwhile let us forget this latter day nonsense and breathe again the real ,american atmosphere1 where individuals1 entering a society1 give up a share of their liberty1 to preserve the rest4 ,let us sit with the real 8constitutional0 thinkers of ,america as they sat in the conventions and read with them the ,fifth ,article worded by ,madison4 ,this is what they read3 ,,article ,v ,the ,congress1 whenever two thirds of both ,houses shall deem it necessary1 shall propose ,amendments to this ,constitution1 or1 on the ,application of the ,legislatures of two thirds of the several ,states1 shall call a ,convention for proposing ,amendments1 which1 in either ,case1 shall be valid to all ,intents and ,purposes1 as ,part of this ,constitution1 when ratified by the ,legislatures of three fourths of the several ,states1 or by ,conventions in three fourths thereof1 as the one or the other ,mode of ,ratification may be proposed by the ,congress2 ,provided that no ,amendment which may be made prior to the ,year ,one thousand eight hundred and eight shall in any ,manner affect the first and fourth ,clauses in the ,ninth ,section of the first ,article2 and that no ,state1 without its ,consent1 shall be deprived of its equal ,suffrage in the ,senate4 ,sitting with these ,americans1 in their 8conventions10 we note immediately1 as they note1 that the ,article names themselves4 ,and we note1 as they note1 that it names themselves1 the individual ,american citizens1 the 8people0 of the ,preamble and the ,tenth ,amendment1 by exactly the same name1 8conventions10 as in the ,seventh ,article and as in the ,resolution of the ,philadelphia ,convention1 which proposed the only valid mode of ratification for the constitution of government of men in the ,first ,article1 the mode which required ratification by the individual ,americans themselves1 the 8conventions0 of the ,seventh and the ,fifth ,articles4 ,we cannot help noting it--as we intend never to forget it--because we are sitting with them1 as the people of ,america1 in the very 8conventions0 so named in the ,seventh ,article4 ,having their vital and accurate knowledge of the difference between federal and national ,articles1 that only the latter kind exercises or grants power to interfere with individual human freedom1 we recognize at once why the state legislatures are also mentioned in the ,fifth ,article1 although they never can make national ,articles4 ,we know it is because those 8legislatures10 as the ,tenth ,amendment expressly declares1 retain their existing ability to make federal ,articles or ,articles which neither exercise nor grant power to interfere with individual freedom4 ,and1 sitting in those 8conventions10 where ,hamilton also sits1 we recall his remarkable prophecy1 just made to us in ,the ,federalist1 as we were about to enter the 8conventions0 with the other ,americans therein4 8,for my own part1 ,i acknowledge a thorough conviction that any amendments which may1 upon mature consideration1 be thought useful1 will be applicable to the organization of the government1 not to the mass of its powers40 7,fed4 ,no4 #he47 ,in that absolutely accurate advance knowledge of the complete history of constitutional amendment from #aghi to #aiag1 we recognize the motive which prompted ,madison and ,hamilton1 on ,september #aj1 #aghg1 to add the mention of those legislative governments to the ,fifth ,article mention of the exclusive ability of the people or 8conventions0 to make all future ,articles which do relate to the 8mass of its powers0 to interfere with individual freedom conferred upon the one government of ,america4 ,we understand that these legislative governments are mentioned in the ,fifth ,article1 which we are now reading in the 8conventions0 of old1 because those 8legislatures0 have an existing ability to make federal ,articles which relate to other things than the national power of government to interfere with individual freedom4 ,having thus satisfied ourselves1 in those conventions1 that we ourselves1 the 8people0 of ,america1 are mentioned in the ,fifth ,article as the sole makers of any future ,article which exercises or grants power to interfere with our individual freedom1 we turn with interest to the procedure which the ,article establishes as the only constitutional mode of procedure in which that exclusive ability of our own may hereafter be evoked to exercise and be exercised4 ,from the language of the ,article itself1 we know at once that it is simply the statement of a mode of procedure in which our own unlimited ability or the limited ability of the state legislatures1 when the occasion seems to arise for the respective exercise of either ability1 are hereafter to be evoked by some body of men1 playing the part which the ,philadelphia ,convention has just played in evoking our own exclusive ability1 the ability of the 8people0 or 8conventions40 ,outside the language of the ,fifth ,article itself1 many other things make that fact clear to us4 ,for instance1 we recall what ,madison has just told us4 ,he had written this ,article at ,philadelphia4 ,then1 asking the ,american people to prescribe this constitutional mode of procedure for the future exercise of either respective existing ability1 he has explained to us1 just before the convention in which we sit1 what the ,fifth ,article means4 8,that useful alterations will be suggested by experience1 could not but be foreseen4 ,it was requisite1 therefore1 that ,a ,,mode ,,for ,,introducing ,,them should be provided4 ,the mode preferred by the ,convention seems to be stamped with every mark of propriety4 ,it guards equally against that extreme facility1 which would render the ,constitution too mutable2 and that extreme difficulty1 which might perpetuate its discovered faults4 ,it1 moreover1 equally enables the general and ,state governments ,,to ,,originate the amendment of errors1 as they may be pointed out by the experience on one side1 or on the other40 7,fed4 ,no4 #dc474 ,sitting in the conventions of more than a century ago1 we are naturally uninfluenced 7in our reading of plain ,english7 by the story of a century which has not even yet begun1 the century that later began in #ahjj4 ,and so we get from his own words the knowledge that the author of the ,fifth ,article knew it to be nothing but a constitutional mode of procedure1 for the future exercise of either ability to make ,articles4 ,we see that the mode leaves with either 8the general and state governments0 the ability to propose an ,amendment to those with existing power to make the particular proposed ,amendment4 ,and we note1 with intent to remember1 that the author of the ,fifth ,article1 while he tells us about this reservation of existing abilities to propose amendments1 pointedly does not tell us that the ,article grants any power to any government or governments to make ,amendments4 ,in other words1 we know that the ,fifth ,article reserves to the general government and to the state governments exclusively what otherwise they and every one else would have had--what ,madison himself called 8the unauthorized privilege of any respectable citizen or body of citizens0--the ability to propose1 but that it does not grant to any of those governments or all of them collectively the ability which none of them ever had or can have1 the ability to make1 constitutional ,articles of a national kind1 which relate to interference with individual freedom4 ,with this knowledge confirmed by the clear statement of the author of the ,fifth ,article1 we read with interest its procedural provisions about the originating of new ,articles1 about their drafting and their proposal and the proposal of a mode of ratification for them1 after they have been drafted and their nature has determined who can make them4 ,sitting in those conventions of old1 we are in the company of many of the men who were at the ,philadelphia ,convention4 ,in ,virginia we see ,madison and ,randolph and ,mason and others2 in ,new ,york we see ,hamilton and others2 in ,pennsylvania we see ,wilson and others2 in ,south ,carolina we see the ,pinckneys and others4 ,that is our experience in all the conventions4 ,on all sides1 among the ,american people assembled therein1 are those familiar with and talking about the work at ,philadelphia and the great debate there1 in which was ascertained1 from the character of the ,articles drafted there1 which maker of ,articles1 the state legislatures1 with their existing ability to make federal ,articles1 or the 8people0 themselves1 the 8conventions10 with their existing unlimited ability to make all ,articles1 could make the ,articles drafted and about to be proposed4 ,these men1 by their presence and their words1 remind us how the nature of their ,first ,article1 the fact that it constituted government to interfere with human freedom1 compelled the announcement of the decision that legislative governments could never make that kind of an ,article4 ,these men1 by their presence and their words1 remind us how they reached the ascertainment of the fact which compelled their ,proposing ,resolution to propose a mode of ratification by the 8people0 themselves1 by the 8conventions0 of the ,seventh and the ,fifth ,articles4 ,they remind us1 as one of the men with us later said in the ,supreme ,court1 that all assembled in our 8conventions0 feel and acknowledge the legal necessity that every power to interfere with individual freedom must be derived by direct grant from the people4 ,and1 sitting in those conventions with them1 where we all read the ,fifth ,article they are asked to make1 we recognize with certainty that it prescribes that the ,congress shall do exactly what the ,philadelphia ,convention has just done--propose1 and nothing more4 ,the words of the ,fifth ,article tell us that only ,congress shall draft and propose a new ,article1 just as the ,philadelphia ,convention drafted and proposed its new ,articles2 that1 after ,congress has drafted its new ,article and is about to propose it1 just as the ,philadelphia ,convention did1 when it exercised no power at all1 ,congress shall examine carefully the nature of the drafted ,article and1 having ascertained by such examination which existing ability to make ,articles 7the limited ability of legislative governments or the unlimited ability of the 8people0 or 8conventions07 is competent to make that particular ,article1 ,congress shall propose ratification by the ability which can make the proposed ,article4 ,we are not misled because the ,article prescribes this one constitutional mode to evoke the existing limited ability or the existing unlimited ability4 ,providing a ,,constitutional mode for the exercise of either does not lessen one ability or increase the other4 ,by reason of our education1 we know the difference between the revolutionary exercise of existing power and the constitutional exercise of existing power4 ,because we have become of the 8people better acquainted with the science of government than any other people in the world10 we know that to do something in a revolutionary manner does not necessarily mean to do it by bloodshed or on the battle-field4 ,we know that to do something in a revolutionary manner means to do it outside of any legally prescribed mode of procedure for the exercise of existing power4 ,we know that to do the same thing1 in a constitutional mode1 is to do it in some mode prescribed by human law or constitution4 ,and that is why we understand1 as did the men with whom we are sitting in those conventions1 that ,congress1 in the future1 is to do exactly what the ,philadelphia ,convention did and nothing more4 ,congress is to do it constitutionally 7where the ,philadelphia ,convention did it outside of any human law and in a revolutionary manner7 because the ,fifth ,article commands that ,congress alone shall do it4 ,congress1 when doing it1 will be exercising no power4 ,the ,philadelphia ,convention exercised no power when it did exactly the same things4 ,and1 when ,congress does it1 ,congress will be bound1 as ,philadelphia was bound1 to ascertain and propose the mode of ratification by which the proposed ,article will be ratified by ratifiers competent to make that particular kind of an ,article4 ,as we sit in the 8conventions0 and keep clearly in our mind that the 8conventions0 and the 8state legislatures0 7both of which are mentioned in the ,fifth ,article7 each have existing but very different abilities to make ,articles1 every part of the language of the ,fifth ,article confirms our knowledge that the whole ,article is no 8grant0 of power but is a 8constitutional0 mode for the exercise of existing powers4 ,long after the conventions in which we sit1 the ,supreme ,court paid the tribute to those who wrote the ,fifth ,article that they were 8masters of apt1 precise and classic ,english40 ,keeping this thought in mind1 our attention is directed to the three-time use of the one word 8propose0 in the ,fifth ,article4 ,we know that to use the same word three times in one sentence is very poor ,english unless there is a distinct and definite intent and purpose that the meaning each time shall be identically the same4 ,such definite intent and purpose is the only deduction from what would otherwise be the inexcusable tautology of the language of the ,fifth ,article4 ,so1 when we read that ,congress 8shall propose amendments0 or shall 8call a convention for proposing ,amendments0 and that 8one or the other mode of ratification may be proposed by the ,congress10 we know with certainty that each use of the word 8propose0 is intended to convey an identical shade of meaning4 ,from which we know that1 as the proposal of a new ,article 7by ,congress or a ,convention7 will be a mere proposal and will not make the proposed ,article valid1 so also the ,congress proposal of a mode of ratification will remain a mere proposal and will not make that proposed mode valid for that proposed ,article1 unless its proposed ratifiers are competent to make that particular kind of an ,article4 ,this is what they had just known at ,philadelphia about their own proposals 7both of ,articles and of mode of ratification7 to us as we sit in the 8conventions40 ,and so1 in these conventions1 we know the proposals mentioned in the ,fifth ,article to be identical 7in nature7 with the proposals made from ,philadelphia4 ,we know the procedure outlined in the ,fifth ,article to be exactly the same procedure as has just been followed at ,philadelphia4 ,we know that our ratification 7in these 8conventions07 of that procedure will be our approval of the procedure they followed at ,philadelphia and will be its prescription as the ,,constitutional procedure hereafter to be followed when either existing ability1 that of the state governments or that of ourselves in 8conventions10 is to be hereafter evoked to exercise4 ,from all of which we recognize that1 if ,congress should propose a mode of ratification by state legislatures and the proposed ,article is a grant of power to interfere with the individual liberty of the ,american citizen1 the state legislatures will remain just as incompetent to make that ,article as they were known to be at ,philadelphia when ,madison and his colleagues held them to be incompetent to make their proposed ,article of that kind1 the ,first ,article4 ,and so we understand that the mere ,congress proposal of a mode of ratification 7for such an ,article7 by state governments will not give state governments ability to make such an ,article4 ,sitting in those old conventions1 we now have read the procedural provisions of the ,fifth ,article up to the point where proposals bring1 in a constitutional manner1 a proposed new ,article to makers with existing ability to make the particular ,article which has come to them4 ,we now read with interest the next chronological step of the procedural provisions1 the mention of the two existing makers of ,articles--the state legislatures1 makers of federal or declaratory ,articles1 and the 8conventions0 of the ,american citizens1 makers of any ,article4 ,we are actually sitting in 8conventions0 identical with those named in the ,fifth ,article4 ,we are in the 8conventions0 mentioned in the ,seventh ,article and named therein by exactly the same word as is used in the ,fifth ,article1 the word 8conventions40 ,both ,seventh and ,fifth ,articles have been worded at ,philadelphia4 ,we1 assembled in the 8conventions0 named in the ,seventh ,article1 are the whole ,american people4 ,in our conventions1 so assembled1 we are to make both the ,seventh and the ,fifth ,articles1 with their common use of exactly the same word 8conventions40 ,and so we understand1 with a knowledge which nothing can disturb1 that the 8conventions0 of the ,fifth ,article mean exactly what the 8conventions0 of the ,seventh ,article mean4 ,thus we know1 with knowledge which nothing can disturb1 that the 8conventions10 named in both ,articles1 are the ,american people1 only competent makers 7in #aghg or at any future time7 of national ,articles which interfere with or grant power to interfere with the individual freedom of the ,american citizen4 ,we recall vividly the proposal that came from ,philadelphia eleven years earlier or in #aggf1 that the ,americans in each former colony constitute a government with such powers to interfere with the human freedom of its citizens4 ,we recall that such governments were constituted in what ,marshall states to be the only way in which men can act safely1 effectively or wisely1 when constituting government of themselves1 namely1 by assembling in 8conventions40 ,we also recall vividly the proposal that came from the same ,philadelphia a year later or in #aggg1 that the states constitute a federal government of states4 ,and we recall that the state legislatures1 because they possessed existing ability to make federal ,articles1 did validly make the federal ,articles suggested in that proposal4 ,we also recall1 that the new ,constitution1 which is before us in the 8conventions0 named in the ,seventh ,article1 is to be both a national ,constitution1 constituting government of men1 and a federal ,constitution1 constituting government of states4 ,and we recall that only one of the present ,articles in that proposed ,constitution1 the ,first ,article1 constitutes government of men by granting government power to interfere with individual freedom4 ,and we recall1 with ,hamilton in the ,convention beside us1 the probability that all future ,articles in that dual ,constitution1 will probably be of the federal or the declaratory kind which the existing ability of state legislatures can make4 ,and so we understand why ,madison and ,hamilton1 in their ,fifth ,article1 mention that existing ability of the state legislatures to make ,articles which do not relate to interference with individual freedom1 as well as they mention our own exclusive ability1 the ability of the 8conventions0 of the ,american people1 to make ,articles which do relate to interference with individual freedom4 ,and1 sitting in those conventions with the 8people better acquainted with the science of government than any other people in the world10 when we read the language of the ,fifth ,article1 it is impossible for us to make the monumental error of assuming that the mention of the two existing abilities adds anything to one or subtracts anything from the other4 ,and so1 with our minds in those 8conventions0 free from any possibility of such monumental error1 we now read and clearly understand the most important words in the constitutional mode of procedure for existing powers1 which we know as the ,fifth ,article4 ,to none of the ,americans in those conventions is there any doubt1 to no ,american1 who understands what ,america is1 can there ever be any doubt1 what are the most important words4 ,they are the words 8in three fourths thereof0 immediately following the words which name the very kind of 8conventions0 in which we sit4 ,these words1 8by conventions in three fourths thereof10 bring home to us the marvel of what our 8conventions0 are doing4 ,in them sit the people of ,america1 possessors of the supreme will in ,america1 assembled in their respective states1 as free men and not as the citizens of the particular state in which each convention of ,americans assembles4 ,we realize1 as the ,preamble of the ,constitution before us expressly declares1 what is the first proposal upon which we act affirmatively1 when we say 8,yes0 to the whole proposal from ,philadelphia4 ,the first effect of that 8,yes0 is that we1 that part of the ,american people in that particular state1 do consent 7with the ,americans in eight or more other willing states7 to join the new nation or political society of men1 which is to be ,america1 and that we consent to be1 with those other ,americans1 the citizens of the new nation as soon as the ,americans in eight other willing states give their similar 8,yes40 ,we are well aware1 as we sit in one of the 8conventions10 that the ,philadelphia proposal has left it open for the free ,americans in each state to become members or not of the new society as they please1 and that1 therefore1 the joining of that society1 by the ,americans in at least nine states1 will mean that the new nation is created by unanimous action of the majority in every state whose ,americans become citizens of ,america4 ,from which we realize that the original grants of national power by its citizens to the only government of the new nation will be the second effect of the 8,yes0 from the ,americans in nine conventions4 ,thus these original grants1 the ,first ,article grants of enumerated power to interfere with the individual freedom of the ,american citizen1 will be made simultaneously by the majority of ,americans in every state where ,americans become citizens4 ,but1 once these early ,americans leave those first 8conventions10 the whole ,american people will constitute the members or citizens of the new nation1 ,america4 ,the people of these ,united ,states constitute one nation4 ,they have a government in which all of them are deeply interested4 7,justice ,miller in the ,supreme ,court1 ,crandall v4 ,nevada1 #f ,wall4 #ce47 ,as in any other republican nation1 all national powers must be granted by its members or citizens4 ,any future national power1 not granted by the citizens themselves1 will be neither just nor valid because power of the ,american government to interfere with the freedom of the ,american citizen will not have been granted by those to be governed by its exercise4 ,but1 when the whole ,american people leave these 8conventions0 as the united citizens of ,america1 although it will be wise and proper and necessary that ,american citizens shall hereafter assemble in 8conventions0 in their respective states for the making of new proposed grants of power to interfere with their freedom1 it will no longer be necessary that a 8,yes0 from every 8convention0 should be given to any future grant of such power4 ,when the whole ,american people assembled in those first conventions1 a 8,yes0 from every 8convention0 was necessary because that 8,yes0 meant the willingness of the ,americans in that state to become citizens of ,america4 ,but1 once they all have become its citizens1 it is in that capacity--and not as citizens of each respective state--that the ,american government will interfere with their individual freedom4 ,and it now dawns upon us1 probably for the first time1 how imperative it is that the new ,constitution should contain an explicit command1 prescribing how the vote of each 8convention0 should count and how many 8convention0 votes should be sufficient and necessary for any future proposed grant of power to interfere with the freedom of ,american citizens4 ,this brings home to us the impressive and important meaning of the words 8in three fourths thereof0 after the word 8conventions0 in the ,fifth ,article4 ,if they had not been written therein by the genius of the men at ,philadelphia1 the method of counting the vote of each 8convention0 and the number of 8convention0 votes ,,constitutionally requisite hereafter for a new grant of national power would be a matter of infinite dispute4 ,and so we recognize and pay our tribute1 as we sit in one convention of the first ,american citizens1 to the wonderful foresight of ,madison and ,hamilton and their colleagues at the ,philadelphia ,convention which has just completed its labors4 ,that tribute is evoked by the words 8three fourths thereof0 after the word 8conventions40 ,we see that these words end all possibility of dispute in two important respects where dispute would be certain if the ,,constitutional mode of procedure did not contain our command that1 when future 8conventions0 are asked for further grant of power to interfere with our individual freedom1 the 8,yes0 of each convention shall count as one 8,yes0 and a 8,yes0 from three fourths of the 8conventions0 shall be both necessary and sufficient to make a new grant of such power4 ,and1 as we dwell upon these amazingly important words1 their presence in the ,fifth ,article compels a greater tribute to the men who wrote them than that demanded by the fact that this ends the possibility of the disputes we have mentioned4 ,it grows upon us that these words are among the most important securities to individual liberty in the whole ,constitution4 ,with increasing admiration for the men at ,philadelphia1 we sit in those early 8conventions0 and recall how much ,madison and his colleagues have just told us in ,the ,federalist about the danger to individual right from the tyranny of the citizens of a republic themselves1 whether that tyranny is attempted by a majority or an aggressive minority of such citizens4 ,we recall ,the ,federalist1 ,number #ea1 and its forceful exposition of the merits of the proposed ,constitution and its remarkable distribution of powers 7powers granted to the new government in the ,first ,article1 powers left with each state over its own citizens and powers retained by the ,american people themselves7 as security for individual rights4 8,in the compound republic of ,america1 the power surrendered by the people is first divided between two distinct governments1 and then the portion allotted to each subdivided among distinct and separate departments4 ,hence arises a double security to the rights of the people4444 ,it is of great importance in a republic not only to guard the society against the oppression of its rulers1 but to guard one part of the society against the injustice of the other part4 ,different interests necessarily exist in different classes of citizens4 ,if a majority be united by a common interest1 the rights of the minority will be insecure4 ,there are but two methods of providing against this evil3 ,the one by creating a will in the community independent of the majority--that is1 of the society itself2 the other1 by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable1 if not impracticable4 ,the first method prevails in all governments possessing an hereditary or self-appointed authority4 ,this1 at best1 is but a precarious security2 because a power independent of the society may as well espouse the unjust views of the major1 as the rightful interests of the minor party1 and may possibly be turned against both parties4 ,the second method will be exemplified in the federal republic of the ,united ,states4 ,whilst all authority in it will be derived from and dependent on the society1 the society itself will be broken into so many parts1 interests1 and classes of citizens1 that the rights of individuals1 or of the minority1 will be in little danger from interested combinations of the majority4444 ,justice is the end of government4 ,it is the end of civil society4 ,it ever has been and ever will be pursued until it be obtained1 or until liberty be lost in the pursuit4 ,in a society under the forms of which the stronger faction can readily unite and oppress the weaker1 anarchy may as truly be said to reign as in a state of nature1 where the weaker individual is not secured against the violence of the stronger4444 ,in the extended republic of the ,united ,states1 and among the great variety of interests1 parties1 and sects which it embraces1 a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good4444 ,it is no less certain than it is important1 understanding the contrary opinions which have been entertained1 that the larger the society1 provided it lie within a practical sphere1 the more duly capable it will be of self-government4 ,and1 happily for the republican cause1 the practicable sphere may be carried to a very great extent1 by a judicious modification and mixture of the federal principle40 7,fed4 ,no4 #ea47 ,in those important words of the ,fifth ,article1 8in three fourths thereof0 after the word 8conventions10 we now recognize the judicious mixture of the federal principle in our own command which controls our future ,,constitutional exercise of our exclusive ability to create new power to interfere with our individual freedom4 ,these words do not challenge or disturb the legal ,american necessity that our ,american government must get any new power of that kind from us ourselves1 assembled in our 8conventions40 ,but1 with a practical wisdom never exceeded in framing the 8constitution0 of a self-governing nation1 these words impose an amazingly effective check upon the existing ability of a majority or aggressive minority1 in the republic which is ,america1 to interfere with individual rights4 ,these words do not attempt to destroy or alter that existing ability of the citizens of the new republic4 ,on the contrary1 these words recognize the existence of that ability4 ,but1 with the wisdom which means so much security to every individual right in ,america1 these words make it impossible that such ability can be ,,constitutionally exercised unless a majority or an aggressive and organized minority1 when seeking new government power to interfere with the individual freedom of the ,american citizen1 obtain a majority support from the ,american citizens residing in every one of three fourths of the state in ,america4 ,leaving 7just for a moment7 the conventions of the old days1 we of this generation realize with gratitude the check so provided4 ,we understand now1 as we never understood before1 why the organized minority which demanded that government write the new ,amendment into our ,constitution was driven by this constitutional check to ignore the plain fact that the new ,amendment can never validly be put into the ,constitution 7if we still are citizens and not subjects7 unless a 8,yes0 from the 8people0 themselves1 the 8conventions0 of the ,fifth ,article1 is obtained from three fourths of those 8conventions40 ,we realize that the organized minority in question must support their proposition on the concept that ,madison and ,hamilton1 who introduced and seconded the ,fifth ,article at ,philadelphia1 intended that ,article 8to create a will in the community0 7which is ,america7 8independent0 of the supreme will of the ,american people themselves1 intended it to create that anomaly of a superior will to the supreme will and to make that superior will the will of the legislative governments of a fraction of the states4 ,we refer that organized minority to the quoted words of ,madison or ,hamilton1 referring to such creation of a will independent of the people themselves3 8,this1 at best1 is but a precarious security1 because a power independent of the society may as well espouse the unjust views of the major1 as the rightful interests of the minor party1 and may possibly be turned against both parties4 ,the second method not the creation of a will independent of the human members of the society will be exemplified in the federal republic of the ,united ,states10 the very ,constitution of which contains the ,fifth ,article4 ,we average ,americans are now satisfied1 beyond dispute1 that neither ,madison nor his associates in the early conventions1 to which we will now return1 understood or meant that the ,fifth ,article would or should create such an independent will4 ,sitting again in the conventions of old1 we recall exactly the same thought expressed by ,madison himself in ,the ,federalist1 ,no4 #aj1 where he says3 8,when a majority is included in a faction1 the form of popular government1 on the other hand1 enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens4 ,to secure the public good and private rights against the danger of such a faction1 and at the same time to preserve the spirit and form of popular government1 is then the great object to which our inquiries are directed4444 ,either the existence of the same passion or interest in a majority at the same time must be prevented1 or the majority1 having such co-existent passion or interest1 must be rendered1 by their number and local situation1 unable to concert and carry into effect schemes of oppression40 ,these thoughts1 from the worder of the ,fifth ,article1 sink deep into our minds and hearts as we sit in those conventions4 ,they come before us with startling clearness1 when we read his words in that ,article1 8conventions in three fourths thereof10 and his words in reference to that ,fifth ,article mode of procedure1 8,in requiring more than a majority1 and particularly in computing the proportion by states1 not by citizens1 it departs from the national and advances toward the federal character40 7,fed4 ,no4 #ci47 ,we realize that his mode of procedure is national1 in its strict conformity to the ,statute of '#gf1 that all power over the people must come directly from the people1 but that a judicious mixture of the federal system1 in counting the votes of the people1 is the best check human ingenuity has yet devised to protect individual rights against a tyrannical majority or an aggressive minority4 ,,chapter ,,xii ,,two ,,articles ,,name 8,,conventions0 ,as we sit in those conventions and dwell upon the wisdom of the practical thought which inspired those words1 8in three fourths thereof0 after the word 8conventions10 we know why the people with whom we sit compelled the tribute that they grasped the science of government better than any other people in the world4 ,the one aim of all of them was the happiness and welfare of the individual4 ,the welfare or prosperity of the political entities1 which we know as ,america and the respective states1 were of no importance to these people1 except as they contributed to the welfare of the individual4 ,the prestige and the power of each and every government in ,america and of all governments in ,america together were of no importance to these people1 except as they contributed to the welfare of the individual4 ,and when we sit with them in their conventions1 after living with them through their experience from #agge1 we realize 7as we have never realized before7 that the ,statute of '#gf was enacted1 that the national constitutions of government were made by the people in each colony1 that the sacrifices of the ,revolution were endured for eight years1 that the federation of states was established by states in #agha1 that the wisdom and ability and patriotism of ,america had just assembled at ,philadelphia in #aghg and made its proposal which we are considering in these conventions--all that the welfare of the ,,individual might be secured4 ,we realize that the wisdom and ability and patriotism of ,america1 at ,philadelphia1 had labored for months to ascertain1 by the light of all human experience1 in what proportion 7solely to secure the welfare of the individual7 power to interfere with individual freedom ought to be surrendered at all to governments and retained by the people1 and in what proportion the quantum of surrendered power should be left with each state government over its own individuals and given to the new general government over its individual citizens4 ,we realize that the wisdom and ability and patriotism of ,america1 at ,philadelphia1 had known that no governments1 then or in the future1 if individual welfare was to be secured1 could ever legally determine either proportion or could ever alter either proportion1 when once established by the supreme will in ,america1 the 8people0 of the ,preamble and ,tenth ,amendment1 the 8conventions0 of the ,seventh and ,fifth ,articles4 ,and so we1 of this later generation1 sit in those 8conventions0 of the ,seventh ,article and we read the ,fifth ,article1 where the same 8conventions0 are named1 and look with awe upon the practical wisdom which dictated these words 8in three fourths thereof10 after that mention of those 8conventions0 of the ,american people in the future4 ,we realize now that those words are among the greatest securities to individual welfare written into the proposed ,constitution by the wisdom and ability and patriotism of ,america1 at ,philadelphia4 ,in that ,constitution1 other great securities protect individual welfare against usurpation from outside ,america and against usurpation by government or governments in ,america beyond the exercise of the national powers granted to each government by its own respective individual citizens4 ,but this particular great security of individual welfare1 the words 8in three fourths thereof10 secures individual welfare against the unjust oppression of a majority or an aggressive minority of the ,americans themselves unless that majority or minority secure a majority of the ,americans in each of three fourths of the states to support the unjust oppression of individual welfare4 ,and thus1 in those conventions1 we realize1 perhaps for the first time1 that the important statements of the ,seventh and the ,fifth ,articles are1 in substance1 identical statements by the supreme will of the ,american people4 ,they are respectively the two statements or commands of the citizens of ,america1 the new nation1 as to ,,when the grants of power in the ,first ,article shall be the grant of the ,american citizens and as to ,,when the grants of any similar power1 in the generations to come1 shall be the grants of the ,american citizens4 ,in their language1 in their purpose and in their plain command1 both statements are exactly alike in substance4 ,the statement or command of the ,american people1 in the ,seventh ,article1 is that the constitution of the government of interference with individual freedom1 the ,first ,article1 shall be the ,constitution of the ,american people when nine of the 8conventions0 7named in the ,seventh and ,fifth ,articles7 shall have said 8,yes0 to that constitution1 to the enumerated grants of national power in the ,first ,article4 ,the statement or command of the ,american people1 in the ,fifth ,article1 is that any new proposed constitution of government of interference with individual freedom of the ,american citizen 7the supposed ,eighteenth ,amendment being the first new constitution of that kind7 shall be the ,constitution of the ,american people when three fourths of the 8conventions0 7named in the ,seventh and the ,fifth ,articles7 shall have said 8,yes0 to that new proposed constitution4 ,at this point1 we average ,americans1 sitting with those amazing ,americans in their 8conventions10 fix firmly in our minds1 with intent never to forget1 the fact that the 8conventions0 of the ,seventh ,article command are indisputably the ,american people themselves2 that the 8conventions0 of the ,fifth ,article command are identical 7except as to the time in which the ,american people assemble7 with the 8conventions0 of the ,seventh ,article command2 and that1 therefore1 the 8conventions0 of the ,fifth ,article command are also the people of ,america themselves4 ,but the whole people of ,america are the 8,we1 the people0 of the ,preamble4 ,they are the only reservee of the ,ninth ,amendment1 8the people0 therein4 ,they are the 8most important factor0 and reservee of the ,tenth ,amendment1 8the people0 therein4 ,wherefore1 we grasp clearly why they are mentioned in the ,fifth ,article1 because they have no government attorney in fact--as they could not have if we are 8citizens of ,america0--to surrender what they reserved to themselves in the ,ninth and ,tenth ,amendments4 ,sitting in those conventions1 we recall the limited ability of state legislatures1 each speaking for its own state1 to make federal ,articles1 ,articles that neither interfere nor give power to interfere with individual liberty1 the ability that made all the federal ,articles of #agha4 ,and we recall that the ,constitution does not take that ability from the 8states respectively0 and their governments but reserves it to the 8states respectively0 and their governments1 as the ,tenth ,amendment expressly declares4 ,and so we understand the mention of that limited ability in the ,fifth ,article in the words 8ratified by the legislatures of three fourths of the several states40 ,and1 educated by the experience of the amazing ,americans with whom we sit1 we realize the meaning of this particular statement or command of the supreme will1 the people of ,america4 ,that supreme will is creating a new nation out of its human possessors4 ,it is destroying forever the complete independence of the respective states1 but leaving each of the states a political entity with citizens and much independence4 ,it is incorporating the system of a federal union of states into the new national system of a union of all individual ,americans1 and it is subordinating the members of the federal union and also the federation itself to the union of human beings1 to the supreme will in ,america1 the will of the citizens of that nation4 ,therefore1 as each state is no longer completely independent1 it is no longer necessary that every member of the federal union shall utter its 8,yes0 to the making of any new ,article of the federal or declaratory kind1 the only kind which governments ever can make4 ,and so we clearly understand1 as the early ,americans in their conventions understood at once1 that the words 8ratified by the legislatures of three fourths of the several states0 was to be the command of the ,american people1 sitting in those conventions1 that a 8,yes0 from three fourths of the state governments would1 thereafter1 be necessary and sufficient for the making of a new proposed federal or declaratory ,article4 ,and we do not understand1 as the ,americans in those conventions never understood1 that those words implied any 8grant0 of ability to the state governments to make any ,articles in our ,constitution1 much less ,articles by which governments interfere or give power to interfere with the individual freedom of the ,american citizen outside the matters enumerated in our ,first ,article4 ,on the contrary1 it becomes amazingly clear to us that the 8conventions0 of the ,american citizens are mentioned in the ,fifth ,article because the ,american citizens are the important reservee of the ,ninth and ,tenth ,amendments4 ,and it becomes equally clear that the 8legislatures of the several states0 are mentioned in the ,fifth ,article because the 8states respectively0 are the lesser reservees named in the ,tenth ,amendment4 ,the ,tenth ,amendment tells us that no power of any kind is given1 by the new ,constitution1 to any grantee except to the new nation and its government1 the ,american government4 ,it tells us that some powers1 which each state had hitherto possessed1 are taken from it2 that the exercise of other powers1 which each state had hitherto possessed1 are now prohibited to it2 and that only the other powers 7which each state had hitherto possessed7 are left with that state by the command of the supreme will in ,america1 ourselves1 the citizens of ,america4 ,it tells us emphatically that no new powers of any kind are given to any state or to any collection of states or to their governments4 ,it tells us that the ,american people1 in making their ,constitution1 left each state and each state government powerless1 as they had been1 alone or in combination with other governments1 to interfere with the individual rights of any human being outside that particular state4 ,and finally it tells us1 what the ,supreme ,court has expressly declared to be the most important declaration in that ,tenth ,amendment1 that we ourselves1 the individual citizens of ,america1 the 8people0 of the ,preamble and of that ,tenth ,amendment1 retain 7secure from any valid exercise by any government or governments in the world and only capable of exercise by ourselves in our 8conventions07 every power to interfere with the individual freedom of the ,american citizen except in the matters enumerated in the ,first ,article4 ,and so1 in those 8conventions10 we need no constitutional thinker to tell us the simple fact that only those who have can give4 ,if the state legislatures have not1 as indisputably they have not1 any ability to exercise or to grant power of general interference with individual rights throughout ,america1 and if1 as the ,tenth ,amendment expressly declares1 the entire ,constitution adds naught to their existing ability to make ,articles of another kind1 the ,fifth ,article merely prescribes the constitutional mode of procedure1 in which1 by command of the ,american people1 that existing and limited ability shall thereafter be exercised4 ,and likewise1 if the ,american people themselves1 the ,seventh ,article 8conventions0 in which we are sitting1 have exclusive ability to exercise or to give power of general interference with their own individual rights1 and if1 as the ,ninth and ,tenth ,amendments together expressly state1 those 8conventions0 retain that exclusive ability1 clearly the ,fifth ,article reference to the same 8conventions0 of the ,american citizens is but prescribing the constitutional mode of procedure in which1 by command of the ,american people1 that exclusive ability of their own shall thereafter be exercised4 ,when the 8apt1 precise and classic ,english0 of the ,fifth ,article permits no other meaning1 we cannot imply that the ,article intends to grant what one supposed grantee 7who is the supposed grantor7 already has and what the other cannot ever have4 ,nor can we imply that the ,article intends to provide a constitutional mode of procedure in which those1 who have not1 may give4 ,moreover1 as this absurd implication would make the individual ,american people 8subjects10 as soon as they adopted that ,article1 we now know1 with absolute certainty1 that the ,americans1 in the 8conventions0 in which we are sitting1 adopted it as their fundamental law of procedure with the only meaning which its own 8apt1 precise and classic ,english0 permits4 ,we have now read1 in those conventions of old and with the ,americans therein who made it1 all of the ,madison ,fifth ,article save the two exceptions at the end thereof1 beginning 8provided that no amendment1 etc40 ,in those conventions1 the meaning of those two exceptions needs but a moment's thought4 ,one exception is that no change may be constitutionally made1 prior to #ahjh1 in relation to the existing evil of human slavery4 ,the other exception is that no change may be constitutionally made which shall give any state greater representation in the ,senate than each other state4 ,these are not exceptions to any power 8granted0 in the ,article4 ,no power of any kind1 as we already know1 is 8granted0 anywhere in the ,article1 but the ,article does mention two existing abilities1 one limited and the other unlimited1 and prescribes the constitutional mode of procedure in which each of the respective existing abilities may be exercised4 ,the exceptions simply mean that the ,article provides no constitutional mode of procedure in which may be exercised existing ability to change the ,constitution in the matters mentioned in the two exceptions4 ,we average ,americans have now examined carefully the record of the wording of all our ,constitution at ,philadelphia and particularly the record of the wording of the three ,articles1 the ,first and the ,seventh and the ,fifth1 which either purport to give or mention future giving 7by the 8people10 who alone can give7 power to interfere with the individual freedom of the ,american citizen4 ,furthermore1 we have sat in the 8conventions0 of the ,american people1 in which all those worded ,articles were made1 and have read1 with the ,americans in those 8conventions10 the apt1 precise and classic ,english of the ,fifth ,article1 which told them1 as it tells us1 that the ,article merely prescribes the constitutional mode of procedure1 in which thereafter can be exercised either the existing limited ability of the state governments or the existing unlimited ability of the ,american citizens themselves1 the 8conventions0 of the ,seventh and the ,fifth ,articles4 ,we are certain1 therefore1 that nowhere in the ,constitution1 made in those early 8conventions10 can the most ingenious mind discover what would have been the greatest blunder in the history of mankind1 anything which changed the actual and legal relation of the individual ,american to government and made him the 8subject0 of any government or collection of governments in ,america4 ,it would be unwise1 however1 for us to leave those conventions without listening to some few of the great ,americans1 who sat therein1 telling us how the new ,constitution does secure the status of the free individual ,american and protect his individual freedom from all usurpation by any government or governments in ,america4 ,,chapter ,,xiii ,,conventions ,,know 8,,conventions0 ,,are 8,,the ,,people0 8,when a single government is instituted1 the individuals of which it is composed surrender to it a part of their natural independence1 which they before enjoyed as men4 ,when a confederate republic is instituted1 the communities of which it is composed surrender to it a part of their political independence1 which they before enjoyed as states4444 ,since states as well as citizens are represented in the ,constitution before us1 and form the objects on which that ,constitution is purported to operate1 it was necessary to notice and define federal as well as civil liberty4444 ,under these impressions1 and with these views1 was the late convention appointed2 and under these impressions1 and with these views1 the late convention met4 ,we now see the great end which they proposed to accomplish4 ,it was to frame1 for the consideration of their constituents1 one federal and national ,constitution 444 a constitution that would insure peace1 freedom1 and happiness to the states and people of ,america40 7#b ,ell4 ,deb4 #dbi1 et seq47 ,so spoke the great ,wilson1 beginning his explanation of the proposed ,constitution to the first ,americans assembled in the 8conventions0 named in the ,seventh and ,fifth ,articles1 the ,americans in ,pennsylvania4 ,as we listen to him1 we remark the insistence upon the fact that the ,constitution to be considered is both a 8federal and national ,constitution40 ,and1 in strict conformity to this fact1 ,wilson is heard explaining the difference between the federal liberty of a state1 controlled by the federal ,articles of a constitution1 and the natural liberty of a man1 controlled by the national ,articles of a constitution4 ,we listen to him with great interest when he tells us that this federal and national ,constitution has been framed to insure 8peace1 freedom and happiness to the states and the people of ,america40 ,in his words we hear the echo of the fact so clearly declared in the ,tenth ,amendment1 that the federal powers1 not delegated in this ,constitution to the new government1 are reserved 8to the states respectively10 and the national powers1 not therein delegated1 are reserved 8to the people0 themselves of ,america4 ,and1 remembering that the two distinct reservees of the ,tenth ,amendment are respectively named in the ,fifth ,article1 we keep in mind that the new ,constitution is both 8a federal and a national ,constitution40 ,from which we know1 as ,wilson knew1 that these reservees are named in the ,fifth ,article1 the 8state legislatures0 because of their limited ability to make federal or declaratory ,articles1 and the 8conventions0 because of their ability to make ,articles of every kind1 the 8conventions0 of the ,fifth and ,seventh ,articles being the people themselves4 ,as we are actually sitting with ,wilson in one of the 8conventions0 of the ,seventh ,article1 there is no possibility of our forgetting1 as none of the people in any of those conventions ever forgot1 that the 8conventions0 of the ,seventh ,article are exactly the same as the 8conventions0 of the ,fifth ,article and that both are the people of ,america1 assembled in their 8conventions40 ,none of the ,americans in those conventions could be guilty of the ridiculous modern blunder about the ,fifth ,article4 ,none could possibly read that ,article to mean that the ,american citizens1 8assembled in conventions10 were granting to the ,american citizens1 8assembled in conventions10 any ability whatever to make ,articles4 ,the modern blunder becomes clear to us4 ,although the ,seventh and ,fifth ,articles have only been proposed and have not yet been made1 we sit in one of those 8conventions0 about to exercise ability to say 8,yes0 to any ,article1 whether federal or national4 ,so1 with amazement at the blunder of #aiag and #aibj about the ,fifth ,article1 we listen intently to the ,wilson statement which brings home the absurdity of the idea that the ,article is a grant of ability to make ,articles4 ,as in all those conventions1 he is meeting the usual charge that the new ,constitution endangers individual liberty because it lacks a bill of rights4 ,as in all the conventions1 he is pointing out that no bill of rights is needed in a ,constitution which gives to government no power to interfere with individual freedom1 except the specific and enumerated powers of the ,first ,article4 ,he is repudiating the thought that anywhere in the ,constitution1 in its ,fifth ,article or elsewhere1 outside of the ,first ,article1 is there any grant to any government of power to interfere with individual liberty4 ,and this is what he has to say about the ,philadelphia ,convention1 which ended in the preceding ,september1 and about the constitutional ,articles that ,convention proposed1 including the ,fifth ,article4 8,a proposition to adopt a measure that would have supposed that we were throwing into the general government every power not expressly reserved by the people1 would have been spurned1 in that ,house1 with the greatest indignation40 7#b ,ell4 ,deb4 #dcf47 ,we ,americans1 who will listen later herein to some extraordinary ideas about the ,fifth ,article from our modern 8constitutional0 thinkers1 wonder just exactly with how much indignation the ,fifth ,article would have been spurned in all the conventions of that earlier day1 if ,patrick ,henry or any other great opponent of the proposed ,constitution had only been able to point out that the ,fifth ,article was a 8grant0 to a general government 7the legislative governments of some of the states7 not only of every power 8expressly reserved by the people0 but also of every power given to ,congress by the ,first ,article4 ,we also wonder whether the indignation would have been increased or entirely dissipated if ,henry or some other opponent had informed those conventions1 the assembled people of ,america1 a people so jealous of all government interference1 that the omnipotence was granted so that the state legislatures1 never elected by the ,american citizens at all1 might1 without the slightest restraint or any constitutional restriction1 interfere with every individual right of the ,american citizen4 ,while many apparently sane and reasonable modern inhabitants of ,america have listened to such ideas in the last five years as if those who advanced the ideas were talking or thinking intelligently1 we rather believe that the ,americans in those early conventions1 even from ,henry1 would not have received such ideas complacently4 ,however1 as we have found in those early ,americans much of the natural humor which is the characteristic of a human being who thinks for himself1 we are inclined to believe that the modern ideas in relation to the ,fifth ,article1 about which ideas we have just been talking1 would not have been received in any of those conventions with indignation but would have been greeted with prolonged laughter4 ,but the ,henry of those days had not the intellectual calibre of our 8constitutional0 thinkers4 ,therefore1 in those conventions1 not even from one of the many bitter opponents of the proposed ,constitution1 do we hear any suggestion that there lurks somewhere in the ,fifth ,article1 between its lines1 because not hinted at in its apt1 precise and classic ,english1 the extraordinary grant of omnipotence to the legislative governments of some of the states4 ,on the contrary1 in every convention1 we find the new ,constitution bitterly assailed because its provisions reduce the state governments to that pitiable condition where ,henry calls them the weakened1 enervated and defenseless state governments4 ,indeed1 we are inclined to mirth when we contrast these modern ideas of the ,fifth ,article 7that it grants omnipotence over individual rights to some state governments7 with many of ,henry's word pictures of the effect of the proposed ,constitution on those state governments4 ,this is one of those pictures which he exhibits to the ,americans in ,virginia1 assembled in their conventions3 8,what shall the states have to do8 ,take care of the poor1 repair and make highways1 erect bridges1 and so on1 and so on8 ,abolish the state legislatures at once4 ,what purposes should they be continued for8 ,our legislature will be indeed a ludicrous spectacle--one hundred and eighty men marching in solemn1 farcical procession1 exhibiting a mournful proof of the lost liberty of their country1 without the power of restoring it4 ,but1 sir1 we have the consolation that it is a mixed government2 that is1 it may work sorely on your neck1 but you have some comfort by saying1 that it was a federal government in its origin40 7#c ,ell4 ,deb4 #aga47 ,clearly1 neither ,henry nor the other opponents of the new ,constitution had the modern ability to discern that it only appeared to deprive the state governments of much of their former powers4 ,they could not see1 they did not know1 that its ,fifth ,article granted those state governments the omnipotence over individual liberty which the ,statute of '#gf had denied to the ,british ,parliament4 ,and because ,henry and his colleagues had not the discernment of our leaders1 we hear ,wilson and the supporters of the ,constitution defending it against the plain fact that it did rob the state governments of much of their former power4 ,for example1 we hear ,wilson saying3 8,the secret is now disclosed1 and it is discovered to be a dread1 that the boasted state sovereignties will1 under this system1 be disrobed of part of their power4444 ,i know very well1 sir1 that the people have hitherto been shut out of the federal government2 but it is not meant that they should any longer be dispossessed of their rights4 ,in order to recognize this leading principle1 the proposed system sets out with a declaration that its existence depends upon the supreme authority of the people alone4444 ,when the principle is once settled that the people are the source of authority1 the consequence is1 that they may take from the subordinate governments powers with which they have hitherto trusted them1 and place those powers in the general government1 if it is thought that there they will be productive of more good4 ,they can distribute one portion of power to the more contracted circle1 called state governments2 they can also furnish another proportion to the government of the ,united ,states4 ,who will undertake to say1 as a state officer1 that the people may not give to the general government what powers1 and for what purposes1 they please8 ,how comes it1 sir1 that these state governments dictate to their superiors--to the majesty of the people8444 ,i have no idea that a safe system of power in the government1 sufficient to manage the general interest of the ,united ,states1 could be drawn from any other source1 or vested in any other authority1 than that of the people at large2 and ,i consider this authority as the rock on which this structure will stand4 ,if this principle is unfounded1 the system must fall4444 ,with how much contempt have we seen the authority of the people treated by the legislature of this state60 7#b ,ell4 ,deb4 #ddc1 et seq47 ,but we cannot stay much longer in the ,pennsylvania ,convention4 ,it would be unwise1 however1 for us to depart therefrom without hearing the accurate confirmation of our own reading and understanding of the ,fifth ,article from its own 8apt1 precise and classic ,english40 ,wilson was explaining his opposition to the doctrine that a constitution is a compact between a master government and servant people4 ,in other words1 he was explaining the ,american ,statute of '#gf1 stating the legal principle that ,americans are not 8subjects40 8,the citizens of united ,america1 ,i presume1 do not wish to stand on that footing with those to whom1 from convenience1 they please to delegate the exercise of the general powers necessary for sustaining and preserving the ,union4 ,they wish a principle established1 by the operation of which the legislatures may feel the direct authority of the people4 ,the people1 possessing that authority1 will continue to exercise it by amending and improving their own work40 7#b ,ell4 ,deb4 #dih47 ,to us average ,americans this seems like sound ,american law and in strict keeping with our reading of the plain language of the ,fifth ,article1 as we read it with the ,americans in those old conventions4 ,wilson and his associates seem to know with certainty that the ,fifth ,article is not to change all the free individual ,americans into 8subjects0 of the legislative governments of which he speaks4 ,indeed1 he calls all those free ,americans1 to some of whom he was speaking1 8the citizens of ,america10 although the nation of ,america would not exist and they would not be its citizens until they and the ,americans1 in eight other conventions1 had said 8,yes0 to the ,constitution they were discussing4 ,therefore1 when he speaks of that ,constitution as establishing a principle 8by the operation of which the legislatures may feel the direct authority of the people0 or 8citizens of ,america10 and immediately adds that those citizens1 possessing the exclusive authority to exercise and vest ability to interfere with individual freedom1 8will continue to exercise it by amending and improving their own work10 the enumerated grants of such authority in the ,first ,article1 we realize with certainty that he and his associates know that the ,fifth ,article in that ,constitution does not mean that the legislatures 7who are to feel the direct authority of the people7 can thereafter exercise the authority of the citizens of ,america by altering1 subtracting from or adding to the ,first ,article quantum of delegated power to interfere with the individual freedom of the ,american people4 ,in this convention1 where the ,americans in ,pennsylvania are assembled1 we have heard the consistent emphasis laid upon the fact that the ,constitution is both a federal and a national ,constitution1 the distinction from all other constitutions so clearly recognized by the ,fifth ,article mention of the two makers of ,articles4 ,later herein we will learn how this distinctive quality of our ,constitution1 this distinction recognized in its ,fifth ,article as well as in its ,tenth ,amendment1 has neither been felt or acknowledged but has been wholly ignored by our modern 8constitutional0 thinkers for five years last past4 ,at this point1 therefore1 it is well that we sit for a moment in the ,virginia convention and listen to ,henry1 the greatest and most determined opponent of the ,constitution before it was adopted4 ,with our minds fixed upon the language of the ,fifth ,article and its clear mention of the exclusive existing ability of 8conventions0 to make national ,articles1 a mention emphasized by the equally clear recognition of the limited ability of the legislative state governments to make ,articles which are not national1 it is interesting to hear ,henry refer to the difference between federal and national ,articles2 and it is more than interesting1 it is amazingly important to hear him proving1 by the fact that the ,americans in ,virginia are assembled in one of the 8conventions10 that the ,articles which have been just proposed from ,philadelphia1 are national and1 therefore1 of the kind that legislative governments can never make4 ,it is ,thursday1 ,june #e1 #aghh1 the day on which began the immortal ,virginia debate4 ,for a year1 since the proposal from ,philadelphia1 the new ,articles have been the subject of the severest scrutiny on the part of those determined to secure the rejection of those ,articles by the ,american people in ,virginia4 ,throughout all ,america1 these ,articles have been examined and assailed and condemned in public writing and speech by those equally determined to secure their rejection by the ,americans assembled in the other 8conventions40 ,on the other hand1 the same ,articles have been explained and their necessity1 if ,american individual liberty is to be secure1 has been demonstrated in the famous essays which we now know as ,the ,federalist1 nearly all of which essays were the work of ,madison and ,hamilton1 who are responsible for the wording and the meaning of the ,fifth ,article4 ,like the other 8conventions10 assembling when all minds sought the best protection for individual liberty against oppressive governments1 the members of the ,virginia convention have been carefully chosen to speak the will of the ,americans in ,virginia by a simple 8,yes0 or 8,no0 to these seven ,articles1 the first of which constitutes government ability to interfere with individual liberty4 ,could anything be more vitally important to individual liberty than that just such 8conventions10 so chosen1 not the state legislatures1 each elected by the citizens of its own state for an entirely different purpose1 should continue to have their exclusive ability to determine how much power to interfere with individual freedom shall be surrendered by the ,american people1 and how the quantum 7which is surrendered7 shall be apportioned for exercise between the one ,american government and the respective states and their respective legislative governments8 ,later herein we shall learn how clearly ,madison and ,hamilton1 responsible for the wording and meaning of the ,fifth ,article1 knew and appreciated the practical and amazing importance as security to individual liberty1 in this distinction between the two makers 78conventions0 of the ,american people themselves and state 8legislatures07 named in their ,fifth ,article and in the distinction between their respective and existing abilities to make ,articles in a ,constitution which is both a federal and national ,constitution4 ,and1 as we know1 as the ,supreme ,court has declared in the voice of the ,marshall who sits with us in that ,virginia convention1 the knowledge and appreciation was not peculiar to ,madison and ,hamilton4 ,it was the common knowledge and appreciation of all the ,americans who made the ,fifth ,article in those conventions4 8,to the formation of a league1 such as was the ,confederation1 the state sovereignties were certainly competent02 but when a grant of enumerated power to interfere with individual freedom was asked1 8the legal necessity of referring it to the people and of deriving its powers directly from them was felt and acknowledged by all40 ,when such a grant is asked1 whether it be asked in the shape of the ,first ,article or of the ,eighteenth ,amendment1 it is not referred to the people at all1 unless it is sent to them to be considered and discussed before they choose1 from among themselves1 those of themselves who will assemble in the 8conventions0 for the one and sole purpose of uttering the carefully weighed 8,yes0 or 8,no0 of the ,americans in the state where the particular convention assembles4 ,as all in those early conventions knew1 as ,marshall declared from the ,supreme ,court1 that assembling in those 8conventions0 is the only way in which the ,american people can act 8safely1 effectively and wisely0 when asked for a grant of power to interfere with individual freedom1 and1 as the ,statute of '#gf and good sense and practical experience alike teach all free men1 that is the only way in which any just power of government can be derived 8directly0 from the citizens upon whom it is to be exercised4 ,we commend a careful thought of this distinction1 vital and important to individual human liberty1 to the constitutional thinkers of #aiag and #aibj4 ,whenever they read a ,fifth ,article which included the words 8or in conventions in three fourths thereof10 they have assumed that two makers of ,articles were named in the amending procedure of the ,constitution 7which is both federal and national7 in order that ,congress1 when it wanted new power to interfere with individual freedom1 might weigh the chance of getting it from each maker and then ask it either from those who reserved it exclusively to themselves1 the 8people0 of the ,tenth ,amendment1 or from those who never had it or the ability to grant it1 the other reservee of the ,tenth ,amendment1 8the states respectively0 and their governments4 ,or perhaps it was the concept of these modern constitutional thinkers that the ,fifth ,article mentions two makers of ,articles merely that ,congress may choose either1 according to its whim1 as a fortunate golfer chooses between his two golf suits4 ,that is their idea of the security to human individual liberty against government usurpation which ,madison and ,hamilton and the ,american people established about eleven years after they declared that no just power to interfere with human freedom could ever be obtained1 except from the citizens with whose individual liberty the exercise of the power was to interfere6 ,as ,henry and his fellow ,americans in the ,virginia convention had no such absurd concept1 we return to hear him charge that the ,philadelphia ,convention had exceeded its authority in proposing the ,constitution of national government and to prove that the proposed ,constitution was national by the fact that the ,americans in ,virginia are assembled in 8convention0 to say 8,yes0 or 8,no0 to that ,constitution1 whereas1 if it had consisted only of federal ,articles1 it would have been sent to the legislatures4 8,the distinction between a national government and a confederacy is not sufficiently discerned4 ,had the delegates1 who were sent to ,philadelphia1 a power to propose a consolidated government instead of a confederacy8 ,were they not deputed by states1 and not by the people8 ,the assent of the people1 in their collective capacity1 is not necessary to the formation of a federal government4444 ,they are not the proper agents for this purpose4 ,states and foreign powers are the only proper agents for this kind of government4 ,show me an instance where the people have exercised this business4 ,has it not always gone through the legislatures8444 ,are the people1 therefore1 in their aggregate capacity1 the proper persons to form a confederacy8 ,this1 therefore1 ought to depend on the consent of the legislatures1 the people having never sent delegates to make any proposition for changing the government40 7#c ,ell4 ,deb4 #eb47 ,in these words1 as always in the convention where we sit and listen to him1 ,henry attests the universal knowledge1 common to advocate and opponent of the proposed ,constitution1 that the ,constitution has not been referred to the state governments because of their absolute inability to constitute government of individuals1 to give to government any power to interfere with individual liberty4 ,in this1 he and the others but echo the knowledge of the ,americans at ,concord1 on that ,october day1 eleven years earlier1 where they returned a proposed ,constitution with ,articles of that kind to the legislature which had proposed it4 ,we recall their own statements that even a supreme legislative government 8either in their proper capacity or in joint committee1 are by no means a body proper to form and establish a ,constitution40 ,we recall their statements of the important knowledge that 8a ,constitution1 alterable0 even 8by the supreme legislative1 is no security at all against the encroachment of the governing part on any or on all their rights and privileges40 ,but we also hear1 in these words of ,henry1 his knowledge--the knowledge of all ,americans at that time--of something else interesting and important to us4 ,we hear him twice identify the assembling of the ,american people1 in the 8conventions0 named in the ,seventh and the ,fifth ,articles1 as the people 8in their collective capacity0 and the people 8in their aggregate capacity40 ,as we hear him1 and as we hear ,wilson in the ,pennsylvania convention stating that 8in this ,constitution the citizens of ,america appear dispensing a portion of their power10 as we hear similar statements in all those 8conventions10 we sense the universal knowledge of all those conventions that they are the ,american people1 the citizens of the new republic4 ,and later herein1 with our education of #agij completed by sitting in these very conventions1 we intend to listen 7with amazement and without the slightest belief7 to the remarkable statements of #aiag and #aibj1 that the states1 political entities1 made our ,constitution or that the citizens of the different states1 in their capacity as such citizens1 gave to the ,american government the enumerated ,first ,article powers to interfere with the individual liberty of the citizens of that entirely different and greater nation1 ,america4 ,impressed by ,henry's knowledge that the conventions which made the ,constitution were the people of ,america1 8in their collective capacity10 8in their aggregate capacity10 and impressed with ,wilson's knowledge that 8the citizens of ,america0--not the states or the citizens of the states--8are seen dispensing a portion of their power10 we are going to laugh at the concepts of #aiag and #aibj and know that ,marshall was right when he said1 speaking of the ,american people and their assembling in those 8conventions03 8,it is true1 they assembled in their several states1 and where else could they have assembled8444 ,when they act1 they act in their states4 ,but the measures they adopt do not1 on that account1 cease to be the measures of the people themselves or become the measures of the state governments40 ,yet1 when we later come to the modern days of #aiag and #aibj1 we shall see all our leaders1 whether for or against the ,eighteenth ,amendment1 blandly assume a most extraordinary meaning from the ,fifth ,article mention of the state legislatures4 ,not a single member of any state legislature is elected by the citizens of ,america4 ,moreover1 the ,tenth ,amendment expressly declares that the ,constitution--that great power of attorney from ,american citizens to their only ,american government--gives no power whatever to the states or their governments4 ,nevertheless1 with amusement and absolute incredulity1 we shall hear every statesman of #aiag and every lawyer of #aibj assume and act and argue upon the extraordinary concept that the ,fifth ,article of that ,constitution is a great power of attorney to the state legislatures as attorneys in fact for the ,american citizens4 8,we all know the severe scrutiny to which the ,constitution was exposed--some from their own knowledge1 others from different sources4 ,we know with what jealousy1 with what watchfulness1 with what scrupulous care its minutest provisions were examined1 discussed1 resisted1 and supported by those who opposed and those who advocated its ratification40 7#d ,ell4 ,deb4 #dhf47 ,so spoke ,martin ,van ,buren in the ,senate on ,april #g1 #ahbf4 ,we sit in the conventions which made the ,constitution of which he spoke4 ,we listen to every word that is said therein4 ,we hear the ,fifth ,article explained by its worder1 ,madison1 as nothing but a mode of procedure4 ,from not one of the opponents of the ,constitution1 not even from ,henry1 do we hear a single word of attack upon the ,fifth ,article except as to the weakness of the mode of procedure which it provides for evoking the power of the 8people0 themselves1 assembled in 8conventions0 of the very same kind1 to withdraw from the one ,american legislature1 the ,congress1 some enumerated power of the ,first ,article which is found oppressive to individual liberty4 ,on the contrary1 we not only hear no single word of complaint that the ,fifth ,article or any ,article gives one iota of power to the state legislatures1 but the whole complaint of all the opponents of the ,constitution which we do hear is that it practically destroys all existing ability and power of those state governments4 ,only a moment ago we have heard ,henry ask3 8,if you adopt this ,constitution1 why continue the state legislatures at all80 ,anticipating the extraordinary concept which we are later to hear in #aiag and #aibj1 that the citizens of ,america by the ,fifth ,article made a collection of the state legislatures an omnipotent government over everything in ,america1 including every individual right1 we wonder if the constitutional thinkers of #aiag and #aibj remember that we are sitting with a people who1 just five years before the conventions in which they and we sit1 ended an eight-year war to make certain that there never again should be a government of that kind in ,america1 to make certain that they themselves should never be the 8subjects0 of any government or the citizens of any nation whose government should have even one power to interfere with individual liberty1 except power of that kind granted directly by its citizens themselves4 ,it was ,maclaine in the ,north ,carolina convention who first used the exact expression that the ,americans1 who sit in the conventions where we are1 were a people 8better acquainted with the science of government than any other people in the world40 ,in the same convention1 on ,july #bi1 #aghh1 this is what he had to say about the consistent attack upon the ,constitution1 because it robbed the state legislative governments of so much of their previous power4 8,mr4 ,chairman1 that it will destroy the state sovereignty is a very popular argument4444 ,government is formed for the happiness and prosperity of the people at large4 ,the powers given it are for their own good4444 ,the powers to be given the general government are proposed to be withdrawn from the authority of the state governments1 in order to protect and secure the union at large4 ,this proposal is made to the people4 ,no man will deny their authority to delegate powers and recall them1 in all free countries4444 ,it may be justly said that it the ,constitution which contains the ,fifth ,article diminishes the power of the state legislatures1 and the diminution is necessary to the safety and prosperity of the people40 7#d ,ell4 ,deb4 #ahj47 ,it certainly would have surprised ,maclaine1 as well as all the ,americans in those conventions1 to have heard any one of themselves stating that the same ,constitution vested the state governments with an omnipotence they had never possessed1 the very omnipotence denied to the ,british ,parliament eleven years earlier4 ,in the ,virginia convention we hear ,madison1 who drafted and suggested the ,fifth ,article at ,philadelphia1 speak of the important distinction between the makers of the federal ,articles of #agha1 only seven years made1 when we sit in that ,virginia convention1 and the 8convention0 makers of the proposed ,articles of the new national ,constitution4 ,if these 8conventions0 make it1 he says1 it will be a government established1 not through the intervention of the legislatures but by the people at large4 ,fie goes on to say 8,in this particular respect1 the distinction between the existing and proposed governments is very material4 ,the existing system has been derived from the dependent derivative authority of the legislatures of the states2 whereas this is derived from the superior power of the people4 ,if we look at the manner in which alterations are to be made10 now referring directly to the ,fifth ,article1 8the same idea is1 in some degree1 attended to40 7#c ,ell4 ,deb4 #id47 ,we feel that it will be quite difficult1 when we come later to the constitutional thinkers of #aiag and #aibj1 for them to convince us that ,madison meant his ,fifth ,article to alter 8the dependent derivative authority of the legislatures of the state0 and1 whenever another government makes the suggestion1 put that dependent authority above what he calls 8the superior power of the people40 ,and we feel that these 8constitutional thinkers0 will find it impossible to convince us when we recall ,madison's other words1 directly referring to his ,fifth ,article and the existing power of the people1 mentioned therein by the word 8conventions40 ,these are the words to which we allude3 8,were it his ,fifth ,article wholly national1 the supreme and ultimate authority would reside in the majority of the people of the ,union1 and this authority would be competent at all times1 like that of a majority of every national society1 to alter or abolish its established government40 ,it is ,madison himself who puts the one word 8majority0 in italics4 ,he does so to call attention to the fact that his ,article leaves 8the supreme and ultimate authority0 in the people 7named as 8conventions0 in his ,article7 but not necessarily capable of exercise by the majority in any constitutional manner4 ,he goes on to explain this very fact by saying that when the mode of procedure prescribed in his ,article is read1 it is found that 8in requiring more than a majority1 and particularly in computing the proportion by states1 not by citizens1 it departs from the national and advances towards the federal character40 7,fed4 ,no4 #ci47 ,in ,new ,york we find ,hamilton1 who seconded the suggestion of ,madison's ,fifth ,article at ,philadelphia1 almost immediately after he had stated that there would be no danger in permitting ,congress to propose amendments since 8the final decision in the case will rest with the people40 ,as we recall1 ,hamilton said this when the tentative ,fifth ,article mentioned no one but the people1 8conventions10 as the maker of future ,articles1 because he and ,madison and their associates at ,philadelphia1 whose minds had so far been concentrated upon the national ,first ,article1 had not yet grasped the fact1 later stated by ,hamilton to be his conviction1 that all future changes would probably relate 8to the organization of government and not to the mass of its powers40 ,we are1 therefore1 interested to find ,hamilton1 in ,new ,york1 on ,friday1 ,december #ad1 #aghg1 pointing out that 8,it has not a little contributed to the infirmities of the existing federal system that it never had a ratification by the ,,people4 ,resting on no better foundation than the consent of the several legislatures1 it has been exposed to frequent and intricate questions concerning the validity of its powers4444 ,the possibility of a question of this nature proves the necessity of laying the foundations of our national government the ,first ,article grant of national powers deeper than in the mere sanction of delegated authority referring directly to the state legislatures which are mentioned in the ,fifth ,article4 ,the fabric of ,american empire ought to rest on the solid basis ,,of ,,the ,,consent ,,of ,,the ,,people4 ,the streams of national power ought to flow immediately from that pure1 original fountain of all legitimate authority40 7,fed4 ,no4 #bb47 ,the capitals are those of ,hamilton himself4 ,we rather feel that his stress upon the 8,,people0 sharply contrasted with the state 8legislatures10 as the only legitimate direct source of national power1 such as is granted in the ,first ,article and the ,eighteenth ,amendment1 will be somewhat of a shock to the 8constitutional thinkers0 of #aiag and #aibj4 ,sitting in the conventions of old1 we rather recognize the capitalized words1 where ,hamilton says that national power in ,america 8ought to rest on the solid basis of the ,,consent ,,of ,,the ,,people10 as a direct echo from the ,statute of '#gf1 enacted only eleven years before those conventions4 ,that ,statute says that every just power of government must be derived directly from the governed4 ,and we become rather convinced that ,hamilton and ,madison1 when submitting the ,fifth ,article at ,philadelphia1 never worded it so that national power in ,america could be granted through the illegitimate authority of the state legislatures1 when we read what either one or both of them have to say on ,tuesday1 ,february #e1 #aghh1 in ,the ,federalist1 ,no4 #di4 8,as the people are the only legitimate fountain of power1 and it is from them that the constitutional charter1 under which the several branches of government hold their power1 is derived1 it seems strictly consonant to the republican theory to recur to the same original authority0--a direct reference to the 8conventions0 of the ,seventh and the ,fifth ,articles--8whenever it may be necessary to enlarge1 diminish1 or new-model the powers of government40 ,if we ever had any doubt as to what ,hamilton meant the ,fifth ,article to provide1 our doubt is ended forever when we hear ,hamilton1 in the ,new ,york ,convention1 speak of the state legislatures1 which the 8constitutional thinkers0 of #aiag and #aibj assume to have been made attorney in fact for the ,american people for every purpose by that ,fifth ,article4 8,look through their history10 he says1 speaking of those state legislative governments4 8,what factions have arisen from the most trifling causes6 ,what intrigues have been practiced for the most illiberal purposes6 ,is not the ,state of ,rhode ,island1 at this moment1 struggling under difficulties and distresses1 for having been led blindly by the spirit of the multitude8 ,what is her legislature but the picture of a mob80 ,most of the states 8are either governed by a single democratic assembly1 or have a senate constituted entirely upon democratic principles4 ,these have been more or less embroiled in factions1 and have generally been the image and echo of the multitude4444 ,let us beware that we do not make the state legislatures a vehicle in which the evil humors may be conveyed into the national system40 7#b ,ell4 ,deb4 #cag47 ,when ,hamilton knew that these state legislatures were not the legitimate source of national powers in a republic and when he had this view of their general character1 will any sane man believe that he advocated that the citizens of ,america should make these legislatures 7although the citizens of ,america elect not a single member in them7 absolute attorney in fact for the citizens of ,america for all purposes8 ,will any sane man believe that he proposed to substitute them1 as grantors of national power1 for the 8conventions0 of the ,fifth ,article1 which 8conventions0 already excited the admiration of the entire world1 according to the author of the ,fifth ,article1 as the only safe or effective mode in which the free citizens of a nation could vest its government with any power to interfere with their own individual liberty4 8,the authority of ,constitutions over governments1 and the sovereignty of the people over ,constitutions1 are truths which are at all times necessary to be kept in mind2 and at no time1 perhaps1 more necessary than at present40 ,this impressive statement of the truth that the 8governments10 state 8legislatures10 never were placed by the ,fifth ,article above the ,constitution in which it is1 and above the sovereignty of the people1 mentioned therein as 8conventions10 and cannot be placed there by another government1 the ,congress1 is not a statement made in the heat of the controversy about the ,eighteenth ,amendment4 ,it is the statement of ,james ,madison1 author of the ,fifth ,article1 made in the ,virginia ,house of ,delegates in #agii2 ,it is becoming almost impossible for us1 as we sit in these conventions and hear every word that is said1 to understand the source of the modern thought1 if we can dignify it by calling it 8thought10 that the ,fifth ,article is a power of attorney from the citizens of ,america to the state governments1 every member of which is elected by the citizens of the respective states and not by the citizens of ,america4 ,it is beginning to grow upon us that any such 8thought0 is based on sheer assumption and that the entire record of the 8conventions0 is a closed book to those who hold the assumption4 ,we know that they have the explicit statement of the ,tenth ,amendment1 that the ,constitution gives no power of any kind to any donee except the one new ,american government1 the government with the enumerated powers of the ,first ,article4 ,as no power of attorney was ever written or can be conceived except one which grants the attorney in fact some power1 the ,tenth ,amendment makes absolutely certain that neither the ,fifth ,article nor the entire ,constitution gives to the state legislatures any power as attorneys in fact for the citizens of ,america4 ,moreover1 breathing the atmosphere of those first 8conventions0 of the kind named in the ,seventh and the ,fifth ,articles1 the 8conventions0 where individual liberty of the ,american is the only object of advocate and opponent of the ,articles under consideration1 we begin to sense that the holders of the impossible assumption have never fully grasped the amazing and vital distinction between 8state legislatures0 and 8conventions0 of the kind named in the ,seventh and the ,fifth ,articles4 ,when we shall hear the 8constitutional thinkers0 of #aiag and #aibj speak of the 8legislatures0 and the 8conventions0 as two different agents given omnipotent attorneyship in fact over all the individual rights of the citizens of ,america1 we shall wonder if these thinkers appreciate that the 8state legislatures0 are permanent bodies1 always existing1 and that the 8conventions0 of the ,fifth ,article are1 to the 8conventions0 in which we sit1 bodies that never would have an existence until some future moment1 when the ,american citizens themselves would again be called to assemble in and thus make those 8conventions40 ,nothing could show more clearly that the 8conventions0 of the ,seventh ,article looked upon the 8conventions0 of the ,fifth ,article1 not as the donee of any power of attorney1 but as themselves or their posterity1 the citizens of ,america1 assembling again to determine whether there shall be any change in the distribution of power to interfere with their individual liberty4 ,and our thought1 re-echoed again and again by ,marshall and others from the ,bench of the ,supreme ,court in the century that follows the first assembling of these 8conventions10 seems but the repetition of what we hear said in the ,massachusetts ,convention as the tribute of its ,americans to the ,fifth ,article4 ,on ,january #bc1 #aghh1 the ,americans1 assembled in ,massachusetts1 took up the consideration of that ,article4 ,as in every convention1 there had been great opposition to the earlier ,articles2 as in every convention1 nearly all of it had been to the great national powers of the ,first ,article granted to the new government and taken from the state governments2 and1 as in every convention1 almost all of this opposition had been the continued complaint that the state governments were being destroyed4 ,it was not that the ,americans loved the state governments4 ,the truth is that1 like every natural human being1 they objected to all governments4 ,their sole thought was fear of oppressive government infringement upon their individual liberty4 ,in this respect1 the ,americans in each convention feared their own legislative government less than the new proposed ,congress1 because they would elect all the members of the former and only a few members of the latter4 ,if it had been suggested1 by any of the many opponents of the new ,constitution1 that any possible twisting of the words of the ,fifth ,article meant that governments outside their state1 not one of whose members they themselves would elect1 could infringe upon their every individual right1 without any constitutional restraint1 the record of every convention would have been one unanimous 8,,no10 against the new ,constitution4 ,but1 as no 8constitutional thinker0 of #aiag or #aibj sat in any of those conventions1 no such suggestion was ever made therein4 ,and so1 on that ,january #bc1 we hear the ,fifth ,article read in that ,massachusetts convention1 and we see ,rufus ,king rising and we hear him state that 8,he believed gentlemen had not1 in their objections to the ,constitution1 recollected that this ,article was a part of it2 for many of the arguments of gentlemen were founded on the idea of future amendments being impracticable40 ,he dwelt 8on the superior excellence of the proposed ,constitution in this particular1 and called upon gentlemen to produce an instance1 in any other national constitution1 where the people had so fair an opportunity to correct any abuse which might take place in the future administration of the government under it40 ,and then we hear ,dr4 ,jarvis3 8,mr4 ,president1 ,i cannot suffer the present ,article to be passed1 without rising to express my entire and perfect approbation of it4 ,whatever may have been my private opinion of any other part1 or whatever faults or imperfections ,i have remarked1 or fancied ,i have seen1 in any other instance1 here1 sir1 ,i have found complete satisfaction3 this has been a resting place1 on which ,i have reposed myself in the fullest security1 whenever a doubt has occurred1 in considering any other passage in the proposed ,constitution4 ,the honorable gentleman last speaking has called upon those persons who are opposed to our receiving the present system1 to show another government1 in which such a wise precaution has been taken to secure to the people the right of making such alterations and amendments1 in a peaceable way1 as experience shall have proved to be necessary4 ,allow me to say1 sir1 as far as the narrow limits of my own information extend1 ,i know of no such example4 ,in other countries1 sir1--unhappily for mankind1--the history of their respective revolutions has been written in blood2 and it is in this only that any great or important change in our political situation has been effected1 without public commotions4 ,when we shall have adopted the ,constitution before us1 we shall have in this ,article an adequate provision for all the purposes of political reformation4 ,if1 in the course of its operation1 this government shall appear to be too severe1 here are the means by which this severity may be assuaged and corrected4444 ,we have united against the ,british2 we have united in calling the late federal convention2 and we may certainly unite again in such alterations as in reason shall appear to be important for the peace and happiness of ,america40 7#b ,ell4 ,deb4 #aaf47 ,no man ever voiced such sentiments1 no conventions of ,americans ever listened to them1 with any knowledge or thought that the ,fifth ,article1 8the wise precaution0 to secure the liberty of the individual if the government with the national powers of the ,first ,article oppressed that liberty1 was itself a grant to another government1 ten legislatures outside of the ,massachusetts in which that convention was held1 to infringe upon the individual liberty of every ,american in ,massachusetts on every subject without any constitutional restraint4 ,and so1 we average ,americans end our education in the only 8conventions10 named in the ,seventh or the ,fifth ,articles1 which yet have assembled4 ,and we end that education knowing that there is nothing anywhere in the ,constitution those conventions adopted1 and especially nothing in the ,fifth ,article1 which changed the free ,american into a subject of any government or governments in ,america4 ,everything we have heard--and what we have repeated is but little of what we have heard--serves but to emphasize the only meaning of its 8apt1 precise and classic ,english10 the plain meaning which we got from its language when we read it at the beginning of these conventions with the ,americans who made it4 ,it is1 as its author explained it1 naught but a constitutional mode of procedure in which may be thereafter exercised1 in a constitutional manner1 either the limited ability of state governments to make ,articles which do not concern themselves with the infringement of individual liberty or the unlimited ability of the people themselves1 the 8conventions0 of the kind in which we have sat1 to make any ,articles4 ,the procedure prescribed for such constitutional exercise is simplicity itself to those who sit in those conventions4 ,it is exactly the procedure just followed 7up to the point where the work of any proposer of a new ,article and its mode of ratification must end7 by the ,philadelphia ,convention which drafted it and the other six ,articles4 ,the ,philadelphia ,convention found itself without any ,,constitutional mode of procedure in which could be evoked to exercise the existing and exclusive power of the people of ,america to grant any government power to infringe upon the individual liberty of the ,american citizens4 ,there being no constitutional mode of procedure1 no designated body to draft ,articles with such grants and to propose them and to ascertain and propose the valid mode of ratification for them1 the ,philadelphia ,convention did that work1 guided only by basic ,american doctrine1 the ,statute of '#gf and the experience of the 8conventions0 which had made the national ,articles of #aggf4 ,it followed a certain mode of procedure in the doing of these things1 knowing and stating that to draft ,articles and propose them and ascertain and propose the right mode of ratification for them is not the exercise of any power4 ,with a knowledge which we of a later generation never should have forgotten--and which we who have been educated with them never will forget--the ,philadelphia ,convention knew that there were two makers of ,articles in ,america1 each of which had exercised its respective and different ability to make them1 during the eleven years which preceded the ,philadelphia ,convention4 ,they knew that every ,article that was national could be made by no one but the people themselves1 the 8conventions10 which had made the national ,articles of '#gf and which are named as the makers of all future ,articles of that kind in the ,seventh and the ,fifth ,articles proposed by ,philadelphia4 ,and so1 when the ,philadelphia ,convention had drafted its ,articles and was about to propose them1 it recognized the legal necessity of ascertaining1 from the nature of those ,articles1 whether they were in the power of both or only of one of those existing makers of ,articles4 ,in the ascertainment1 with their minds on the ,first ,article grants of national power to interfere with individual liberty1 they knew that no governments in ,america could make an ,article of that kind4 ,their ascertainment was then ended and they knew that they must propose that mode of ratification which would send their ,articles to the only valid ratifiers1 the people themselves1 the 8conventions0 of the ,seventh and the ,fifth ,articles4 ,this was the procedure they had followed1 when there was no constitutional mode of procedure provided4 ,and so1 with the extraordinary wisdom that characterized everything they did1 that ,philadelphia ,convention wrote exactly the same procedure into the ,fifth ,article so that never again there might be lacking in ,america a constitutional mode of procedure for the evoking and the exercise of the only power that is ever exercised when constitutional ,articles are made1 the power of making them4 ,as the ,philadelphia ,convention ended its existence with its own proposals1 some new body had to do that work1 when any new ,article was to be proposed4 ,as the work of the ,philadelphia ,convention had not been the exercise of any power but merely the work of proposing1 it was a certainty that the new constitutional mode1 exactly the same mode as that of ,philadelphia1 would also be the exercise of no power4 ,and so1 the ,philadelphia ,convention named the ,congress 7or a convention demanded by the state legislatures7 to do the work of the ,philadelphia ,convention in drafting and proposing any new ,article1 and it named the ,congress to perform the duty of ascertaining 7by the nature of the new drafted ,article7 which of the two makers could make it1 and then to propose a mode of ratification by which it would be validly ratified by such competent maker4 ,as to the only powers ever to be exercised in the making of any new ,article1 the power of legislatures to make federal ,articles1 and the exclusive power of the people or 8conventions0 to make national ,articles1 the constitutional mode of procedure did not 7nor could it1 if ,americans were not to become 8subjects07 give the governments any of the exclusive ability of the people or 8conventions10 and it did not 7nor could it1 if ,america were to be a republic7 alter the existing ability of the majority of the ,american people to make their governments what they will4 ,but1 for the very practical purpose which ,madison so clearly explained1 the purpose of providing some check upon the tyranny of the majority or an aggressive minority over the individual rights of all ,americans1 the ,fifth ,article procedure could and did fail to provide any ,,constitutional method in which government power to interfere with individual liberty1 as all surrendered power of that kind was distributed between different governments in the ,constitution1 could be changed in any way or transferred from one government to another1 unless the 8conventions0 of the ,american citizens in three fourths of the states said 8,yes0 to any proposed change or transfer4 ,the ,philadelphia ,convention having proposed this particular check upon the existing ability of the people themselves to oppress individual liberty1 a check which makes the words 8by conventions in three fourths thereof0 by far the most important words1 the ,fifth ,article goes on to prescribe exactly the same check on the exercise of the ability of the state legislatures to make federal ,articles4 ,that the ,fifth ,article1 a constitutional mode of procedure for the exercise of two different existing abilities1 was not a grant of any power to the state legislative governments is something that was known to every man in the conventions which made that ,fifth ,article4 ,in the ,pennsylvania convention1 ,wilson plainly stated the knowledge of all that the supreme power 8resides in the people1 as the fountain of government2 that the people have not--that the people meant not--and that the people ought not--to part with it to any government whatsoever4 ,in their hands it remains secure4 ,they can delegate it in such proportions to such bodies1 on such terms1 and under such limitations1 as they think proper4 ,i agree with the members in opposition1 that there cannot be two sovereign powers on the same subject4444 ,my position is1 sir1 that1 in this country1 the supreme1 absolute1 and uncontrollable power resides in the people at large40 7#b ,ell4 ,deb4 #def et seq47 ,when more than half a century had passed1 the same thing was known to those who knew ,american ,constitutional ,law4 8,it is obviously impossible for the whole people to meet1 prepare and discuss the proposed alterations1 and there seems to be no feasible mode by which an expression of their will can be obtained1 except by asking it upon the single point of assent or disapproval4 ,but no body of representatives1 unless specially clothed with power for that purpose by the people when choosing them1 ergo1 no permanent state governments or legislatures can rightfully take definitive action upon amendments or revisions2 they must submit the result of their deliberations to the people--,,who ,,alone ,,are ,,competent ,,to ,,exercise ,,the ,,powers ,,of ,,sovereignty ,,in ,,framing ,,the ,,fundamental ,,law--for ratification or rejection40 ,so spoke the great ,cooley in reference to making changes in national constitutions in his work on ,constitutional ,limitations 7#gth ed41 #aijc1 at p4 #fa74 ,when one hundred and seventeen years had passed since the conventions in which we just sat1 the same thing was known in the ,supreme ,court1 in #aijg4 ,the powers the people have given to the ,general ,government are named in the ,constitution1 and all not there named1 either expressly or by implication1 are reserved to the people and can be exercised only by them1 or upon further grant from them4 7,justice ,brewer in ,turner v4 ,williams1 #aid ,u4 ,s4 #bgi47 ,,chapter ,,xiv ,,seventeen ,,articles ,,respect ,,human ,,freedom 8,for my own part1 ,i acknowledge a thorough conviction that ,amendments which may1 upon mature consideration1 be thought useful1 will be applicable to the organization of the government1 not to the mass of its powers40 7,fed4 ,no4 #he47 ,this was the statement of ,hamilton to the ,american people when he was asking them1 about to assemble in their conventions1 to make their ,first ,article grants of enumerated powers to interfere with their individual freedom and to make their ,fifth ,article mode of procedure1 in which they could exercise ,,constitutionally their exclusive ability1 assembled again in 8conventions10 to add or subtract from that grant of enumerated powers of that kind4 ,when he used the words1 8mass of its powers10 he referred directly to that ,first ,article grant4 ,it contains all the powers that were ever given to any government to interfere with the individual freedom of the ,american citizen4 ,he knew what the ,supreme ,court clearly declared in ,united ,states v4 ,cruikshank1 #ib ,u4 ,s4 #edb1 that1 beyond the scope of its enumerated powers1 there is no government of the ,american citizens4 ,he knew that1 in the geographical territory which is each state1 there would thereafter be two governments1 the government of enumerated powers1 governing the ,american citizens in that state under the ,first ,article grants from the ,american citizens1 and the state governments1 governing the citizens of the state1 under whatever grants of national power its state citizens gave that government4 ,the two governments in each state stand in their respective spheres of action in the same independent relation to each other1 except in one particular1 that they would if their authority embraced distinct territories4 ,that particular consists in the supremacy of the authority of the ,united ,states when any conflict arises between the two governments4 7,justice ,field1 in ,tarble's case1 in the ,supreme ,court1 #ac ,wall4 #cig47 ,with such knowledge1 he would have found it impossible to make the blunder of assuming that either government could give or join with governments in giving to the other any power to interfere with the citizens of the grantee in their enjoyment of individual liberty4 ,he knew that1 8,in our republican forms of government1 the absolute sovereignty of the nation is in the people of the nation2 and the residuary sovereignty of each state1 not granted to any of its public functionaries1 is in the people of the state40 7,story1 #a ,ell4 ,deb4 #fe47 ,when ,hamilton stated1 in those days of #aghh1 his conviction that new ,articles would relate to the 8organization of government and not to the mass of its powers10 he was epitomizing the common knowledge of everyone1 at that time1 that the new ,constitution was both federal and national4 ,he was predicting that the power to interfere with individual liberty1 to the extent which ,americans had surrendered any power of that kind to their governments1 had been so wisely distributed1 between the government of the citizens of ,america and the political entity which was each state1 that it would never be necessary for the citizens of ,america to alter that distribution by giving any more to their government4 ,that is why he prophesied that no new ,article of the kind which only 8conventions0 of those citizens can make1 ,articles changing the 8mass of powers0 granted to that government by the ,first ,article1 would ever be needed4 ,and we recall that this conviction probably influenced the last day remembrance in the ,philadelphia ,convention by ,madison and himself1 that the ,fifth ,article should also contain some reference to the state legislatures and their future exercise of their existing abilities to make federal or declaratory ,articles1 which do not change the 8mass of powers0 in that ,first ,article grant and do not relate to government interference with the individual liberty of the ,american citizen4 ,the statement of ,hamilton was not meant as a prophecy4 ,it was the result of a great mind reasoning from cause to probable effect4 ,as we come down through the century or more that follows that statement and reach the beginning of the year #aiag1 we pay our tribute to a mind which could reason so correctly as to what would happen for more than a hundred years4 ,we shall find that never again1 from #aghg to #aiag1 did experience find it necessary that the 8conventions0 of the ,american citizens1 the 8conventions0 named in the ,seventh and the ,fifth ,articles1 should again be assembled to alter1 as they alone can alter1 the mass of enumerated powers to interfere with their own individual liberty1 which they granted in that ,first ,article4 ,it is a striking commentary upon the ability of ,hamilton and his generation1 when contrasted with our modern 8constitutional thinkers10 that he knew and appreciated what would happen in a century to come1 while they have not understood what had happened in a century that had gone1 although the record of that century was spread out before them to read4 ,none of our leaders have appreciated the fact that every one of the first seventeen ,amendments to our ,constitution was of the kind that state legislatures had ability to make before our ,constitution was even drafted at ,philadelphia1 because all were federal 7or declaratory7 ,articles and were not national ,articles4 ,if they had known1 after these seventeen ,amendments were history1 what he prophesied before the ,constitution itself was adopted1 the story of the last five years might not have been what we shall learn hereafter that it was4 ,that we may know1 of our knowledge1 what he prophesied and what they entirely overlooked and ignored1 let us briefly examine the nature of those seventeen ,amendments4 ,thus we will learn why governments1 known at ,philadelphia in #aghg to be incompetent to make national ,articles1 could and did make those seventeen ,articles in the constitutional mode of procedure which the ,fifth ,article provided for the exercise of their existing ability limited to the making of federal or declaratory ,articles4 ,the first ten ,amendments were declarations insisted upon by the ,american citizens1 assembled in 8conventions0 where we have sat1 as specific security against government usurpation of power over their individual freedom4 ,the ,supreme ,court has repeatedly declared that everything in those ten ,amendments was in the ,constitution when it was ratified by those 8conventions0 and that the ,amendments simply declared what the will of the people themselves1 assembled in those 8conventions10 had already established as the fundamental law in ,america4 ,certainly no man would challenge the prophecy of ,hamilton on the theory that any one of those ,amendments added to the mass of government powers to interfere with human freedom4 ,they are1 each and every one of them1 the declaration that government cannot do 8this0 and government cannot do 8that40 ,so far from being national ,articles1 the kind which only 8conventions0 of ,american citizens could or can make1 the kind which tell government that it can command the ,american citizens on this or that subject1 they are all ,articles which tell government that it cannot command the ,american citizen4 ,and1 for the further security of the individual freedom of the ,american citizen1 a security never needed more than in this year #aibc1 the ,tenth ,declaration emphatically declares who it is that ,,retains the exclusive ability to alter1 in one iota1 8the mass of powers0 7over the individual freedom of the ,american citizen7 granted by them in the ,first ,article and the exclusive ability to exercise any power of that kind over them1 which was not granted in the ,first ,article4 ,who can deny that1 stated in our own words1 this is what we find in the plain declaration of the ,tenth ,amendment8 8,we1 the people of ,america1 assembled in our conventions1 have granted to the ,american government enumerated powers of the ,first ,article4 ,they are the only powers of that kind delegated to any government1 by which it can interfere with our individual freedom in our capacity as ,american citizens4 ,all powers1 which the citizens of each state have hitherto had and which we have not taken from them herein1 we have left with them2 and the citizens of each state can grant so much of said powers as they please to their own government to govern them as citizens of that state4 ,all other powers1 outside those we have granted to our government to interfere with us and those we have left to the citizens of each state for their own respective exercise1 we reserve exclusively to ourselves1 in our capacity as citizens of ,america4 ,and1 if any government should deem it wise that any one of these powers 7which we so reserve exclusively to ourselves7 should be exercised1 we have provided in the ,fifth ,article the mode of procedure in which we1 assembled in our conventions1 can ,,constitutionally exercise it or grant it to the government which wants to exercise it40 ,the powers the people have given to the ,general ,government are named in the ,constitution1 and all not there named1 either expressly or by implication1 are reserved to the people and can be exercised only by them1 or upon further grant from them4 7,justice ,brewer in ,turner v4 ,williams1 #aid ,u4 ,s4 #bgi47 ,later herein we ,americans1 fresh from the 8conventions0 which demanded these declarations for the better protection of individual liberty1 are going to hear expounded a doctrine1 which would mean that these declarations were themselves the ,american ,magna ,charta4 ,we are going to hear1 to our amazement1 that these declarations were a compact between an omnipotent government and its subjects1 ourselves1 who have always imagined that we were 8citizens0 and not 8subjects40 ,we are going to hear1 to our utter incredulity1 that these declarations are the promise of a government--itself omnipotent over ourselves and our ,constitution and our government which we thought to be the supreme government in ,america--that we1 the subjects of that omnipotent government1 may have certain privileges which this omnipotent government will not take from us4 ,when first we shall hear this #aiag resurrection of the ,tory concept that government is master and ,americans are 8subjects10 that government is the state and we are its assets1 we shall naturally be astounded and indignant that even a few inhabitants should still retain what ,madison called 8the impious doctrine0 of the ,old ,world1 that people are made for governments1 not governments for the people4 ,quickly1 however1 we shall become alarmed to find how wide-spread1 among the 8constitutional thinkers0 of our own generation1 is the complacent acceptance of the ,tory concept and to learn that1 when its application in any given instance injures a client of one of those constitutional thinkers1 no matter how he may argue against the application in the particular instance1 he neither knows nor uses for his client the fact that the ,statute of '#gf repealed the doctrine on which ,magna ,charta rested1 the ,tory concept that government is the state and that we are its 8subjects40 ,it will be difficult for us to understand these leaders of our generation4 ,in addition to what we have just lived through with the early ,americans1 these leaders will have before them countless decisions of the ,supreme ,court1 flatly contradicting the ,tory concept on which all these leaders reason4 8,the concessions of ,magna ,charta were wrung from the ,king as guarantees against the oppressions and usurpations of his prerogatives4444 ,the omnipotence of ,parliament over the common law was absolute1 even against common right and reason4 ,the actual and practical security for ,english liberty against legislative tyranny was the power of a free public opinion represented by the ,commons40 ,we are going to find many of our leaders with the fixed ,tory concept that there is in ,america a legislative government1 unknown to the generation of ,americans who created all government in ,america1 and that this omnipotent government can do whatever it pleases1 without any constitutional restraint1 with almost everything in ,america1 including ourselves and our ,constitution and our ,american government4 ,curiously enough1 we are going to be told that the one thing1 in which this omnipotent legislative government falls short of absolute omnipotence1 has nothing to do with any individual human freedom1 but is its inability to change the equal representation of every state in our ,senate4 ,it will be quite amazing to us to hear these men1 not proving this ,tory concept but stating it as axiomatic ,american law and on it basing their every argument and audaciously claiming that our ,supreme ,court has no right even to consider whether it is so or not4 ,but there will be something to alarm us even more4 ,we will find our other 8constitutional thinkers10 by circumstances obliged to challenge some particular deduction from this ,tory concept1 without any knowledge of the invincible facts which challenge the concept itself4 ,to most of these men it will be as if the ,statute of '#gf had been repealed and the result of our ,revolution reversed1 in #aghg1 by the very 8conventions0 in which we have sat4 ,it will be our amazement to hear that these 8conventions0 never created the citizen of ,america but that the ,american people1 assembled therein1 voluntarily made themselves 8subjects0 of the omnipotent government4 ,and these modern 8constitutional thinkers0 will discuss this omnipotent government on the basis that those 8conventions0 made that particular government 7not the one to whom the ,first ,article grants its powers7 attorney in fact for the general people of ,america1 authorized to interfere with their individual freedom1 8on all matters whatsoever40 ,to most of these men1 it will be as if the ,supreme ,court1 in countless ways1 had not declared3 ,in this country1 written constitutions were deemed essential to protect the rights and liberties of the people against the encroachment of power delegated to their governments1 and the provisions of ,magna ,charta were incorporated into bills of rights4444 ,applied in ,england only as guards against executive usurpation and tyranny1 here they have become bulwarks against arbitrary legislation2 but in that application1 as it would be incongruous to measure and restrict them by the ancient customary ,english ,law1 they must be held to guarantee1 not particular forms of procedure1 but the very substance of individual rights to life1 liberty and property4 ,of course1 fresh from the conventions of old1 we shall know that these men are talking nonsense4 ,we shall know that the last two quoted statements from the ,supreme ,court1 in ,hurtado v4 ,california1 #aaj ,u4 ,s4 #eaf1 are but the expression of what was once the common knowledge of a people then 8better acquainted with the science of government than any other people in the world40 ,but1 as our knowledge shall be as the knowledge of the ,americans of old1 who fought an eight year war of sacrifice to make any such ,tory concept in ,america absolute nonsense1 it is well for us1 while we are examining the nature of the first seventeen ,amendments of our ,constitution1 to keep in mind one thing1 which we now know and which1 if it had not been forgotten1 would have prevented the monumental blunder of the generation in which we ourselves are the ,american citizens4 ,this one thing is the fact that the ,constitution1 made in the conventions we have just left1 is a federal and a national ,constitution4 ,that fact and its influence upon the ,convention1 which framed the ,fifth ,article1 and on the 8conventions0 of the ,american citizens1 which made that ,article1 led them to provide1 in their ,fifth ,article1 the ,,constitutional mode in which state governments could exercise their existing limited abilities to make federal and declaratory ,articles1 like all the ,articles of #agha and like the first seventeen ,amendments1 and also to provide therein the constitutional mode in which the 8conventions0 of the ,american citizens could exercise their exclusive ability to make ,,national ,articles1 like the ,first ,article and the supposed new ,eighteenth ,amendment4 ,having fixed this clearly in our mind1 we now proceed to examine the nature of the remaining ,amendments that were made1 prior to #aiag4 ,the ,eleventh ,amendment gave no power of any kind to anyone4 ,it simply declared that the ,court of the ,american nation could not have jurisdiction of law suits against one of the states 8by citizens of another state1 or by citizens or subjects of any foreign state40 ,we commend1 however1 to the modern 8constitutional thinkers10 whose ,tory concept we shall meet later1 this early ,american recognition of the fact that1 in ,america1 we are 8citizens40 ,it will be noticed that this ,eleventh ,amendment1 declared by the ,president to have become part of the ,constitution on ,january #h1 #agih1 speaks of the 8citizens0 or 8subjects0 of any foreign state but speaks only of 8citizens0 in ,america4 ,the ,twelfth ,amendment likewise has naught to do with power of governments over human liberty4 ,it deals solely with the manner in which the ,chief ,executive of ,america shall be chosen4 ,the ,thirteenth1 ,fourteenth and ,fifteenth ,amendments are the famous so called ,slavery ,amendments4 ,even the modern 8constitutional thinker0 of #aiag and #aibj1 no matter how ,tory his concept1 will hardly dare to claim that these ,amendments give government power to interfere with the rights which the ,creator gave to the human being4 ,on the most casual examination of the language of these ,amendments1 no one can fail to be impressed with the one pervading purpose found in them all1 lying at the foundation of each1 and without which none of them would have been even suggested2 we mean the freedom of the slave race1 the security and firm establishment of that freedom1 and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him4 7,slaughter ,house cases1 ,supreme ,court1 #af ,wall4 #cf at p4 #ga47 ,of these ,amendments1 in the ,civil ,rights ,cases1 #aji ,u4 ,s4 #c1 the ,supreme ,court again said that 8they abolished slavery1 and established universal freedom40 ,when1 therefore1 in the year #aibj1 we shall hear these ,amendments1 which establish universal freedom1 cited as ,articles of exactly the same nature as a supposed new ,article1 directly interfering with the freedom of the ,american citizen on a matter not enumerated in the ,first ,article1 we shall be rather surprised4 ,but we shall be more than surprised1 when we hear the reason of the modern 8constitutional thinker0 why both ,articles are within the power of the state governments1 who are his clients1 to put into our ,constitution4 ,not knowing that our ,constitution is a federal as well as a national ,constitution1 not knowing that his government clients always had the ability to make federal ,articles and never had and have not now the ability to make ,articles which interfere with human freedom1 we shall find him stating1 as axiomatic1 that the slavery ,amendments1 which establish universal freedom1 and the supposed ,article of #aiag1 which interferes with freedom of the individual1 are identical1 for the reason that both affect the individual and his rights and liberties4 ,on the remarkable nature of this identity1 that one secures and the other interferes with individual liberty and1 therefore1 both affect individual liberty1 we shall find that he bases the ,tory concept that state governments can do as they please with all liberties of the ,american citizens4 ,while his theory will serve only to amuse us1 we commend1 to his reading1 this extract from a better ,american lawyer3--8,the legislature may not confer powers by law inconsistent with the rights1 safety1 and liberties of the people1 because no consent to do this can be implied1 but they may pass limitations in favor of the essential rights of the people40 7,woods appeal1 #ge ,pa4 #ei47 ,the ,sixteenth ,amendment simply removes1 from one of the great powers granted to ,congress by the citizens of ,america in their ,first ,article1 a federal limitation upon its exercise1 a limitation entirely for the benefit of the states which are political entities4 ,in the 8conventions0 we have just left1 the ,first ,article grant of power to the new government to impose direct taxation was the object of incessant attack4 ,no prerogative of government is more cherished by any government than its ability to exact financial tribute from human beings by means of taxation4 ,under the old federation of states1 although the federal government needed money1 it was without any power of taxation4 ,all it could do was to ask the various state governments to supply it with the money4 ,article ,,vii of the 8,articles of ,confederation0 provided that the expenses of the federal government 8shall be defrayed out of a common treasury1 which shall be supplied by the several states1 in proportion to the value of all land1 within each state1 granted to or surveyed for any person1 as such land1 and the buildings and improvements thereon1 shall be estimated1 according to such mode as the ,united ,states in ,congress assembled shall1 from time to time1 direct and appoint4 ,the taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several states1 etc40 ,section #h of the ,first ,article of the proposed new ,constitution read that 8,the ,congress shall have power to lay and collect taxes1 duties1 etc40 ,at ,philadelphia1 in #aghg1 a tremendous fight was made against the proposal of this grant by the citizens of ,america to their government4 ,many delegates at ,philadelphia1 who had the financial welfare of their particular state government at heart1 contended that1 if the new government were given the power of direct taxation of the people1 the new government would leave the people with no money to be collected by the state governments for their own purposes4 ,the nationalists at ,philadelphia1 however1 knew that a national government without power of direct taxation over its own citizens would be a helpless government4 ,therefore1 they insisted that the proposed grant of this power remain in the ,first ,article4 ,as a concession to the opposition made on behalf of the state governments1 there was added to the proposed ,first ,article a purely federal limitation on the exercise of the national power of direct taxation4 ,this federal limitation1 on behalf of the states and their governments1 read3 8,no capitation1 or other direct1 tax shall be laid1 unless in proportion to the census or enumeration hereinbefore directed to be taken40 ,in the conventions of the citizens of ,america1 the friends of the respective state governments made every effort to defeat the ,first ,article grant of national power to impose direct taxation upon the citizens of ,america4 ,in the ,virginia convention1 from ,randolph and from ,henry1 arguing respectively for and against the grant1 we get our certain knowledge that the apportionment limitation on the exercise of the granted power was a purely federal limitation aimed entirely to secure to the respective state governments the just amount of the moneys which could be collected by taxation from the ,americans living in the respective states4 ,randolph argued3 8,the difficulty of justly apportioning the taxes among the states1 under the present system1 has been complained of2 the rule of apportionment being the value of all lands and improvements within the states4 ,the inequality between the rich lands of the ,james ,river and the barrens of ,massachusetts has been thought to militate against ,virginia4 ,if taxes could be laid according to the real value1 no inconvenience could follow2 but1 from a variety of reasons1 this value was very difficult to be ascertained2 and an error in the estimation must necessarily have been oppressive to a part of the community4 ,but1 in this new ,constitution1 there is a more just and equitable rule fixed--a limitation beyond which they cannot go4 ,representatives and taxes go hand in hand2 according to the one will the other be regulated4444 ,at present1 before the population is actually numbered1 the number of representatives is #fe4 ,of this number1 ,virginia has a right to send ten2 consequently she will have to pay ten parts out of sixty-five parts of any sum that may be necessary to be raised by ,congress4 ,this1 sir1 is the line40 7,randolph1 #c ,ell4 ,deb4 #aba47 ,as to the granted power of direct taxation1 ,henry argued3 8,we all agree that it is the most important part of the body politic4 ,if the power of raising money be necessary for the general government1 it is no less so for the states4444 ,the general government being paramount to the state legislatures1 if the sheriff is to collect for both--his right hand for ,congress1 his left for the state--his right hand being paramount over the left1 his collections will go to ,congress4 ,we shall have the rest4 ,deficiencies in collections will always operate against the states4444 ,congress will have an unlimited1 unbounded command over the soul of this ,commonwealth4 ,after satisfying their uncontrolled demands1 what can be left for the states8 ,not a sufficiency even to defray the expense of their internal administration4 ,they must therefore glide imperceptibly and gradually out of existence40 7,henry1 #c ,ell4 ,deb4 #adh et seq47 ,the ,sixteenth ,amendment merely removed1 in one respect1 this federal limitation upon the exercise of the national power of direct taxation granted by the ,first ,article4 ,the ,amendment read3 8,the ,congress shall have power to lay and collect taxes on incomes1 from whatever source derived1 without apportionment among the several states1 and without regard to any census or enumeration40 ,this ,amendment1 being nothing but a change in the federal aspect of the ,constitution1 being a change in the protection given to each state as a political entity1 was an ,amendment which the state legislatures1 each acting as attorney in fact for its own respective state1 were entirely competent to make4 ,the ,seventeenth ,amendment has no relation to human freedom4 ,it merely provided that the state governments should no longer elect the august ,senators in the ,american ,congress1 some of whom we shall meet later herein4 ,this last ,amendment1 prior to #aiag1 provided that those ,senators should be thereafter elected in our states by ourselves1 the ,american people4 ,curiously enough1 it is from the ,senate in which they sit that came the proposal which caused the trouble which is obliging us to educate ourselves to find our 8when0 and 8how0 between #aijg and #aiag we became 8subjects0 instead of keeping our status as citizens of ,america4 ,early in our education 7p4 #bf7 we were informed that our public statesmen and constitutional thinkers brought to the year #aiag the false 8knowledge0 that legislatures in ,america1 if enough combined1 had the omnipotence over individual freedom1 which the early ,americans denied to the ,british ,parliament4 ,their false 8knowledge0 was undoubtedly caused by their failure to appreciate1 if they knew or remembered1 that ,america is a national union of men while there is also a subordinate and federal union of states4 ,ignoring this simple fact1 they also ignored the important fact that the ,constitution is both national and federal and contains ,articles of both kinds4 ,blind to both important facts1 they acquired their false 8knowledge0 from the fact that the 8legislatures10 to whom they ascribed omnipotence over individual freedom1 had made the first seventeen ,amendments4 ,the fallacy of their deduction is mathematically demonstrable4 ,a constitutional ,article which gives to government any power to interfere with individual human freedom ,,is the constitution of government of men4 ,that is why the ,first ,article ,,was the constitution of the government of the nation of men4 ,and1 in turn1 that is why the legal necessity of having it made by the men themselves1 in their 8conventions10 was 8felt and acknowledged by all0 ,americans4 ,if one doubts that the ,first ,article ,,was the constitution of the government of men1 test the truth of the statement in this way4 ,first1 assume that the 8conventions0 made no ,article save the ,first4 ,then ask yourself if the whole ,american people would not have constituted their government with its great enumerated powers to interfere with their individual liberty4 ,in the second place1 make exactly the opposite assumption4 ,assume that the 8conventions0 made all the ,articles from the ,second to the ,seventh1 both inclusive1 but did not make the ,first ,article4 ,then ask yourself whether the whole ,american people would have constituted any government with a single power to interfere with their individual freedom4 ,let us now apply exactly the same test to each of the first seventeen ,amendments and then to the supposed ,eighteenth ,amendment4 ,take any one of the first seventeen ,amendments and assume that anything new which it put into the ,constitution was the entire ,constitution4 ,then ask yourself whether1 if the ,constitution consisted solely of the new matter in the ,amendment1 there would be any government of the whole ,american people with a single power to interfere with their individual human liberty4 ,take all the seventeen ,amendments and assume that any change all of them made was the entire ,constitution4 ,then ask yourself whether1 if any new matter in the seventeen ,amendments composed the entire ,constitution1 would there be any government of the whole ,american people with a single power to interfere with their individual human liberty4 ,now make the same assumption about the supposed ,eighteenth ,amendment4 ,assume that it is the entire ,constitution and that there are no other ,articles4 ,immediately it is seen that1 if the ,eighteenth ,amendment were the entire ,constitution1 there would be a government of the whole ,american people with an enumerated power to interfere with their individual human liberty4 ,now we see the fallacy of the false 8knowledge0 which our statesmen and constitutional thinkers brought to the year #aiag4 ,now we know the marvelous foresight of ,hamilton when he stated his conviction that ,amendments would relate to 8the organization of the government1 not to the mass of its powers40 ,none of the seventeen ,amendments did relate 8to the mass of its powers0 to interfere with individual human liberty4 ,that is why state legislatures1 representing the federal members of the union of states1 could make the federal or declaratory seventeen ,amendments4 ,the fact that those 8legislatures0 in #aghg could make ,articles of that kind1 as they had made them in #agha1 did not deceive the ,americans at ,philadelphia into a false 8knowledge0 that those 8legislatures0 could make the ,first ,article with its enumerated powers to interfere with the individual freedom of the members of the nation of men4 ,the fact that the same 8legislatures10 still representing the members of the subordinate union of states1 still could make declaratory or federal ,articles1 and had made seventeen ,articles of that kind1 not one of which constituted new government power to interfere with individual liberty1 should not have misled the statesmen and constitutional thinkers of our generation4 ,but it did4 ,,chapter ,,xv ,,the ,,exiled ,,tory ,,about ,,to ,,return ,we have now educated ourselves accurately to know1 at the beginning of #aiag1 what was our own relation to all governments and what was the relation of those governments to one another4 ,with certainty1 we know that those relations1 at the beginning of #aiag1 were exactly what they had been at the close of #agij4 ,it is amazingly important that we never forget that particular knowledge1 when reading the story of what has happened since the beginning of #aiag4 ,with certainty1 through our education we know that1 at both times1 the following was our own relation to all governments and the relation of each of them to the others4 ,no individual in ,america was a 8subject0 of any government or governments4 ,each individual was a 8citizen0 of the nation which is ,america4 ,the citizens of ,america1 as such citizens1 had given to their only government its enumerated powers to interfere with their individual freedom4 ,those ,american citizens had given these enumerated powers by direct grant from themselves1 in the only manner1 in which they can act effectively on such a subject1 by assembling in their 8conventions40 ,those ,american citizens had made it the imperative law of ,america that no new power of that kind 7to interfere with their freedom7 could be created except by the new exercise of their own ability in the same manner4 ,the very essence of the wisdom and efficiency of the manner of the first exercise was that the exercise was by 8conventions0 of themselves1 chosen by themselves1 after specific grants had been proposed to them to be made by them4 ,these 8conventions10 chosen from among themselves for the one purpose of saying 8,yes0 or 8,no0 to the proposed grants1 had made those grants in the only way in which the ,american people 8can act safely1 effectively and wisely0 in the making of such grants4 ,in their ,fifth ,article1 made in the first 8convention0 exercise1 they had mentioned the very 8convention0 method in which they were then assembled to make their ,first ,article grants4 ,thus1 they made that method ,,constitutional for future exercise of their own exclusive power to make grants of that kind4 ,thus they had secured their liberty against any attempt by government to interfere with their individual freedom1 as ,american citizens1 except in the matters named in the enumerated powers of the ,first ,article4 ,in this way1 they had secured their liberty1 in their capacity of ,american citizens1 against any attempt by other governments than their only government at ,washington1 even in the matters enumerated in the ,first ,article4 ,nearly every individual in ,america was also a citizen of a state4 ,in each state1 its citizens had vested the legislative government of the state with limited powers to interfere with the individual freedom of those within the jurisdiction of that state4 ,the limitations upon the power of each state government to interfere with those within its own jurisdiction were1 firstly1 limitations imposed by the citizens of ,america in their ,constitution upon the power of each state to govern itself2 secondly1 the limitations imposed by the citizens of each state in their own constitution2 and1 thirdly1 the limitations imposed by the traditional ,american principle that no government1 without limit1 can do what it will with the individual freedom of its citizens4 ,in each state1 subject to those limitations1 its own citizens were exclusively competent to determine the exact quantum of ability which its own legislative government should have to interfere with the individual human freedom of those within its jurisdiction4 ,no government or governments outside each state could interfere with the individual freedom of its citizens1 as such citizens1 in any matter4 ,no outside government at all1 except ,congress1 could interfere with their freedom1 as human beings1 in any matter4 ,the legislative governments of the other states1 either singly or collectively1 on no matter1 could either exercise themselves or give to any government a single power to interfere with the human beings in each particular state4 ,the one ,american government1 at ,washington1 could only interfere with those human beings on the matters enumerated in the ,first ,article4 ,no new ability in that government so to interfere with them could be granted except by direct grant from the citizens of ,america assembled in their 8conventions40 ,the ,fifth ,article had been the command of the citizens of ,america that only a 8,yes0 from three fourths of those 8conventions0 of themselves should be valid to add a new power over themselves to those enumerated in their ,first ,article4 ,from #aggf to #aiag it had been the obeyed fundamental law in ,america that no government could acquire1 from another government or from other governments1 any power to interfere with the individual freedom of the human beings within its jurisdiction4 ,the human beings in each state were members or citizens of the nation which is ,america4 ,they were also1 in each state1 the members or citizens of the nation which is that state4 ,the states were also members of their own federation1 whose federal government had been continued by the citizens of ,america4 ,in its personnel1 that federal government was identical with the national government of those citizens of ,america4 ,in the ,fifth ,article1 the citizens of ,america had recognized and mentioned the existing ability of the states1 as political entities1 to make constitutional ,articles of a federal nature4 ,for that reason1 the ,fifth ,article had been the command of the citizens of ,america that1 when the states exercised their limited ability1 a 8,yes0 from the legislatures of three fourths of the states should be effective to make a federal ,article4 ,in the matter of interference with individual human freedom1 so far as experience tells the story1 there had continued from #aggf to #aiag the knowledge of the legal fact1 made basic ,american law by the ,statute of '#gf1 that no government could get any national power except by direct grant from its own citizens1 and that no government could exercise any national power over any but those in its own jurisdiction and then only by direct grant of that power from its own citizens4 ,we know that this was the wonderful system of constitutional government under which ,americans had lived from #agij to #aiag4 ,we know that the ,americans1 who were our predecessors in #aghg1 had prescribed that system as best calculated to protect their human liberty and our own from outside aggression and from usurpation of power by their governments and our own4 ,educated with them1 from the day when they were all subjects of a legislative government1 we know much of their struggle to rid themselves forever of the status of 8subject0 and to become free men4 ,in that education1 however1 we have dwelt but little so far upon one phase of that struggle4 ,at this point1 it is essential that we educate ourselves briefly but accurately on that one phase4 ,whenever government exists1 even government limited to those powers thought by its citizens necessary to secure human liberty1 the weakness of human nature makes it certain that the exercise of granted powers will not always be for the common benefit of the citizens who grant them4 ,when the government is the ,state and human beings are its 8subjects10 that weakness is usually more apparent4 ,as a result1 in every country the rich and powerful largely secure the actual control of government4 ,that they may entrench themselves in its control and the exercise of even its lawful powers1 they lavish favors on a class actually large in number but comparatively constituting a small minority of the people of the country4 ,for this class1 it is of material advantage that government should be the ,state and command the people as its 8subjects40 ,when a man is born or educated as a member of this minority1 it is beyond the experience of the human race that his mental attitude should not regard the relation of 8subject0 to ruler as the proper relation of human being to government4 ,in those earlier days1 in whose experience we have just been educated1 the human beings in ,america1 who had that mental attitude1 were distinguished from the ,americans by the name 8,tories40 ,throughout this book it is that mental attitude which we characterize as 8,tory40 ,it is those who display that mental attitude whom we call 8,tories40 ,at the time of our ,revolution it is a historical fact that about one third of our population was ,tory in its mental attitude4 ,many of the ,tories1 quite possibly most of them1 were actuated by a sincere and deep conviction that it was better for every one that human beings should be subjects4 ,that conviction had been the basis of nearly all science of government for centuries4 ,it is really a remarkable fact that our history should show1 from their recorded statements and writings1 so many men in #aghg accurately grasping the fallacy of that historical doctrine that men were made for kings or governments4 ,in our education1 we now grasp accurately that the ,americans1 who ended forever the status of 8subject0 in ,america1 in their ,revolution1 had not only to contend with their former omnipotent government but also with one third of their own population1 the ,tories4 ,when that ,revolution had succeeded1 when the ,statute of '#gf had actually been made the basic law of ,america1 many ,tories1 in the natural course of events1 became citizens of the particular state1 now a free republic1 in which they lived4 ,when the ,convention of #aghg assembled at ,philadelphia1 when the respective 8conventions0 in each state later assembled1 many delegates were men with a known leaning to the ,tory mental attitude4 ,it is not to be understood that1 by reason of this fact1 their loyalty to the new institutions of their country was not sincere4 ,one of the great liberties secured by those new institutions was the right of the human being to think and talk as he pleased as to what is the mode of government best designed to secure the happiness of men4 ,as a matter of fact1 when those 8conventions0 assembled1 many of our most prominent ,americans of the ,revolution had begun sincerely to doubt whether the ,american people had yet learned enough to profit most by their legal ability now to dictate to all their governments how much power each government should have4 ,it is the record of impartial history that the people's distribution of all surrendered power of a national kind1 the grant to the new government and reservation to the old state governments1 was dictated by two opposite factors4 ,the wise and able leaders1 whether their mental attitude was ,american or ,tory1 knew that the general government must get a grant of much power of that kind1 if it were successfully to promote the welfare of the ,american people4 ,on the other hand1 they knew with certainty that such grants must be specified and enumerated and limited1 or the ,american people would make no grant at all4 ,it was1 as it still is1 the basic law of ,america that grants of that kind could only be obtained directly from the people themselves4 ,the ,american mental attitude1 that citizens and not governments shall define the extent of government power to interfere with individual freedom1 was the controlling factor when the ,constitution made its great distribution of all surrendered powers4 ,if we go back to the 8conventions0 of those who established the system1 we find a striking fact4 ,in those 8conventions0 there were many men whose personal opinion always had been and still was in full accord with the ,tory concept of what ought to be the relation of government to human being4 ,but these men1 with that ,tory concept of what government ought to be1 were just as keenly aware as were those with the ,american concept1 that the ,tory concept had forever disappeared from ,american law4 ,whenever any suggestion was based upon the ,tory concept1 these very men were among the quickest to perceive and the most strenuous to insist that the suggestion could not be met because the ,american concept had displaced the ,tory concept forever in ,america4 ,if our modern leaders1 who have the same ,tory concept of what government ought to be1 had evinced the same perception and the same insistence1 the story of the last five years would be a different story4 ,because these leaders have had no knowledge of what ,america is1 we average ,americans must now come straight from the 8conventions0 in which the ,americans established the ,constitution to secure individual freedom and we must educate ourselves in the story of the last five years in which our governments and our leaders have calmly assumed that citizens are subjects4 ,,chapter ,,xvi ,,the ,,tory 8,,eighteenth ,,amendment0 ,in the closing month of #aiag1 the ,american people had been for eight months participants in the ,world ,war4 ,in that winter1 under the direction of their only government1 exercising its war power1 they were marshalling all that they had to win that war and to win it quickly4 ,the mind of the people themselves was concentrated on that one purpose4 ,the response of the average ,american citizen to the call of his government1 the assembling of millions of average ,american citizens as soldiers for that war1 the outpouring of their money by other millions1 should have made it impossible that the government servant of those ,american citizens should have entirely forgotten and ignored the knowledge of the 8conventions0 of #aghg1 that the ,american is a citizen and not a subject4 ,even if their personal experience had made them members of the class which naturally have the ,tory mental attitude1 the spirit of #aiag should have awakened our legislators from their wrong ,tory concept of our ,american basic law4 ,if plain words were needed to teach them that basic law1 only ten years earlier the ,supreme ,court had stated that law in words which even a child can understand4 ,the powers the people have given to the general government are named in the ,constitution1 and all not there named 444 are reserved to the people and can be exercised only by them1 or upon further grant from them4 7,justice ,brewer1 in the ,supreme ,court1 #aijg1 ,turner v4 ,williams1 #aid ,u4 ,s4 #bgi47 ,yet the statesmen of ,america1 when its citizens were offering their lives and their all1 chose that ,december of #aiag to propose that legislative governments1 which have never been the governments of the ,american citizen1 should exercise one of those reserved powers of 8the people0 and should give to the legislative government of the ,american citizens future ability to exercise that same power1 although ,american citizens had expressly reserved the power to themselves exclusively4 ,in ,december1 #aiag1 as in ,january1 #agij1 the ,american ,congress was the only legislative government of the ,american people4 ,all powers of a national character which are not delegated to the national government by the ,constitution are reserved to the people of the ,united ,states4 7,justice ,brewer1 in the ,supreme ,court1 ,kansas v4 ,colorado1 #bjf ,u4 ,s4 #df at p4 #ij47 ,outside of that legislature1 ,american citizens have no legislative government4 ,its powers are limited in number1 but not in degree4 ,within the scope of its powers1 as enumerated and defined1 it is supreme and above the states2 but beyond1 it has no existence4 7,justice ,waite1 in the ,supreme ,court1 ,united ,states v4 ,cruikshank1 #ib ,u4 ,s4 #edb47 ,in the ,senate1 on ,april #d1 #aiag1 ,senator ,sheppard of ,texas had introduced a ,resolution1 known as ,senate ,joint ,resolution #ag4 ,the ,resolution itself1 apart from the proposed new constitutional ,article which the senator suggested that legislative governments should make1 read as follows3 8,resolved by the ,senate and ,house of ,representatives of the ,united ,states of ,america in ,congress assembled 7two thirds of each ,house concurring therein71 ,that the following amendment to the ,constitution be1 and hereby is1 proposed to the ,states1 to become valid as a part of the ,constitution when ratified by the legislatures of the several ,states as provided by the ,constitution30 ,the proposed new national ,article1 which this #aiag ,resolution suggested should be made by legislative governments1 originally and in ,april1 #aiag1 read as follows3 99 99 99 99 99 8,article--4 8,,section #a4 ,the manufacture1 sale1 or transportation of intoxicating liquors within1 the importation thereof into1 and the exportation thereof from the ,united ,states and all territory subject to the jurisdiction thereof for beverage purposes are hereby prohibited1 8,,section #b4 ,the ,congress shall have power to enforce this article by appropriate legislation1 and nothing in this article shall deprive the several ,states of their power to enact and enforce laws prohibiting the traffic in intoxicating liquors40 ,by reason of our education in the actual constitution of our only ,american government and our respective state governments1 we grasp immediately the startling nature of the suggestion that the state governments make that ,section #a and that ,section #b4 ,we first dwell with amazement upon the proposed ,section #a and its proposed makers4 ,it is a general and direct command to all human beings anywhere in ,america1 directly interfering with their individual freedom1 on a matter not enumerated in the ,first ,article4 ,since we denied omnipotence to ,parliament1 no legislature or legislatures had ever dared to make any general command to the ,american people1 except the ,american ,congress and it only since #aghi and on matters enumerated in the ,first ,article4 ,from #aggf to #aghi1 no legislature or legislatures had any power whatever to make a general command to ,americans on any subject whatever4 ,when ,americans1 in answer to the ,philadelphia #aghg proposal1 made themselves a nation and constituted its government1 they gave to that government enumerated powers to make general commands on some subjects4 ,all other power to make general commands of that kind they withheld from every government and reserved exclusively to themselves1 as they had denied every power of that kind to every government in the world by their ,statute of '#gf4 ,for which very clear reasons1 it had been continually repeated in the ,supreme ,court for a century that only one government in the world could make a general command to the citizens of ,america1 and that the ,congress itself could not make any such command on any subject not enumerated in the ,first ,article4 ,the ,congress proposal of the ,eighteenth ,amendment was its own recognition of the truth that the sole government of ,american citizens had no power to command them on that subject4 ,it is probable that nothing ever originated in ,congress more remarkable than this proposal that1 because ,congress itself was without the power to make the command1 ,congress should ask inferior governments of other citizens to make a command to the ,american citizens4 ,if it were possible that this could be done1 there would be no ,american citizen4 ,while no public leader or renowned lawyer has known this simple fact1 the story of five years has shown how difficult it is to educate the average citizen away from the 8,american0 mental attitude of #aggf4 ,in #aibb1 our ,chief ,executive commented on the fact that the disobedience of ,american citizens to the command made by the state governments had become a public scandal4 ,from #agfe on1 similar disobedience of ,americans to commands made by government without authority from ,americans was a public scandal to ,tories in ,america and in the ,british ,parliament4 ,there can be no mistake about the ,tory mental attitude of the supposed ,american government which asked the governments of state citizens to make the #aiah command to the ,american citizens1 interfering with their individual liberty on a matter outside the ,first ,article4 ,the request was a frank avowal of the ,tory concept that the people are 8subjects0 and that government can constitute new government of men 8in all matters whatsoever40 ,even in choosing the time for the proposal and the command1 there was sincere and flattering imitation of a ,tory precedent of ,revolutionary days4 ,when ,americans of ,new ,york were away from their homes and at the battlefields of the ,revolution1 it was a ,tory who stirred up the ,house of the ,six ,nations to make a home attack upon what was cherished by those ,americans4 ,and it cannot be ignored that it was in #aiah1 when millions of ,americans were away from their homes either fighting or prepared to fight for human liberty1 the ,houses of forty-five distinct nations were stirred up to make a home attack upon what those ,americans cherished1 their individual freedom4 ,and the analogy does not end with this fact4 ,whenever the ,tory concept of the relation of government to 8subject0 has prevailed1 government has never recognized any obligation of government to obey law made by government4 ,in the years which followed #aiah1 this was strikingly exemplified by the sole ,american government which had asked the governments of state citizens to make a command to the citizens of ,america4 ,the command1 in simple ,english1 forbade that certain things be done in 8the ,united ,states and all territory subject to the jurisdiction thereof40 ,the ,american government insisted that its citizens must obey the command4 ,but the ,american government itself frankly added that1 on its own ships which flew the ,american flag1 it would not pay the slightest attention to the command4 ,and not until this frank ,tory attitude had been given unenviable notoriety did the ,american government ask the remarkable information from its ,attorney ,general whether ships1 owned by the ,american government and flying the ,american flag1 constituted 8territory subject to the jurisdiction0 of ,america4 ,then1 while the chief champion of the new ,article before the ,court of #aibj and his associate government officials waited for the information from their associate ,attorney ,general1 the ,american government continued to act on the claimed assumption that its ships were not 8territory subject to the jurisdiction0 of ,america4 ,facts speak for themselves4 ,it seems impossible to question the consistent ,tory attitude of the ,american government in every matter relating to the supposed ,eighteenth ,amendment4 ,let us now consider the second section of this amazing new ,article1 as such second section was originally suggested by the ,senator from ,texas4 ,in its then form it was the suggestion that1 after or simultaneously with the state government exercise of an imaginary power to command the ,american citizens1 those same state governments should vest in the only government of ,american citizens a future ability to make commands on the same subject1 a subject not enumerated in the ,first ,article4 ,the ,statute of '#gf1 the reasoning and the decision at ,philadelphia in #aghg that its ,first ,article could only be made by the 8conventions10 the clear and explicit statements in the ,supreme ,court 7from ,marshall to ,brewer in #aijg7 that no valid grant of national power could ever be made except by the 8conventions10 the prescription in the ,fifth ,article of the constitutional mode in which a 8,yes0 from three fourths of those conventions would validly make grants of such power--all these things meant nothing whatever to the ,senator from ,texas or his colleagues in ,congress1 to the legislators in the various states1 to government officials or to the 8constitutional0 lawyers who have discussed the ,eighteenth ,amendment4 ,none of them realized the clear fact that1 if government could get new power over human beings from government1 the ,americans1 through whose education we have lived1 had wholly failed to achieve their one purpose1 security of human freedom from any interference by government except under some power of interference directly granted by themselves to that government4 ,many of the colleagues of the ,senator from ,texas questioned the wisdom of asking the grant on that subject4 ,we know not one1 however1 who questioned the ability of the proposed donors to make the grant4 ,we know not one who questioned as a fact that a fractional part of our state governments have the very omnipotence over the individual people of all ,america1 which those earlier ,americans denied to the ,british ,parliament4 ,among our 8constitutional0 lawyers1 there were many who were engaged to combat in court the validity of the new ,article4 ,they questioned its validity on the ground that it took from the states1 which are mere political entities1 part of the power which each state had not surrendered4 ,in this1 they ignored the legal fact1 settled by innumerable decisions1 that the people of ,america1 not the states1 made the ,constitution and all its grants of national power4 ,they questioned its validity on the ground that the power 7to make constitutional ,articles7 8granted0 787 in the ,fifth ,article did not include the power to make fundamental changes in the ,constitution4 ,in this1 they wholly ignored the certain fact that no such power is granted in the ,fifth ,article but that two distinct powers1 then existing1 one limited and the other unlimited1 are mentioned and not granted in the ,fifth ,article1 and a mode of procedure for the future exercise of each is prescribed4 ,in all their challenges to the validity of the new ,article1 however1 we know not one who ever knew or mentioned the only and the invincible challenge to that validity1 that new power to interfere with the individual freedom of the ,american citizen could only be obtained constitutionally by direct action of the ,american people themselves1 assembled in the 8conventions0 of the ,fifth ,article4 ,it meant nothing to them that the ,fifth ,article prescribed that such grants should be valid only when there had been a 8,yes0 evoked from three fourths of those conventions4 ,if we would realize the amazing ignorance1 during the last five years1 shown on these matters1 we must continue the tale of the proposed new ,article4 ,before the proposed ,article had left the ,senate for the first time1 what we now call ,section #b read1 8,the ,congress shall have power to enforce this ,article by appropriate legislation40 ,with the section in that language1 the ,joint ,resolution was passed and sent to the ,house of ,representatives on ,august #a1 #aiag4 7,congressional ,record1 ,vol4 #ee1 p4 #efff47 ,it was reported out of the ,judiciary ,committee and taken up by the ,house on ,december #ag1 with the proposed ,section #b reading1 8,the ,congress and the several states shall have concurrent power to enforce this ,article by appropriate legislation40 ,somewhat educated with those ,americans whose experience made them better acquainted with the science of government than any other people in the world1 we realize that only ,mark ,twain could do full justice to the nature of this alteration to the proposed ,section #b4 ,it was not enough that ,congress1 because it did not have the power to make a certain command to its own citizens1 should ask inferior governments1 which are not the government of the ,american citizens1 to make that command4 ,it was not enough that the ,american ,congress1 when asking these inferior governments to make that command1 should ask them to give ,congress a future ability to make commands on that subject on which the citizens of ,america had never given any government or governments ability to make any commands to the citizens of ,america4 ,the ,house alteration in the second suggestion from the ,senate would indicate that the ,house became jealous of the ,senate ignorance of fundamentals in the relations of governments to one another in ,america and in the relation of all governments in ,america to the individual ,american4 ,it is difficult otherwise to explain the ,house alteration in the ,section #b of the ,amendment which came from the ,senate4 ,as the ,house reported the two sections back to the ,senate1 this is what the two sections proposed4 ,section #a embodied a command 7to be made by the inferior state legislatures7 which directly interferes with the individual freedom of the ,american citizens on a subject not enumerated in their ,first ,article4 ,section #b embodied a grant of future ability to make similar commands on the same subject1 and the grant was to be from the state legislatures to the ,congress and to the very state legislatures who were supposed to make the grant itself and the command of the ,first ,section4 ,this is exactly the form in which the ,second ,section of the supposed new ,amendment was later ratified by these very state legislatures4 ,that ,second ,section has been the subject of unlimited discussion for the past five years4 ,every one seems to have given it whatever meaning pleased him at some particular moment4 ,when the ,house ,chairman of the ,judiciary ,committee reported this ,section to the ,house he frankly stated that 8,we thought it wise to give both the ,congress and the several states concurrent power to enforce this ,article and let that power be set forth and granted in the ,article we propose to submit40 7,congressional ,record1 ,vol4 #ef1 p4 #dbd47 ,but when ,wheeler1 counsel for a political organization which dictated that governments constitute this new government of men1 wrote his briefs to uphold the validity of the new ,article which ,webb championed in the ,house1 he explained that this ,webb ,second ,section 8does not add to the power already conferred upon ,congress by ,section #a0 but that 8it does1 however1 make clear that the power is reserved to the states to pass legislation in aid of the acts of ,congress40 ,as in most matters1 the various champions of the supposed ,eighteenth ,amendment are unable to understand and agree upon the meaning of plain ,english4 ,from time to time1 in our education1 it will be clear that they do not know and understand what the ,american people did in #aghh in their 8conventions0 but that1 while flatly contradicting one another1 they are all satisfied that the ,american citizens did give the state legislatures unlimited ability to interfere with individual freedom of the ,american citizen4 ,it seems natural1 therefore1 to find ,webb and ,wheeler flatly contradicting one another as to the plain meaning of ,section #b of the ,eighteenth ,amendment4 ,despite the absurdity of the concept1 ,section #b means exactly what ,webb stated it to mean when he brought it from the ,house ,judiciary ,committee which had written it4 ,it means1 in the plainest ,english1 that the state legislatures grant to themselves 7as well as to ,congress7 ability to make commands of the very same kind as the same state legislatures make1 without the grant1 in the ,first ,section4 ,and it is a remarkable fact that1 in all the comment on that ,section #b for five years1 no word has been spoken about this ridiculous proposal that the state legislatures make a certain command and then grant themselves the power to make such commands4 ,however1 the absence of such comment has been quite in keeping with the fact that our modern leaders and lawyers1 during the same five years1 have never known or commented upon the fact that the ,eighteenth ,amendment depends for its existence upon the similar and equally absurd concept that the ,fifth ,article is a grant from the 8conventions0 to the 8conventions0 as well as to the state legislatures4 ,by reason of our education1 we have many natural questions to ask about that ,section #b and the unique ,house addition to its supposed grant4 ,while some of those questions may be academic1 inasmuch as we know that the new ,article is not in the ,constitution1 the thoughts which suggest the questions are strikingly pertinent to our general query1 8,citizen or ,subject80 ,in the first place1 we recall the opening words of ,section #d of the ,fourth ,article of the ,constitution4 ,those words are1 8,the ,united ,states shall guarantee to every ,state in this ,union a ,republican ,form of ,government40 ,these words immediately precede the ,fifth ,article4 ,moreover1 the ,supreme ,court has decided that it is the particular duty of ,congress to see that this particular guarantee of the ,fourth ,article is strictly fulfilled4 7,luther v4 ,borden1 #g ,how4 #a2 ,pacific ,telephone ,company v4 ,oregon1 #bbc ,u4,s4 #aah47 ,in the light of these facts1 we wish to know whether the ,congress1 which proposed the change in ,section #b1 so that state governments outside a particular state might give to the state government of that state new power to interfere with its citizens1 understood that the ,fifth ,article was meant to enable ,congress to originate any desired breach of the guarantee in the ,fourth ,article4 ,from our education1 we know that1 so long as any state has a republican form of government1 its legislature can have no power to interfere with the individual freedom of the citizens of a state except by the grant and continued consent of those citizens themselves4 ,we know that the citizens of each state1 in #aggf1 gave its legislature power to interfere with their freedom in the matter which is the subject of the ,eighteenth ,amendment4 ,we know that1 then or at any time since then and now1 the citizens of each state could take back that power so given4 ,but1 if the governments of thirty-six states outside any given state1 by the ,second ,section of the ,eighteenth ,amendment1 have granted the legislature of that particular state a new and second power to interfere with the individual freedom of the citizens of that state1 in the matter which is the subject of the ,eighteenth ,amendment1 what has become of the republican form of government in that state8 ,no republican form of government ever exists where governments1 outside a state1 give to its legislature any power to interfere with the individual freedom of its citizens4 ,the case of ,rhode ,island or ,connecticut makes our point clear1 although the question is equally apt for any state1 if the ,eighteenth ,amendment is in the ,constitution4 ,neither the ,american citizens in ,rhode ,island nor the legislature of ,rhode ,island1 which speaks only for its citizens and not for any citizens of ,america1 have ever said 8,yes0 to the grant to the legislature of ,rhode ,island of this new power to interfere with the individual human freedom of the citizens of ,rhode ,island4 ,the other power to interfere with that freedom1 on the same subject1 which the citizens of ,rhode ,island gave to their legislature1 is a power which the citizens of ,rhode ,island can take back from that legislature at any time4 ,but1 if the ,eighteenth ,amendment is in the ,constitution1 the legislature of ,rhode ,island has a power to interfere with the citizens of ,rhode ,island in the exercise of their human freedom1 which power has been granted by governments outside of ,rhode ,island1 and which power cannot be taken away from that legislature by the citizens of ,rhode ,island4 ,we average ,americans again ask whether the ,congress1 chosen to fulfill the guarantee of the ,fourth ,article1 understood the meaning of the ,fifth ,article to be that it could suggest and originate any desired breach of that guarantee8 ,in the second place1 we would like to ask another question of the ,congress which proposed that ,second ,section and of all who uphold the validity and the sanity of the ,eighteenth ,amendment4 ,this other question is about the two distinct powers1 in relation to ,prohibition1 which the legislature of every state must have1 if the ,amendment is in the ,constitution8 ,the question is simple4 ,when such legislature passes an act like the ,mullan-,gage ,law in ,new ,york1 who determines which of the two distinct powers the state legislature exercises8 ,is it the power granted by the citizens of that state and revocable by them8 ,or is it the power granted by governments outside that state1 over which the citizens of that state have not the slightest control8 ,the query is a pertinent one4 ,it is not beyond reasonable assumption that the citizens of ,new ,york may amend their state constitution and forbid their legislature to enact any statutes interfering with the freedom of the citizens of ,new ,york1 in any way1 on the matter which is the subject of the ,eighteenth ,amendment4 ,such a step on the part of the citizens of ,new ,york would be absolutely valid4 ,it is not forbidden even by the remarkable ,eighteenth ,amendment4 ,such a step would immediately deprive the legislature of the ,state of ,new ,york of any power from ,new ,york citizens to pass such law4 ,moreover1 it would end that ,law itself1 if that ,law was passed in the exercise of the power1 in such matters1 granted by the citizens of ,new ,york4 ,if it were determined1 however1 that the ,mullan-,gage ,law had been passed by the ,new ,york legislature in the exercise of power delegated to it by governments outside of ,new ,york1 the ,mullan-,gage ,law would still remain a valid statute4 ,this would mean1 of course1 that the republican form of government guaranteed to the citizens of ,new ,york1 by the ,fourth ,article1 had come absolutely to an end4 ,our particular query1 at this point1 is obviously one of considerable importance to us ,american citizens1 each of whom happens to be also a citizen of some state to which the citizens of ,america made the guarantee of the ,fourth ,article and imposed on the very ,congress1 which originated the ,eighteenth ,amendment1 the duty of having that guarantee fulfilled4 ,there are other equally pertinent questions which we might ask about this unique ,section #b of the ,eighteenth ,amendment4 ,we will leave them for the present1 so that we may continue the story of the travel of the proposed new ,article through the two ,houses of the ,congress which suggested that governments exercise and give government ability to exercise this new power over ,american citizens1 not enumerated in the ,first ,article4 ,we come now to the days on which the ,house of ,representatives and the ,senate discussed the ,joint ,resolution4 ,in the recorded eloquence of the advocates of the proposal1 we shall find much to remind us of the prevailing attitude in the ,british ,parliament toward us in #agge4 ,but1 in that eloquence1 we shall look in vain for any echo of the ,philadelphia of #aghg or of the 8conventions0 in which ,americans once assembled and gave their only government its only enumerated powers to interfere with their individual freedom4 ,,chapter ,,xvii ,,the ,,tory ,,in ,,the ,,house 8,let facts be submitted to a candid world40 ,they have 8combined with others to subject us to a jurisdiction foreign to our ,constitution and unacknowledged by our laws2 giving0 their 8assent to their acts of pretended legislation24 44 ,for4 44 declaring themselves invested with power to legislate for us in all cases whatsoever40 ,it is doubtful if our ,congress of #aiag ever read the above language4 ,it is certain that such ,congress1 reading those words1 would heed them just as little as all advocates of the supposed ,eighteenth ,amendment have heeded the express commands of the ,americans who uttered those words4 ,for the information of those who think that governments in ,america can validly make grants of national power1 like those in the ,first ,article and the ,eighteenth ,amendment1 we state that the quoted words are from the complaint of the ,american people against their ,british ,government on ,july #d1 #aggf4 ,for their information1 we also state that1 on that famous ,july day1 all ,americans ceased forever to be 8subjects0 of any government or governments in the world4 ,for their information1 we also state that it will require more than a combination of our ,american government and the state governments to subject us ,american citizens to a jurisdiction foreign to our ,constitution and unacknowledged by our laws1 the jurisdiction of the state governments1 none of which has aught to do with the citizens of ,america4 ,it is a known legal fact1 decisively settled in the ,supreme ,court1 that the jurisdiction of the ,american government over the ,american citizen and the jurisdiction of the state government over the state citizen are as distinct and foreign to each other as if the two citizens were two human beings and the territory of the state were outside of ,america4 ,we have in our political system a government of the ,united ,states and a government of each of the several states4 ,each one of these governments is distinct from the other and has citizens of its own who owe it allegiance and whose rights1 within its jurisdiction1 it must protect4 ,the same person may be1 at the same time1 a citizen of the ,united ,states and a citizen of a state1 but his rights of citizenship under one of these governments will be different from those he has under the other4 7,justice ,waite in ,united ,states v4 ,cruikshank1 #ib ,u4 ,s4 #edb47 ,the two governments in each state stand in their respective spheres of action1 in the same independent relation to each other1 except in one particular1 that they would if their authority embraced distinct territory4 ,that particular consists in the supremacy of the authority of the ,united ,states where any conflict arises between the two governments4 7,justice ,field in ,tarble's ,case1 #ac ,wall4 #cig47 ,in our ,constitution all power ever granted to interfere with the individual freedom of ,american citizens is vested in our only legislature1 the ,congress4 ,that is the opening statement of that ,constitution in its ,first ,article1 which enumerates all powers of that kind ever validly granted to that legislature4 ,in our ,constitution no power whatever over the citizens of ,america was ever granted to the states singly or collectively1 or to the governments of the states singly or collectively4 ,that all governments in ,america1 including the ,congress of #aiag1 might know that settled fact1 it was stated with the utmost clarity in the ,tenth ,amendment to that ,constitution4 ,that ,amendment1 repeatedly held by the ,supreme ,court to be part of the original ,constitution1 is the clear declaration that no power of any kind over us1 the citizens of ,america1 is granted in that ,constitution to any government save the government of ,america1 and to it only the enumerated powers of that kind in the ,first ,article4 ,it is also the clear declaration that all powers to interfere with individual freedom1 except the powers granted in the ,first ,article to the ,american government and powers reserved to the citizens of each state respectively1 to govern themselves1 are reserved to the ,american citizens4 ,wherefore1 now educated in the experience of the ,americans who insisted on that declaration1 we make exactly the same charge1 against the ,congress of #aiag and all advocates of the ,eighteenth ,amendment1 that was made by those ,americans against their king who insisted that they were 8subjects0 of an omnipotent legislature4 ,in ,december1 #aiag1 the ,congress knew that it could not make1 to the citizens of ,america1 the command which is ,section #a of the ,eighteenth ,amendment4 ,by reason of that knowledge1 that legislature--the only ,american one--paid its tribute to the state legislative governments as collectively a supreme ,american ,parliament with exactly the same omnipotence over all ,americans 8as subjects0 which the ,americans of #aggf denied to the ,british ,parliament4 ,congress ought to have known that no government except ,congress can make any command on any subject to ,american citizens4 ,it did know that ,congress could not make the command of the new article to the ,american citizen4 ,therefore it paid its tribute to the state governments4 ,it asked them1 as competent grantors1 to give it a new enumerated power to interfere with the individual freedom of the ,american citizen4 ,it is history that those state governments1 each with no jurisdiction whatever except over the citizens of its own state1 went through the farce of signing the requested grant in the name of the citizens of ,america4 ,it is law that those state governments are not the attorneys in fact of the citizens in ,america for any purpose whatever4 ,it is law that no governments have any power of attorney from the citizens of ,america to grant to any government a new enumerated ability to interfere with the individual freedom of the ,american citizens4 ,for which simple legal reason1 the supposed grant of such a power1 by government to government1 in ,section #b of the ,eighteenth ,amendment1 is a forgery4 ,the supposed ,volstead ,act was enacted under this grant4 ,it has met with the severest criticism4 ,no one1 however1 has yet pointed out one particular fact to the careful thought of every average citizen of ,america4 ,there are thousands of laws1 interfering with individual freedom1 in the statute books of the ,american nation and of the respective states4 ,in one respect1 however1 this ,volstead ,act is absolutely unique among statutes in ,america4 ,it is the one law in ,america of that kind1 the kind interfering with individual freedom1 which does not even pretend to be founded on a grant of authority directly from its citizens to the government which passed it4 ,it is the only law in ,america1 directly interfering with human freedom1 which was enacted under a grant of power made by government to government4 ,it does not detract from this unique distinction that the ,american government requested the grant1 and the state governments made it1 and the ,american government acted under it1 by passing the ,volstead ,act1 all being carefully planned and accomplished while millions of ,americans were preparing to give and thousands of them did give their lives for the avowed purpose of securing human liberty from the oppression of government4 ,when1 in #aghg1 ,americans at ,philadelphia had worded our ,constitution1 ,gerry1 opening the short discussion of its ,fifth ,article1 made this important and accurate statement of fact3 8,this constitution is to be paramount to the state constitutions40 ,all ,american citizens know that each state legislature is the creature of its state constitution and absolutely subject to that constitution4 ,we thus have clearly established that the ,american ,constitution is paramount to all the state constitutions and that each state constitution is respectively paramount to the state legislature which it creates and controls4 ,it remained for the ,congress of #aiag and all advocates of the ,eighteenth ,amendment to acquire and state and act upon the remarkable 8knowledge0 that those same state legislatures are paramount to everything in ,america1 including the ,american ,constitution1 which is paramount to the state constitutions which created these very legislatures4 ,that such was the unique knowledge of the ,congress of #aiag is made clear by its request to those state governments to make the command of ,section #a to the citizens of ,america and to make the grant of ,section #b of power over the citizens of ,america4 8,we thought it wise to give both the ,congress and the several states concurrent power to enforce this ,article and let that power be set forth and granted in the ,article we propose to submit40 ,so spoke ,congressman ,webb1 introducing the proposed ,eighteenth ,amendment1 exactly as it now reads1 to the ,house of ,representatives1 on ,december #ag1 #aiag4 ,this was the day on which that ,house discussed and passed the ,senate ,joint ,resolution #ag1 which proposed that ,amendment and submitted it to governments to make it4 ,webb was a lawyer of renown and chairman of the ,judiciary ,committee and had entire charge of the passage of the ,resolution in the ,house on behalf of those who had ordered the ,american ,congress to pass that ,resolution4 ,from one instance alone1 we may immediately glean how clearly ,webb and all leading supporters of the ,eighteenth ,amendment1 in and out of ,congress during the past five years1 have shown an accurate 8knowledge0 of the basic principles of all government in ,america4 ,we realize that such knowledge1 if human liberty is to remain secure1 is an essential qualification of leaders of a people once 8better acquainted with the science of government than any other people in the world40 ,no sooner had ,webb read the ,section #b and made his quoted statement of its purpose than he was asked a pertinent and important question4 ,the query was whether1 if ,congress and a state government each passed a law and they flatly conflicted1 which law would control8 ,webb had made long preparation to carry out his purpose that the ,eighteenth ,amendment be inserted in the ,constitution by government4 ,he was prepared with his immediate response to that ignorant question4 ,his prompt answer was3 8,the one getting jurisdiction first1 because both powers would be supreme and one supreme power would have no right to take the case away from another supreme power40 7,congressional ,record1 ,vol4 #ef1 p4 #dbd47 ,it is sad to relate that this lucid explanation of the manner in which two distinct supreme powers dictate to one 8subject10 the ,american citizen1 elicited the next query1 8,does the gentleman say that as a lawyer80 ,with the charity that real intelligence displays to ignorance1 ,webb again explained the simple proposition of two distinct and supreme powers to command on exactly the same matter4 ,we commend ,webb's ,american mental attitude1 without the slightest ,tory taint1 and his mastery of ,american law1 to all who ever wish to dictate to human beings as 8subjects40 ,fresh from our education in the experience of the earlier real ,americans1 we deem it proper to dwell for a moment further on that opening statement of ,webb3 8,we thought it wise to give both the ,congress and the several states concurrent power to enforce this ,article and let that power be set forth and granted in the ,article we propose to submit0 to the state governments4 ,we recall vividly the statement of ,lloyd ,george made only last year in the ,british ,legislature4 ,he was speaking of the proposed treaty with ,ireland1 then before that ,legislature1 and this is what he said1 in substance4 8,the ,parliament at ,westminster legislative government1 not the people of the ,british ,empire is the source of every power in the ,british ,empire40 ,it is our just tribute to ,webb and every ,american who believes that the ,eighteenth ,amendment is in the ,constitution1 that they understand that the ,american nation is founded and exists on exactly the same principle4 ,they have all acted upon the one conviction that the state governments collectively are exactly the same as the ,parliament at ,westminster1 are above the ,american ,constitution and need obey no command in it1 and are the legitimate source of any power to interfere with the individual freedom of the ,american citizen1 on any matter whatsoever4 ,on our part1 probably blinded by our own education with the earlier ,americans1 we still believe that ,webb and all who think with him are hopelessly ignorant of ,american law4 ,we believe that they do not understand in the least the vital change in the status of the ,american individual1 from 8subject0 to 8citizen10 on ,july #d1 #aggf4 ,we remember ,marshall's clear statement1 in the ,supreme ,court1 that1 in the days when ,americans 8were better acquainted with the science of government than any other people in the world0 and the ,first ,article grants of power over them were requested1 the legal 8necessity of deriving those powers from them was felt and acknowledged by all40 ,we know that they made no change in the imperative nature of that necessity4 ,we do not understand how that legal necessity1 during the past five years1 has not been known to ,webb and those of his ,tory faith4 ,we remember ,marshall's equally clear statement1 again in the ,supreme ,court1 that1 when new grants of such power are wanted from its citizens by the ,american government1 there is only one way1 in which those grants can be validly or 8effectively0 made1 namely1 by those citizens themselves1 assembled in their 8conventions40 ,it is true1 the ,american citizens assembled in those conventions in their several states4 8,no political dreamer was ever wild enough to think of breaking down the lines which separate the states1 and of compounding the ,american people into one common mass0 and of compelling them to assemble in one 8convention10 when it is necessary for them to act1 as possessors of exclusive ability to vest national power over them4 ,of consequence1 when they act1 they act in their states4 ,but the measures they adopt do not1 on that account1 cease to be measures of the people themselves1 or become the measures of the state governments4 7,m',culloch v4 ,maryland1 #d ,wheat4 #caf47 ,we do not understand how ,webb and those of his ,tory faith have forgotten this legal fact1 possibly the most important in ,america to the liberty of its citizens4 ,we remember how well this legal fact was once known to all ,americans1 how clearly the ,americans in ,virginia expressed it as the then knowledge of all ,americans and their leaders4 8,the powers granted under the proposed ,constitution are the gift of the people1 and every power not granted thereby remains with them1 and at their will40 7,resolution of the ,americans in ,virginia1 ratifying the ,constitution and making the grants of its ,first ,article1 #c ,ell4 ,deb4 #fec47 ,we do not understand how ,webb and those of his ,tory faith1 speaking the language of ,lord ,north in #agge and of ,lloyd ,george in #aibb as to the ,british ,government of 8subjects10 should translate the quoted accurate statement of ,american law into1 8,the powers granted under the proposed ,constitution are the gift of the people1 but every power not granted therein remains with the collective state legislative governments and can be granted by those governments1 without any action by the citizens of ,america themselves40 ,we know that the ,supreme ,court1 in #aijg1 did not so understand4 ,the powers the people have given to the ,general ,government are named in the ,constitution1 all in the ,first ,article and all not there named1 either expressly or by implication1 are reserved to the people and can be exercised only by them1 or upon further grant from them4 7,justice ,brewer in ,turner v4 ,williams1 #aid ,u4 ,s4 #bgi47 ,we do not understand how ,webb and those of his ,tory faith could believe that one of those reserved powers could be exercised by the collective state governments1 ,section #a of the new ,amendment1 or could be granted by those governments1 ,section #b4 ,we remember that ,madison1 who worded the ,fifth ,article1 and ,hamilton1 who seconded it at ,philadelphia1 did not so believe but knew that such belief came in direct conflict with basic ,american law4 8,as the people are the only legitimate fountain of power1 and it is from them that the constitutional charter1 under which the several branches of government hold their power1 is derived1 it seems strictly consonant to the republican theory1 to recur to the same original authority the people themselves in 8conventions0 whenever it may be necessary to enlarge1 diminish1 or new-model the powers of the government40 7,hamilton in ,the ,federalist1 ,no4 #di47 8,the fabric of ,american ,empire ought to rest on the solid basis of the consent of the people4 ,the streams of national power ought to flow immediately from that pure1 original fountain of all legitimate authority40 7,hamilton in ,the ,federalist1 ,no4 #bb47 8,the express authority of the people alone could give due validity to the ,constitution40 7,madison in ,the ,federalist1 ,no4 #dc47 8,it is indispensable that the new ,constitution should be ratified in the most unexceptionable form1 by the supreme authority of the people themselves40 7,madison1 at ,philadelphia1 #e ,ell4 ,deb4 #aeh47 8,the genius of republican liberty seems to demand on one side1 not only that all power should be derived from the people1 etc40 7,madison in ,the ,federalist1 ,no4 #cg47 and 8,there is certainly great force in this reasoning1 and it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open1 for certain great and extraordinary occasions40 7,madison or ,hamilton in ,the ,federalist1 ,no4 #di47 ,we average ,americans know that1 in the ,fifth ,article1 there is 8marked out and kept open1 for certain great and extraordinary occasions a constitutional road to the decision of the people0 when their own exclusive ability is alone competent to do what is deemed wise to be done4 ,we know that the direct command to ,american citizens1 interfering with their individual freedom and contained in ,section #a of the new ,amendment1 was the first direct command of that kind ever attempted to be put in our ,constitution4 ,we know that the grant of power to make such commands1 which is the grant of the second section of that ,amendment1 is the first and only grant of that kind ever supposedly made since #aghh4 ,knowing these undoubted facts1 we cannot understand why ,webb and those of his ,tory faith did not know that the request for the command of ,section #a and for the grant of ,section #b was 8a great and extraordinary0 event1 and that only through the 8constitutional road for the decision of the people0 themselves1 8marked and kept open0 in the ,fifth ,article1 the assembling of the people themselves in their 8conventions10 could a valid command and a valid grant be achieved4 ,the more we average ,americans consider1 however1 the ,congressional record of #aiag and the story of the subsequent five years1 the more do we understand the curious mental attitude which has led ,webb and those of his ,tory faith1 who believe that the new ,amendment is in the ,constitution1 to think that governments could make that command to and that grant of power over the citizens of ,america4 ,our consideration leads us to think that none of these men have ever read or grasped the meaning of the words expressing a knowledge so often shown by our ,supreme ,court3 ,the people who adopted the ,constitution knew that in the nature of things they could not foresee all the questions which might arise in the future1 all the circumstances which might call for the exercise of further national powers than those granted to the ,united ,states1 and after making provision for an ,amendment to the ,constitution by which any needed additional powers would be granted1 they reserved to themselves all powers not so delegated4 7,justice ,brewer1 ,kansas v4 ,colorado1 #bjf1 ,u4 ,s4 #df at p4 #ij47 ,we are sorely afraid that ,webb and the ,congress of #aiag and all upholders of the new ,amendment have made exactly the same vital mistake which had been made1 in that reported case1 by the counsel who there represented the very same government which repeated the mistake in #aiag4 ,that counsel had contended for the proposition that there are 8legislative powers affecting the nation as a whole the citizens of ,america which belong to1 although not expressed in the grant of powers0 in the ,first ,article4 ,the answer of the ,supreme ,court was decisive on the mistake of that counsel and the mistake of the #aiag request from ,congress to the state governments4 ,the answer was that the proposition is in direct conflict with the doctrine that this is a government of enumerated powers4 ,that this is such a government clearly appears from the ,constitution1 independently of the ,amendments1 for otherwise there would be an instrument granting certain specified things made operative to grant other and distinct things4 ,this natural construction of the original body of the ,constitution is made absolutely certain by the ,tenth ,amendment4 ,this ,amendment1 which was seemingly adopted with prescience of just such contention as the present1 disclosed the wide-spread fear that the ,national ,government might1 under the pressure of a supposed general welfare1 attempt to exercise powers which had not been granted4 ,with equal determination the framers intended that no such assumption should ever find justification in the organic act1 and that if in the future further powers seemed necessary1 they should be granted by the people in the manner they had provided for amending that act4 ,it reads3 8,the powers not delegated to the ,united ,states by the ,constitution1 nor prohibited by it to the ,states1 are reserved to the ,states respectively1 or to the people40 ,the argument of counsel ignores the principal factor in this ,article1 to wit1 8,,the ,,people40 ,its principal purpose was not a distribution of power between the ,united ,states and the ,states1 but a reservation to the people of all powers not granted4 ,the preamble of the ,constitution declares who framed it1--8,we1 the people of the ,united ,states10 not the people of one ,state1 but the people of all the ,states2 and ,article ,x reserves to the people of all the ,states the powers not delegated to the ,united ,states4 ,the powers affecting the internal affairs of the ,states not granted to the ,united ,states by the ,constitution1 nor prohibited by it to the ,states1 are reserved to the ,states respectively1 and all powers of a national character which are not delegated to the ,national ,government by the ,constitution are reserved to the people of the ,united ,states4 7#bjf ,u4 ,s4 at p4 #hi47 ,we average ,americans know1 and ,webb and those of his ,tory faith cannot deny1 that the power to make the command of ,section #a1 the power purported to be granted in ,section #b1 are among the powers of which the ,supreme ,court speaks as reserved1 not to the states1 but to the people of ,america4 ,we also know1 and again they cannot deny1 that only those1 who have1 can give1 or grant4 ,for which reason1 we ask that they answer this question3 ,how can the state governments exercise or grant a power which was not reserved to the states but was reserved by the citizens of ,america to themselves8 ,in asking this question we but echo the learned ,pendleton's question1 in the ,virginia convention of #aghh3 8,who but the people can delegate powers8444 ,what have the state governments to do with it80 7#c ,ell4 ,deb4 #cg47 ,and we also but echo the question of ,wilson1 in the ,pennsylvania convention of #aghg3 8,how comes it1 sir1 that these state governments dictate to their superiors--to the majesty of the people80 7#b ,ell4 ,deb4 #ddd47 ,but we1 the citizens of ,america1 have a further charge1 at this point1 to make against ,webb and all who claim that the new ,amendment is in the ,constitution or that any governments could put it there4 ,in the case of ,kansas v4 ,colorado1 supra1 counsel for the government of ,america made a monumental error by displaying his ignorance of the most important factor in the ,tenth ,amendment1 8the people0 of ,america4 ,by reason of that particular ignorance1 he assumed that all power to interfere with the individual freedom of ,americans1 on every subject1 must be vested in some government or governments4 ,this was the ,tory concept1 accurately rebuked by the supreme judicial tribunal1 knowing only ,american law based on the ,american concept of the relation of 8citizens0 to their servant government and not on the ,tory concept of the relation of the master government to its 8subjects40 ,he did not know what ,cooley knew when he made his accurate statement that 8,there never was a written republican constitution which delegated to functionaries all the latent powers which lie dormant in every nation and are boundless in extent and incapable of definition10 7,constitutional ,limitations1 #gth ,ed41 #aijc1 p4 #fi47 ,by reason of his ignorance1 he contended that government could command ,american citizens by interfering with their individual freedom on a matter not enumerated in the ,first ,article4 ,his particular error1 in that respect1 is repeated by ,webb and all who uphold the validity of the command made in ,section #a of the new supposed ,amendment4 ,but they were not content with repeating his one monumental error4 ,they have not only ignored the most important factor in the ,tenth ,amendment1 8the people40 ,they have also wholly ignored the most important factor in the ,fifth ,article1 the mention of the way in which the citizens of ,america made their only valid grants of power to interfere with their individual human freedom1 the mention of the only way in which new grants of power of that kind can ever be constitutionally made1 the assembling of those citizens in their 8conventions0 in their several states4 ,so assembled in such 8conventions10 they made all their grants in the ,first ,article and then1 in their ,fifth ,article1 mentioned their own assembling in exactly similar conventions in the future and prescribed that a 8,yes0 from three fourths of those conventions would be the only valid signature of the citizens of ,america to any new grant of a further enumerated power to interfere with their individual freedom4 ,there never has been any other possible meaning to those words in the ,fifth ,article1 8or by conventions in three fourths thereof40 ,to the ,americans who worded that ,article at ,philadelphia and to the ,americans who made that ,article1 assembled in just such 8conventions0 as are mentioned in words therein1 that quoted phrase was the most important factor in the ,fifth ,article4 ,to them1 those quoted words therein were the complement of their most important factor in the ,tenth ,amendment1 the reservation to themselves 78the people0 or citizens of ,america7 of every national power not delegated in the ,first ,article4 ,together1 the two important factors were the command of the citizens of ,america that all national powers so reserved to themselves could be delegated only by themselves1 assembled in their 8conventions0 --8by conventions in three fourths of0 their states4 ,we1 who have lived through their education with them1 realize this with certainty4 ,webb and those who believe with him know nothing about it4 ,recognizing that ,congress had been given no power to make the command which is ,section #a of the new ,amendment1 they first asked the state governments to make that command to the citizens of ,america4 ,this was an exact repetition of the error made by counsel in ,kansas v4 ,colorado1 supra4 ,this was their ignoring of the most important factor in the ,tenth ,amendment4 ,then1 that the display of their own ignorance should contain something original1 they ignored the most important factor in the ,fifth ,article and requested that a new power1 reserved by the citizens of ,america to themselves1 should be granted by the state governments4 ,everything that they have said or done1 during the last five years1 is based on that ignoring of that most important factor in that particular ,article4 ,indeed ,webb himself made this very clear at the very opening of his appeal that ,senate ,resolution ,number #ag be passed in the ,house on ,december #ag1 #aiag4 ,he merely paused to make the lucid explanation of how two supreme powers act1 and then went on to read the ,fifth ,article as it appears in his expurgated edition of our ,constitution4 ,this is the ,fifth ,article he read to our only legislature3 8that ,congress1 whenever two thirds of both houses shall deem it necessary1 shall propose amendments to this ,constitution 444 which 444 shall be valid to all intents and purposes as part of this ,constitution1 when ratified by the legislatures of three fourths of the several states40 ,it is clear to us1 who have followed the framing of that ,article in ,philadelphia in #aghg1 that the ,americans who framed it there and the ,americans who made it1 in their later 8conventions10 would not recognize their ,fifth ,article4 ,in the expurgated edition1 the most important factor in the real ,fifth ,article is not only ignored but is entirely missing4 ,it has been stricken from the ,article4 ,we do not know who ordered that it be stricken out4 ,we recall with interest that1 on ,september #ae1 #aghg1 at ,philadelphia1 ,gerry1 always a consistent ,tory in mental attitude1 moved that it be stricken out of the ,article4 ,we recall that his motion was defeated by a vote of #aj to #a4 ,nevertheless1 when we come to read that ,article1 as ,webb and his colleagues for the new ,amendment know it1 we find that they must have some other record of the vote on that old ,september #ae1 #aghg1 and of the later votes in the 8conventions0 of the citizens of ,america4 ,we find that in the ,fifth ,article1 as ,webb and his colleagues know it1 there are no words 8by conventions in three fourths of0 the several states4 ,we realize that this reading of his ,fifth ,article and the absence of those important words from it was no mere inadvertence on the part of ,webb4 ,clearly those words are not in his ,fifth ,article4 ,only a few moments after his reading of it1 on ,december #ag1 #aiag1 he quoted with approval a statement1 by some former ,senator1 that the ,american people have a 8right to be heard in the forum of the state legislatures1 where alone the question can be decided whether the national ,constitution shall be amended40 ,in view of these facts1 we educated citizens of ,america have no difficulty in grasping the ,tory mental attitude of ,webb 7and his colleagues for the new ,amendment7 that all constitutional protection for our individual freedom may be legally dispensed with at any time by government1 if governments only get together and act jointly1 as in the proposal and supposed adoption of the new ,amendment entirely by governments4 ,for the edification of ,webb and those of his faith in that respect1 we would like to inform them that all who believe that the new ,amendment has been or can be put in the ,constitution by governments1 8seem to have lost sight of the people altogether in their reasonings on this subject2 and to have viewed0 our national and state governments1 8not only as mutual rivals and enemies1 but as uncontrolled by any common superior in their efforts to usurp the authorities of each other4 ,these gentlemen must be here reminded of their error4 ,they must be told that the ultimate authority1 wherever the derivative may be found1 resides in the people alone1 and that it will not depend merely on the comparative ambition or address of the different governments1 whether either1 or which of them1 will be able to enlarge its sphere of jurisdiction at the expense of the other40 7,fed4 ,no4 #df47 ,it contributes not a little to the importance of the quoted statements that they were written by ,madison1 who also wrote the real ,fifth ,article4 ,they are his warning to the then 8adversaries of the ,constitution40 ,they serve well as our warning to the present adversaries of our ,constitution1 who assume and have acted on the assumption that they can ignore its most important factors whenever government desires to exercise or to grant a new power to interfere with our individual freedom1 although we have not granted it but have reserved it to ourselves4 ,we might continue somewhat indefinitely the story of ,senate ,joint ,resolution #ag in the ,house of ,representatives on that ,december day of its passage therein4 ,we would find1 however1 what we have already seen of ,webb and his colleagues there to be typical of all they have said and all that they knew of basic ,american law4 ,we cannot leave that ,house on that day1 however1 without some comment upon the final eloquent appeal made by ,webb at the close of his arduous labor to secure the passage of the ,resolution4 ,to those1 who have any knowledge in the matter1 it is well known that ,christ preached the doctrine of free will and temperance1 while ,mohammed laid down the law of prohibition4 ,with great curiosity1 therefore1 we have listened for years and still listen to the ceaseless tirade coming from ,christian churches where men style themselves ,american 8,crusaders0 and denounce1 in no temperate language1 all ,americans who do not align themselves under the 8,crescent0 flag of ,mohammed and respect his ,mohammedan command embodied in the ,first ,section of the ,eighteenth ,amendment4 ,our curiosity is not lessened by the fact that their denunciation of those1 who flatly deny that the command itself is ,christian1 is always accompanied with an equally temperate denunciation of those who dare to question their ,tory concept that governments in ,america can constitute new government of men4 ,we have seen ,webb1 with a candor only equalled by ignorance1 frankly array himself with those who believe the ,tory concept1 that the legislatures of the state citizens are 8the only tribunal0 in which the national part of the ,constitution of the ,american citizens can be changed4 ,to his credit1 therefore1 we find it a matter of record that1 with equal candor1 he frankly arrays himself under the 8,crescent0 flag of ,mohammed and eloquently appeals to all other devotees 8of the great ,mohammed0 in support of the ,mohammedan and un-,christian precept embodied in the ,eighteenth ,amendment4 ,that full justice may be done his eloquence and his candor1 these are his own words on his immortal ,december #ag1 #aiag3 8,during one of the great battles fought by ,mohammed1 the flag was shot from the ramparts4 ,a daring and devoted soldier immediately seized it with his right hand and held it back on the rampart4 ,immediately his right arm was shot off1 but1 never faltering1 he seized the flag with his left hand and that1 too1 was instantly shot away whereupon with his bleeding stubs he held the emblem in its place until victory came4 8,with a zeal and a determination akin to that which animated this devotee of the great ,mahomet1 let us wage a ceaseless battle and never sheathe our swords until our constitutional amendment is firmly adopted and the white banner of real effective prohibition proudly floats over every courthouse and city hall throughout this1 the greatest nation upon earth40 7,congressional ,record1 ,vol4 #ef1 p4 #dfi47 ,,chapter ,,xviii ,,the ,,tory ,,in ,,the ,,senate ,when our present ,constitution was before the people of ,america1 waiting their approval or rejection1 ,madison and ,hamilton published their series of essays1 now known as ,the ,federalist4 ,it is not our intent to dwell upon the knowledge of ,american basic law shown by these two men4 ,elsewhere our ,supreme ,court has paid its deserved tribute to ,the ,federalist as an authority of the greatest weight in the meaning of our ,constitution4 ,at this moment1 we desire to mention one remarkable quality which makes those essays unique among arguments written in the heat of a great political controversy4 ,they were written to urge that human beings create a great nation and grant some enumerated powers to interfere with their own freedom4 ,they were written when other great leaders were opposing that project with the utmost ability and eloquence4 ,these opponents1 as is the custom with men in any heated controversy1 denounced the project and its advocates4 ,the abuse of both project and advocates has probably never been exceeded in ,america4 ,yet it is one remarkable quality of the arguments of ,madison and ,hamilton1 in ,the ,federalist1 that they themselves never leave the realm of reason and fact and law1 or descend to irrelevant abuse of those who differ in opinion with them4 ,we1 who have lived through the last five years in ,america1 can truthfully say that the advocates of the new constitution of government1 the ,eighteenth ,amendment1 have made their essays and speeches and arguments notable for the same quality1 by its utter absence4 ,because fact would interfere with the making of their new ,constitution1 they have changed fact4 ,because law meant that government could not constitute their government of the people1 they have stated law which has never been law in ,america since #aggf4 ,because reason would prevent the achievement of their purpose1 they have appealed to irrelevant abuse of those who dared to differ in opinion with them4 ,in view of these known facts1 we average ,americans shall not be surprised when we read the record of the ,senate on its own proposal that government should exercise a power not delegated to interfere with individual freedom4 ,fresh from the reading of the record in the ,house1 we shall not be surprised to find that the ,senate also ignored the most important factors in the ,tenth ,amendment and the ,fifth ,article1 8the people0 in the one1 and the mention of the people's exclusive ability to make national ,articles in the other4 ,when his proposing ,resolution came before the ,senate on ,july #cj1 #aiag1 ,senator ,sheppard quickly made clear his mental attitude on the relation of government to human beings4 ,whenever a sincere ,tory has voiced himself on that matter1 it has always been inevitable that he betray the thought that human beings are the assets of the ,state and not its constituent members4 ,as ,madison said1 8,we have all known the impious doctrine of the ,old ,world1 that people were made for kings and not kings for the people40 ,in the country or in the mind where that doctrine prevails1 it is held to be the right and the privilege of government to see that the people1 like the other assets of the ,state1 are kept in good condition so that all property of the ,state may have its greatest economic value in the market of the world4 ,and so we find ,sheppard1 through all his opening support of the new constitution of government based on the ,tory doctrine1 making clear the necessity that our government keep that asset1 which is the citizens of ,america1 in good physical condition like any other machine that may be in ,america4 8,in an age of machinery and of business transactions on a scale more enormous and complicated than ever before1 the clear eye1 the quick brain and the steady nerve are imperatively demanded4 ,society today is more dependent upon the man at the machine than at any previous period4 ,we are coming to understand that the engine of the body must have the same care as the engine of the aeroplane1 the battleship1 the railway train1 the steamship or the automobile2 that the trade in alcohol is a form of sabotage which the human machine cannot endure2 that it is no more to be tolerated than would be the business of making and selling scrap iron to be dropped into the delicate and complex machinery of modern manufacture1 transportation and commerce40 7,congressional ,record1 ,vol4 #ee1 p4 #eeej47 ,after this admirably accurate appreciation of the relation of our ,american government to the asset which is ourselves1 ,sheppard then proceeded to teach us 7who have just lived through the education of the ,american human beings who made the ,constitution7 the real facts of that making1 as he knows them4 ,he is advocating that our only ,american government should ask the legislative governments of the states1 which are not the governments of ,american citizens1 directly to interfere with our individual freedom and to grant to themselves and to our only government future power to interfere therewith on a matter not enumerated in the ,first ,article4 ,naturally1 as real fact would make manifest the absurdity of such proposal1 he states that1 when the ,constitution was made1 8by votes of the ,southern ,states the power to amend the federal ,constitution was vested in three fourths of the states40 ,undoubtedly he meant us to understand that the ,constitution 7through whose real making we have just lived7 was made by the states and that the ,southern ,states granted to the legislatures of three fourths of the states the omnipotent ability over the human beings of ,america1 which those human beings themselves had denied to the ,english king and his legislature4 ,that he meant us so to understand we shall learn to a certainty in a moment4 ,meanwhile1 let us note how inadvertently he states part of the truth1 while omitting all reference to the part thereof which would make his own proposal the clear absurdity which it was4 ,we note his reference to that part of the ,fifth ,article which mentions the ability of three fourths of the state legislatures to amend the federal ,constitution4 ,because we have lived through the days of the real ,american leaders1 we recall that our ,constitution is both federal and national and that state legislatures always had ability to make federal ,articles and never had ability to make national ones4 ,we also remember that those state legislatures were permitted1 by the people who made our ,constitution1 to retain some of the ability they had and were given no new ability4 ,we also remember that the ,fifth ,article mentions their existing ability to make federal ,articles and prescribes1 as the command of the people of ,america1 that a 8,yes0 from three fourths of them shall validly make a change in the federal part of our dual ,constitution4 ,for which reason1 with somewhat of amusement1 we note ,sheppard's inadvertent accuracy of statement1 when he says that three fourths of the state legislatures may amend the federal ,constitution4 ,with our knowledge1 we do not care what he meant or intended that others should understand4 ,we know that nothing has been more definitely settled in ,america1 since #aggf1 than that legislative governments never can make a national ,article or change our national ,constitution4 ,we now come to that part of ,sheppard's oration in which he makes certain his remarkable 8knowledge0 that our ,constitution was made by the states--which are political entities--and not by the people of ,america4 ,with a complacency requisite in one who advocates that unique constitution of a new kind of government in ,america1 government of the people by government without authority from the people1 we find him quoting from ,calhoun of #ahcc the doctrine that the states made the ,constitution4 8,in this compact they have stipulated1 among other things1 that it may be amended by three fourths of the states2 that is1 they have conceded to each other by compact the right to add new powers or to subtract old1 by the consent of that proportion of the states1 without requiring1 as would otherwise have been the case1 the consent of all40 7,congressional ,record1 ,vol4 #ee1 p4 #eeec47 ,the history of ,america from ,may #bi1 #aghg1 to ,july #cj1 #aiag1 was clearly a sealed book to ,sheppard of ,texas on that later day4 ,on ,may #cj1 #aghg1 at ,philadelphia1 ,randolph of ,virginia offered the three ,resolutions1 which proposed that the people of ,america create a nation and absorb into their national system the federal union which had been made by the states4 ,the first resolution was to express the sentiment of the convention 8that the union of states merely federal will not accomplish the objects02 the second was to express the sentiment that 8no treaty or treaties among the whole or part of the states1 as individual sovereignties1 would be sufficient02 and the third was to express the sentiment 8that a national government ought to be established1 consisting of the supreme legislative1 executive1 and judiciary40 ,the work of that ,philadelphia ,convention was carried to a successful conclusion on the basis of those sentiments4 ,when their proposed ,constitution had been worded1 it was sent to and made by the one people of ,america1 not by the states4 ,the ,constitution of the ,united ,states was ordained and established1 not by the states in their sovereign capacities1 but emphatically1 as the ,preamble of the ,constitution declares1 by the 8people of the ,united ,states40 ,so declared ,justice ,story1 from the ,bench of the ,supreme ,court1 as far back as the decision of ,martin v4 ,hunter's ,lessee1 #a ,wheat4 #cbd4 ,as ,story was an associate of ,marshall on that ,supreme ,court1 and as he is recognized as one of the greatest exponents of our ,constitution1 we average ,americans prefer his knowledge to that of ,sheppard even when the latter does quote from ,calhoun4 ,furthermore1 in an unbroken line of decisions1 extending over the entire period of more than a century of whose history ,sheppard knows naught1 the ,supreme ,court has insistently proclaimed the same fact1 namely1 that the people of ,america--not the states--made our ,constitution4 8,it is no longer open to question that by the ,constitution a nation was brought into being1 and that that instrument was not merely operative to establish a closer union or league of ,states40 7,justice ,brewer1 in the ,supreme ,court1 ,kansas v4 ,colorado1 #bjf ,u4 ,s4 #df47 ,indeed1 many men before ,sheppard have attempted to deny that fact4 ,history1 however1 records no successful denial4 ,as ,sheppard states1 the words of ,calhoun were from his reply to ,webster in #ahcc4 ,in the history of a century1 all a sealed book to ,sheppard1 ,haine also asserted1 against ,webster1 the belief of ,calhoun and ,sheppard as to what were the facts of the making of our ,constitution4 ,we average ,americans1 in an earlier chapter herein1 have read ,webster's statement as to what were the facts of that making4 ,having lived1 ourselves1 through the days when the ,americans did make their own ,constitution1 we agree wholly with ,webster and the ,supreme ,court and know that the states had no part whatever in its actual making4 ,over fifty years ago1 however1 it became absolutely immaterial1 except for academic purposes1 what might be the personal beliefs of ourselves or ,calhoun or ,haine or ,sheppard or ,webster4 ,shortly after the middle of the last century1 the ,southern ,states1 just as unwilling as ,sheppard in #aiag to accept the unalterable decision of the ,supreme ,court that our ,constitution is not a compact between states1 appealed to the only tribunal to which there is any appeal from that ,court1 the tribunal of civil war4 ,even ,sheppard must know the result of ,gettysburg1 the surrender forever of any claim that the ,constitution is a compact between the states4 ,even ,sheppard must some time have heard the echo of ,lincoln's appeal1 at ,gettysburg1 that government of the people1 by them and for them1 should not perish from the earth4 ,even ,sheppard must recognize1 whether or not he wish to do so1 how successfully the ,american people1 whose predecessors made the ,constitution1 answered that appeal of ,lincoln and intend to keep our government a government of the people1 by them and for them1 instead of a ,sheppard government of the people1 by governments without authority from the people4 ,we average ,americans1 however1 do not question the wisdom of ,sheppard in quoting the repudiated claim of ,calhoun1 so long as ,sheppard and his colleagues intended to continue their effort to impose upon us the new constitution of a new kind of ,american government1 which is their ,eighteenth ,amendment4 ,if he and they were to find anywhere citations in support of the ability of governments in ,america to exercise and to grant undelegated power to interfere with human freedom1 to what source could he or they go for such citations8 ,their proposition depended wholly for its validity upon the ,tory concept of the relation of government to its assets and subjects1 the people4 ,and1 in the five volumes of the records of the conventions of the ,americans1 in the two volumes of ,the ,federalist1 and in over two hundred volumes of ,american decisions in the ,supreme ,court1 he and they knew that no single citation of authority could be found to support the idea that we ,americans are 8subjects0 and not citizens4 ,in the face of such a situation1 he and they had but a choice between the repudiated claims of ,calhoun and ,haine or the concepts of ,lord ,north and his associates in the ,british ,parliament of #agge4 ,we average ,americans know what choice we would have made1 under such circumstances4 ,for which reason we are not surprised to find ,sheppard1 after his remarkable quotation from ,calhoun1 continuing on to say that the states 8by reserving to themselves the unqualified and exclusive right of amendment kept intact their sovereign capacity in so far as the organic law of the nation was concerned40 7,congressional ,record1 ,vol4 #ee1 p4 #eeec47 ,with the ,supreme ,court1 we have always known and we still know1 despite ,sheppard1 that the people of ,america did all the reserving that was done and which the ,tenth ,amendment merely declared had been done4 ,we note1 with intent to remember1 how clearly ,sheppard demonstrated his total ignorance of the most important factor in that ,tenth ,amendment1 8the people10 and of the most important factor in the ,fifth ,article1 the mention of the reserved exclusive ability of the people themselves1 assembled in their 8conventions10 to amend or change or add any national ,article in their ,constitution4 ,as we go on with his oration of that ,july day1 we find him insisting1 as we found the ,house insisting on a later day1 that the states and their legislative governments are all the protection to our individual liberties which the ,american people were able to attain by the efforts of those remarkable years from #agge to #agij4 ,curiously enough1 that insistence is mentioned in the same breath in which he suggests that we1 the citizens of ,america1 have some rights1 evidently in the nature of privileges which a government confers on its subjects4 ,this is what he has to say3 8,in refusing the people the right to appeal to the only tribunal having power of amending1 the tribunal of the states1 for the redress of what they consider one of the most terrible grievances in the republic1 ,congress would deny to them one of the most sacred of all rights1 the right of petition40 ,why should the supreme legislature not deny that right of petition to us1 if the inferior state legislatures1 who are not governments of the citizens of ,america1 claim power to deny us any right they please1 as they do by their supposed ,eighteenth ,amendment to our ,constitution8 ,but we waste time on this ,sheppard4 ,let him say his own farewell to us2 the citizens of ,america1 in his closing words of ,july #cj1 #aiag4 ,as ,webb1 in the ,house1 closed with his eloquent appeal to every true ,mohammedan1 we naturally find ,sheppard closing with his appeal to whatever ,tory sentiment believes that the same most important factor in the ,tenth ,amendment and the ,fifth ,article should be equally ignored4 8,at the close of this debate we will have an opportunity to enable the states to exercise their highest function--the right to shape1 alter1 and develop the federal ,constitution4 ,they are the proper tribunal to decide the fate of this ,amendment4 ,they compose the mightiest array of free commonwealths united in a federated whole the world has ever seen4444 ,if there is anything in the ,amendment subversive of their liberties and their welfare1 they can be trusted to condemn it4 ,let not ,congress assume to judge for them4 ,let ,congress discharge its preliminary task of submission and stand aside4 ,let it put in motion the referendum provided by the national organic law--the method of amendment the states themselves established when they created the ,constitution4 ,let the states perform the duty which remains the sole instance of their sovereignty over the federal government itself40 7,congressional ,record1 ,vol4 #ee1 p4 #eeed47 ,if it were still #ahcc1 if there never had been a ,gettysburg or an ,appomattox1 could ,calhoun himself have done better8 ,if there never had been the ,statute of #aggf or an ,american ,revolution to make it the basic law of ,america1 could any ,tory peer in the ,westminster ,parliament of #agge have been more zealous to see that the states themselves--which are mere political entities--should determine whether there was anything in the ,eighteenth ,amendment 8subversive of their liberties and their welfare80 ,if there is1 8they can be trusted to condemn it40 ,let our 8,congress discharge its preliminary task of submission and stand aside40 ,what if there is anything in the ,amendment subversive of our liberties and our welfare8 ,why should we be trusted with the opportunity to condemn it1 the opportunity which we reserved exclusively to ourselves by the most important factors in the ,tenth ,amendment and the ,fifth ,article8 ,why should we remember that ,jefferson1 also from a ,southern ,state1 penned the ,statute of #aggf in which the ,american people commanded that no government acquire power over people except from people and not from governments8 ,why should we remember that ,pendleton1 also from the ,south1 while actually engaged with all the rest of the ,american people in making the ,first ,article1 referred to it and asked1 8,who but the people can delegate powers8 ,what have the state governments to do with it80 ,why should we remember that ,wilson1 in the previous ,december1 that of #aghg1 said of our ,constitution1 8,upon what principle is it contended that the sovereign powers reside in the state governments8 ,the proposed system sets out with a declaration that its existence depends upon the supreme authority of the people alone8 ,how comes it1 sir1 that these state governments dictate to their superiors--to the majesty of the people80 ,why should we remember that ,webster1 answering ,hayne and ,calhoun1 said1 also speaking of our ,constitution1 8,while the people choose to maintain it as it is--while they are satisfied with it1 and refuse to change it--who has given1 or who can give1 to the state legislatures a right to alter it1 either by interference1 construction1 ,,or ,,otherwise8444 ,sir1 the people have not trusted their safety1 in regard to the general constitution1 to these hands4 ,they have required other security and taken other bonds40 7#d ,ell4 ,deb4 #ejh47 ,it is true that these earlier ,americans have clearly in mind the most important factor in both the ,tenth ,amendment and the ,fifth ,article4 ,but it must not be forgotten that ,pendleton and ,wilson and the ,americans of that day1 in making our ,constitution1 in constituting a new government and giving to it some powers over the freedom of human beings1 were acting entirely outside any written law except the ,statute of '#gf4 ,is not their example a sound precedent for those who are now constituting a new government of ,americans and giving it power over their freedom1 for those who made the ,eighteenth ,amendment and those who upheld its validity8 ,what if the makers of the new government are themselves government8 ,if governments choose to act outside of all written law and to ignore that part thereof which is the important factor of the ,tenth ,amendment and the ,fifth ,article1 are these governments not emulating the example of the ,american people in #aghg8 ,true1 these ,american people did act in strict conformity to the ,statute of #aggf1 and this modern constitution of new government by government is not in conformity with that ,statute4 ,but was not that ,statute itself the revolt of human beings against government8 ,if human beings1 by successful revolt against government1 could change themselves from subjects to citizens1 why cannot government1 by successful revolt against human beings1 change them from citizens to subjects8 ,if1 however1 ,sheppard and ,webb and those of their ,tory faith insist that the new constitution of government is in our ,constitution1 and put there validly1 under claimed grant from us to state governments of omnipotence over ,american citizens1 we1 on our part1 know that their claim is without the slightest support4 ,moreover1 our knowledge in that respect is knowledge of indisputable legal fact4 ,that the fact would be equally indisputable1 even if our ,constitution was a compact between states1 as ,calhoun did claim1 and as ,sheppard does claim1 we can clearly demonstrate even to ,sheppard himself4 ,our education with the earlier ,americans1 who changed their status from that of subject to citizen1 has taught us all we need for that demonstration4 ,let us assume1 what ,sheppard asserts1 that the states made the ,constitution1 that it is a compact between states4 ,sheppard is a ,texan4 ,if our ,constitution is a compact between states1 the ,state of ,texas is one of the parties to that compact4 ,we ask ,sheppard whether he and the other ,texans are the ,state of ,texas or whether the legislative government in ,texas is the ,state of ,texas8 ,if he answers that the ,texas legislature is the ,state of ,texas1 we proceed no further4 ,that answer will be his frank confession that the ,texan is a subject of the ,texas government and not a citizen or member of the ,texas ,state4 ,on the other hand1 if he answers that the human beings of ,texas are the ,state of ,texas1 we do proceed further4 ,we proceed along the most definitely settled legal principle in ,america4 ,if the human beings in ,texas are its citizens and constitute its ,state1 the constitution of ,texas is their creation and the legislature of ,texas is the creature of that constitution4 ,from the ,texans1 through the creation which is their constitution1 that legislature derives its every power over the human beings in ,texas and cannot have any such power except by grant from those human beings themselves4 ,that is the law of ,texas1 settled by hundreds of decisions in ,texas and ,america4 ,now1 if our ,american ,constitution is a compact between the ,state of ,texas--the human beings in ,texas--and the other states--the human beings in the other states--how comes it that the mere creature of the ,texans1 without power over them except from them1 can1 by combination with other servant legislatures outside ,texas1 give to itself and to other governments outside ,texas a new power to interfere with the freedom of the human beings in ,texas8 ,we are rather afraid that ,sheppard and those of his faith1 even assuming that our ,constitution is a compact between states1 have entirely overlooked the legal fact that a government is not the ,state in ,america4 ,we are rather afraid that they have reverted to what ,madison called 8the impious doctrine of the ,old ,world10 namely1 that the government is the ,state and the human beings are its asset and its property4 ,we are rather afraid that they agreed with the concept of ,louis of ,france1 expressed in his famous 8,i am the ,state40 ,on no other basis can we explain their complete ignorance of the one important factor in the ,tenth ,amendment and the ,fifth ,article1 8the people0 of ,america1 who1 assembled in their 8conventions10 as mentioned in the ,fifth ,article1 are the citizens of ,america and compose the ,state or ,nation of ,america4 ,we average ,americans1 in the light of our education1 reading the record of that ,july #cj in our ,senate1 would have thought1 were it not for one fact1 that every senator was using the expurgated edition of the ,constitution1 which ,webb later used in the ,house1 and which omits entirely from the ,fifth ,article the words1 8by conventions in three fourths of0 the states4 ,were it not for that one fact our thought would have been justified4 ,we know that the proposition of ,sheppard1 embodied in his ,senate ,resolution ,no4 #ag1 was that the proposed new ,article should be referred to the tribunal of the state legislative governments4 ,we know1 and we have quoted his own statement1 which is the basis of that knowledge1 that he held that legislative tribunal to be 8the only tribunal having power of amending0 our ,constitution4 ,we know that he held this legislative tribunal to be 8the proper tribunal to decide the fate of this ,amendment40 ,we know his confidence that this legislative and government tribunal has 8the right to shape1 alter1 and develop0 our ,constitution1 ordained and established by the citizens of ,america4 ,his conviction1 in this respect1 is stamped indelibly on our mind1 because it came in such sharp conflict with our knowledge that all ,americans of an earlier day held that every national ,article1 like the ,first ,article and the supposed ,eighteenth ,amendment1 must be referred to that other tribunal1 the only tribunal competent to make such ,articles where men are citizens and not subjects1 the tribunal of the ,american citizens themselves1 the tribunal mentioned in the ,fifth ,article in the words 8by conventions in three fourths of0 the states in ,america4 ,we know1 therefore1 inasmuch as neither ,sheppard nor any senator but one apparently knew of the existence of that other and supreme tribunal or of the presence of those words in the ,fifth ,article1 that all senators save that one must have been using an expurgated edition of the ,fifth ,article4 ,on that ,july #cj we find ,senator ,ashurst making plain that he has our edition of our ,constitution4 ,he said1 8,when our federal ,constitution was written in #aghg1 two methods of amending were provided2 and1 unless ,i am mistaken1 it was the first written constitution in history which provides for two methods of amendment40 ,this brief and simple mention of that significant fact1 in relation to the ,fifth ,article1 seems to have been the only cognizance of the fact itself1 in the ,senate of that day or in the entire subsequent history of the ,eighteenth ,amendment1 even in the great litigations about it in which were arrayed against one another the most renowned 8constitutional0 lawyers in ,america4 ,so far as would appear from the ,senate record1 no knowledge of the amazingly important effect of that ,fifth ,article mention of two distinct powers 7one limited and then existing in government and the other unlimited and then and now existing in the ,american people7 to make future ,articles was acquired in the ,senate or afterward1 from the fact itself or from ,ashurst's allusion to the fact4 ,back at ,philadelphia in #aghg1 ,gerry1 always ,tory in his mental attitude to government and human being1 realized fully the amazing importance of this ,fifth ,article mention of the two then existing powers to make ,articles1 the limited power of legislative governments to make federal ,articles 7which had made all the federal ,articles of #agha7 and the unlimited and exclusive power of the people themselves to make national ,articles1 which had been exercised to make the national ,articles in each existing state constitution1 and which the ,philadelphia ,convention had already ascertained and held was the only power competent to make such ,articles as their own proposed ,first ,article and the ,eighteenth ,amendment4 ,while the ,philadelphia ,convention had been discussing and deciding that their proposed ,constitution1 because of its ,first ,article1 the real constitution of government1 must be referred to the people1 ,gerry had always opposed that decision4 ,he had always fought to have that ,first ,article sent to government1 to have its grants of power over the freedom of men made by government to government4 ,when1 therefore1 the closing business day of that ,convention was reached on ,september #ae1 #aghg1 he made his final and consistent ,tory effort that citizens should be asked to make a ,fifth ,article which would change them back again to the subjects they had been in #agge4 ,that effort was his motion of ,september #ae to strike from the ,fifth ,article1 as we know it1 the words 8or by conventions in three fourths of0 the states4 ,he knew1 as we know1 by reason of our education with the ,americans who defeated his effort1 that those words are the ,fifth ,article mention of the then existing only ability in ,america which then could or now can make such ,articles as the original ,first ,article or as the supposed ,eighteenth ,amendment4 ,he knew1 as we average ,americans now know1 that1 only if such mention were stricken from that ,fifth ,article1 could any future possible claim be made that legislative governments have ability to exercise or to grant undelegated power to interfere with individual freedom4 ,with the important object in mind1 that he secure some foundation for such claim in the future1 he made his motion to strike that mention of our exclusive power from that ,fifth ,article4 ,as we average ,americans know1 his effort to have a convention even propose such a ,fifth ,article to 8a people better acquainted with the science of government than any other people in the world0 was beaten by the decisive vote of #aj to #a4 ,the proposal of the ,eighteenth ,amendment by government to government was the attempt of our servant ,american government to reverse the result of that vote of ,september #ae1 #aghg4 ,the action of the state legislative governments in ,america upon that proposed ,eighteenth ,amendment was an action depending entirely for its validity upon a recount of that vote and the assumption that the convention did strike out that mention of our exclusive power to make national ,articles and that the ,fifth ,article went to the ,american people and was made by them without that mention in it4 ,for which very obvious reasons1 we average ,americans do not understand how the fact1 to which ,ashurst made brief allusion on ,july #cj1 #aiag1 was not the basis of every attack made in the ,supreme ,court by many of the most renowned 8constitutional0 lawyers in ,america1 when they did assail the validity of that ,eighteenth ,amendment4 ,it is difficult to pick out the one most remarkable thing in the complete story of the last five years4 ,yet we are inclined to believe that1 from a certain point of view1 the one most remarkable thing is the absolute failure of even one of those renowned lawyers to appreciate or know or mention the fact and its decisive effect upon the alleged validity of the ,amendment they challenged1 the fact that the ,fifth ,article does name two future makers of ,articles1 the governments which could and did make the federal ,articles of #agha1 but which neither could nor did make the ,first ,article of #aghg or the ,eighteenth ,amendment of #aiag1 and the citizens of ,america1 who could and did make the ,first ,article of #aghg and who alone can make but have not made the ,eighteenth ,amendment4 ,even ,ashurst seems to have known that it was remarkable1 unique in history1 for the ,fifth ,article to name two different makers of future ,articles4 ,it is amazing that the imperative reason for this naming of two makers1 distinct and different in their ability to make1 never suggested itself to any of the renowned lawyers of #aibj1 even though they knew the dual nature1 national and federal1 of our ,constitution4 ,it is amazing when we realize that the ,supreme ,court1 in #ahai1 had stated1 as an obvious thing1 that1 when the ,first ,article 7granting power to interfere with the freedom of men7 was proposed1 the legal 8necessity of referring it to the people1 and of deriving its powers directly from them1 was felt and acknowledged by all40 ,it is amazing when the same ,supreme ,court in #aijg had authoritatively repeated that statement3 8,the powers the people have given to the general government are named in the ,constitution1 and all not there named1 either expressly or by implication1 are reserved to the people and can be exercised only by them or upon further grant from them40 ,however1 we average ,americans1 still pursuing the history of ,america to learn when we again became 8subjects10 will later herein consider the litigation about the ,eighteenth ,amendment4 ,so far as the ,senate is concerned1 we leave it on ,december #ah1 #aiag1 the day on which it finally proposed that legislative governments make the ,eighteenth ,amendment1 whose ,second ,section was exactly of the same nature as the ,first ,article1 namely1 an ,article of the kind which the ,philadelphia ,convention of #aghg had known never could be made by legislative governments in ,america4 ,in that ,senate1 as in the ,house1 the public record discloses no ,american who did not ignore the most important factor in the ,tenth ,amendment and the ,fifth ,article1 no ,american who knew the legal necessity of deriving1 directly from the people themselves1 every power to interfere with the individual freedom of the people4 ,so far as history tells the tale1 in the legislatures of the states1 that legal necessity was 8known and acknowledged0 by none4 ,there were many therein1 as there were many in the later court litigations1 who opposed the making on the ground of its unwisdom4 ,there were also many1 again as in the later litigations1 who contended that there should be no interference with the freedom of ,american citizens1 as such1 except on the matters enumerated in the ,first ,article4 ,but1 neither in our own ,american legislature nor in these state legislatures1 as in the later litigations1 was there one who knew the only legal and maintainable ground for that belief1 the legal fact1 as the ,philadelphia ,convention found it1 that only the ,american people could validly grant government power to interfere with their individual freedom1 and the legal fact that the ,american people1 constituting their government1 kept the legal situation1 in that respect1 exactly as the ,philadelphia ,convention found it1 by the most important factors in the ,tenth ,amendment and the ,fifth ,article4 ,the amazing haste with which the ratifying legislatures exercised1 for the first time in ,america1 this imaginary power to interfere with the individual freedom of the ,american citizens is a matter of history4 ,the manner in which that legislative exercise of imaginary government power over subjects was secured in many states is something with which we are all familiar4 ,we desire1 however1 to emulate the example set by ,madison and ,hamilton in ,the ,federalist1 so far as judgment can restrain the honest indignation of citizens1 when government undertakes to make them 8subjects40 ,therefore we leave it entirely to those who uphold the validity of the supposed new ,amendment to substitute irrelevant matter1 mostly personal abuse that is harmless in view of its source1 for the sound legal arguments in support of validity1 which they can never find until the ,statute of '#gf is repealed and our constitutions of government are so changed that we cease to be citizens and become the subjects our ancestors were in #agge4 ,for those who would like to look upon all ,american governments as model exemplars of ,american respect for ,american law and ,american constitutions1 the date of the proposal in ,december1 #aiag1 and the quickness of ratification and the manner in which ratification was largely secured1 are all matters most unpleasant to contemplate4 ,even now the most sincere advocate of the new ,amendment never speaks of it without unwittingly showing his chagrin at the general knowledge that it was proposed and passed by governments when millions of the citizens of those governments were fighting and were armed to fight for human liberty1 and that even governments would never have dared to pass it except at that particular time4 ,these facts1 however1 reflect only on the virtue of the ,amendment4 ,they have no bearing upon its validity4 ,we average ,americans are interested now only in that claimed validity4 ,we know that1 if it is valid1 we have become subjects1 that we are no longer citizens4 ,we are seeking to find out when and how that change was made in our relation to all governments in ,america4 ,beginning on ,july #d1 #aggf1 we have come down to ,december #ah1 #aiag4 ,we have found ourselves1 on that day1 still citizens4 ,we know that our servant legislature at ,washington made a proposal on that day1 which was legally absurd1 unless we had already become subjects4 ,we have listened carefully to what they had to say1 in support of that proposal1 and have ascertained that they neither knew nor understood the most important factor in our ,tenth ,amendment and ,fifth ,article1 by which our ancestors kept their own and our status as citizens4 ,we know that the state legislatures could not change that status4 ,therefore we now simply note the fact that1 in #aiah1 some of them ratified the proposal on the basis that all of us were their subjects4 ,we know that our own government at ,washington has acted1 whenever it felt disposed to enforce the supposed new command against us and not to disobey it openly itself1 as if we were the subjects of those ratifying legislatures4 ,we know also that in #aibj1 after more than a year of exhaustive study of our history and our ,constitution and our laws by hundreds of our most eminent lawyers1 all working for one object1 the legal demonstration of the invalidity of the new ,amendment1 a chosen number of the most renowned 8constitutional0 lawyers in ,america appeared in the ,supreme ,court and orally argued against validity and filed the briefs against validity which were the result of this concentrated effort4 ,we know also that1 in that court1 on behalf of our own government and on behalf of those other governments which that government has proclaimed to be the supreme dictator in ,america1 there also appeared another chosen array of the most renowned 8constitutional0 lawyers1 in the forefront being a former justice of that court1 now the ,american ,secretary of ,state4 ,this latter array appeared to demonstrate how and when1 since #agij1 our own status was changed from citizen to subject and the collective legislatures of some of the states were substituted for ourselves as possessors of the supreme constitutional will in ,america4 ,we average ,americans1 therefore1 to complete our education1 now turn to the arguments of these lawyers and to their briefs1 with somewhat of chagrin at our own unaided ability to ascertain the 8when0 and 8how0 we became subjects and our ,constitution1 in its national ,articles and aspect1 became the creature of legislative governments1 although the ,american people originally created it to be the master of all governments4 ,,chapter ,,xix ,,are ,,we ,,citizens8 8,the establishment of a ,constitution1 in time of profound peace1 by the voluntary consent of a whole people1 is a prodigy40 7,fed4 ,no4 #he74 ,those were the words of ,hamilton1 in a final appeal to the people of ,america1 as they were about to assemble in their 8conventions40 ,as he thought it a prodigy that their voluntary consent should be secured to that constitution of government contained in the ,first ,article1 he frankly added that he looked forward 8with trembling anxiety0 to their own determination as to whether or not they would give that necessary consent to the enumerated grants in that ,first ,article4 ,we know how the patriotic efforts of himself and ,madison and his other colleagues were later rewarded by the giving of that consent4 ,we know where those average ,americans of that day gave that consent1 where they made that constitution of their national government which is that ,first ,article4 8,it is true1 they assembled in their several states--and where else should they have assembled8 ,no political dreamer was ever wild enough to think of breaking down the lines which separate the states1 and of compounding the ,american people into one common mass4 ,of consequence1 when they act1 they act in their states4 ,but the measures they adopt do not1 on that account1 cease to be the measures of the people themselves1 or become the measures of the state governments40 ,in the many other ,supreme ,court decisions1 telling the tale of the completion of the 8prodigy0 and all stating the same legal fact1 is there a more apt and accurate expression of the knowledge of the ,american people1 who were better acquainted 8with the science of government than any other people in the world10 that the 8conventions0 in the respective states1 assembled to constitute their ,american government by grants like those in the ,first ,article and the ,eighteenth ,amendment1 are the ,americans themselves and that the state governments never are the ,american people themselves and never represent those people for national purposes4 ,it was natural that such apt and accurate expression of that concept should have been voiced by ,marshall in the ,supreme ,court4 ,he had been one of those people1 fighting on the battle-field with them to wrest from all governments in the world any ability to constitute government by making grants like those in the ,first ,article or the ,eighteenth ,amendment4 ,he had been one of those people in one of those 8conventions10 in their respective states1 where they made the only ,article of that kind which ever entered their and our national ,american ,constitution4 ,later it became his privilege and duty 7and our great good fortune7 to explain who alone could make and did make that ,first ,article and who alone can ever validly make ,articles like it or the ,eighteenth ,amendment1 namely1 the ,american people themselves1 assembled in convention in their respective states4 ,when1 therefore1 we read the ,fifth ,article1 made by him and his fellow ,americans in those 8conventions10 we recognize at once and we will never forget or ignore their mention of themselves1 in the very word by which he and they then described themselves1 8conventions0 in their respective states4 ,in making the ,eighteenth ,amendment grant of power to interfere with ,american freedom1 we--the ,american citizens and 8conventions0 of this generation--have been ignored as completely as if we were not named in the ,fifth ,article4 ,we have been trying to ascertain 8when0 and 8how0 the ,american human beings1 now ourselves1 ceased to be 8citizens of ,america0 and again became 8subjects0 of governments4 ,we have gone to the record of our ,congress on those days in #aiag1 in which it acted on the assumption that the 8when0 and 8how0 were already history4 ,we have found no ,senator or ,congressman who vouchsafed any information or displayed any knowledge of this matter1 so vitally important to us who were born citizens and free men4 ,we have seen the leader of the ,house advocates of the new constitution of government1 the ,eighteenth ,amendment1 read a ,fifth ,article in which the 8conventions0 of those who made it and the ,first ,article are not mentioned4 ,we have seen the leader of the same advocates in the ,senate complacently assert the repudiated thought that the states made the ,first ,article1 our constitution of our government4 ,we have seen him follow up this error with the ,tory mistake of assuming that the government of the state is the state4 ,we have seen him point out1 to our ,american amazement1 the remarkable and hitherto unknown fact1 never mentioned by the people who made the ,fifth ,article1 that the state governments are the only tribunal in which our national constitution of government can be changed1 that those governments are a tribunal in which new enumerated power can be given by government to government to interfere with our own individual freedom4 ,fresh from our education with the ,americans who made that ,fifth ,article in 8conventions0 of the very kind mentioned therein1 we see that those legislators of #aiag know naught of ,american history or law or constitution of government of men1 that from them we cannot learn 8when0 or 8how0 we ceased to be 8citizens0 and became 8subjects40 ,but1 there assembled in the ,supreme ,court in ,march1 #aibj1 many renowned 8constitutional0 lawyers4 ,some came to challenge1 some to uphold the new ,amendment1 the new government-made constitution of government right to interfere with individual human freedom4 ,to the reading of all their briefs and arguments we bring our knowledge that the new ,amendment never entered our ,constitution unless we were 8subjects0 before #aiag or unless the new ,amendment was itself a revolution 7by government against citizens7 which made us 8subjects40 ,we expect the lawyers against the new ,amendment to challenge its existence with the facts and knowledge we bring from our education with the ,americans who made themselves free men and citizens4 ,we expect the lawyers for the new ,amendment to point out the day and the manner in which they claim that government of the ,american people by the ,american people did disappear from ,america4 ,unless these lawyers for the ,amendment do point out that day and manner and sustain their claim as to both1 we know that the existence of the new ,amendment is successfully challenged by the facts which we have acquired in our education4 ,before we listen to the expositions of these facts by the lawyers against the new ,amendment1 let us briefly review the facts themselves as they bear upon the supposed existence of the new ,amendment4 ,when #aggf opened1 the ,american people were subjects in rebellion against their omnipotent government4 ,by direct action of themselves1 in ,july1 #aggf1 they made themselves free men1 made their former colonies independent states and made each of themselves a citizen of some one of those states4 ,almost immediately1 the ,statute of '#gf having declared the actual fact that the supreme will in ,america was possessed by the ,american people1 at their suggestion and with their permission1 the citizens of each state constituted their own government with its national powers to interfere with the individual freedom of its own citizens4 ,in strict conformity to the ,statute of '#gf and to the sole ,american concept of the relation between government and human being1 those grants of power to interfere with individual freedom1 like every other grant of that kind until the ,eighteenth ,amendment1 were made by the respective citizens to their respective governments4 ,in #aggg the committee of the ,american people known as the ,second ,continental ,congress proposed a union of states or political entities and a general government to govern states but not to interfere directly with the human freedom of the individual4 ,because there is a vital distinction between the ability to govern states and the ability to interfere with individual freedom1 those ,americans knew that states or political entities could make federal ,articles but that only citizens could ever validly make national ,articles4 ,it was impossible for these ,americans not to know this difference between the respective abilities of states and citizens of ,america4 ,their ,statute of '#gf had declared this sole ,american concept of the law controlling the relation of government to human being4 ,they were actually engaged in their ,revolutionary ,war for the very purpose of making it forever ,american law that no governments could ever grant national power in any matter4 ,because1 therefore1 the proposed ,articles of #aggg were only federal ,articles with grants of federal power1 it was 8felt and acknowledged by all0 that the state legislatures were competent to make those ,articles4 ,so we recall1 with intent to remember1 that those federal ,articles were made in the exercise of that legislative government ability to make federal ,articles1 which is mentioned in our own ,fifth ,article4 ,in #aghg1 from the same ,philadelphia1 there came the proposal that the ,american people1 collectively the possessors of the supreme will in ,america1 create a new nation1 with themselves as its members or citizens and1 as its members1 constitute its government with national powers to interfere with their own individual freedom4 ,because the legal necessity of deriving powers of that kind from the people themselves was 8felt and acknowledged by all10 the inevitable legal decision was reached at ,philadelphia that the existing ability of legislative governments to make federal ,articles neither then did nor ever could include the ability to make national ,articles like the ,first ,article and the supposed ,eighteenth ,amendment4 ,by reason of that legal necessity and its then recognition by all1 because the ,first ,article contained grants of national power1 8by the convention1 by ,congress1 and by the state legislatures1 the instrument was submitted to the people4 ,they acted upon it in the only manner in which they can act safely1 effectively1 and wisely on such a subject1 by assembling in convention40 ,the reasoning and the decision itself were embodied in ,article ,,vii and in the ,resolution which went from ,philadelphia with the proposed seven ,articles1 including the ,fifth ,article4 ,as the ,supreme ,court has definitely settled1 the ,tenth ,amendment merely declares what was in that original proposed ,constitution4 ,therefore the ,constitution gave no new government ability anywhere except to the government at ,washington4 ,it gave to that government only specific ability to govern human beings1 in certain matters4 ,it merely reserved to each state government some of its former ability to govern its own citizens4 ,it gave neither to any state government nor to all state governments collectively any new ability to govern4 ,and it reserved to the ,american people themselves all ability to exercise or to grant any national power to interfere with the freedom of ,american citizens except those enumerated powers in the ,first ,article4 ,the ,supreme ,court has definitely settled that this reservation of such power exclusively to themselves1 by the makers of the ,fifth ,article1 is the most important factor in our constitutional distribution of that kind of power among our ,american government1 our state governments and1 most important of all1 ourselves1 the citizens of ,america4 ,for which reason1 until this generation1 it has always been axiomatic that the mention of that exclusive ability of our own1 8conventions0 of ,americans in their respective states1 is the most important factor in the ,fifth ,article4 ,in strict conformity with the ,statute of '#gf and without usurping the reserved powers of the most important factor in both the ,tenth ,amendment and the ,fifth ,article1 seventeen federal changes were made1 between #aghi and #aiag1 in the federal part of our ,constitution1 which is both a federal and a national ,constitution4 ,the situation in #aiag was exactly the same as it had been since ,july #d1 #aggf1 when it was known even to the humble townsmen of ,concord that governments could not make national ,articles in ,american constitutions4 ,or rather1 the situation in #aiag was the same unless1 somewhere prior to #aiag1 the ,statute of '#gf had been repealed and the most important factor in both ,articles had been eliminated from the ,fifth ,article and ,tenth ,amendment of the ,american ,constitution1 which is the security of the ,american citizen against usurpation of power even by governments in ,america4 ,we know that ,gerry moved to strike that important factor from the ,fifth ,article in ,september1 #aghi1 and that he failed in his effort4 ,we know that ,webb and the legislative advocates of the new ,eighteenth ,amendment had a ,fifth ,article in which that most important factor was not present4 ,apparently they based their government proposal and government ratification of the ,eighteenth ,amendment upon a ,fifth ,article which did not contain that most important factor1 the reference of the makers of the ,fifth ,article to themselves as the makers of all future ,articles of a national kind1 the reference of those makers to themselves in the words 8conventions0 of the ,american people1 assembled in their respective states4 ,keeping all these settled facts clearly in our minds1 we now take up the arguments and the briefs in which1 in ,march1 #aibj1 the constitutional lawyers of ,america1 who disputed the presence of the new ,amendment in our ,constitution1 should have presented these irresistible facts4 ,then we shall take up the arguments and briefs of those other renowned lawyers in which they presented those other facts 7still unknown to us average ,americans7 which can alone refute our knowledge that the new ,amendment never went into our ,constitution1 because we are still citizens and governments are yet unable to create government power to interfere with our individual freedom4 ,,chapter ,,xx ,,lest ,,we ,,forget 8,the important distinction so well understood in ,america1 between a ,constitution established by the people and unalterable by the government1 and a law established by the government and alterable by the government1 seems to have been little understood and less observed in any other country4444 ,even in ,great ,britain1 where the principles of political and civil liberty have been most discussed1 and where we hear most of the rights of the ,constitution1 it is maintained that the authority of the ,parliament is transcendent and uncontrollable1 as well with regard to the ,constitution1 as the ordinary objects of legislative provision4 ,they the legislature have accordingly1 in several instances1 actually changed1 by legislative acts1 some of the most fundamental ,articles of the government40 7,fed4 ,no4 #ec47 ,coming from ,madison or ,hamilton1 this is the best kind of testimony that the earlier ,americans1 who established that constitution of government which is the ,first ,article1 knew that it was 8unalterable by government40 ,and it is the best kind of testimony that the same ,american makers of the ,madison ,fifth ,article knew that it did not grant to state governments any ability to add to or subtract from the ,first ,article enumerated and constituted powers in government to interfere with the freedom of ,american citizens4 ,if ,madison and ,hamilton had been with us in our ,congress of #aiag1 their statement would have been slightly altered4 ,they would have spoken of 8the important distinction so well understood in ,america0 in #aghg1 as one which 8seems to have been little understood and less observed in any other country0 and not known or observed at all by our ,senators or ,congressmen of #aiag4 ,the ,americans of #aghg1 who 8so well understood0 the important distinction1 made their knowledge a noticeable thing in the language of their ,statute of '#gf and of their ,constitution4 ,with their knowledge of the important distinction1 they permitted the respective states1 through the respective legislatures thereof1 to constitute the government of states1 to make the federal ,articles of #agha4 ,with their knowledge of the important distinction and in deference to their own clear ,statute of '#gf1 these intelligent ,americans refused to permit the states or the legislatures of the states to establish the government of men1 to make the national ,article--the ,first ,article--which is the constitution of government power to interfere with individual human freedom4 ,moreover1 by their knowledge of the important distinction and of the ,statute1 they knew that ,constitution1 that enumerated grant of national power over themselves1 to be 8unalterable by government40 ,and that we and all later ,americans might also know it1 they1 the ,american people or 8conventions0 of that day1 insisted that the ,tenth ,amendment expressly declare that they1 those 8conventions0 of the ,american people1 reserved to themselves and their posterity1 the 8conventions0 of any later day1 exclusive ability to alter that constitution of national power1 the ,first ,article4 ,and1 for the same purpose1 they1 the 8conventions10 mentioned themselves1 the particular reservee of the exclusive ability to alter that grant of national power1 in one particular earlier part of the ,articles they made1 the part we know as the ,fifth ,article4 ,naturally1 the two men1 who worded that ,article at ,philadelphia and who paid its later makers the deserved tribute to their knowledge of the important distinction1 mentioned those makers1 8conventions10 in that ,fifth ,article as future makers of all grants of national power and mentioned the legislatures1 in the ,fifth ,article1 as competent future makers of ,articles that do not constitute new national government4 ,because we have lived through the experience of the ,americans to whom the tribute was paid1 we know the distinction between a constitution of national government1 8unalterable by government10 and ,articles constituting government of political entities or states1 alterable by the states or the legislatures of the states4 ,moreover1 by reason of our experience1 we sense the clear recognition of the distinction in the ,fifth ,article distinct mention of the people or 8conventions10 as sole makers of national ,articles1 and the similar mention of the 8legislatures0 as competent makers of federal ,articles4 ,to our regret1 we have found that our ,congress1 in #aiag1 knew naught of the distinction and naught of its recognition in the language of the ,tenth ,amendment and the ,fifth ,article4 ,it is with relief1 therefore1 that we turn to the great litigations in the ,supreme ,court of #aibj1 in which the lawyers of the ,america1 where the important distinction was once so clearly known1 attacked and defended the proposal from the ,congress of #aiag and the action of the state legislatures on that proposal4 ,fresh from the utter legislative ignorance of that distinction1 it is with relief that1 in our first glance at the briefs of those lawyers1 we find what seems the clear echo of the accurate knowledge we have acquired in the company of those earlier ,americans4 8,there is only one great muniment of our liberty which can never be amended1 revoked or withdrawn--the ,declaration of ,independence4 ,in this regard1 it ranks with the ,magna ,charta40 ,the clear tribute to the unrepealed ,statute of '#gf excuses1 while it does not explain1 the error of the allusion to ,magna ,charta4 ,graduate students of the history of the advance of ,americans from subjects to free men1 we average citizens grasp the error of the statement1 8in this regard that neither can ever be revoked the ,statute of '#gf ranks with the ,magna ,charta40 ,we know that the ,statute was the revocation of the basic doctrine on which ,magna ,charta rested4 ,magna ,charta was the grant of privilege from an omnipotent government to its subjects4 ,all that subjects ever have are the revocable privileges granted by the master government4 ,the ,statute of '#gf states the basic ,american law that there are no subjects in ,america1 that the human members of any political society or state or nation1 except as they directly grant power over some of their human rights to secure enjoyment of the rest1 need obey the command of no one except ,him who gave them their human rights4 ,in a free nation1 such as the earlier ,americans made of themselves1 no man has any privileges granted by a master government4 ,in a free nation1 citizens or members of the society 7and the supreme will therein7 have their servant governments to which those citizens give whatever national powers those governments ever have4 ,except for the grants of such power which those citizens so make1 the human beings retain1 not as a gift or privilege of government but as the gift of ,him ,who created them1 all human freedom of action4 ,as citizens1 they also possess the particular privileges which arise from membership in that particular society of men2 but even those privileges are not the gift of government but the creation and effect of the society itself1 just as every power of the government is also the gift of the society4 ,we pardon the error of the reference to ,magna ,charta1 however1 when we read on in the brief and find it immediately quoting from our ,statute3 8,we hold these truths to be self-evident1 that all men are created equal2 that they are endowed by their ,creator with certain unalienable ,rights2 that among these are ,life1 ,liberty and the pursuit of ,happiness4 ,that to secure these ,rights1 ,governments are instituted among men1 deriving their just powers from the consent of the ,governed4 ,that whenever any ,form of ,government becomes destructive of these ends1 it is the ,right of the ,people to alter or to abolish it1 and to institute new ,government1 laying its foundation on such principles and organizing its powers on such form1 as to them shall seem most likely to effect their ,safety and ,happiness40 ,at last1 in this brief1 we are getting the clear echo of our own knowledge that1 until this ,statute is revoked1 it is not the right of 8government or governments0 to institute new government1 laying its foundation on such principles and organizing its powers in such form as to 8governments0 shall seem most likely to effect the safety and happiness 8of governments40 ,moreover1 in this brief1 we are getting the clear echo of our own knowledge that this ,statute can never be revoked1 while we remain free men and citizens instead of the subjects we were until that ,statute was enacted4 ,and when we turn to another brief for a moment1 we are cheered to find the refutation of the ,sheppard ignorance of the identity of those who made our ,constitution1 8,we1 the people of0 ,america1 in its ,preamble and its most important factor of the ,tenth ,amendment1 the 8conventions0 of ourselves in its ,seventh and its ,fifth ,articles4 ,with gratification that some 8constitutional0 lawyers still know and observe the important distinction between the ability of ourselves1 the 8conventions0 of the ,seventh and ,fifth ,articles1 and the lack of ability in the 8legislatures0 of the ,fifth ,article to give to government national powers1 we average ,americans recognize1 in the following challenge of this brief1 the challenge we would have made to the ,sheppard proposition that legislatures attempt to constitute such new government over us4 ,this is the challenge of the brief to ,sheppard3 8,the ,constitution is not a compact between states4 ,it proceeds directly from the people4 ,as was said by ,mr4 ,chief ,justice ,marshall in ,mc,culloch v4 ,maryland1 #d ,wheat4 #caf1 etc40 ,then follows the ,marshall clear exposition of how the people themselves1 the 8conventions10 made the constitution which is the ,first ,article and how1 if any other constitution of that kind1 such as the ,eighteenth ,amendment1 is ever to be made 8safely1 effectively1 and wisely0 it must be made by ourselves1 assembled in the 8conventions0 named in the ,fifth ,article4 ,the full extract from ,marshall has been set out already herein at page #ih4 ,in a second brief1 in a different case1 the same distinguished lawyer of #aibj is found bringing into bold relief another part of our knowledge so intimately connected with the supposed new constitution of government1 the ,eighteenth ,amendment4 ,and it is a part of our knowledge which challenges a new constitution made entirely by governments without any action by ourselves1 the people or the 8conventions0 named repeatedly in the ,constitution made by themselves4 ,in that other brief1 we find him stating as one of the propositions on which he bases his argument1 8,what the expression #8legislatures of the several states' meant as used in ,article ,v1 when that ,article was adopted as a part of the ,constitution1 it means now40 ,the statement being undeniably true1 he immediately proceeds to urge1 with equal truth1 that 8however popular approval or disapproval i4e41 the direct action of the people themselves1 as1 for example1 in the #8conventions' whence1 as he already stated1 our ,constitution proceeded #8directly from the people' may be invoked1 the people do not become a #8legislature4'444 ,as well confound the creator and the creature--the principal and the agent through which he acts40 ,this is the echo of ,marshall's clear statement of the vital distinction between the same 8legislatures0 7who never are the people and never have the reserved ability of the people7 and the 8people0 or 8conventions0 7which are the people and have the exclusive ability of the people74 ,we recall the tribute paid to this distinction at ,philadelphia4 ,we recall the legal decision there1 a decision based squarely on that distinction1 that the legislative ability to make federal ,articles could not constitute new government of men1 as did the ,first ,article1 and that all ,articles like it or the new ,eighteenth ,amendment must go to the 8people0 of the ,tenth ,amendment1 the 8conventions0 of the ,seventh and ,fifth ,articles4 ,we recall ,marshall's appreciation of the accuracy of that legal decision1 when he mentioned that the ability of the state governments or legislatures had been competent to make the federal ,articles of #agha but1 when it was proposed to constitute government of men1 to vest the national powers of the national ,first ,article1 8the necessity of deriving those powers directly from the people the 8conventions0 of the ,seventh ,article was known and recognized by all40 ,we remember that the 8people0 or 8conventions10 so recognizing and knowing1 mentioned themselves in the ,fifth ,article so that no one ever should forget the similar legal necessity that every ,article like the ,first1 such as the new ,article1 must always be made by those 8conventions0 so mentioned4 ,it is1 therefore1 with considerable satisfaction that we read1 in this brief of #aibj1 the clear echo of all these settled facts1 the knowledge that 8legislatures0 never are the people and never become the people4 8,as well confound the creator and the creature--the principal and the agent40 ,in our gratitude for such remembrance1 we ignore the inaccuracy of a suggestion that the 8legislatures0 of the ,fifth ,article are the agent of the principal therein mentioned1 the 8people0 of ,america1 the 8conventions0 which made the ,constitution4 ,each of those 8legislatures0 is an agent of one particular reservee among those named collectively in the reservation of the ,tenth ,amendment in the words 8to the states respectively10 while the 8conventions0 in the ,fifth ,article is the one most important reservee in that ,tenth ,amendment1 8the people0 of ,america1 the most important factor in that ,tenth ,amendment and in ,america4 ,for the purpose of making any ,articles1 whether federal or national1 that important reservee has no legislative agents4 ,for any purpose1 it has but one legislative agent1 the ,congress2 and to that one legislative agent it has given no power to make any constitutional ,articles2 but it has1 in the ,fifth ,article1 left with that agent the mere ability to draft and propose a new ,article of either kind and1 as did the ,philadelphia ,convention1 from the nature of the ,article it drafts1 whether within the ability of 8legislatures0 or within the exclusive unlimited ability of the people or 8conventions10 to ascertain and propose which shall make the drafted ,article4 ,that the state legislatures are not agents of the ,american citizens1 in that capacity1 is self-evident4 ,each legislature is chosen by the citizens of a state4 ,moreover1 the ,constitution itself distinctly states that the 8conventions0 of the ,american citizens grant no power of any kind therein to the state 8legislatures40 ,when the ,american people created a national legislature1 with certain enumerated powers1 it was neither necessary nor proper to define the powers retained by the states4 ,these powers proceed1 not from the people of ,america1 but from the people of the several states2 and remain1 after the adoption of the ,constitution1 what they were before1 except so far as they may be abridged by that instrument4 7,marshall in ,sturges v4 ,crowinshield1 #d ,wheat4 #abb47 ,that is why anything which these 8legislatures0 do1 when it comes in conflict with a valid action of our legislature1 the ,congress1 must always yield4 ,we have the supreme will in ,america1 and when our agent1 the ,congress1 speaks with authority from us1 it speaks for us1 while the inferior agents of other lesser wills never speak for us4 ,that clear distinction does not detract from the ability of those legislatures to make federal ,articles in our ,constitution4 ,they do not get that ability from us1 the citizens of ,america4 ,they had that ability from those respective inferior wills1 when we made our ,constitution4 ,by its exercise1 they had made the federation of states and the federal ,articles of its government4 ,when we made our national ,constitution1 we continued that federation and the ability of its component members to make its federal ,articles and put them in our ,constitution1 which is both our national ,constitution and their federal ,constitution4 ,the ability to make those federal ,articles is one of the powers reserved to those inferior wills by the reservation of the ,tenth ,amendment which reads 8to the states respectively02 and it is not an ability to make ,articles which is granted in the ,fifth ,article4 ,no ability to make ,articles is granted in that ,fifth ,article4 ,inasmuch1 however1 as the writer of the brief in #aibj has known that 8legislatures0 do not ever become 8the people10 it is quite probable that his reference did not intend to suggest that the legislatures of which he spoke and who are the agents respectively of other citizens1 were the agents1 for any purpose1 of the citizens of ,america4 ,with his recognition that legislatures never are the people and with the other quoted extracts of those briefs of #aibj before us1 echoing the knowledge we have acquired1 we feel at least that in the court of #aibj1 from the debate of men who know1 we will learn whether and 8when0 and 8how10 we1 between #aijg and #aiag1 became subjects instead of the free men and citizens which we clearly were up to #aijg4 ,at least such was the thought of one ,american citizen1 when he read this quotation1 in one of the briefs of #aibj1 8that the people do not become a legislature4444 ,as well confound the creator and the creature--the principal and the agent through which he acts40 ,it was almost incredible to this particular ,american citizen that he found this statement and the statement that--8,the ,constitution is not a compact between states4 ,it proceeds directly from the people40--both in the briefs of the foremost champion of the new ,amendment4 ,and it seemed equally incredible to him to find the quotation about the ,statute of '#gf being 8one great muniment of our liberty which can never be amended1 revoked or withdrawn0 in the brief of the counsel for the political organization which dictated the new state government command to the citizens of ,america4 ,an unusual method had been adopted for the hearing of what were later reported under the one title the 8,national ,prohibition ,cases10 #bec ,u4,s4 #cej4 ,in that hearing1 which continued for days1 seven different litigations were argued because all dealt either with the validity of the ,eighteenth ,amendment or with the meaning of its remarkable second section or with the statute enacted under that section and known as the ,volstead ,act4 ,for the same reason1 the briefs on both sides of the various litigations were clearly the result of conference and collaboration4 ,nearly all of the briefs1 challenging the new ,article1 made their challenge on the same two main points and in the expression of those two challenges1 made constant reference to the different expression thereof in the other briefs4 ,in the litigation and argument of that ,march1 appeared many of the best known lawyers in ,america4 ,among them were distinguished counsel1 appearing on behalf of those legislative governments who claim and1 in the new ,article1 have attempted to exercise the omnipotent supremacy over the citizens of ,america which was denied by the people of ,america to the ,british ,parliament4 ,among them were other distinguished counsel1 appearing on behalf of what had always been known as the supreme legislative government in ,america1 our government with its enumerated powers and without omnipotence over us4 ,among them were still other distinguished counsel1 appearing on behalf of some separate states or political entities to contend that there existed no constitutional ability anywhere1 even in ourselves1 to take from their particular state any more of its sovereignty than it had surrendered in those early days when the states made the ,constitution1 as ,sheppard claimed in the ,congress of #aiag4 ,among them were still other distinguished counsel1 some of them the most distinguished of all1 appearing to oppose1 as best they knew how1 the total destruction of all legitimate industry in a business in which it was the human right of ,americans to engage even before ,americans wrote their ,statute of '#gf and consequently not a privilege of the citizen of ,america or the citizen of any state4 ,as this fact has been the basis of many errors in that comedy and tragedy of errors1 which is the five-year tale of the ,eighteenth ,amendment1 we average ,americans may well dwell for a moment upon the certainty of that fact4 ,it is the natural mistake of those1 who have the ,tory concept of the relation of men to government1 that they should first confuse the meaning of the words 8privilege of a citizen0 with the words 8privilege of a subject0 and thus believe that the nature of both privileges1 and the source of each are the same4 ,that mistake is but the echo of the error which confuses the nature of ,magna ,charta with that of the ,statute of '#gf4 ,magna ,charta is the declaration of certain privileges which government will permit its subjects to keep as long as the government pleases4 ,the ,statute of '#gf is the declaration that destroys the relation of government to subjects1 creates the relation of citizens to their servant governments1 and states that the servants shall have no power to interfere with the human rights of the masters1 given by their ,creator1 except such power as the masters choose to give1 and that the servants shall keep that power only so long as the masters will4 ,to the ,tory concept1 always concentrated on the relation of subject to master government1 it is difficult of apprehension that the human being is born with the right to use his human freedom as he himself wills1 so long as he does not interfere with the similar exercise of human freedom by the rest of us human beings4 ,if men1 in the exercise of their free will1 would always obey the defined law of ,him who created them1 the exercise of human freedom by one individual would never interfere with the exercise of human freedom by all other individuals1 and no human government need ever be constituted4 ,among the human rights of ,americans1 as of all human beings1 when they come into the world1 is the human right to do everything which is forbidden in the first section of the ,eighteenth ,amendment4 ,it is true1 as we frequently hear stated1 that the ,supreme ,court has decided that the right to do any of those things is not the 8privilege0 of ,american citizens or of the citizens of any state4 ,it is also equally true1 although the ,supreme ,court has never been called upon to decide that very obvious fact1 that the right to breathe is not the 8privilege0 of an ,american citizen or of the citizen of a state4 ,both rights are among the rights of human beings1 as such1 and they are each of them among the rights of themselves1 which we1 8the people0 of ,america1 established and ordained our ,constitution to secure4 ,when we established that ,constitution for that purpose1 we admittedly gave our only ,american government no power to make the command of the first section of the ,eighteenth ,amendment4 ,that is why the governments of other citizens were asked to make the command to ourselves1 the citizens of ,america4 ,each of the ,americans1 who created the nation that is ,america1 already lived as a member and citizen of a state4 ,in that state1 when they had constituted it1 the citizens thereof had subjected their human right 7to do what the new ,amendment says shall not be done7 to a power in the government of that state 7a power which they gave it and can take back from it7 to make that kind of a command to them in that matter4 ,we thus have clearly in our minds that the individual in ,america has the human right 7with which the new ,amendment interferes7 and that it is subject to the interference of no government1 except as the citizens of that particular government have given it power so to interfere with it4 ,the undoubted fact that the right itself is not the privilege of the citizen of ,america or the citizen of the state is simply another way of saying that the original human right itself is not granted to the human being by government or governments but by the ,creator ,who made him4 ,without the ,tory concept1 no man would even make the mistake of believing that a citizen gets any of his privileges from any government4 ,the privileges of a citizen are the things which he acquires by his voluntary association with the other citizens as the members of a political society which is the nation4 ,the human rights of the same individual are the rights which he brings into that association and subjects to whatever powers of its government are granted by himself and those other citizens with whom he associates as the nation4 ,of course1 the early ,americans1 with whom we have now been educated1 not only knew these things clearly and accurately1 but on their knowledge of them based everything that they did in the fifteen years which we have lived with them4 ,the ,americans of today1 who uphold the new constitution of government made entirely by government1 do not know them at all or understand them when they hear them4 ,neither would the aristocrats of ,france1 before the ,french ,revolution1 nor the ,tories of ,england1 even at the time of our ,revolution1 have known or understood them4 ,that is why the ,americans continued their ,revolution and won it1 so that these things might be the basis of every government interference with any human right4 ,later they made the ,american ,constitution solely to secure the greatest possible protected enjoyment of all individual human rights4 ,that security is one of the privileges acquired by citizenship in the society which that ,constitution created4 ,wherefore1 it is of interest for us to know how clearly ,madison1 who largely planned that ,constitution and who worded its ,fifth ,article1 did know and understand these facts in relation even to the very things forbidden in the new constitution of government made entirely by government4 ,in the ,house of ,representatives1 in the first session of the new ,congress with the enumerated powers of the ,first ,article1 on ,may #ae1 there came up for discussion 8a proposed bill laying duties on goods40 ,madison 8moved to lay an impost of eight cents on all beer imported4 ,he did not think this would be a monopoly1 but he hoped it would be such an encouragement so as to induce the manufacture to take deep root in every state of the ,union40 7#d ,ell4 ,deb4 #cde47 ,that the knowledge of ,madison was not unknown to the ,supreme ,court a century later1 in #ahij1 is a matter of record4 ,that ardent spirits1 distilled liquors1 ale1 and beer are subjects of exchange1 barter1 and traffic1 like any other commodity in which a right of traffic exists1 and are so recognized by the usages of the commercial world1 the laws of ,congress1 and the decisions of courts1 is not denied4 7,leisy v4 ,hardin1 #ace ,u4 ,s4 #ajj47 ,returning to the courtroom of #aibj1 therefore1 we are sincerely glad to note the appearance of quite an array of eminent counsel on behalf of those legitimately engaged in a business which is just as legitimate an exercise of human right1 as it was when ,madison hoped that it would take deep root in every state of the ,america he loved so well1 a business which will continue free from unlawful usurpation of power by government so long as the ,constitution planned by ,madison is obeyed by governments in ,america4 ,it is too bad that the eminent counsel1 who shared ,madison's views in relation to that legitimate business1 did not also have ,madison's accurate knowledge of the only way in which legitimate government power can be created to interfere with that or any other human right1 the way which ,madison so clearly stated in the ,fifth ,article--by grant from the 8conventions0 of ,american citizens4 ,when we average ,americans look over the great array of counsel and the respective clients whose causes they champion1 one fact lends no encouragement to our hope that we may learn the merits of the claim that1 somehow between #aijg and #aiag we became subjects and lost our status as free men4 ,although each client is represented by his own distinguished attorneys and although eminent counsel argue and file briefs1 as amici curi1 on behalf of the state governments which claim that we are subjects and on behalf of some of the litigating other states and individuals1 no amicus curi files any brief on behalf of us1 the citizens of ,america1 the reservees of the ,tenth ,amendment1 the 8conventions0 of the ,seventh and the ,fifth ,articles4 ,there is1 however1 this comfort4 ,if1 because the counsel in opposition to the new ,amendment do not know and urge our legal protection against any new constitution of national government except by ourselves1 the citizens of ,america1 the 8conventions0 of the ,fifth ,article1 and if1 because of such ignorance on the part of counsel1 the ,court should not be called upon either to consider or pass upon our protection1 no decision of the ,court will be intended to have--as no decision of the ,court could have--any effect upon our protection4 ,if counsel fail to bring before the ,court the legal facts which demonstrate that the new ,amendment is not in the ,constitution unless we ,americans are 8subjects10 our day in ,court is merely postponed4 ,and when that day shall come1 when that ,court is addressed by counsel who do represent the citizens of ,america and who accurately know the constitutional protection which we have for all our rights1 there is not the slightest danger that the ,court1 established and maintained by us for the sole purpose of protecting our individual rights against usurpation by government1 will decide that we are subjects and that governments can create new government power to interfere with the freedom of the individual ,american citizen4 ,meanwhile1 let us examine the briefs of ,march1 #aibj4 ,in them1 despite our regret that not one of them was written in our behalf1 it may be possible1 it ought to be a certainty1 that we will hear something about the 8when0 and the 8how10 after #aijg1 we are supposed to have lost our status as free men and citizens of ,america4 ,,chapter ,,xxi ,,briefs ,,ignore ,,the ,,american ,,citizen ,there is one man whose skill as an artist could do justice to the atmosphere in which all the briefs of that ,march must have been written4 ,unfortunately1 the reports of the death of that man are no longer greatly exaggerated4 ,it is unfortunate that the man who pictured the sensations of a ,yankee in ,king ,arthur's ,court could not have lived to reverse the feat4 ,only his genius could picture one of the ,americans of #agij living in the atmosphere of the briefs of #aibj for the new ,amendment and learning therein that the ,americans of his own day never became citizens of ,america4 ,only the unique word-artist1 who defined a cauliflower as a cabbage with a college education1 could adequately state the startling fact that not one of the briefers knew that all were assembled in the court room of ,march1 #aibj1 seriously to debate whether the ,americans in #aghh voluntarily surrendered their status as free men and1 repealing their ,statute of '#gf1 declared themselves and their posterity subject to a legislative government superior to what they called their supreme legislature1 a legislative government 8invested with power to legislate for us in all cases whatsoever40 ,because ,mark ,twain is dead1 we must get from those briefs1 without his aid1 the knowledge that the new ,article depends entirely on the extraordinary concept that the ,fifth ,article constituted a hitherto unknown government of all ,american citizens1 not our government of enumerated ,first ,article powers but an entirely distinct government--not a member of it chosen by ,american citizens--8invested with power to legislate for us in all cases whatsoever40 ,in other words1 we are to learn from the briefs for the new ,article that our supposed only and supreme ,american government is1 and that all ,american citizens are1 subject to the omnipotence of a still more supreme legislative government1 consisting of the state legislative governments on whose behalf some of the most distinguished lawyers of #aibj appeared4 ,it is the clear concept of those lawyers that upon the will of the governments they represented1 a will subject to the restraint of no ,constitution in ,america1 depends entirely what measure of human freedom we individual ,american citizens may enjoy4 ,this concept stands out clear and sharply defined in their briefs1 although neither they nor their opponent lawyers grasp the fact4 ,on the fact that the ,fifth ,article mentions their client governments1 the state legislatures1 they base the entire claim that the ,eighteenth ,amendment is in our ,constitution4 ,on this mention rests their extraordinary assumption that the ,fifth ,article is a 8grant0 of power to those governments--and to the very 8conventions0 which made the ,fifth ,article--to make new ,articles of every kind1 whether federal to govern states or national to interfere with the freedom of the individual4 ,furthermore1 we are to learn1 from the briefs of the lawyers against the new ,article1 that they all assert1 like their opponents1 that the ,fifth ,article is a grant of power to the grantors and to the state governments4 ,to our amazement1 in the briefs of the lawyers against the new ,article1 we shall find no knowledge of or insistence upon the important fact that the ,constitution is both a federal and a national ,constitution4 ,most amazing of all1 in no brief of any lawyer1 shall we find the faintest recognition of the decisive fact that the 8conventions0 of the ,fifth ,article are the ,american citizens themselves1 while the state 8legislatures0 of the ,fifth ,article are respectively the attorneys in fact for respective citizens of other political entities than the nation which is ,america4 ,most briefs1 for the new ,amendment1 will dwell upon the fact that the people of ,america1 not the states1 made the ,constitution4 ,yet1 although it is equally true to say that the whole people of ,america or the 8conventions0 of the ,seventh ,article made the ,constitution1 no briefer will know that the 8conventions0 of the ,fifth ,article are also the whole people of ,america1 while the state 8legislatures0 never are the attorneys in fact for the citizens of ,america1 who never chose a single member of those 8legislatures40 ,that all those lawyers1 who debated the extent of the imaginary 8grant0 of power in the ,fifth ,article1 may do themselves strict justice1 let us accurately state a few indisputable facts before we consider their briefs4 ,it is a fact that the subject matter of the first section command and the second section grant1 in the ,eighteenth ,amendment1 is the exercise of a human right1 not the privilege of a citizen of ,america or the citizen of any state4 ,it is a fact that the ,americans in each former colony1 in #aggf1 constituted a state for themselves and a government of that state and subjected that particular right1 as all their individual human rights1 to the general welfare state power of that government1 the power which is now known as the police power4 ,it is a fact that1 from #aggf to #aghg1 that particular individual right1 as all the human rights of the citizens of any state1 was subject to no interference by any government or governments in the world except the one legislative government of that particular state4 ,it is a fact that all the legislative governments of the other states and the government of the federation of states could neither exercise nor grant1 as some of them have attempted to do in the ,eighteenth ,amendment1 any power to interfere with that particular individual freedom or any other individual freedom of the citizens in that particular state4 ,it is a fact that1 on ,june #ba1 #aghh1 the ,americans in the nine states became collectively one political entity1 the citizens of ,america1 composing the nation which is ,america4 ,it is a fact1 and a fact which flatly denies the existence of the ,eighteenth ,amendment1 that1 on ,june #ba1 #aghh1 the existing state legislatures did not become an omnipotent legislative body of the new nation 8invested with power to legislate0 for ,american citizens 8in all cases whatsoever0 in interference with our individual freedom4 ,it is a fact that those legislatures did not then become any government for the citizens of ,america on any subject whatsoever4 ,it is a fact that not one of those state legislatures received any new power to interfere with human freedom anywhere by any grant of such power in the seven ,articles of our ,constitution4 ,the opening words of the ,first ,article expressly so declare4 ,they are1 8,all legislative powers herein granted shall be vested in a ,congress of the ,united ,states1 which shall consist of a ,senate and a ,house of ,representatives40 ,moreover1 the ,tenth ,amendment1 the declaration insisted upon by the whole 8people0 of ,america in their 8conventions10 expressly so declares4 ,its declaration is that the entire ,constitution gives no new power to any government except the new government of ,america1 the government constituted by the ,first ,article4 ,it is a fact1 again a fact which denies the existence of the ,eighteenth ,amendment1 that the general constitutional restrictions upon government power to interfere with individual freedom are restraints upon the exercise of every grant of such power in the ,constitution1 and that they do not restrain the state governments because those governments are the donee of no power of that kind in that ,constitution4 ,this fact1 a patent fact hardly needing settlement1 was decisively settled in #ahcc by the decision of the ,supreme ,court1 announced by ,marshall1 in ,barron v4 ,mayor of ,baltimore1 #g ,peters1 #dc4 ,barron contended that the ,fifth ,amendment restrained the power of the state governments4 ,marshall said3 ,the question thus presented is1 we think1 of great importance1 but not of much difficulty4 ,the ,constitution was ordained and established by the people of the ,united ,states for themselves1 for their own government1 and not for the government of the individual states4 ,each state established a constitution for itself1 and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated4 ,the people of the ,united ,states framed such a government for the ,united ,states as they supposed best adapted to their situation1 and best calculated to promote their interests4 ,the powers they conferred on this government were to be exercised by itself2 and the limitations on power1 if expressed in general terms1 are naturally1 and1 we think1 necessarily1 applicable to the government created by the instrument4 ,they are limitations of power granted in the instrument itself2 not of distinct governments1 framed by different persons and for different purposes4 ,the decision settled that the entire ,constitution vested in the state governments not a single power to interfere with individual freedom in any respect4 ,the decision is based on that one fact4 ,the fact and decision expose the absurdity of the thought that the ,fifth ,article is a 8grant0 of any such power to the state governments1 much less a grant of every such power to those governments4 ,this absurd thought1 however1 is the assumption on which every advocate of the ,eighteenth ,amendment based his argument in ,march1 #aibj3 and it is the assumption upon which wholly depends the existence of the ,amendment4 ,it is a fact that the state legislatures1 before the ,constitution was even proposed1 had existing ability to make federal ,articles4 ,it is a fact1 as the ,tenth ,amendment declares1 that the 8conventions0 of the ,seventh ,article reserved that federal ability to those state governments and that the ,fifth ,article did not 8grant0 it to them4 ,it is a fact1 that the 8conventions0 of ourselves1 the ,american citizens assembled in their respective states1 the 8conventions0 of the ,seventh and the ,fifth ,article1 even before the ,constitution was worded or proposed1 had exclusive ability to make national ,articles1 which either directly interfere or grant ability to interfere with individual freedom4 ,it is a fact that this power of the 8conventions0 included the ability to make any kind of ,article1 either federal or national4 ,it is a fact1 therefore1 as the 8conventions0 of the ,american citizens had this omnipotent power before the ,fifth ,article was even drafted1 and as the ,tenth ,amendment states that they reserved it to themselves1 that they did not grant all of it 7as the advocates of the new ,amendment claimed in ,march1 #aibj71 or part of it 7as the opponents of the new ,amendment claimed in ,march1 #aibj7 to themselves in their own ,fifth ,article4 ,it is a fact1 therefore1 that the mention of the two existing abilities 7the existing omnipotent ability of the 8conventions0 and the existing limited ability of the 8state legislatures07 does not make the ,fifth ,article any 8grant0 of power either to the 8conventions0 7who made the ,article7 or to the state 8legislatures40 ,it is a fact that the very 8conventions0 named in the ,fifth ,article and the ,american citizens assembled therein1 while they were making that ,article1 accurately knew that it was nothing but a constitutional mode of procedure for two distinct and existing powers1 and that it did not 8grant0 any power whatever to the state governments4 ,speaking of the ,constitution1 with its ,fifth ,article1 the entire convention in ,virginia declared that all the powers granted in the ,constitution were being granted by the people of ,america 8and that every power1 not granted thereby1 remains with them1 and at their will40 ,nothing could more clearly express the knowledge that the ,fifth ,article was not a grant of any power by the 8conventions0 to the 8conventions0 or to the state governments4 ,in the ,virginia convention1 ,lee stated3 8,this new system shows1 in stronger terms than words could declare1 that the liberties of the people are secure4 ,it goes on the principle that all power is in the people1 and that rulers have no powers but what are enumerated in the ,first ,article in that paper4444 ,candor must confess that it is infinitely more attentive to the liberties of the people than any state government40 7#c ,ell4 ,deb4 #ahf47 ,in the ,south ,carolina convention1 ,pinckney said3 8,with us1 the sovereignty of the ,union is in the people0 7#d4 ,ell4 ,deb4 #cbh71 and again 8,i conceive it as indispensable1 in a republic1 that all authority should flow from the people40 7#d ,ell4 ,deb4 #cbf47 ,hamilton1 one of the people assembled in the ,new ,york convention1 said3 8,as the people are the only legitimate fountain of power1 and it is from them that the constitutional charter1 under which the several branches of government hold their power1 is derived1 it seems strictly consonant to the republican theory1 to recur to the same original authority10 the people themselves1 the 8conventions0 of the ,fifth ,article and the ,seventh1 8whenever it may be necessary to enlarge1 diminish1 or new-model the powers of government40 7,fed4 ,no4 #di47 ,he could hardly have made more clear his knowledge that the ,fifth ,article was not a 8grant0 of power to the state governments4 ,as ,madison and ,hamilton proposed and seconded the only ,fifth ,article1 at ,philadelphia1 which ever mentioned the state legislatures1 their own words have great weight in the interpretation of its language4 ,for which reason1 it is well to recall again that ,madison1 in ,federalist ,number #cg1 clearly said that 8the genius of republican liberty seems to demand 444 not only that all power should be derived from the people40 ,and either ,madison or ,hamilton said in ,the ,federalist1 ,number #di1 the reference to the ,fifth ,article being unmistakable from what they said1 8,there is certainly great force in this reasoning1 and it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open1 for certain great and extraordinary occasions40 ,as they both maintained1 at the ,philadelphia ,convention and thereafter1 that the ability of state governments was incompetent to constitute government with national powers to interfere with human freedom1 and as they both repeatedly stated that it would be contrary to the genius of republican liberty that any governments should have that ability1 they have made unmistakable their knowledge that the ,fifth ,article1 which they proposed and seconded and which ,madison probably worded1 did not grant any such ability to governments4 ,in the ,pennsylvania convention1 ,wilson clearly expressed the knowledge which reads the new ,eighteenth ,amendment out of our ,constitution1 when he said3 8,in this ,constitution1 the citizens of the ,united ,states appear dispensing a part of their original power in what manner and what proportion they think fit4 ,they never part with the whole2 and they retain the right of recalling what they part with40 7#b ,ell4 ,deb4 #dcg47 ,can any man1 even a modern 8constitutional0 lawyer1 reconcile that knowledge with the thought that the ,fifth ,article is a grant of power to the state governments8 ,again in the same convention1 he said1 speaking of our ,constitution3 8,here1 sir1 the fee simple of power remains in the people at large and by this ,constitution they do not part with it40 7#b ,ell4 ,deb4 #dce47 ,in the ,north ,carolina convention1 ,iredell1 later on the ,supreme ,court ,bench1 said3 8,no man1 let his ingenuity be what it will1 could enumerate all the individual rights not relinquished by this ,constitution40 7#d ,ell4 ,deb4 #adi47 ,all these facts should be dwelt upon and emphasized in the briefs of the lawyers against the new ,article in which government attempts to exercise ungranted power and to grant new power to interfere with the individual freedom of the ,american citizen4 ,and against all our education in the 8conventions10 it must be the burden of the briefs of the lawyers for the new ,amendment to uphold the amazing proposition that all the individual rights of the ,american citizens were1 by the ,fifth ,article1 made subject to a supposed omnipotence granted to the state governments1 not a member of which is chosen by the citizens of ,america4 ,,chapter ,,xxii ,,no ,,challenge ,,to ,,the ,,tory ,,concept ,we average ,americans1 therefore1 come to the courtroom of #aibj with some knowledge that is a mathematical certainty4 ,we know that everything done at ,philadelphia by the 8conventions0 named in the ,seventh ,article was done with one dominant purpose--the security of individual human freedom4 ,we know that1 at ,philadelphia and in those 8conventions10 the old states and their governments1 the federal government and its continuation in the new ,constitution1 the new nation and its ,constitution and its government were only important as the ,american citizens considered that each or all would contribute to the security of ,american individual freedom4 ,we know that1 only in rare instances1 such as that of ,gerry1 did a ,tory mental attitude lead a man into the error 7for any ,american after '#gf7 of thinking that political entities 7such as states or nations or their governments7 have the slightest importance except in so far as they contribute to the individual freedom of the citizens who create them and must control them1 if an ,american is to remain a citizen4 ,we know that every ,american1 in those 8conventions10 discussed and voted upon every mention of these political entities1 with insistent realization that nothing anywhere in the ,constitution was intended to disturb or did disturb the legal fact that only the citizens of ,america1 in 8conventions10 ever could say how much national power the new government should have1 how much each old state should be allowed to retain over its own citizens and how much the citizens of ,america should reserve from all governments in ,america4 ,we also know this legal fact to have been the most important legal fact in ,america to the ,americans in those 8conventions40 ,we know that it was the legal fact whose denial by the ,british ,parliament caused the ,revolution4 ,we know that1 from ,july #d1 #aggf1 everything which the ,americans did was solely to make it impossible that any one could ever deny this legal fact in ,america4 ,and we also know1 something that has been entirely ignored since #aiag1 that these 8conventions0 knew that the 8conventions0 of the ,seventh and the ,fifth ,articles were identically the same thing and were the most important reservee in the ,tenth ,amendment1 8the people0 of ,america1 in their aggregate and collective capacity as ,henry accurately put it4 ,with this simple and amazingly important knowledge of facts1 a knowledge acquired by our education with the ,americans who made themselves and their posterity free men instead of 8subjects10 we come to the arguments and briefs of #aibj4 ,there we expect to learn how the opponents of the ,eighteenth ,amendment presented and its supporters answered these facts4 ,because these facts we do know1 if they are all the facts1 flatly deny the existence of that new national ,article1 made by governments alone4 ,if forbearance were the sole rule for conduct1 if conscience permitted us to ignore the great danger to our own individual freedom in every matter1 we would be absolutely silent as to the contents of all those briefs4 ,but1 that the supposed presence of the new national ,article in the national ,constitution of a free people may never be a precedent for other government making of national ,articles1 it is our duty to learn and state what those briefs all disclose4 ,not one of them recognizes the identity of the 8conventions0 of the ,fifth ,article with the 8conventions0 of the ,seventh4 ,and all ignore the identity of the ,fifth ,article 8conventions0 with 8,we1 the people0 of ,america1 in the ,preamble1 and with the most important reservee of the ,tenth ,amendment1 8the people0 of ,america4 ,every argument1 whether for or against the new national article1 is based upon the sheer and absurd assumption that the 8conventions0 in their ,fifth ,article did make a grant to themselves1 the 8conventions10 and to the state governments4 ,the advocates of the new ,article assume that the 8conventions0 granted to themselves and to the state governments all the inalienable omnipotence of the ,american people themselves1 in their aggregate capacity as the citizens of ,america1 the very omnipotence the supposed grantors were exercising when they made the ,fifth ,article4 ,the opponents of the new national ,article assert the absurd assumption of a 8grant10 but contend for diverse reasons--remarkable by reason of the fallacy of a 8grant0 on which each rests--that the 8conventions0 grant to themselves only a part of the omnipotence which they already had and were exercising when they made the supposed 8grant40 ,on which theory1 they urge that the supposed 8grant0 to the state governments1 being identical with the supposed 8grant0 to the grantors themselves1 is only part of the omnipotence which the grantors already had and does not include ability to make ,articles like the ,eighteenth ,amendment4 ,not one of these briefs recognizes or urges that the ,fifth ,article is not a 8grant0 of ability to make ,articles whether federal or national4 ,no brief knows the ,fifth ,article to be simply the ratification1 by the whole ,american people1 of a hitherto revolutionary mode of procedure as the future ,,constitutional mode in which may be exercised either the existing and limited ability of state legislatures to make federal ,articles or the existing and unlimited ability of the 8people0 7the 8conventions07 to make any ,articles4 ,no brief either recognizes or urges the absurdity of the thought that the 8conventions0 intended to grant or did grant to themselves1 the 8conventions10 any part of the omnipotence which the supposed grantors were actually exercising when making the supposed grant4 ,no brief recognizes that one of the supposed grantees is the supposed grantor4 ,no brief seems to know that the supposed grantees were respectively competent makers of certain kinds of ,articles even before the ,fifth ,article was written at ,philadelphia4 ,no brief seems to know--or to sense the decisive effect of the fact--that1 within the twelve years which immediately preceded the supposed 8grant10 each of the two respective makers of ,articles1 who are mentioned in the ,fifth ,article1 had exercised its respective ability to make ,articles of a certain kind4 ,no brief seems to know that one of the supposed grantees1 the 8conventions10 at the very moment of the supposed 8grant10 was exercising its own unlimited ability to make ,articles of every kind4 ,for all that the briefs disclose1 in the decisive effect of the two facts upon the supposed validity of the ,eighteenth ,amendment1 the 8state legislatures0 might never have made the federal ,articles of #agha and the 8conventions0 might never have made the federal and national ,articles of #aghh4 ,no brief urges the greatest legal decision made at ,philadelphia in #aghg as binding legal authority that the state 8legislatures0 of the ,fifth ,article never can1 while the ,fifth ,article 8conventions0 always can1 make a national ,article like the ,first ,article or the ,eighteenth ,amendment4 ,one brief does suggest that decision as authority for the absurd proposition that the ,fifth ,article mentions no ,,constitutional mode in which even the exclusive ability of the 8conventions0 of the ,american citizens can be again exercised to make ,articles like the ,first ,article and the ,eighteenth ,amendment4 ,in urging that absurd proposition1 the briefer wholly ignores the fact that the ,philadelphia ,convention1 which made that legal decision1 reached its conclusion by ascertaining what were and still are the respective abilities 7to make ,articles7 of the state 8legislatures0 and the 8conventions10 both of which are named as future makers in the ,fifth ,article4 ,no brief recognizes the fact 7or urges any argument based upon it7 that the ,constitution is both a federal and a national ,constitution4 ,for which reason1 no brief points out that the ,tenth ,amendment expressly reserves the ability to make federal ,articles to the state 8legislatures0 and the exclusive ability to make national ,articles to the 8conventions40 ,for which reason1 no brief points out that each of the two reservees1 named in the ,tenth ,amendment1 is mentioned separately in the ,fifth ,article as a possible maker of future articles1 whenever a proposed future ,article is of the kind which the existing ability of the proposed maker is competent to make4 ,no brief1 against the new ,amendment1 challenges the sheer and absurd assumption that the ,fifth ,article is a 8grant40 ,no brief1 for the new ,amendment1 offers or suggests the slightest fact in support of that sheer assumption4 ,every brief for the new ,amendment1 on the fallacy of the sheer assumption that the ,fifth ,article is a grant1 contends that the ,article makes a fractional part of the state legislatures an omnipotent ,parliament for the ,american people1 a ,parliament not restrained by any constitutional limitations in state or national constitutions but a ,parliament which can do what it will with every individual right of every human being in ,america4 ,these briefs neither know nor care that their concept of the ,fifth ,article means that the 8conventions0 of the ,american citizens1 twelve years after the ,declaration of ,independence1 intended to make and did make themselves absolute 8subjects0 of governments1 not one of whose legislators was to be elected by ,americans in their capacity as ,american citizens4 ,the foremost of these briefs were written by eminent 8constitutional0 lawyers who had1 as clients1 the very governments which claimed this omnipotence over individual ,americans as their 8subjects40 ,every brief1 against the new ,amendment1 not only admitted but asserted the absurd assumption that the ,fifth ,article is a 8grant0 to the grantors and to the state governments4 ,in the foremost brief against the new ,amendment1 that absurd assumption is asserted or mentioned over fifty times4 ,on this absurd assumption1 every argument1 in these briefs1 as well as in the opposing briefs1 is based4 ,in this respect1 there was but one difference between any brief and another4 ,that difference was in reference to the extent of the supposed 8grant0 which the grantors made to themselves and to the state governments4 ,not one brief1 presented in these litigations of #aibj1 knew or urged the undoubted fact that1 because our government is both federal and national1 if it wants new power to interfere with the freedom of the ,american citizen1 that government can get that power in only one ,,constitutional mode1 through the 8conventions0 named in the ,fifth ,article4 ,no briefer knew the legal necessity that all power of that kind must be obtained directly from the citizens of ,america1 assembled in their 8conventions40 ,we ourselves know that there was a day in ,america when that legal necessity 8was felt and acknowledged by all40 ,it is almost impossible for us1 therefore1 educated as we are in the experience of the ,americans who did know1 to believe these statements about these briefs4 ,yet the briefs speak for themselves4 ,before1 however1 we turn to verify the statements by the briefs themselves1 it is well that we recall one amazing question and answer1 during the arguments of #aibj in the ,supreme ,court1 which question and answer overwhelmingly demonstrate that none of these 8constitutional0 lawyers knew or cared about the facts we know4 ,the ,supreme ,court had listened1 for several days1 to many clever arguments against the new national ,article4 ,the arguments had challenged validity on the ground that the new ,article infringed upon the political freedom of some political entity1 such as a state or its government4 ,sometimes the arguments had challenged validity on the ground that the new ,article infringed upon the liberty of the citizens of some particular state4 ,no argument had challenged validity on the one patent and unanswerable ground that the 8conventions0 of #aghh had provided that no national ,article1 which 7like the ,first ,article and the ,eighteenth ,amendment7 directly interferes with or grants power to interfere with individual liberty of the ,american citizen1 could ever be ,,constitutionally made1 except in the one ,,constitutional mode of procedure1 in which the only competent makers of national ,articles can make such ,articles1 the 8conventions in three fourths of0 the states1 mentioned in the ,fifth ,article4 ,rice of ,rhode ,island1 one of the many prominent lawyers against validity1 was urging his particular argument4 ,ignoring the citizens of ,america in the 8conventions0 of the ,fifth ,article1 he claimed that no power in ,america could interfere with individuals in ,rhode ,island1 outside the ,first ,article matters1 without the consent of ,rhode ,island itself4 ,he was interrupted by the ,court4 ,in substance1 this is the question and answer that followed3 ,justice ,brandeis3 8,the court is now fully acquainted with the nature of the arguments of the various counsel as to why the new ,article has not been validly made4 ,the ,court would like to know1 ,in what way do counsel think that the new ,article could be constitutionally made80 ,and the answer of ,rice1 undoubtedly voicing the conviction of all his colleagues1 for none of them had any other answer to volunteer1 was3 8,in no way40 ,fresh from the 8conventions10 which knew that they could have made what is supposed to be the ,eighteenth ,amendment1 we could make the correct answer to that question4 ,our answer is that the 8conventions0 of the whole ,american people could have made this new ,article in #aghh just as they did make the ,first ,article of exactly the same kind4 ,they could have made it1 not because any ,constitution gave them the power to make it4 ,they could have made it because1 in its making1 they would have exercised exactly the same existing ability which they exercised when they destroyed the power of the ,british ,government over themselves in #aggf1 which they exercised when they ended the complete independence of each state in #aghh and which they exercised when they made all the ,articles of #aghh4 ,when they did each of these things1 they had prescribed no 8constitutional0 mode of procedure in which they might constitutionally exercise that exclusive ability of their own4 ,by the declaration of the ,tenth ,amendment1 they reserved that exclusive ability to themselves4 ,and1 in the ,fifth ,article1 they prescribed1 for the first time1 exactly the same mode1 in which they were then exercising that exclusive ability1 as the future ,,constitutional mode for its further exercise4 ,as ,marshall stated1 in the ,supreme ,court1 there is but one way in which they can exercise it1 8safely1 effectively1 and wisely10 by assembling in their 8conventions0 in their respective states4 ,if the accuracy and truth of this sole possible correct answer to the question of #aibj is so well known to us1 certainly it should have been known to at least one of the 8constitutional0 lawyers of #aibj4 ,moreover1 every 8constitutional0 lawyer of #aibj should have known that the mention of state governments in the ,fifth ,article was not intended to make them omnipotent over the individual rights of the ,american citizen or to provide an unsafe1 ineffectual and unwise way or any way in which government in ,america could create new government power to interfere with individual freedom4 ,madison wrote the ,fifth ,article4 ,immediately after he had secured its proposal from ,philadelphia1 in the ,virginia convention he paid his famous tribute to the 8conventions0--but not to the 8state legislatures0--which he mentions in his ,fifth ,article4 8,mr4 ,chairman1 nothing has excited more admiration in the world than the manner in which free governments have been established in ,america2 for it was the first instance1 from the creation of the world to the ,american ,revolution1 that free inhabitants have been seen deliberating on the form of government1 and selecting such of their citizens as possessed their confidence1 to determine upon and give effect to it40 7#c ,ell4 ,deb4 #faf47 ,but1 whatever the ignorance of our constitutional lawyers1 we know why ,madison1 in his ,fifth ,article1 mentions these 8conventions0 in which free inhabitants are seen deliberating on new grants or constitutions of government power to interfere with individual freedom4 ,when future grants of such power are suggested1 there is to be a ,,constitutional mode prescribed for the reassembling of such 8conventions0 to make or refuse the grants4 ,our experience with ,madison and his colleagues would educate these 8constitutional0 lawyers to keen realization that the ,americans of old knew the vital distinction1 so important to individual liberty1 between permanent and existing state legislatures and these 8conventions0 of the ,american people themselves1 chosen for the one purpose of answering 8,yes0 or 8,no0 to a particular question previously carefully considered by all the ,american citizens4 ,let these 8constitutional0 lawyers spend a moment with ,hamilton1 on ,friday1 ,march #ad1 #aghh1 when he was urging the ,american people to adopt the ,constitution with that ,fifth ,article4 ,he was discussing the mode which that ,constitution provided for the election of the ,chief ,executive of the new nation4 ,the mode was that the ,american citizens1 in each state1 should elect a temporary convention of delegates to deliberate upon and cast the votes of ,americans in that state for some ,american as ,president4 ,we sense1 at once1 the striking similarity between the temporary body1 thus to be chosen for that purpose1 and the temporary body or convention also to be chosen to pass upon the other single question1 a 8,yes0 or 8,no0 to some particular proposed new grant of government power to interfere with individual freedom4 ,the danger to individual liberty would necessarily be much less in having a permanent government body1 the legislature1 cast the vote of the ,americans in its state for an ,executive1 than in having the same permanent government body or legislature say the 8,yes0 or 8,no0 of the ,americans in that state to a new grant of government power to interfere with the individual liberty of all ,americans4 ,therefore1 if we find ,hamilton dwelling upon the danger of state legislatures casting ,american votes for the ,american ,executive1 we can be quite certain that neither ,madison nor ,hamilton nor their colleagues mentioned the existing ability of legislatures to make federal ,articles 7when these men worded and made their ,fifth ,article7 in order that their words might be twisted away from any possible ,english meaning and say that the citizens of ,america appointed these state governments1 not a member of which is chosen by the citizens of ,america1 to be their omnipotent attorney in fact for every purpose in the world1 forever4 ,this is what ,hamilton had to say on the danger to liberty1 if permanent state legislative governments1 instead of special ,american delegates chosen for that purpose1 should even elect the ,american ,president3 8,the mode of appointment of the ,chief ,magistrate of the ,united ,states is almost the only part of the system1 of any consequence1 which has escaped without severe censure1 or which has received the slightest mark of approbation from its opponents40 7,incidentally we recall that the mode of procedure1 which is the ,fifth ,article1 never received one word of censure from any opponent on any ground1 except that it left to government the ability to reassemble the 8conventions0 of the people4 ,it was claimed that1 even if the people found the ,first ,article power oppressive to their individual freedom1 government would never reassemble their 8conventions0 for the purpose of permitting them to withdraw any of those grants47 ,hamilton proceeded as follows3 8,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 confided40 7,we average ,americans remember that the trust of making or refusing new power to interfere with individual freedom would always be infinitely more important47 8,this end will be answered by committing the right of making it1 not to any preestablished body1 but to men chosen by the people for the special purpose1 and at the particular conjuncture4444 ,a small number of persons1 selected by their fellow citizens from the general mass1 will be most likely to possess the information and discernment requisite to such complicated investigations4 ,it was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder4444 ,the precautions which have been so happily concerted in the system under consideration1 promise an effectual security against this mischief4444 ,and1 as the electors10 like the conventions for granting or refusing national power1 8chosen in each ,state1 are to assemble and vote in the ,state in which they are chosen1 this detached and divided situation will expose them much less to heats and ferments1 which might be communicated from them to the people1 than if they were all to be convened at one time1 in one place40 7,we recall ,marshall's echo of this in his later statement1 speaking of the ,fifth and ,seventh ,article 8conventions10 8,no political dreamer was ever wild enough to think of breaking down the lines which separate the states1 and of compounding the ,american people into one common mass4 ,of consequence1 when they act1 they act in their states4 ,but the measures they adopt do not1 on that account1 cease to be the measures of the people themselves1 or become the measures of the state governments407 ,hamilton went on3 8,nothing was more to be desired than that every practicable obstacle should be opposed to cabal1 intrigue1 and corruption4 ,these most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter4444 ,but the convention have guarded against all danger of this sort1 with the most provident and judicious attention4 ,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 men1 who might be tampered with beforehand to prostitute their votes2 but they have referred it1 in the first instance to an immediate act of the people of ,america1 to be exerted in the choice of persons for the temporary and sole purpose of making the appointment10 or a proposed grant of new power to interfere with individual liberty4444 8,thus without corrupting the body of the people1 the immediate agents in the election or the grant will at least enter upon the task free from any sinister bias4 ,their transient existence1 and their detached situation1 already taken notice of1 afford a satisfactory prospect of their continuing so1 to the conclusion of it4 ,the business of corruption1 when it is to embrace so considerable a number of men1 requires time as well as means4 ,nor would it be found easy suddenly to embark them1 dispersed as they would be over thirteen ,states now forty-eight ,states in any combinations founded upon motives1 which though they could not properly be denominated corrupt1 might yet be of a nature to mislead them from their duty40 7,fed4 ,no4 #fh47 ,if ,hamilton had been alive to watch the supposed legislative making of the ,eighteenth ,amendment1 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 liberty1 except the proper duty of each legislature to make laws for its own citizens on matters committed to that legislature by those citizens4 ,and1 from what we have just quoted1 the 8constitutional0 lawyers of #aibj certainly should have known that1 when ,hamilton was alive1 he and his associates1 by their mention of those 8legislatures0 in the ,fifth ,article1 never subjected themselves and their posterity1 ourselves1 to an omnipotent ability to do what those governments might will with our individual rights1 8in all matters whatsoever40 ,it has been our custom1 as average ,american citizens1 to rely upon our leaders to know and urge1 at the proper time and place1 our protection under our ,american ,constitution4 ,we have seen the danger of such reliance in the record of our ,congress of #aiag4 ,as many of our leaders are most renowned lawyers1 the danger of that reliance is emphasized1 if the briefs of those leaders and lawyers in #aibj 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 citizens4 ,that we may ascertain whether these briefs do disclose this ignorance and do emphasize the danger of such reliance1 we must later examine the briefs themselves4 ,but1 that we may come to such an examination1 properly prepared1 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 pass4 ,in no other way1 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 citizen4 ,as we well know1 that one real challenge is that the new ,article was not made by those who alone can make it1 that it was not made as it can be ,,constitutionally made1 by the makers of that kind of ,article named in the ,fifth ,article1 the 8conventions0 of the ,seventh and the ,fifth ,articles1 the 8,we1 the people0 of the ,preamble and 8the people0 of the ,tenth ,amendment4 ,,chapter ,,xxiii ,,the ,,challenges ,,that ,,failed ,the validity of the ,eighteenth ,amendment 7seven litigations being heard together7 was argued on ,march #h1 #aibj1 and for several days thereafter4 ,as we are not concerned with the meaning of the second section of the ,amendment or with the validity of the ,volstead ,act 7passed by ,congress under the grant of said section7 except as the validity of the ,act depends upon the validity of the ,amendment1 we shall make no mention of either4 ,the ,court announced its decision1 in all the litigations1 on ,june #g1 #aibj4 ,somewhat to the amazement of the country1 but 7in our humble opinion even at the time7 very wisely1 the ,court refused to write any opinion whatever4 ,nothing could more certainly settle that the ,court determined no question except the specific questions presented by those who challenged validity4 ,that we may be certain that the ,court neither heard nor considered nor passed upon the real and the invincible challenge to the existence of the supposed new national ,article1 we will let the ,court1 in its own words1 state exactly just what were the four propositions1 advanced against validity1 and state the simple fact that it negatived each of those four propositions4 ,thus1 in an impressive manner1 we shall acquire our own knowledge that the fifth conclusion1 which later we shall state1 is but the conclusion of fact that nothing1 in the four propositions negatived1 impairs the validity of the supposed ,article4 ,mr4 ,justice ,van ,devanter announced the conclusions of the ,court4 ,power to amend the ,constitution was reserved by ,article ,v1 which reads3444 7,as we have been in the conventions which made it1 we know it47 ,the text of the ,eighteenth ,amendment1 proposed by ,congress in #aiag and proclaimed as ratified in #aiai1 #dj ,stat4 #ajej1 #aida1 is as follows3444 7,the text of the first two sections is quoted on page #dfe herein47 ,we are here concerned with seven cases involving the validity of that ,amendment and of certain general features of the ,national ,prohibition ,law1 known as the ,volstead ,act1 c4 #hc1 #da ,stat4 #cje1 which was adopted to enforce the ,amendment4 ,the relief sought in each case is an injunction against the execution of that act4444 ,the cases have been elaborately argued at the bar and in printed briefs2 and the arguments have been attentively considered1 with the result that we reach and announce the following conclusions on the questions involved3 #a4 ,the adoption by both houses of ,congress1 each by a two thirds vote1 of a joint resolution proposing an amendment to the ,constitution sufficiently shows that the proposal was deemed necessary by all who voted for it4 ,an express declaration that they regarded it as necessary is not essential4 ,none of the resolutions whereby prior amendments were proposed contained such a declaration4 #b4 ,the two thirds vote in each house which is required in proposing an amendment is a vote of two thirds of the members present--assuming the presence of a quorum--and not a vote of two thirds of the entire membership1 present and absent4 ,missouri ,pacific ,ry4 ,co4 v4 ,kansas1 #bdh ,u4 ,s4 #bgf4 #c4 ,the referendum provisions of state constitutions and statutes cannot be applied1 consistently with the ,constitution of the ,united ,states1 in the ratification or rejection of amendments to it4 ,hawke v4 ,smith1 ante1 #bba4 #d4 ,the prohibition of the manufacture1 sale1 transportation1 importation and exportation of intoxicating liquors for beverage purposes1 as embodied in the ,eighteenth ,amendment1 is within the power to amend reserved by ,article ,v of the ,constitution4 7,national ,prohibition ,cases1 #bec1 ,u4 ,s4 #cej1 #chd47 ,we are not interested in the first two propositions which the ,court negatived4 ,they were that the ,congress resolution should have said that two thirds of ,congress deemed it necessary to propose the ,amendment and that the proposals should have been made by two thirds of the entire membership of the ,house instead of two thirds of a quorum in each ,house4 ,these are trifling and unimportant matters when over one hundred million ,americans seek to learn when they ceased to be citizens of ,america and became absolute 8subjects0 of governments in ,america4 ,the third proposition negatived has naught to do with ourselves1 the citizens of ,america4 ,it deals only with the rights of some state citizens as such1 where their state constitution has a referendum provision4 ,for our protection against usurpation by any government of our own reserved rights or powers1 we look to our own ,american ,constitution4 ,we have lived through its making with the ,americans who made it to secure individual liberty of themselves and their posterity1 ourselves1 the citizens of ,america4 ,the clear statement of simple fact1 expressed in the ,court's fourth conclusion1 tells us something1 which1 with ,madison1 we have known since he wrote and suggested his ,fifth ,article1 at ,philadelphia1 on ,september #aj1 #aghg4 ,our stay in the 8conventions10 which made the ,fifth ,article1 has taught us that the ,americans in them1 even ,henry and the opponents of the ,constitution1 were fully aware of the fact that the ,fifth ,article provided the ,,constitutional mode in which the 8conventions0 could thereafter exercise the existing omnipotence of the citizens of ,america themselves to make any kind of an ,article of government4 ,the same stay fixed firmly in our minds that every one in them knew that the ,fifth ,article is not a grant of any ability from themselves to themselves1 from the 8conventions0 named in the ,seventh ,article to the same 8conventions0 named in the ,fifth ,article1 all being the 8conventions0 of the ,american citizens assembled to exercise their own omnipotence4 ,and so1 coming from the only 8conventions0 of that kind yet held1 we grasp at once the absolute accuracy of the statement in the fourth conclusion of the ,court in #aibj4 ,the mention of the same 8conventions0 in the ,fifth ,article1 a mention made by the 8conventions0 of the ,seventh ,article1 is the sound basis for our knowledge that1 as the ,tenth ,amendment expressly declares1 those 8conventions0 of the ,seventh expressly reserved to themselves 7the same 8conventions0 named in the ,fifth1 8the people0 of ,america in the ,tenth ,amendment7 their own exclusive ability to make national ,articles1 like the ,first ,article and the ,eighteenth ,amendment4 ,for which reason1 we know the truth of the ,court statement in its fourth conclusion1 that the power to make the ,eighteenth ,amendment 8is within the power to amend reserved by ,article ,v40 ,the exclusive ability of the 8conventions0 of #aghg and #aghh--to make the ,article which is that new ,amendment--is something known to all who were in those 8conventions40 ,that the ability--to make ,articles like the ,first ,article and the new ,amendment--remained exclusively in such 8conventions0 of the ,american citizens1 because such ,articles are national and either directly interfere with or are the basis for direct interference with individual freedom of the ,american citizen1 was also known to every one in those 8conventions40 ,that is why the ,americans in those early 8conventions0 insisted that the ,tenth ,amendment expressly declare that such exclusive ability was reserved to them1 8the people0 of that ,amendment1 and why the same 8conventions0 mentioned themselves1 the 8conventions10 in the ,fifth ,article and provided therein the ,,constitutional mode of procedure in which that exclusive ability could thereafter be exercised by those who had it1 the 8conventions0 of the ,american citizens4 ,even though this knowledge1 which we bring straight from the 8conventions0 which made the ,fifth ,article1 be not shared at all by the lawyers of #aibj1 we are aware that it is also the knowledge of the ,supreme ,court4 ,that is why ,marshall long ago pointed out that1 when individual welfare required that government should be granted some national powers or powers to interfere with individual freedom1 8the necessity of deriving such powers from the people themselves was felt and acknowledged by all40 ,that is why in #aijg the ,supreme ,court again declared 8the powers the people have given to the ,general ,government are named in the ,constitution1 and all not there named1 444 are reserved to the people and can be exercised only by them1 or upon further grant from them40 ,as the ,first ,section of the new ,amendment is the exercise and the ,second ,section is the grant of one of those reserved powers1 and as the ,fifth ,article provides the ,,constitutional mode of procedure in which it can be exercised or granted by those1 who alone have it1 8the people0 of the ,tenth ,amendment and the 8conventions0 of the ,fifth ,article1 it is very natural to read in the same ,supreme ,court1 in the ,national ,prohibition ,cases1 that the ability to make the ,eighteenth ,amendment 8is within the power to amend reserved by ,article ,v40 ,when the ,supreme ,court of ,marshall's day knew that state 8legislatures0 could not make ,articles like the ,first ,article and the ,eighteenth ,amendment1 when the ,supreme ,court of #aijg still knew that only the 8people0 or 8conventions0 could make ,articles of that kind1 when the ,supreme ,court of our own day knows that the ,fifth ,article deals only with 8reserved0 power1 we ,americans feel that we are to remain free men and citizens4 ,we have come from the 8conventions0 with our own accurate knowledge that the power to make the new ,amendment or any other ,article like the ,first ,article 8is within the power to amend ,,reserved by ,article ,v40 ,but1 for the very reason that our knowledge is accurate1 we know that the power to make such ,articles was not reserved to the state legislatures1 who did not have it1 but was reserved to the 8conventions10 who did have it and who were exercising it 7in making the ,first ,article7 at the very moment when they made the ,fifth ,article4 ,we have examined the four conclusions of the ,supreme ,court which deal with any argument presented against the existence of the ,eighteenth ,amendment4 ,those conclusions negative every such argument that was presented4 ,but1 because every brief assumed and asserted that the amending power 8reserved0 in the ,fifth ,article had been 8granted0 therein1 the four conclusions make clear that the ,court has yet to hear and pass upon the challenge which reads the ,eighteenth ,amendment out of our ,constitution4 ,when that challenge is presented by ,american lawyers1 who know what ,american basic law is and how ,american citizens are constitutionally protected against usurpation of power by governments in ,america1 there can be no doubt of the decision of the ,supreme ,court4 ,in that decision1 there will be no conclusion denying the most important legal fact in ,america1 namely1 that governments cannot exercise ungranted power or create new government power to interfere with the individual freedom of the ,american citizen4 ,in that decision1 there will be again the simple statement of the undoubted fact that the ability to make the ,eighteenth ,amendment 8is within the power to amend reserved by ,article ,v40 ,but1 in that decision1 there will be added the plain statement of the ,tenth ,amendment that such ability was not reserved to the state legislatures who never had it1 but was reserved to the 8conventions10 who always had it and still have it4 ,and1 comparing that future decision 7which is certain to come from the ,supreme ,court7 with the decision1 which merely negatived the four unsound challenges which were made to the ,eighteenth ,amendment1 we know that the first five conclusions of the latter decision--all the conclusions that have aught to do with the existence and validity of the ,eighteenth ,amendment--merely hold that the existence of the new ,amendment is not affected by any of these challenges which were made4 ,with exceeding wisdom in our humble opinion1 the ,court carefully refrains from passing upon or determining any question except the exact challenges which were presented4 ,that is why no opinion was written4 ,when any general statement 7seeming to bear upon questions not presented or submitted7 might come back to perplex and annoy the ,court in future litigation where protected liberty of the ,american citizen was the challenge to the government-made new ,article1 common sense and sound reason and the experience of generations dictated that no general statement should be made4 ,and1 as there was but one way to avoid a single general statement1 no opinion was written4 ,this method of deciding those particular litigations1 with their four unsound challenges1 would leave the decision itself without even an apparent influence upon a litigation in which some real challenge might be presented4 ,and so we find the ,court merely stating 8that we reach and announce the following conclusions on the questions involved40 ,nothing could make more clear that no conclusion is reached or announced on any question not presented by those who urged invalidity4 ,the first four conclusions reached and announced are conclusions of law against the opposite legal conclusions urged by those opponents4 ,the fifth conclusion is a conclusion of fact that validity of the ,amendment is not affected by any of the four propositions advanced by the opponents of the ,amendment4 ,in other words1 the first five numbered conclusions1 all that deal with validity of the ,amendment1 can be expressed in our own words1 viz3 8,although the proposing ,resolution did not state that ,congress deemed the proposal necessary1 although only two thirds of a quorum in each ,house 7and not two thirds of the membership of each ,house7 made the proposal1 although the citizens of each referendum state have not acted as part of their respective state legislatures1 and although it is urged that the ,fifth ,article reserved abilities do not include ability to make an ,amendment like the ,eighteenth1 we decide that none of these things affect the validity of the new ,article40 ,and1 when we make this accurate statement of what was decided in those ,national ,prohibition ,cases1 we average ,americans1 fresh from our education with the ,americans who found themselves 8subjects0 and made themselves and their posterity free men1 have some startling facts brought home to us4 ,undoubtedly thousands of lawyers had worked1 for more than a year1 in the preparation of the arguments that were made and the briefs that were filed4 ,when these amazingly important litigations were reached1 the arguments lasted for several days4 ,on the exhaustive briefs filed against validity1 there appear twenty-two lawyers1 many of them among the leaders of the ,american ,bar4 ,on the briefs to support state government omnipotence over the citizens of ,america1 8in all matters whatsoever10 thirty-five lawyers1 headed by a former member of the ,supreme ,court1 appear4 ,we know1 with a knowledge that brooks no denial1 because it is a knowledge brought from our experience with those who made themselves free men and established the ,constitution to secure that result to themselves and to us1 that the new ,article is not in the ,constitution unless at some time prior to #aiag1 the free men of ,america1 all the individual citizens of ,america1 became the 8subjects0 of some state governments4 ,it is clear1 therefore1 that the existence of the ,eighteenth ,amendment has always depended upon the correct answer to the question whether the ,american is 8,citizen or ,subject80 ,if we are subjects1 the new ,article may be in the ,constitution not made by us but made by governments4 ,if we still are citizens1 as once undoubtedly we were1 the new ,article cannot be in our ,constitution1 because we have not made the new ,article1 assembled in our 8conventions40 ,where men are citizens1 governments cannot exercise ungranted power or create new power to interfere with individual liberty4 ,in a nation of free men1 established by former 8subjects0 with a dominant purpose that no ,american should ever be the 8subject0 of any governments1 it is amazing that one government should propose that governments constitute1 and it is amazing that forty-six governments should attempt to constitute1 new government of men--new government power to interfere with individual human freedom4 ,but most amazing of all1 in a nation with the history of ,america1 is the fact that1 when audacious government had so proposed and audacious governments had so attempted1 the prolonged arguments and voluminous briefs of fifty-seven leading members of the ,american ,bar never once knew or stated the simple fact which made the proposal and the attempt a legal and constitutional absurdity4 ,the fact itself1 the one most important legal fact in ,america1 was once known and 8felt and acknowledged by all0 ,americans4 ,yet1 not once in any brief in the ,national ,prohibition ,cases1 was it either known or urged that the 8conventions0 of the ,fifth ,article are the 8conventions0 of the ,seventh ,article and that both are the whole ,american 8people0 of the ,preamble and the ,tenth ,amendment and that1 therefore1 the ,constitution expressly reserves to the 8conventions0 of the ,fifth ,article1 the citizens of ,america1 their existing and exclusive ability to create new government power to interfere with their own individual human liberty4 ,why none of these briefs did make this challenge became known to us when ,rice of ,rhode ,island1 with the silence of his colleagues marking their approval1 answered the ,court that the new ,article could not be constitutionally made4 ,why they did not make the challenge will be emphasized when we read the leading brief against the new ,amendment4 ,over fifty times it will admit and state that the ,fifth ,article is a 8grant0 of power to state legislatures from ,american citizens and claim the 8granted0 power is a limited power and does not include ability to make an ,amendment like the ,eighteenth because such ,amendment takes away the reserved power of a state or political entity4 ,then1 to emphasize what it does not know about the 8conventions0 of the ,fifth ,article and the reserved powers of the citizens of ,america1 this brief will go on to tell us that there is no constitutional mode in which can be made an ,article which takes more power away from any state2 that such an ,article may only be made1 outside any constitutional mode1 by having the people themselves rescind 8the social compact0 which is their ,american ,constitution and having them make 8such new compact as they please02 but that such new compact1 such new ,article of that kind1 cannot 8be validly and legally made to come to pass against the objection and protest of any state40 ,all this clearly explains why none of the briefers were able to answer correctly the question asked by the ,court4 ,how could they tell the ,court in what way the ,eighteenth ,amendment could be constitutionally made1 when all of them 8knew0 that there was no constitutional mode in which the 8conventions0 of the ,american citizens could make it1 and when they 8knew0 that it could not be made1 even outside the ,constitution1 without the consent of the citizens of every state8 ,the most important words in the ,fifth ,article1 8in conventions in three fourths thereof10 did not mean to these briefers what they meant to the ,americans who made the ,fifth ,article or to ,madison and ,hamilton who wrote the ,fifth ,article and suggested it at ,philadelphia4 ,in the word 8conventions10 they did not recognize the ,seventh ,article 8conventions0 of the ,american citizens describing themselves by exactly the same word1 8conventions10 in the ,fifth ,article4 ,in the words 8in three fourths thereof0 after the word 8conventions10 they did not recognize the great security to human freedom which we have learned with the ,americans who wrote and who made the ,fifth ,article4 ,they did not recognize how the ,american people1 by these words1 made it their constitutional command that they themselves1 again assembled in their conventions1 by a 8,yes0 from three fourths of their 8conventions0 and without the consent of the ,americans in the other 8conventions10 might withdraw any power granted in the ,first ,article and might add any new power to its enumerated grants1 whenever they deemed such withdrawal or such addition would better secure and protect ,american individual liberty4 ,that not one of the briefers did make our challenge is our certain knowledge when we read the four challenges they did make and which are negatived in the first four conclusions of the ,court4 ,the first two relate to the manner of the proposal that governments create government of men in ,america4 ,who cares how one government makes a silly proposal8 ,the one important thing is that no governments shall attempt to act upon a proposal which denies the most important legal fact in ,america1 that governments cannot constitute new government ability to interfere with individual liberty4 ,the fourth challenge that was made is the absurd challenge that the ,fifth ,article does not mention a ,,constitutional mode of procedure in which the citizens of ,america may again directly grant to their government new power to interfere with their own individual liberty and in which--far more important to the 8conventions0 which named themselves 7the 8conventions07 in their ,fifth ,article--the ,american citizens can directly take back any part of the granted power of the ,first ,article which they find oppressive to their individual liberty4 ,this challenge neither knows nor makes any distinction between the state 8legislatures0 and the 8conventions0 of the ,american citizens or the mention of either in the ,fifth ,article4 ,it is a challenge which has not the knowledge we bring from the first 8conventions10 the knowledge that 8legislatures0 are mentioned on account of their existing ability to make federal or declaratory ,articles and that 8conventions0 are mentioned on account of their exclusive ability to make ,articles of any kind4 ,it is a challenge which assumes and asserts and is based wholly upon the absurd assumption that the ,fifth ,article is a 8grant0 of power to make ,articles4 ,on this absurd assumption of this patently absurd 8grant10 this fourth challenge1 frankly stated in our own words1 is as follows3 8,in the ,fifth ,article1 the #8conventions' grant to the two grantees--the grantors and the state legislatures--an identical ability to make new ,articles4 ,we admit that1 if the #8conventions' of the ,fifth ,article could constitutionally make the ,eighteenth ,amendment1 the state legislatures can also constitutionally make it4 ,but our challenge is that the #8grant1' in the ,fifth ,article1 is limited in extent and that neither the #8conventions' nor the state legislatures can constitutionally make the ,eighteenth ,amendment40 ,to the 8constitutional0 lawyers who make this challenge1 to all who support such challenge1 we commend many hours' study of the statements of ,madison1 who wrote the ,fifth ,article2 of ,hamilton1 who supported its introduction at ,philadelphia2 of ,wilson1 ,pendleton1 ,henry1 ,iredell1 ,mac,laine1 ,jarvis1 ,lee1 ,mason1 and the many others1 with whom we have sat in the 8conventions0 which made the ,fifth ,article4 ,particularly do we commend a careful reading of the reasoning which led to the decision at ,philadelphia1 in #aghg1 that the ,first ,article1 because it constituted government of men1 must go to the 8conventions0 named alike in the ,seventh and the ,fifth ,articles and could not be validly made by the state 8legislatures0 named in the ,fifth ,article4 ,that decision was based upon the unrepealed ,statute of #aggf1 a statute well understood in #aghg1 only eleven years after the ,statute itself had been enacted as the command of the whole ,american people4 ,finally1 to those who support this fourth challenge1 we commend a thorough reading of the law laid down by ,marshall in the ,supreme ,court4 ,if they thus educate themselves as we have educated ourselves1 they will be able to say with ,marshall3 8,to the formation of a league1 such as was the ,confederation1 the state sovereignties were certainly competent4 ,but when1 #8in order to form a more perfect ,union1' it was deemed necessary to change this alliance into an effective government possessing great and sovereign power and acting directly on the people1 the necessity of referring it to the people and of deriving its power directly from them1 was felt and acknowledged by all40 ,and1 if all shall complete their education with such men as ,webster and ,lincoln1 they will never again make the mistake of ignoring the vital and important distinction in identity between 8state legislatures0 and 8conventions0 of the ,american citizens1 the distinction that the former are never anything but governments and each the government agent of the citizens of one state1 while the 8conventions0 are the citizens of ,america itself assembled in 8conventions0 to issue their commands to themselves1 to their government1 to the states and to the state governments4 ,the completed education will enable these lawyers to win future litigation against legislative governments who audaciously attempt to usurp the exclusive and reserved powers of the 8conventions0 of the ,american citizens4 ,in any of the three challenges negatived by the first1 second and fourth conclusions of the ,supreme ,court1 we have failed to find any suggestion of our challenge1 namely1 that state 8legislatures0 have audaciously attempted to usurp the exclusive powers reserved to the 8conventions0 which are named in the ,fifth ,article4 ,and now we examine the only other challenge that was made1 a challenge negatived by the third conclusion of the ,supreme ,court4 ,no challenge could more emphatically ignore the protected individual liberty of the citizen of ,america4 ,this challenge does not know that ,american citizens have no government save the government of enumerated powers4 ,this challenge frankly admits that the ,fifth ,article is a grant to legislatures1 each elected by the citizens of some particular state1 and that three fourths of those legislatures have the omnipotence1 which was denied to the ,british ,parliament1 over every individual liberty of the ,american citizen4 ,like the other challenges that were made1 like every brief for or against the ,eighteenth ,amendment1 this challenge knows not that the ,constitution is both a federal and a national ,constitution and knows not that the state 8legislatures0 never have and never can have aught to do with the national aspect of that ,constitution4 ,based on this remarkable ignorance1 this is the challenge1 frankly stated in our own words3 8,the state legislatures can make this ,eighteenth ,amendment4 ,the state governments can do what they will1 so long as they call their action a constitutional ,amendment1 with every reserved right and power of the citizens of ,america4 ,but thirty-six state legislatures are necessary to make anything called a constitutional ,amendment4 ,and our challenge is that thirty-six legislatures have not made this particular ,eighteenth ,amendment4 ,in any state1 where the referendum exists1 the citizens of that state we note that even now the citizens of ,america are not mentioned are part of the state legislature4 ,in some of these referendum states1 whose legislatures are included among your claimed thirty-six ratifiers for the ,eighteenth ,amendment1 the whole of the state legislature has not yet ratified1 because the citizens of the state1 who are part of its legislature1 have not yet acted4 ,for this reason1 that you ignore the rights of the citizens of some states1 our challenge is that the ,eighteenth ,amendment has not been ratified by the legislative governments of thirty-six states40 ,this particular challenge1 like everything in these litigations and in the whole history of the supposed new ,amendment1 brings into bold relief the one monumental error at the bottom of every thought that the new ,amendment is in the ,constitution1 at the bottom of the varied absurdities which constantly appear in every brief1 either for or against validity4 ,without a single exception1 the fifty-seven lawyers on these briefs base their every argument1 no matter how those arguments may challenge one another1 on the ridiculous sheer assumption that the ,fifth ,article is a great power of attorney to the state governments from the citizens of ,america4 ,all these fifty-seven lawyers ignore the undeniable fact--mentioned continually in the 8conventions0 of the ,seventh ,article which wrote their own name1 8conventions10 into the ,fifth ,article--that the ,constitution is both federal and national4 ,this first mistake1 this ignoring of that fact1 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 ,articles1 the state governments1 and those whose exclusive right it always was and is to make national ,articles1 the people assembled in their 8conventions40 ,only because of these two mistakes1 the next step comes in the guise of the absurd concept that the ,fifth ,article is a grant of any power of attorney1 from the citizens of ,america1 either to the 8state legislatures0 or the 8conventions40 ,in this patent absurdity1 all fifty-seven lawyers concur4 ,that each of them does not see its patent absurdity is due entirely to the fact that not one of them states the proposition1 that the ,fifth ,article is a grant1 in the frankest mode of stating it4 ,that frankest way is to state the proposition in these words3 8,in the ,fifth ,article the citizens of ,america1 assembled in the #8conventions' of #aghh1 granted to the state legislatures and to themselves1 the citizens of ,america1 assembled in their #8conventions1' a quantum of power as attorneys in fact of the citizens of ,america4 ,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 governments4 ,we1 who support the new amendment1 contend that the citizens of ,america grant to the state governments and to the citizens of ,america all the power of the citizens of ,america4 ,on the other hand1 we1 who oppose validity1 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 ,america1 the very power they were exercising when they made the grant which is the ,fifth ,article40 ,when the common proposition of all those lawyers1 that the ,fifth ,article 8grants0 power to those two grantees1 is stated in this frank way1 its patent absurdity is manifest4 ,every one of those lawyers knows that a grantor never can or does grant to himself either all or part of what he already has4 ,moreover1 all those lawyers ought to know that the ,tenth ,amendment expressly declares that the entire ,constitution1 in which is the ,fifth ,article1 grants no power of any kind except to the ,american government at ,washington4 ,alone and unaided1 this simple declaration makes it impossible that the ,fifth ,article grants any power to the state governments4 ,thus1 even without the certain knowledge we bring from the conventions of #aghh1 the state governments disappear from the scene as attorneys in fact for the citizens of ,america in any matter4 ,each of those state governments is left with no power it did not have before the ,fifth ,article was made4 ,not one of them even keeps all of the power which it had before #aghh4 ,the citizens of ,america1 the 8conventions0 in which they assembled1 commanded otherwise4 8,when the ,american people created a national legislature1 with certain enumerated powers1 it was neither necessary nor proper to define the powers retained by the ,states4 ,these powers proceed1 not from the people of ,america1 the 8conventions0 named in the ,seventh and the ,fifth ,articles but from the people of the several states2 and remain1 after the adoption of the ,constitution1 what they were before1 except so far as they may be abridged by that instrument40 ,so spoke ,marshall from the ,supreme ,court ,bench1 in #ahai1 after he had come from one of those 8conventions0 in which he himself had stated3 8,it could not be said that the states derived any powers from that system1 the new ,constitution then before the convention in ,virginia but retained them1 though not acknowledged in any part of it40 7#c ,ell4 ,deb4 #dba47 ,yet every brief of those fifty-seven lawyers bases its every argument on the sheer assumption1 asserted by all1 that the ,fifth ,article is a 8grant0 to the state legislatures which makes them attorneys in fact for the citizens of ,america4 ,no brief can offer and no brief does offer the slightest proof in support of the assumption4 ,but no brief asks for proof of the assumption or challenges the assumption4 ,on the contrary1 every brief makes the assumption and asserts it and on it rests every argument4 ,because of this monumental error1 every brief for the ,amendment insists that the state legislatures1 as attorneys in fact for the citizens of ,america with every power of the citizens of ,america1 validly made the ,eighteenth ,amendment4 ,because of this monumental error1 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 7the assumed power of attorney in a ,constitution which expressly declares that no power is given to the state legislatures7 grants to the state legislatures 7as well as to the 8grantors0 themselves7 only limited ability on behalf of the principal1 the citizens of ,america4 ,on this altogether unique argument1 it is contended that the limited power of attorney does not confer ability to make an ,amendment like the ,eighteenth4 ,because all briefs make the same monumental error1 there is no challenge on the ground that the state legislatures1 not a member of which is elected by the citizens of ,america1 hold no power of attorney from the citizens of ,america to interfere in any way1 in any matter1 with the individual freedom of the ,american citizens4 ,because all briefs against the ,amendment make the same monumental error1 the fourth challenge 7which was made and considered by the ,court7 is based upon the heretical doctrine--the heresy being clear from what we have heard in the 8conventions0 where we sat--that the ,fifth ,article does not mention a ,,constitutional mode in which the citizens of ,america1 again assembled in their 8conventions10 can take back from their ,american government any enumerated power of the ,first ,article which they find oppressive to their individual rights and freedom4 ,and1 perhaps most amazing and amusing fact of all1 because all briefs make the same monumental error1 the briefs for the ,amendment make no effort to support and the briefs against the ,amendment make no attempt to challenge the clear paradox1 on which the ,eighteenth ,amendment depends for its existence1 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 ,america4 ,where such unlimited ability is in government1 men are not 8citizens0 but 8subjects40 ,but we ourselves come from the 8conventions0 where the ,americans knew that they entered as free men and left as citizens of ,america1 not as 8subjects0 of any governments4 ,therefore1 we need no lawyer to tell us--and no lawyer can deny our knowledge--that1 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 citizens1 or1 if any governments can interfere with that liberty on a matter not enumerated in the ,first ,article1 there never were ,american citizens and the early ,americans entered their 8conventions0 free men but left those 8conventions0 as 8subjects0 of an omnipotent government4 ,,chapter ,,xxiv ,,governments ,,claim ,,americans ,,as ,,subjects 8,is the government of ,virginia a state government after this government is adopted8 ,i grant that it is a republican government1 but for what purposes8 ,for such trivial domestic considerations as render it unworthy the name of a legislature40 7#c ,ell4 ,deb4 #aga47 ,so thundered ,patrick ,henry to the ,americans assembled in convention in ,virginia1 while these ,americans still heard the echo of his charge that the new ,constitution made the state legislatures 8weak1 enervated and defenseless governments40 ,but these are the governments which all lawyers of #aibj 8knew0 had been made the attorneys in fact for the citizens of ,america1 possessors of the supreme will in ,america4 ,these are the governments to which all advocates of the ,eighteenth ,amendment contend that the ,americans1 in the 8conventions0 with ,henry1 gave the entire omnipotence of the ,american people to be exercised by these governments1 without any constitutional restraint4 ,the real fact is1 although all lawyers of #aibj failed to know the fact1 that these state governments were only named in the ,fifth ,article1 because they already had an existing limited ability to make federal ,articles1 an ability not granted by the citizens of ,america but possessed by each of those governments as attorney in fact for the citizens of its own state4 ,that it was an ability not granted by the citizens of ,america1 must be apparent when we recall that it was exercised by those governments in #agha--seven years before there was such a thing as a citizen of ,america4 ,that the lawyers of #aibj neither knew nor realized the importance of this fact1 is apparent when we recall that every brief of those lawyers asserted that these governments get their ability to make ,articles by a 8grant0 in the ,fifth ,article4 ,our knowledge of the nature of every challenge to the new ,amendment1 and our knowledge that each challenge involved the assumption that the ,fifth ,article was a 8grant0 to these state governments1 is a knowledge which is certain from our study of the conclusions of the ,supreme ,court which negatived each challenge4 ,the certainty is emphasized by our memory of the reply of ,rice in that ,supreme ,court1 when1 without one dissent from the challengers1 he stated his and their conviction that the 8conventions0 of #aghh--the challengers all forgetting that those 8conventions0 named themselves in the ,fifth ,article--provided no ,,constitutional mode of procedure in which their own exclusive power could be again exercised to make ,articles like the ,first ,article and the ,eighteenth ,amendment4 ,let us again emphasize our certainty by a few moments with the briefs of the challengers4 ,root was their leader4 ,a distinguished public leader and considered by many to be the leader of the ,american ,bar1 there was special reason why he should have known the ability of government to make national ,articles in a ,constitution1 only when men are 8subjects10 and the inability of governments to make such ,articles1 when men are 8citizens40 ,if his brief1 or the brief of any challenger1 had urged this real and invincible challenge1 we would have found the mention of that challenge in the decision and it would not have been a refutation of that challenge4 ,that we may confirm our knowledge that the brief of ,root1 like the brief of every challenger1 did not make this challenge1 the challenge that the ,fifth ,article is no 8grant0 but a mention of two existing abilities and a mode of ,,constitutional procedure for the respective exercise of each1 let us read the brief's own statements of the three challenges it does make4 8,the plaintiff contends that this attempted amendment to the ,constitution of the ,united ,states is invalid 7#a7 because it constitutes mere legislation1 and is1 therefore1 not authorized by ,article ,v of the ,constitution1 7#b7 because it impairs the reserved police or governmental powers of the several ,states and their right to local self-government1 and 7#c7 because it has not been ratified by three fourths of the several ,states since it has not been submitted to the electorate of the ,states in which the initiative1 or the referendum1 or both1 prevail 7assignment of errors ,nos4 #a-e74 ,these questions are discussed in points ,,ii1 ,,iii1 and ,,iv1 respectively4 ,in point ,i the prior amendments to the ,constitution are considered with reference to these contentions1 and in point ,v the justiciability of the contentions is maintained40 ,its first challenge is itself the admission that all ,,constitutional ability to change our ,constitution is ability 8granted0 in the ,fifth ,article4 ,moreover1 it is the flat denial of any ,,constitutional mode of procedure in which the citizens of ,america1 by a 8,yes0 from three fourths of their assembled 8conventions10 can enact the legislation which is ,section ,one of the supposed ,eighteenth ,amendment4 ,its second challenge is wholly on behalf of the political entities1 which are the states4 ,it not only makes no claim for the rights of ,american citizens1 but it denies any ,,constitutional ability in the ,american citizens to interfere1 by changing the ,american ,constitution1 with what the ,american citizens reserved to each state and its citizens4 ,the third challenge again fails to assert any claim on behalf of the rights of the ,american citizens4 ,it is the challenge negatived by the third conclusion of the ,supreme ,court4 ,it is the challenge that the citizens of the ,state1 in some of the states1 are part of the state legislature4 ,if we want further confirmation of our knowledge that this brief does not make the real challenge1 namely1 that the ,fifth ,article is no grant to the supposed grantors and the state governments1 we find it in the fact that the brief itself refers over fifty times to the ,fifth ,article as a 8grant0 of limited ability to make ,articles4 ,if we need further confirmation1 we find it in this fact4 ,after the ,supreme ,court had negatived every proposition in that brief1 its writers made application for a reargument4 ,the application was based on one ground as far as concerned the validity of the ,amendment4 ,that one ground was that the ,court had written no opinion4 ,from this one fact1 the claim was made that the ,court could not have considered the potency of the three challenges which had been urged in the brief4 ,educated with the earlier ,americans1 we believe that each of these three challenges1 in its very statement1 shows why it is unsound1 and that no opinion was needed to explain its refutation4 ,but the nature of the application shows the continued concept of the ,fifth ,article as a 8grant40 ,if we look at the other briefs against validity1 we will find all arguments based on the same monumental error that the ,fifth ,article is a 8grant0 and that the state legislatures are therein named the attorneys for the citizens of ,america1 although the latter1 as citizens of ,america1 never elect a single member in those legislatures and the ,tenth ,amendment expressly declares that the ,constitution gives no power of any kind to the states or their legislatures4 ,on the impossible hypothesis of this monumental error are budded the most extraordinary arguments4 ,in more than one brief1 it is urged that1 in the ,fifth ,article1 the whole people of ,america made a certain number of state legislatures their own attorneys in fact to amend the ,american ,constitution4 ,but1 urges the brief1 the ,american people have no power to change the state constitutions1 and 8therefore1 the grantees10 the state legislatures1 8cannot exceed the powers of their principal1 the people of the ,united ,states40 ,and1 the brief goes on1 as the people of ,america cannot change a state constitution1 neither can the attorneys in fact of that whole ,american people1 the state legislatures1 change it4 ,the ability of the people or citizens of ,america and of 8their0 attorneys in fact1 the state legislatures1 is only competent to change the ,constitution of the citizens of ,america4 ,but this ,eighteenth ,amendment changes the ,constitution of each state4 ,ergo1 that change is clearly beyond the power of the citizens of ,america and 8their0 attorneys in fact1 the state legislatures6 ,it will serve no useful purpose for us to dwell further upon the briefs against validity4 ,they all show the universal conviction that the ,fifth ,article is a 8grant0 and makes the state legislatures attorneys in fact for ourselves1 the citizens of ,america1 who elect not a single member in the state legislatures4 ,naturally1 as this fundamental error is the invincible conviction of all counsel against validity before any brief is written1 none of those briefs mentions such simple facts as the fact decided by the ,supreme ,court in ,barron v4 ,city of ,baltimore1 #g ,pet4 #bdc4 ,that decision1 by ,john ,marshall1 decisively settled the legal fact that the ,fifth ,article grants no power to the state legislatures to make the ,eighteenth ,amendment4 ,and1 as it also decisively settled that the ,fifth ,article does not give the state legislatures any power whatever1 it destroys the absurd concept that the ,fifth ,article makes the state legislatures attorneys in fact for those who made the ,fifth ,article1 the citizens of ,america1 the 8conventions0 of the ,fifth ,article and the ,seventh ,article4 ,but lawyers1 who start to write briefs with the certain 7although false7 8knowledge0 that the ,fifth ,article does make the state legislatures attorneys in fact for the citizens of ,america1 neither know the meaning of that decision nor state the decision and its meaning and its effect upon the ,eighteenth ,amendment in the briefs which they write4 ,the decision is very clear4 ,we have met it earlier in our education herein4 ,it will bear repetition right now1 when we find fifty-seven lawyers all 8knowing0 that the ,fifth ,article 7despite the declaration of the ,tenth ,amendment7 does give power to the state governments and1 by giving it1 makes these governments attorneys in fact for the citizens of ,america4 ,barron claimed that a state statute was void because it came in conflict with the restriction imposed by the ,article which is the ,fifth ,amendment to the ,american ,constitution4 ,if the restriction applied to the state legislatures and their powers1 the statute was clearly void4 ,therefore1 as ,marshall pointed out1 the ,court had but one question to solve1 whether the ,american ,constitution 7in which is the ,fifth ,article7 granted any power to the state governments4 ,if it did1 then general restrictions in that ,constitution1 as they clearly applied to all powers granted in that ,constitution1 applied to the state governments4 ,on the contrary1 if the ,constitution granted no power to the state governments1 general restrictions in the ,constitution would not apply to the state governments4 ,for which reason1 the decision of the case itself was to depend on one thing alone1 whether there was any power granted in the entire ,constitution to the state governments4 ,if there was not1 the decision would be against ,barron4 ,the question thus presented is1 we think1 of great importance1 but not of much difficulty4 ,the ,constitution was ordained and established by the people of the ,united ,states for themselves1 for their own government1 and not for the government of the individual states4 ,each state established a constitution for itself1 and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated4 ,the people of the ,united ,states framed such a government for the ,united ,states as they supposed best adapted to their situation1 and best calculated to promote their interests4 ,the powers they conferred on this government were to be exercised by itself2 and the limitations on power1 if expressed in general terms1 are naturally1 and1 we think1 necessarily1 applicable to the government created by the instrument4 ,they are limitations of power granted in the instrument itself2 not of distinct governments1 framed by different persons and for different purposes4 ,it would have been impossible for ,marshall to have stated more plainly that the 8instrument10 the ,constitution 7which contains the ,fifth ,article71 grants no powers whatever to the state governments4 ,on that fact1 the fact being the simple answer to the question 8of great importance but not of much difficulty10 ,marshall decided that the general restrictions 7applying only to powers granted in the ,constitution7 did not apply at all to the state governments1 to whom the ,constitution granted no power whatever4 ,and so we ,americans1 trying to find the 8when0 and 8how0 7between1 #aijg and #aiag7 we became subjects1 cannot find the supposed answer anywhere in the briefs against validity4 ,all that we do find of interest to us1 in those briefs1 is that the briefers1 either with or without knowledge of the fact1 are meeting a claim that there never was an ,american citizen and that the ,american people became 8subjects0 when they made the ,fifth ,article on ,june #bast1 #aghh4 ,by reason of our education in the making of the ,fifth ,article1 we know the answer to the absurd claim4 ,the answer is one that cannot be denied unless there are facts which we have not learned in our education4 ,therefore1 we go quickly to the briefs of those who make the claim1 those who upheld the existence of the ,eighteenth ,amendment1 to ascertain what are the new facts on which they base their claim that there never was an ,american citizen and that the ,fifth ,article made the ,american people 8subjects40 ,these opponents were led by ,hughes4 ,in this litigation1 he should not have forgotten that there are limits to the powers of every government in ,america4 ,in the following ,january1 he appeared in the same ,court1 to prove that there is limit to the power of the supreme legislature in ,america1 the ,congress4 ,that ,congress had passed a statute1 known as the 8,corrupt ,practices ,act40 ,in it1 certain practices1 at federal primary and other elections1 were prohibited and made criminal offenses4 ,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 ,america4 ,on the appeal to the ,supreme ,court1 ,hughes urged that1 as our ,american government is a government of enumerated powers1 incidentally a fact which his claim for the state governments in the ,national ,prohibition ,cases flatly denies4 ,congress could not validly pass the statute1 under which his client had been convicted1 unless the power to pass a statute in that particular matter was found in some enumerated power in the ,constitution4 ,the ,constitution clearly gave ,congress power to pass laws concerning 8elections0 for federal officers4 ,but1 urged ,hughes1 the ,americans of #aghh1 the 8conventions0 in the ,fifth and ,seventh ,articles1 did not know anything about 8primary0 elections4 ,therefore1 urged ,hughes1 ,congress has not the power to make the same thing a penal offense at 8primary0 elections1 which ,congress can make a penal offense at the regular elections4 ,by a divided ,court1 this argument1 based on the claim of limited power in the supreme legislature to prohibit what a candidate for ,senator may do1 was sustained and the conviction was reversed4 ,it is amazing1 therefore1 to turn to the ,eighteenth ,amendment brief of the same briefer1 a few months earlier1 and to find him contending for his clients therein1 twenty-four governments of state citizens1 an absolute omnipotence to interfere with individual freedom of ,american citizens on every subject4 ,and it is startling to find1 in this brief1 audacious denial of any right in the ,supreme ,court even to consider whether these governments of state citizens have that omnipotence over the ,american citizen4 ,in the case of the candidate for ,senator1 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 ,senate4 ,this is the doctrine that the only government of the ,american citizens is a government of enumerated powers4 ,in the ,eighteenth ,amendment litigation1 the following is his contention1 that thirty-six governments of state citizens 7the inferior legislatures in ,america7 have unlimited power1 without any constitutional restraint1 to make commands to the ,american citizens on any matter whatsoever3 8,we submit that the conception involved in the bill of complaint1 that an amendment duly submitted by ,congress on the vote of two thirds of each ,house1 and duly ratified by the legislatures of three fourths of the ,states1 is still subject to judicial review1 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 government4 ,no principle of judicial action can possibly be invoked for sustaining such an authority4 ,the propriety and advisability of amendments1 which are not prohibited by the express exceptions in ,article ,v1 are necessarily confided to those through whose action the amendments are to be made40 ,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 ,america1 a rightful traffic by human beings 8so recognized by the usages of the commercial world1 the laws of ,congress1 and the decisions of courts40 7,leisy v4 ,harden1 #ace ,u4,s4 #ajj47 ,when ,americans were fighting on the battlefields of the ,revolution for human liberty1 ,walter ,butler stirred up the ,house of the ,six ,nations to make a home attack4 ,it was natural1 therefore1 when ,americans in #aiah were fighting on the battlefields of ,europe for human liberty1 that ,anderson and men of his type should stir up the ,houses of thirty-six nations to make a similar home attack4 ,americans will probably always have ,butlers and ,andersons to stir up home attacks1 when ,americans are away on the battlefields4 ,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 ,article4 ,from the 8conventions0 of the early ,american citizens1 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 whatsoever4 ,from those 8conventions10 we bring the certain knowledge that the main purpose of the establishment of the ,supreme ,court1 as one department of the only and limited government of ,american citizens1 was that the ,supreme ,court might protect every individual liberty of the ,american citizen from usurpation of power by all governments in ,america4 ,any concept to the contrary is the most ,tory doctrine ever stated as ,american law since ,july #d1 #aggf4 ,it is blind to the fact that1 by the ,constitution1 the whole ,american people1 8in their aggregate capacity10 created a new nation of men and set it above the existing and continued federation of states2 to the fact that the whole ,american people made that ,constitution one with national ,articles1 relating to the government of men1 and with federal ,articles1 relating to the government of states2 and to the fact that the whole ,american people knew and settled that only 8conventions0 of themselves could make national ,articles1 although state legislatures1 as attorneys in fact for their respective states1 could make federal ,articles2 and to the fact that the ,tenth ,amendment names two distinct reservees of existing power1 8the states respectively10 who are the members of the subordinate federation1 and 8the people10 who are the members of the supreme nation of men2 and to the fact that the ,fifth ,article grants no power whatever but mentions the 8state legislatures10 who act for the members of the federation1 and the 8conventions10 who alone can ever act for the members of the supreme nation1 when the latter are to make a change in their part of the ,constitution1 the national part4 ,but we find the brief of ,hughes1 like the briefs of his associates1 actually challenging any right of review by the ,supreme ,court1 when the attorneys in fact for the states and state citizens1 although the states have nothing whatever to do with that part of the dual ,constitution which relates to the nation of men1 actually attempt to change the quantum of power 7to interfere with their own individual freedom7 granted by the nation of men to their only government4 ,his challenge even goes to the extreme of boldly asserting that the 8propriety and advisability of amendments10 even though they infringe upon the individual freedom of the members of the nation of men1 must be finally determined by the governments of state citizens1 which have nothing to do with the nation of men which is ,america4 ,his challenge is that the ,supreme ,court is powerless to protect the liberty of the ,american citizens if thirty-six governments of state citizens decide to interfere with that liberty in matters not enumerated in the ,first ,article4 ,the challenge is exactly the challenge of ,lord ,north to the ,americans in #agge4 ,it is exactly the challenge which the ,british ,parliament would make1 if we were still its 8subjects40 ,as basic ,american law1 it is sheer nonsense4 ,when we remember the doctrine of this briefer1 that there is a limit to the right of our supreme legislature to prohibit what a candidate for ,senator may do1 and compare it with this new ,tory concept that three fourths of the inferior state governments can validly interfere with every personal liberty of ourselves1 we have one or two questions to ask the briefer4 ,is it his thought that the supposed citizens of ,america made their ,constitution with the sole intent that the personal rights of candidates for ,senators should be secure and that the number of ,senators from each state should remain the same8 ,is it his thought that the ,american citizens1 from whose 8conventions0 we have just come1 having settled these amazingly important things about ,senators1 then voluntarily granted omnipotence over every individual freedom in ,america to a fractional part of the inferior state governments1 twenty-four of whom he represented in the litigation of #aibj8 ,is it his thought that the whole ,american people have two governments1 one the government of enumerated powers constituted in the ,first ,article and the other the government of unlimited power constituted in the ,fifth ,article8 ,is it his thought that his inferior state governments1 although all members of all the state governments collectively could not enact a statute interfering in the slightest degree with the ,american citizen1 can issue any command whatever to the ,american citizen1 and that the citizens of ,america must obey that command so long as the state governments call it an ,amendment of the ,american ,constitution8 ,it is our own certain knowledge that1 when governments issue any command to the citizens of ,america and the command interferes with individual freedom1 the maker of the command must show the grant of power to make that particular command4 ,it is the ,alpha and ,omega of ,american law that no government has any just power to make any command to the citizens of ,america1 except in a matter on which those citizens themselves have given that government the power to make that particular command4 ,it is in the primer of ,american constitutional law1 that there is no government of the citizens of ,america1 except the government at ,washington1 and that it has no power to command the ,american citizen1 interfering with his individual freedom1 except in the matters named in the ,first ,article4 ,it is admitted by all1 even by the writer of that brief and his colleagues1 that the power to make the command which is the ,first ,section of the ,eighteenth ,amendment1 is not enumerated in that ,first ,article4 ,when1 therefore1 this counsel for twenty-four of the governments which made that command tells us that1 after his client governments 7at the suggestion of our government which could not make the command7 have passed upon the propriety and advisability of the command1 we cannot have the ,supreme ,court even consider the ability of his client governments to make the command1 our indignation is mingled with our mirth4 ,our indignation need not be explained4 ,our mirth comes when we think of our needless fear that something might have happened between #aijg and #aiag by which we became 8subjects0 instead of the citizens we had been4 ,throughout our education we have always known that1 if the ,eighteenth ,amendment 7a ,,national article made entirely by ,,governments7 is in the ,constitution1 we are 8subjects40 ,we have known that no legislative governments1 before #aghg and after #aggf1 could have made this general command to the citizens of ,america1 because1 during those eleven years1 there was no citizen of ,america and there were no governments in the world who could make any general command to the ,american people1 interfering with their individual freedom on any subject4 ,we have known1 with certainty1 that1 if the ,americans in the 8conventions0 7where we have sat7 knew what they were doing and the ,supreme ,court1 for a century1 has known what they did1 there were no governments in the world1 up to the year #aijg1 who could make that command to the ,american citizens4 ,we have gone everywhere to find what happened1 between #aijg and #aiag1 to change the ,american citizens into 8subjects0 of the governments for whom this counsel appears4 ,now1 after the fruitless search elsewhere1 we are reading his brief to find out what did happen between #aijg and #aiag4 ,his plain answer1 as we have already sensed1 is--8,,nothing40 ,our mirth entirely dispels our indignation1 when we sense his full concept of the nature of that absurd ,fifth ,article 8grant0 to his government clients4 ,that we may not mistake his concept1 the most ,tory concept ever stated as law in ,america since #aggf1 he explains it again and again in his briefs4 ,it is his concept that the absurd supposed 8grant0 gives to his client governments1 not one member of which is ever elected by the citizens of ,america1 unlimited and constitutionally unrestrained power to interfere with the individual freedom of the ,american citizen on every matter or1 as the ,declaration of '#gf put it1 in its complaint against the ,english ,king and his legislature1 to legislate for us on all matters whatsoever4 ,and our mirth is not lessened when we read1 in this brief1 ,john ,marshall's full statement of the making of the ,constitution 7with the ,fifth ,article in it7 and ,john ,marshall's clear decision that it was all made by the citizens of ,america1 the 8conventions0 of the ,seventh and the ,fifth ,articles4 ,no statement of facts could ever be written1 which more absolutely destroys the concept that the state governments have the omnipotence denied to the ,english ,parliament1 than the quotation from ,john ,marshall which we read in this brief to support that concept4 ,throughout the quotation1 with which we are all very familiar1 ,marshall points out that there is a vital distinction1 amazingly important to individual freedom1 between the ability of the 8conventions0 7named by exactly the same name in the ,fifth as well as the ,seventh ,article7 and the limited ability of the same 8legislatures0 for which this counsel appeared in #aibj4 ,in the quotation ,marshall points out that1 when the ,american citizens are to make a ,,national ,article1 like the ,first ,article and the ,eighteenth ,amendment1 there is but one way in which they can make it 8safely1 ,,effectively and wisely10 8by assembling in convention40 ,that all of us1 including that counsel of #aibj1 may not find any excuse for an assumption that state governments can ever make ,articles of that kind1 ,marshall dwells at length upon the inability of state governments or any governments to make them or any ,article like them4 ,he tells us that1 when the ,american people make ,articles of that kind1 in the only way in which they can ever ,,effectively make ,articles of that kind1 by assembling in 8conventions10 8they act in their states4 ,but the measures they adopt do not1 on that account1 cease to be the measures of the people themselves or become the measures of the state governments40 8,from these conventions the ,constitution derives its whole authority40 8,it required not the affirmance1 and could not be negatived1 by the state governments4 ,the ,constitution1 when thus adopted1 was of complete obligation and bound the state sovereignties40 ,up to the last short sentence we have just quoted from the decision so familiar to us1 ,hughes quotes at length and without omission4 ,hughes is in ,court for those 8state legislatures0 and state sovereignties1 which ,marshall's decision finds to be legislatures and sovereignties wholly inferior in ability to the 8conventions0 of the ,american people1 named in the ,fifth and ,seventh ,articles by exactly the same name--8conventions40 ,how does the great lawyer of #aibj find1 in this ,marshall decision1 support for the unique idea that these state1 governments are omnipotent over every right of the ,american citizens who sit in those 8conventions08 ,his remarkable claim is that the state governments he represents have omnipotent ability to command or interfere with anything in ,america1 except one thing4 ,it is his claim that these governments have omnipotent ability to interfere with the citizens of ,america1 with the ,constitution of ,america1 with the government of ,america1 with anything in ,america1 except that they cannot interfere with that one thing for which the ,revolution was fought1 the ,statute of '#gf enacted and the ,constitution established4 ,in the view of ,hughes1 that one thing apparently is the right of every state to have the same number of ,senators4 ,our indignation is entirely dispelled when we realize that he sincerely believes this nonsense4 ,our mirth is merely increased when we find him quoting1 at some length1 this decision of ,marshall1 evidently under the impression that the decision supports the nonsense4 ,but1 we wonder why1 at the particular point which we have reached in the ,hughes quotation from ,marshall1 the former puts 8stars0 instead of the next paragraph in the ,marshall decision8 ,certainly1 when the great lawyer of #aibj has such faith in the omnipotence of his government clients over us their 8subjects10 it cannot be that there is anything in the missing ,marshall paragraph to disturb that faith6 ,yet1 as we read the missing paragraph1 with which we are quite familiar1 doubt assails us4 ,is the great lawyer of #aibj sincere or does he know that the position of his clients in relation to the ,eighteenth ,amendment is nonsense8 ,what is the missing ,marshall paragraph with which we are so familiar8 ,lo and behold6 it is our constant companion throughout our education in the days of the early ,americans4 ,it is the paragraph in which the ,supreme ,court1 by ,marshall1 points out why the ,philadelphia ,convention of #aghg found themselves compelled to send their ,first ,article1 with its grant of national power like the grant in the ,eighteenth ,amendment1 to the 8conventions10 named in the ,seventh and the ,fifth ,articles1 because the state governments1 the clients of ,hughes1 were known and recognized by everybody to be without ability to make national ,articles4 ,in other words1 it is the paragraph in which ,marshall announces what we have learned so clearly ourselves1 that 8to the formation of a league1 such as was the ,confederation to the making of federal ,articles the state sovereignties were certainly competent4 ,but when #8in order to form a more perfect ,union1' it was deemed necessary to change this alliance into an effective government1 possessing great and sovereign powers and acting directly on the people1 the necessity of referring it to the people the conventions of the ,fifth and the ,seventh ,articles and of deriving its powers directly from them was felt and acknowledged by all40 ,we know this paragraph of ,marshall's1 omitted from the ,hughes brief1 to be the epitome of everything that we have heard in the 8conventions0 which made the ,fifth ,article4 ,we remember that even ,henry1 from the very fact that the 8conventions0 of the ,american citizens were assembled1 knew that the then proposed ,articles did grant power to interfere with human freedom4 ,and we remember 7because he knew the inability of state governments ever to make such grants7 that1 on the fact that 8conventions0 were assembled1 he based his charge that the proposed ,articles were ,,national and not federal4 ,we remember that the ,tenth ,amendment declares that the entire ,constitution1 including the ,fifth ,article1 gave no power of any kind to those state governments4 ,and so we know1 what ,henry knew1 that the state governments did not have1 and that the ,fifth ,article did not give them1 any ability to make ,,national ,articles1 like the ,first ,article and the ,eighteenth ,amendment4 ,for which reason1 we cannot 7looking at the matter purely from the standpoint of lawyer's attitude to his government clients7 blame ,hughes for putting the stars in his quotation from ,marshall4 ,eager to remain free citizens1 eager to have all governments recognize that we are not 8subjects10 we ourselves commend1 to the writer of that brief and to all who uphold the ,eighteenth ,amendment1 the entire decision of ,marshall in ,m',culloch v4 ,maryland4 ,for instance1 we commend this clear statement of basic ,american law3 ,if any one proposition could command the universal assent of mankind except those for the validity of the ,eighteenth ,amendment1 we might expect it would be this3--,that the government of the ,union1 though limited in its powers1 is supreme within its sphere of action4 ,this would seem to result necessarily from its nature4 ,it is the government of all2 its powers are delegated by all2 it represents all1 and acts for all4 ,though any one state may be willing to control its operations1 no state is willing to allow others to control them4 ,the nation1 on those subjects on which it can act1 must necessarily bind its component parts4 ,among other things1 this statement1 itself but a repetition of everything that we have learned by our experience with early ,americans1 emphasizes the important fact that the nation1 which is ourselves1 has but one government1 the government 8limited in its power40 ,which fact clearly demonstrates that the state governments1 not being that one government of 8limited powers10 are not the attorneys in fact for the citizens of ,america1 in any matter whatsoever1 and cannot command us1 as they attempt to do in the ,first ,section1 or grant power to command us1 as they attempt to do in the ,second ,section of the ,eighteenth ,amendment4 ,again this same decision of ,marshall holds clearly3 8,in ,america1 the powers of sovereignty are divided between the governments of the ,union and those of the ,state40 ,the claimed ability of the ,hughes government clients1 their claimed ability to make the ,,national new ,article in our ,constitution1 rests entirely upon the absurd doctrine that1 above the two sovereignties which ,marshall names1 there is an omnipotent legislative sovereignty1 without any constitutional restraint1 the sovereignty of three fourths of the very state governments which ,marshall mentions4 ,in the same ,m',culloch v4 ,maryland1 ,marshall pays a tribute to an accurate knowledge1 which we have acquired in our education with the early ,americans4 ,it is the knowledge that everything in the ,constitution denies any ability in even all the states as such1 or in all the state governments1 each of which is never anything but a government of the citizens of one state and their attorney in fact as state citizens1 to alter in any way the ,,national part of our ,constitution 7which ,constitution is both national and federal7 because the ,,national part relates to direct interference with the individual freedom of the ,american citizens4 ,this is his tribute to the truth of the knowledge which we have acquired4 ,he says that there is 8a principle which so entirely pervades the ,constitution1 is so intermixed with the materials which compose it1 so interwoven with its web1 so blended with its texture1 as to be incapable of being separated from it without rending it into shreds4 ,this great principle is1 that the ,constitution and the laws made in pursuance thereof are supreme2 that they control the ,constitution and laws of the respective states and cannot be controlled by them40 ,and so we average ,americans find naught but encouragement in the brief of ,hughes4 ,from its quotations1 from its every statement1 we learn that we have known all the facts1 before we read it1 and that we are free citizens and not 8subjects40 ,in that brief of the champion of champions of the governments that 8made0 the new ,,national ,article1 we learn that there are no new facts on which to base the claim that we1 the whole people of ,america1 have another government besides the government of enumerated powers1 the claim that we are 8subjects0 and that our new omnipotent ,parliament wears the aspect of thirty-six inferior governments1 each elected by the citizens of a nation which is not ,america4 ,in the brief of this champion1 we find no pretense that there is any support for this weird claim4 ,on the contrary we find the whole claim depending entirely upon the sheer assumption--asserted as if to state it was to state an axiom--that the ,fifth ,article is a 8grant10 wherein the 8conventions0 grant to the grantors and to the state governments ability to exercise omnipotence over the ,american citizens1 ability to interfere with their individual freedom1 in any matter whatsoever4 ,in his brief1 ,hughes emphatically asserts the truth that 8the people never become a legislature40 ,yet1 the basis of his whole argument is that what 8the people0 of the ,tenth ,amendment expressly reserved to themselves may be given away by the 8legislatures0 of the states1 although the 8states0 are an entirely different reservee in the ,tenth ,amendment4 ,he does not know1 what all knew when the ,fifth ,article was made1 that the 8conventions10 who made it and who are named in it1 meant 8the people0 themselves4 ,he does not know the tribute of ,madison1 in the ,virginia convention which ratified the ,fifth ,article1 to the ,american 8conventions0 in which the people themselves directly constituted new government of men2 8,mr4 ,chairman3 ,nothing has excited more admiration in the world than the manner in which free governments have been established in ,america2 for it was the first instance1 from the creation of the world to the ,american ,revolution1 that free inhabitants have been seen deliberating on a form of government1 and selecting such of their citizens as possessed their confidence1 to determine upon and give effect to it40 7#c ,ell4 ,deb4 p4 #faf47 ,hughes does not know1 as ,story did1 that the drafter and the makers of the ,fifth ,article put into it the lessons of their own experience in the making of national ,articles1 by the 8conventions0 of #aggf1 and in the making of federal ,articles by the state 8legislatures0 between #aggg and #agha4 8,it is wise1 therefore1 in every government1 and especially in a ,republic1 to provide means for altering and improving the fabric of government as time and experience or the new phases of human affairs may render proper to promote the happiness and safety of the people4 ,the great principle to be sought is to make the changes practicable1 but not too easy2 to secure due deliberation and caution2 and to follow experience1 rather than to open a way for experiment suggested by mere speculation or theory40 7#b ,story on the ,constitution1 ,sec4 #ahbg47 ,for all of which reasons1 ,hughes and his associates1 although they might be certain that the people never became the legislature1 were not aware that1 to the ,americans who made the ,fifth ,article1 its 8conventions0 were 8the people0 of the ,tenth ,amendment4 ,naturally1 we are not surprised to find a briefer who ignores this fact1 possibly the legal fact in ,america most important to individual liberty1 also indulging in the monumental error of the thought that these 8conventions10 in their ,fifth ,article1 made a grant1 to themselves and to his clients1 of equal omnipotence over themselves1 the citizens of ,america4 ,we recognize that1 if the ,article was such a grant to his clients1 the grant would have been the greatest grant ever made in the history of mankind4 ,we recognize that it would have been a grant by three million free men1 four years after the war by which they had become free men1 surrendering to governments absolute control of every individual liberty and making themselves absolute 8subjects40 ,we know that ,hughes did maintain that the one government created by or given any power in the ,constitution1 in which is the ,fifth ,article1 had not power to forbid a candidate for ,senator to do what he did4 ,it is interesting and instructive to know that the same lawyer holds1 as an axiom which needs no proof1 that the same ,constitution gave unlimited ability to his client governments to interfere with every individual liberty of the ,americans who are not candidates for a ,senatorship4 ,we have the word of the man who wrote the language of that ,fifth ,article that it is merely 8a mode of procedure0 in which may be exercised either the existing unlimited ability of ourselves in 8conventions0 or the limited ability of the state governments to make federal ,articles4 ,we recognize1 no one who reads it could recognize otherwise1 that the ,fifth ,article1 outside of two exceptions to ,,constitutional exercise of existing abilities to make ,articles1 contains nothing but procedural provisions4 ,this knowledge we brought to the reading of the ,hughes brief1 after we had acquired the certainty in our education with the ,americans who made the ,fifth ,article4 ,then we read this brief of the champion of champions for the validity of the supposed new ,article and found therein the sheer assumption1 as an axiom which needed no proof1 that the ,fifth ,article1 with nothing but its procedural provisions1 was a grant of omnipotence to his government clients over ourselves6 ,imagine1 therefore1 our amazement and our amusement1 in the same brief1 to find this clear echo of the statement of ,madison and of our own knowledge1 this accurate and complete statement of exactly what the ,fifth ,article contains3 8,article ,v1 apart from procedural provisions1 contains two limitations of the power to amend1 as follows3 #8,provided that no ,amendment which may be made prior1 etc4'0 ,if1 8apart from procedural provisions10 the ,article has nothing but 8two limitations0 of existing abilities to make ,articles1 where does he or anyone find in it the greatest 8grant0 known to the history of mankind8 ,when this briefer made his argument for his client who had been a candidate for ,senator1 he had no attack to make upon the procedure in which ,congress had passed the ,corrupt ,practices ,act4 ,when he went to ascertain whether ,congress had the power to make that command1 about 8elections10 he did not look for the power in any 8procedural provisions10 which prescribe how ,congress should exercise its ability to make commands4 ,if this briefer or any lawyer were asked1 on behalf of a client1 to accept a bill of sale from an alleged attorney in fact of the owner of a cow1 he would not seek1 in any procedural provisions which prescribed how an attorney in fact can execute an instrument for his principal1 to find the authority of the alleged attorney to sell the cow4 ,why then1 in an ,article with naught but procedural provisions and two limitations on power to make ,articles1 do he and all his associates seek to find1 and assert that they do find1 grant of authority to the inferior governments of state citizens to give away every liberty which the citizens of ,america hold most dear8 ,,chapter ,,xxv ,,citizen ,,or 8,,eighteenth ,,amendment08 ,it is our invincible knowledge that the ,fifth ,article is not a power of attorney to any one to act for us1 the citizens of ,america1 in regard to any individual right which the ,american citizen has4 ,in our capacity as ,american citizens and in 8conventions0 of the very kind named in that ,fifth ,article1 we gave the only power of attorney1 which we have ever given to any government to act for us in making commands to interfere with any of our individual rights4 ,that power of attorney is the ,first ,article4 ,we made it in the same 8conventions40 ,in it1 we gave to our ,congress our only power of attorney of that kind4 ,in it1 with futile effort to keep modern 8constitutional thinkers0 from monumental error1 we said1 at the very beginning of the one ,article which is our only power of attorney1 that to our ,congress alone the ,constitution gives any powers to make commands that interfere with our individual rights4 8,all legislative powers herein granted shall be vested in a ,congress1 etc40 7,art4 ,i1 ,section ,i4 ,u4,s4 ,cons47 ,in those same 8conventions0 7named in the ,fifth ,article7 we insisted1 again in futile effort to keep modern 8constitutional thinkers0 from monumental error1 that there be written the exact declaratory statement that the entire ,constitution gave no power 7to act for us1 the citizens of ,america1 in any matter7 to any donee except our new general government1 the government of the ,first ,article enumerated powers4 ,and1 in those 8conventions10 we insisted that there be written into that ,constitution the accurate declaratory statement that all powers to act for us in any matter1 except the powers of that kind we gave to that one limited general government1 we retained exclusively to ourselves1 the citizens of ,america1 that they might be exercised only by ourselves or upon further grant from ourselves4 ,those two important declaratory statements were written into that ,constitution in the shape of the ,tenth ,amendment4 ,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 ourselves1 we named ourselves--the 8conventions0 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 8conventions40 ,it was impossible for us in those conventions1 8being a people better acquainted with the science of government than any other people in the world10 to anticipate that modern 8constitutional thinkers0 should make the ludicrous mistake of inferring1 from that mention1 that we--the 8conventions0--granted to ourselves--the 8conventions0--all or some of the very power we were then exercising in those 8conventions40 ,nor did we anticipate1 inasmuch as we 7in those 8conventions07 never forgot that this new ,constitution was to be federal as well as national1 that modern 8constitutional thinkers0 would make another monumental error in assuming that a similar mention of the existing ability of state legislatures 7the ability to make federal or declaratory ,articles7 was a grant to those governments of our own power to make national ones4 ,even if we had possessed 7in those 8conventions07 the vision to see the future that was #aibj1 we would have felt that the ,statute of '#gf1 the opening words of the ,first ,article and the explicit declarations of the ,tenth ,amendment made any such error impossible for modern 8constitutional thinkers40 ,yet1 one or more of such errors are the basis of every argument in every brief of the fifty-seven lawyers of #aibj4 ,they are the basis of the ,root briefs and the other briefs against1 as they are the basis of the ,hughes briefs and the other briefs for1 the validity of the supposed new ,amendment4 ,not a single one of the briefs fails to assume1 without the slightest foundation1 that the state governments1 not a member of which is elected by the citizens of ,america1 are attorneys in fact for the citizens of ,america4 ,wherever one brief differs from another in this respect1 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 ,article4 ,for which reason1 we1 who have come from the days of those early ,americans1 strong in the knowledge that we are citizens and not 8subjects10 are now satisfied that none of these modern 8constitutional thinkers0 can disturb our certain knowledge4 ,it is a matter of no concern to us that some of them1 because they did not have our knowledge1 failed to win their litigations for their clients4 ,it is1 however1 a matter of great concern to us that supporters of the ,eighteenth ,amendment should be found maintaining1 as if it was an axiom needing no proof1 that we are 8subjects0 of the governments they represented4 ,we need spend very little further time in the briefs of those who so maintain4 ,we have no patience with their ,tory concept of the relation of men to governments4 ,we ,,know that ,tory concept never has been ,american law since the ,statute of '#gf4 ,but it would not be proper to leave their briefs without one glance at some of their heresies1 which are flatly contradicted by everything we have learned in our education4 ,as a matter of fact1 not one of these heresies can stand accurate and simple statement without exposing its own absurdity4 ,some of us are familiar with the book known as 8,the ,comic ,blackstone40 ,we have thought of it often as we read the briefs of those for validity of the new ,amendment--the government constitution of government power to interfere with the individual freedom of ,american citizens4 ,there is1 however1 a vital difference between the book and those briefs4 ,the book was a conscious effort to be humorous4 ,unconscious humor has never failed to surpass conscious and intended humor4 ,we recall our search to know 8when0 and 8how10 between #aijg and #aiag1 we became subjects4 ,we remember the first glance at the briefs of #aibj4 ,we remember the tribute of one to the simple truth that 8the people do not become a legislature4444 ,as well confound the creator and the creature--the principal and the agent through which he acts40 ,we wonder why the author of this tribute did not challenge the monumental error of the concept that the ,fifth ,article 7when it mentions the 8conventions0 of the ,american citizens1 the greatest principal in ,america1 and also mentions the state governments1 each as the attorney in fact of another and distinct principal1 the citizens of its own state7 is a grant from the great principal to itself and these mentioned attorneys in fact of others4 ,but we now know why the author of the tribute made no such challenge4 ,he is ,hughes1 who rests his entire argument on the monumental error4 ,we remember1 as we glance at the briefs1 that another one challenged the doctrine on which ,sheppard proposed that the ,eighteenth ,amendment be sent to governments of state citizens1 that such governments might interfere with the freedom of ,american citizens4 ,we remember the ,sheppard doctrine as the ,calhoun heresy that the states1 political entities1 made the ,constitution which we1 the citizens of ,america1 actually made in our 8conventions40 ,we remember how refreshed we were to find1 in our first glance at the briefs1 this statement3 8,the ,constitution is not a compact between states4 ,it proceeds directly from the people4 ,as was stated by ,mr4 ,chief ,justice ,marshall in ,m',culloch v4 ,maryland1 #d ,wheat4 #caf1 c40 ,we remember our thought1 when we had just come from those 8conventions10 to find this statement in that brief4 ,we remember how we anticipated this briefer telling the ,court why the states or their governments1 who could not make the ,first ,article1 were incompetent to make the only other supposed grant of power to interfere with our liberty1 the ,eighteenth ,amendment4 ,now that we have finished with the briefs of #aibj1 we recognize how absurd was our expectation4 ,the statement that the states1 which are mere political entities1 did not make the ,constitution1 the quotation from ,marshall1 supporting this truth and showing that the states did not make it because the states and their governments cannot make national ,articles1 are both from the brief of this same ,hughes1 the champion of his government clients and their claimed ability to make national ,articles4 ,we find some considerable amusement in comparing the speech of ,sheppard1 proposer of the ,eighteenth ,amendment1 and the brief of ,hughes1 champion of the ,eighteenth ,amendment4 ,if government was to carry through a successful revolution against free men and acquire the omnipotence denied to the ,british ,parliament1 it would have been well for the proposers of the ,revolution and the champions of it to have agreed at least upon one fact1 whether the states1 political entities1 or the citizens of ,america1 in their 8conventions10 made the ,constitution--which was to secure the ,american citizen against all usurpation of power by governments4 ,but1 once we sense the certainty that this revolution of government against free citizens cannot be successful1 once we realize the certain decision of the ,supreme ,court when the real challenge is made to the disguised revolution1 we can forget the attempted tragedy of human liberty4 ,then we shall know that the entire story of the last five years is an inexhaustible mine of humor4 ,and1 among the briefs of those who championed this revolution of government against human being1 we shall find no mean rival 7in unconscious humor7 to any other part of that story4 ,we recall1 at our first introduction to all the briefs1 the epitome of all the knowledge we had just brought from the early conventions3 8,there is only one great muniment of our liberty which can never be amended1 revoked or withdrawn--the ,declaration of ,independence4 ,in this regard1 it ranks with the ,magna ,charta40 ,we recall how pleased we were to know that the ,court must hear another champion of individual liberty1 who also must have come from the 8conventions0 in which we had sat4 ,we recall how1 in his brief1 this truthful tribute to the ,statute of '#gf was immediately followed by the quotation from that ,statute1 which includes these words3 8,that to secure these ,rights1 the ,rights of men granted by their ,creator governments are instituted among men1 deriving their just powers from the consent of the governed4 ,that whenever any ,form of ,government becomes destructive of these ends1 it is the ,right of the ,people to alter or to abolish it1 and to institute new government1 laying its foundation on such principles and organizing its powers in such form1 as to them shall seem most likely to effect their ,safety and ,happiness40 ,in our eager anticipation to hear his argument and see his brief1 how were we1 fresh from the 8conventions0 in which sat some of the men who had written that ,statute eleven years earlier1 to know that the briefer understood their language to read as follows3 8,that to secure these rights of human beings1 granted by their ,creator1 governments are instituted among men1 deriving their just powers from the consent of the state governments4 ,that whenever any ,form of ,government becomes destructive of these ends1 it is the right of the state governments to alter or abolish it1 and to institute new government1 laying its foundation on such principles and organizing its powers in such form as to the state governments shall seem most likely to effect the welfare of those who control the state governments40 ,that this is the meaning of that ,statute to this briefer1 we may realize when we know that the tribute to the ,statute and the quotation from the ,statute are in the brief of ,wheeler1 counsel for the political organization which managed the new revolution of government against people and dictated the proposal that governments should constitute new government of men in ,america4 ,now we grasp why this briefer said that1 in the fact that the ,declaration of ,independence could 8never be amended1 revoked or withdrawn10 the ,statute of '#gf 8ranks with the ,magna ,charta40 ,to this briefer1 the ,statute of '#gf1 like the ,great ,charter of old1 is the ruler government dispensing privileges to its subjects1 the people4 ,that is why this briefer1 with his ,tory concept of the relation of government to human beings1 does not know that the ,statute of '#gf is the revocation of the principle on which ,magna ,charta rested1 the doctrine that the government is the ,state and the people are its assets4 ,this briefer1 like all his associates1 does not know the great change which the ,american people made in the picture of ,american government4 ,we are all familiar with the picture1 8,his ,master's ,voice40 ,when those ,americans were born1 from whose 8conventions0 we have come1 the listener in that picture was 8the people0 of the ,preamble and the ,tenth ,amendment in our ,constitution4 ,the voice of the master was the voice of government4 ,when those ,americans died1 they had changed the picture4 ,the listener had become the governments in ,america1 the voice of the master had become 8the people0 of ,america1 its citizens4 ,the new painting of the picture was on ,july #d1 #aggf4 ,that the listener might never deface the truth of the new picture1 the ,constitution of #aghg was proposed at ,philadelphia and later made by the master in the picture4 ,the proposal of ,wheeler and his associates and the action of governments on that proposal are the unlawful attempt to change the picture back to what it had been before the ,statute of '#gf4 ,if time permitted1 our sense of humor would keep us long with the briefs of ,wheeler and his associates4 ,it was their thought that the doctrine of ,christ could be made a better ,christianity by a substitution of the prohibition of ,mohammed for the temperance of ,christ4 ,this natural modesty on their part made certain that we would find1 in the ,wheeler brief1 this tribute to the good intentions of the ,americans of those early 8conventions10 accompanied by an humble tribute to the much greater wisdom of the briefers4 8,the people1 under this form of government may1 of course1 do unwise things4 ,this is the alleged danger of a republican or democratic form of government4 ,if the electorates are not intelligent1 moral and patriotic1 our government will fail4 ,our forefathers took that chance in choosing a form of government that was controlled entirely by the people4 ,history proves that they builded more wisely than they knew4 ,the people have kept step with advancing civilization under the same construction of our ,constitution4 ,this last advance in the prohibition of the beverage liquor traffic1 which is one of the greatest evils that ever cursed humanity1 is additional evidence of the wisdom of our forebears4 ,it is generally recognized as the greatest piece of constructive legislation that was ever adopted by a self-governing people40 ,the finest passage in the 8,comic ,blackstone0 does not approach this in its excellence as unconscious humor4 ,educated with 8our forefathers0 who 8took that chance in choosing a form of government that was controlled entirely by the people10 we call the attention of ,wheeler to one of his many mistakes by rewriting his next sentence1 as he should have written it3 8,history proves that they builded more wisely than ,wheeler or his associates knew or are able to understand40 ,our forefathers knew that1 wherever men are citizens1 neither state governments nor any governments are 8the people0 or can surrender rights of 8the people0 or can constitute new governments of 8the people0 interfering with their individual freedom and1 therefore1 when those 8conventions0 of old did choose and establish a form of government 8that was controlled entirely by the people10 they were not stupid enough to think that the ,american government would be that kind of a government if it could be controlled entirely by legislatures1 which never are the people4 ,it is rather ridiculous to find ,hughes1 associate champion of ,wheeler for the new ,amendment1 contending that the people never are the legislature1 while ,wheeler contends that a government is controlled entirely by the people when it is controlled entirely by legislatures4 ,but1 it is to be expected1 when men work in association on a common unsound basis1 that one champion should frequently contradict another as to fact1 and that even the same champion should often contradict himself as to fact4 ,and so we find the ,wheeler brief stating that the new ,amendment1 made entirely by governments without any authority from the people about whom he prates1 8is generally recognized as the greatest piece of constructive legislation that was ever adopted by a self-governing people02 and we turn over the pages of the brief and we find the remarkable proposition that these state legislatures1 when making the ,eighteenth ,amendment1 were not legislating1 but were 8a body of representatives sitting in a conventional capacity40 ,of course1 we now learn1 by this latter statement1 that the greatest piece of 8constructive legislation0 the world ever knew was not legislation at all4 ,but we also learn a more important thing4 ,it would have been of great advantage to the ,british ,parliament in #agfe1 if it had only known the ,wheeler concept of our ,american security for human freedom4 ,think how remarkable it would have been to have passed a ,stamp ,act which would have been universally respected and obeyed by the ,american people of that time6 ,all the ,british ,parliament should have done was to announce3 8,this is not passed by us as a legislature4 ,in issuing this command to the ,american people1 we are a #8body of representatives sitting in a conventional capacity4'0 ,having exactly the same attitude mentally as ,lord ,north in #agge1 this ,wheeler would have been a better ,minister for the ,english ,king4 ,he would have been able to keep for him the ,american 8subjects0 of the ,british ,legislature4 8,article ,v itself shows that the representative or convention idea was in the minds of the framers of the ,constitution4 ,if the legislatures of two thirds of the states should apply to ,congress1 then ,congress would be obliged to call a convention for proposing ,amendments to the ,constitution4 ,then1 also1 when it came to the matter of ratification1 this question could be considered by conventions in the various states4 ,a review of the proceedings of the constitutional convention1 as well as a study of the political and governmental bodies at the time at which the provision providing for amending the federal ,constitution was adopted1 revealed the fact that these men thought in terms of conventions 444 and that the clear intent of the framers was to ratify proposed amendments by bodies sitting in the capacity of conventions4 ,the ,court will not find any able exponent of the theories of government of that time1 however1 who even asserted that the people could be considered as a portion of the legislature4 ,this can be shown most clearly by an examination of the proceedings of the constitutional convention1 as reported by ,mr4 ,madison and particularly by examining the various proposals advanced in that convention for the ratification of the ,constitution40 ,we recognize immediately1 in this extract from the briefs of #aibj1 our own exact knowledge brought from those 8conventions40 ,and1 when this briefer challenges the existence of the ,eighteenth ,amendment on the ground that the people who made it showed 8in ,article ,v itself0 that 8the convention idea was in the minds of the framers0 and 8when it came to the matter of ratification10 a 8,yes0 or 8,no0 was to be considered by 8conventions0 in the various states1 we are amazed to find no upholder of the ,eighteenth ,amendment replying to this attack upon its validity4 ,the challenge to validity again and again touches on the monumental error of the ,tory concept behind all claim to validity4 ,the challenge puts its finger at once upon the absurd assumption1 on which the ,eighteenth ,amendment wholly depends for existence1 the assumption that the ,americans we have just left ever considered the 8people0 as the 8legislature0 or the 8legislature0 as the 8people40 ,the challenge emphasizes the fact we all know1 that the 8conventions0 knew that 8conventions0 were the 8people0 and that 8legislatures0 never were the 8people40 ,but we are mistaken in believing that this clear challenge was not met by some 8constitutional thinker0 in his effort to uphold the new supposed ,,national ,article1 made by the governments or 8legislatures0 which the old 8conventions0 so well knew were not the 8people40 ,in the brief of one champion of the new ,,national ,article1 we find this clear reply to the challenge4 ,and we notice how the reply is not mere assertion4 ,no one can deny the tremendous 8support10 in history and in decision and in the ,fifth ,article itself1 for the full reply that the ,fifth ,article states definitely that 8the only agency which is authorized to ratify the ,amendment is the state legislatures60 ,we have only one comment to make on the challenge itself and the destructive reply to it1 that the state legislatures are the 8only agent0 authorized by the ,fifth ,article to amend our ,,national ,constitution4 ,it is an interesting comment4 ,both the challenge and the reply are from the brief of ,wheeler1 counsel for the political organization which directed that governments make this new national government of men4 ,this ,wheeler believes that the ,statute of '#gf is 8one great muniment of our liberty which can never be amended1 revoked or withdrawn40 ,he says so in his brief4 ,he also maintains that his state governments1 not one of their members elected by us as citizens of ,america1 have omnipotent power over our every liberty1 except that they cannot change the number of senators from each ,state4 ,at one point in his brief he 8proves0 overwhelmingly that the citizens of ,america universally demanded his new ,article1 the ,eighteenth ,amendment4 ,his proof is--and we cannot deny the fact which he asserts as proof--that1 in the year #aiah1 when ,americans were in the ,argonne ,forest in ,france1 four thousand seven hundred and forty-two ,tories in forty-five state legislatures said 8,yes0 to this new command to the one hundred million ,american citizens on a subject not among the matters enumerated in our ,first ,article4 ,that his 8proof0 might be perfect 7for the claim that the making of the command was demanded by the citizens of ,america7 he fails to mention the fact that not one of those four thousand odd ,americans1 who were not the ,americans in the ,argonne or in our training camps preparing to fight for human liberty1 was elected for any purpose by the citizens of ,america4 ,reflecting upon this briefer's admiration for the ,statute of '#gf and upon his knowledge that the 8legislatures0 never are the people1 while the 8conventions0 of the ,fifth ,article are the 8people10 we wonder if he ever read a certain statement of the early ,american who wrote the ,statute of '#gf4 ,it is a statement from ,thomas ,jefferson quoted by ,madison1 author of the ,fifth ,article1 when he was urging the ,american people or 8conventions0 to make that ,fifth ,article4 ,jefferson was talking about a constitution1 in which 8all the powers of government 444 result to the legislative body10 as they result 7under the modern assumption as to what the ,fifth ,article says7 to the state governments1 the new omnipotent legislature of the ,american people4 ,this is what ,jefferson had to say1 what ,madison approved3 8,the concentrating these in the same hands1 is precisely the definition of despotic government4 ,it will be no alleviation1 that these powers will be exercised by a plurality of hands1 and not by a single one4 ,one hundred and seventy-three despots would surely be as oppressive as one4444 ,as little will it avail us1 that they are chosen by ourselves4 ,an elective despotism was not the government we fought for40 7,fed4 ,no4 #dh47 ,it is clearly the view of ,wheeler and all his associates that the early ,americans did fight their ,revolution so that we might have1 in these modern days1 an elective despotism of four thousand seven hundred and forty-two despots4 ,that form of government is probably relieved from the odium of the ,madison and ,jefferson attack1 by the 8alleviation0 that we ourselves1 the citizens of ,america1 those to be governed by this 8elective despotism10 do not elect or choose even one of the despots6 ,we cannot linger longer with these amazing briefs of the champions of the ,eighteenth ,amendment4 ,from the viewpoint of unconscious humor1 we have become rather enamored of the ,wheeler idea that 8state governments0 and 8the people of ,america0 expressed the same thought to the latter when they made the ,fifth ,article4 ,since we read ,wheeler's brief1 we have been trying the same method with some famous statements of great ,americans4 ,for example1 we have this new excerpt from ,washington's famous ,farewell ,address3 8,the basis of our political system is the right of the #8state governments' to make or alter the people's ,constitution of government4 ,and the ,constitution which at any time exists1 till changed by an explicit and authentic act of #8the legislatures of three fourths of the states'0--7,washington said #8the whole people'7--8is sacredly obligatory upon all40 ,and we like particularly the improved ,wheeler concept of the rather crude ,gettysburg speech of ,lincoln4 ,in its new form1 altered by the ,wheeler idea1 it is wonderful to hear the appeal of ,lincoln that we1 who were not among the dead at ,gettysburg1 should play our part 8that government of the people1 by the state governments1 and for those who control the state governments1 shall not perish from the earth40 ,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 ,gettysburg6 ,in the old days1 the ,calhoun doctrine was that a single state1 although but a political entity1 could do as it pleased in its own affairs1 even to leaving the ,union without reference to the wishes of the citizens of ,america4 ,that question was settled forever by the result at ,gettysburg4 ,the modern claim1 the sole claim upon which the ,eighteenth ,amendment depends for existence1 is that a state government1 if it combines with enough other state governments1 can go outside its own jurisdiction1 outside the citizenship which chose the legislators in it1 and issue its omnipotent command telling the citizens of ,america what they may do and may not do1 8in all matters whatsoever40 ,but we leave the ,court of #aibj1 quite satisfied that the modern 8constitutional thinkers10 who filed their briefs therein1 have not exactly the ,american concept of the relation of government to human beings1 which would have located them at ,valley ,forge1 with ,marshall1 in the ,winter of #aggh4 ,we leave that ,court1 however1 quite satisfied that the ,court itself still has the knowledge which ,marshall had1 the knowledge stated in the ,tenth ,amendment and by the decision of that ,court in #aijg1 that all the powers not granted by the ,constitution to the general government at ,washington 8are reserved to the people and can be exercised only by them or1 upon further grant from them40 ,we do not forget the question of the ,court1 the question which none of the lawyers could answer1 8,in what way do counsel believe that the ,eighteenth ,amendment could be made ,,constitutionally80 ,we do know the answer to that question4 ,the ,americans1 in the 8conventions0 we just left1 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 liberty1 8by conventions in three fourths thereof40 ,the 8conventions0 which mentioned themselves1 the 8conventions10 in the ,fifth ,article1 are the same 8conventions0 which demanded that the declaration be made that every power1 not granted in that ,constitution to the government at ,washington1 remained where it had been4 ,as the state governments had been incompetent to make the ,first ,article or the ,eighteenth ,amendment1 they remained incompetent to make either of them4 ,if we needed any assurance that the ,supreme ,court still retains the accurate conceptions of these early ,americans1 we find it in one of the most significant facts in the whole remarkable story of the last five years4 ,we do not need to recall how every lawyer dwells continuously upon the fact that the ,fifth ,article is a 8grant0 of power to make new ,articles4 ,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 8grant0 of such power4 ,we know that every argument in every brief was based on the stated assumption that the ,fifth ,article was a 8grant0 and that it made the legislatures of state citizens attorneys in fact for the citizens of ,america1 who elect none of the members of those legislatures4 ,did this monumental error of all the lawyers have any effect upon the accurate knowledge of the ,supreme ,court8 ,did this insistence upon the absurd assumption that the ,fifth ,article is a 8grant10 in which 8conventions0 grant something to themselves and to the state governments1 lead the ,court into the error of calling it a 8grant80 ,read the conclusions of the ,court1 as they were stated by ,judge ,van ,devanter4 ,the opening sentence of that statement sweeps aside every assumption that the ,fifth ,article is a 8grant40 ,can our knowledge1 brought right from the old 8conventions10 be put more completely than in the one statement3 8,power to amend the ,constitution was ,,reserved by ,article ,v40 ,where is the 8grant0 all the lawyers have been talking about8 ,where is the 8grant0 on which the ,eighteenth ,amendment depends for existence8 ,where is the 8grant0 which makes the state legislatures of state citizens attorneys in fact1 for any purpose1 for the ,american citizens8 ,before the ,constitution1 in which is the ,fifth ,article1 there was no citizen of ,america4 ,and1 as the exclusive ability of 8conventions0 to make ,,national ,articles 7like the ability of state legislatures to make ,articles which are not national7 8was reserved by ,article ,v10 the state governments1 as imaginary attorneys for ourselves1 disappear entirely from the scene4 ,we remain free citizens4 ,we have not become 8subjects40 ,this comforting knowledge is emphasized when we find that1 as the ,supreme ,court states its ,fourth ,conclusion1 again the accurate statement is that the ability to make the new ,article 8is within the power to amend ,,reserved by ,article ,v of the ,constitution40 ,that is our own knowledge4 ,we have brought from the conventions1 in which we have sat with the early ,americans1 their knowledge that the ability of the 8conventions0 to make ,articles of that kind1 their exclusive ability to do so1 was reserved to those 8conventions10 the assembled citizens of ,america4 ,we know that the ,tenth ,amendment expressly so declares4 ,therefore1 when we go to the ,supreme ,court1 with our contention that we still are citizens and that a revolution by government against the people1 a revolution to make us 8subjects10 must be repudiated by the ,supreme ,court which we have established to protect our human liberty against all usurpation by governments1 our challenge will be in the words of ,wilson1 uttered in the ,pennsylvania ,convention where ,americans first set their names to the ,fifth ,article3 8,how comes it1 sir1 that these state governments dictate to their superiors--to the majesty of the people80 ,,chapter ,,xxvi ,,the ,,american ,,citizen ,,will ,,remain ,the ,united ,states the great political society of men which this book persistently calls ,america form1 for many1 and for most important purposes1 a single nation4444 ,in war1 we are one people4 ,in making peace1 we are one people4 ,in all commercial regulations1 we are one and the same people4 ,in many other respects1 the ,american people are one2 and the government which is alone capable of controlling and managing their interests in all these respects1 is the government of the ,union4 ,it is their government1 and in that character they have no other4 ,america has chosen to be1 in many respects1 and to many purposes1 a nation2 and for all these purposes1 her government is complete2 to all these objects1 it is competent4 ,the people have declared that1 in the exercise of all powers given for these objects1 it is supreme4 ,it can1 then1 in effecting these objects1 legitimately control all individuals or governments within the ,american territory4 7,u4 ,s4 ,supreme ,court1 ,cohens v4 ,virginia1 #f ,wheat4 #bfd1 at p4 #dac et seq47 ,these words of ,marshall tell every ,american why there is an 8,america10 a nation of men1 in addition to a 8,united ,states10 a federation or league of political entities4 ,the league existed before the ,constitution created the nation4 ,the league was not created by the ,constitution4 ,but the league was continued by the ,constitution in which free men created the nation4 ,in that ,constitution1 the league and its component members 7the states7 were made subordinate to the nation and its component members1 who are the citizens of ,america4 ,how comes it1 then1 that modern leaders1 for five years last past1 have talked their nonsense about another government of the one ,american people8 ,how comes it that they have argued and acted as if the ,fifth ,article constituted another government of the one ,american people8 ,it certainly would be startling for ,marshall and his generation to hear the ,eighteenth ,amendment claim that one important purpose for which ,americans chose to be one people was the purpose of enabling thirty-six legislatures of state citizens to interfere1 8in all matters whatsoever10 with every individual liberty of all ,american citizens4 ,in the light of our education with the one ,american people who chose to be1 8in many respects1 and to many purposes1 a nation0 and to have1 ,,in ,,that ,,character1 no government other than the government constituted by the ,first ,article1 how otherwise1 than by the one word 8nonsense10 can we dignify the five-year discussion as to the extent of the powers granted in the ,fifth ,article to other governments1 the respective governments of the members of the league1 to interfere with the liberties of the members of the nation1 the citizens of ,america8 ,citizens of ,america1 particularly emigrants from ,europe1 must be taught the reason why and the fact that the one ,american people 8were bound to have and did at last secure0 a government free from interference by 8legislatures1 whether representing the states or the federal government40 7,judge ,parker1 supra1 in ,preface47 ,who is to teach the average citizen the reason or the fact8 ,have our most renowned lawyers shown any knowledge of either8 ,their own briefs have been permitted to speak for them4 ,which of those briefs has put a finger upon the basic flaw in the ,eighteenth ,amendment challenge to the fact that the ,american citizens 8did at last secure a ,government0 which its citizens 8could control despite0 all legislatures1 whether representing state citizens or themselves8 ,the men who wrote these briefs are far more than lawyers of great renown4 ,they are among the best known leaders of public opinion in ,america4 ,many thousands of average citizens rely upon such men to know and state every constitutional protection to individual liberty4 ,in any generation1 reliance upon any public leaders for knowledge on that matter is a distinct menace to individual liberty4 ,the imaginary ,eighteenth ,amendment will have served a useful purpose if it teaches us that we must know of our own knowledge1 if we want to remain free citizens of ,america4 8,no man1 let his ingenuity be what it will1 could enumerate all the individual rights not relinquished by this ,constitution40 7,iredell1 later a ,supreme ,court ,justice1 in the ,north ,carolina convention1 #d ,ell4 ,deb4 #adi7 ,these are the rights 8retained by the people0 of ,america in the ,ninth ,amendment because not enumerated in the ,first ,article4 8,if this ,constitution be adopted1 it must be presumed the instrument will be in the hands of every man in ,america1 to see whether authority be usurped2 and any person by inspecting it may see if the power claimed be enumerated4 ,if it be not1 he will know it to be a usurpation40 7,iredell1 in ,north ,carolina convention1 #d ,ell4 ,deb4 #agb47 ,all granted powers to interfere with the individual freedom of the ,american citizen1 8in that character10 are enumerated in the ,first ,article4 ,all powers of that kind not enumerated therein are reserved in the ,tenth ,amendment exclusively to the ,american citizens themselves to be exercised or granted by them in the 8conventions0 of the ,fifth ,article4 ,one of these powers is that which some governments of state citizens1 in the ,eighteenth ,amendment1 have attempted both to exercise and grant4 ,the brief of which public leader has known or stated these facts to the destruction of the ,amendment and to the continued existence of the free ,american citizen8 ,the experience of ages has taught that human liberty1 even in a republic1 is never secure unless the citizens of the republic themselves understand the basic security which protects that liberty4 ,the writer of this book wishes to keep his own individual liberties secure against usurpation by any government in ,america4 ,he wishes to keep his status1 as such citizen1 to all governments in ,america--the status established by the citizens of ,america through whose experience we have been educated4 ,he knows that such status must end forever unless ,american citizens generally have the same earnest wish and1 of their own knowledge1 know how the ,constitution secures that status and their individual liberty4 ,shortly after the ,american people had chosen to be a nation with one government of enumerated powers1 there came to that then land of individual liberty an ,irish exile4 ,quickly he assumed his place with the great lawyers of ,america4 ,and in the year #ahbd he made clear that he would have been able to teach our new citizens and our public leaders how the one ,american people 8did at last secure a government0 which that one ,american people 8could control despite0 the state legislatures4 ,in the argument before the ,supreme ,court in the famous case of ,gibbons v4 ,ogden 7#i ,wheat4 #a1 at p4 #hg71 where his opponent was ,webster1 this is how ,emmett stated a fact then known and 8felt and acknowledged by all03 8,the ,constitution gives nothing to the states or to the people4 ,their rights existed before it was formed4444 ,the ,constitution gives only to the general government1 and1 so far as it operates on the state or popular rights1 it takes away a portion1 which it gives to the general government4444 ,but the states or the people must not be thereby excluded from exercise of any part of the sovereign or popular rights held by them before the adoption of the ,constitution except where that instrument has given it exclusively to the general government40 ,the italics are those of ,emmett4 ,what does this clear statement of fact 7known by ,emmett and his generation to be the exact statement of the ,tenth ,amendment7 make out of every argument1 whether for or against the ,eighteenth ,amendment1 based on the assumption that the ,fifth ,article does give something to the states and their governments8 ,can any ,american citizen doubt that it makes clear that to describe such arguments by any other word save 8nonsense0 is to lend them a dignity which they do not possess8 ,without a single exception1 every argument during the last five years1 whether for or against the ,eighteenth ,amendment1 has deserved the criticism of the ,supreme ,court for the fact that such argument neither knew nor considered the meaning of the ,tenth ,amendment4 ,it reads3 8,the powers not delegated to the ,united ,states by the ,constitution1 nor prohibited by it to the states1 are reserved to the states respectively1 or to the people40 ,the argument of counsel ignores the principal factor in this ,article1 to wit1 8the people40 ,its principal purpose was not the distribution of power between the ,united ,states and the states1 but a reservation to the people of all powers not granted4 ,the ,preamble of the ,constitution declares who framed it1--8,we the people of the ,united ,states10 not the people of one state1 but the people of all the states2 and ,article ,x reserves to the people of all the states the powers not delegated to the ,united ,states4 ,the powers affecting the internal affairs of the states not granted to the ,united ,states by the ,constitution1 nor prohibited by it to the states1 are reserved to the states respectively1 the power of each state for that state to its own people or citizens and all powers of a national character which are not delegated to the national government by the ,constitution are reserved to the people of the ,united ,states the one people or citizens of ,america1 that one ,american people which ,marshall so accurately knew4 ,the people who adopted the ,constitution1 knew that in the nature of things they could not forsee all the questions which might arise in the future1 all the circumstances which might call for the exercise of further national powers than those granted to the ,united ,states1 and1 after making provision for an ,amendment to the ,constitution by which any needed additional powers would be granted1 they reserved to themselves all powers not so delegated4 7,supreme ,court1 ,kansas v4 ,colorado1 #aijg1 #bjf ,u4 ,s4 #df at p4 #ij47 ,why has every argument1 for or against the new ,amendment1 ignored the simple and impressive fact that the one word 8conventions0 was written into the ,fifth ,article and the ,seventh ,article by the delegates at ,philadelphia1 very shortly after they had reasoned out and reached their famous legal decision as to the difference between the ability of 8conventions0 and the ability of 8state legislatures10 also named in the ,fifth ,article8 ,why completely ignore the decisive effect of this fact when considered with the fact1 that ,philadelphia mentioned 8conventions0 in both ,articles and only in the ,fifth mentioned 8state legislatures08 ,if we put ourselves exactly in the position of ,philadelphia when it was doing this1 we see at once why state 8legislatures0 are pointedly absent from the ,seventh ,article4 ,philadelphia knew the nature of the ,first ,article1 that it constituted government ability to interfere with individual freedom4 ,philadelphia knew that neither 8state legislatures0 nor any combination of governments can make an ,article of that kind in any land where men are 8citizens0 and not 8subjects40 ,that is why 8legislatures0 are not mentioned in the ,seventh ,article4 ,but ,philadelphia did not know the nature of any ,article which might be proposed at any particular time in the future by the body which was to perform the duty of proposing1 the duty which ,philadelphia was then performing4 ,and ,philadelphia knew that any future proposed ,article might be of the kind which state legislatures could make4 ,it was the conviction of ,hamilton that all future proposed ,articles would be of the kind that 8legislatures0 could make because they would be of the kind that did not relate to 8the mass of powers0 to interfere with individual liberty4 ,that is why ,philadelphia1 almost immediately after it had omitted any mention of 8legislatures0 in the ,seventh ,article1 did mention 8legislatures0 in the ,fifth ,article1 which related to the making of future ,articles whose nature ,philadelphia could not possibly know4 ,let us not forget what ,madison told us about the ,seventh ,article3 8,this ,article speaks for itself4 ,the express authority of the people alone could give due validity to the ,constitution40 7,fed4 #dc47 ,this is his statement that the ,article itself tells us that 8the express authority of the people0 will make the ,articles proposed from ,philadelphia4 ,how does the ,article speak for itself and tell us that8 ,by its one word 8conventions40 ,could ,madison tell us more plainly that the word 8conventions10 which he and his associates wrote into the ,seventh and which he wrote into the ,fifth ,article1 means 8the express authority of the people08 ,can any supporter of the ,eighteenth ,amendment find any statement from ,madison in which he tells us his word 8legislatures0 means what he has just told us his word 8conventions0 means8 ,and1 when 8conventions0 meant the 8express authority of the people0 before the ,fifth or ,seventh ,articles were written1 how could the mention of 8conventions0 in the ,fifth imply a grant from the 8conventions0 to the 8conventions08 ,why not admit the simple truth overlooked for the past five years8 ,the respective mentions of 8,congress10 of 8conventions0 and of state 8legislatures0 in the ,fifth ,article speak plainly of each body respectively doing something which it could do if there were no ,fifth ,article4 ,if there were no ,fifth ,article1 could not ,congress draft an ,article and propose it and propose a mode of ratification8 ,philadelphia did all these things and knew and stated that it exercised no power in doing any of them4 ,the mention of ,congress implies no 8grant40 ,on the contrary1 it is a command which prevents the rest of us from making such proposals and prevents 8conventions0 or state 8legislatures0 from making ,articles1 within their respective abilities1 unless proposed to them by 8two thirds of both houses of ,congress40 ,if there were no ,fifth ,article1 could not 8conventions0 make any kind of an article1 as they had made the ,national ,articles of #aggf and as they were making the ,articles of #aghg8 ,the mention of 8conventions0 implies no grant4 ,on the contrary1 it is a command telling the 8conventions0 that a 8,yes0 from three fourths of the 8conventions0 shall be necessary and sufficient for 8constitutional0 exercise of the power they have4 ,it is a great security for human freedom4 ,it makes very difficult oppression of the people by the people4 ,if there were no ,fifth ,article1 could not state 8legislatures0 make declaratory or federal ,articles1 which neither exercise nor create power to interfere with human individual freedom8 ,they had1 in #agha1 made an entire constitution of ,articles of that kind4 ,the mention of 8legislatures0 implies no 8grant40 ,on the contrary it is a command to these 8legislatures10 representing the members of the union of states4 ,the command comes from the superiors of the states1 the 8conventions0 of the whole ,american people4 ,it is not the only command which the 8conventions0 of that one people made to the states and their 8legislatures40 ,how absurd to imply from that command that it is a 8grant0 of power to those commanded governments1 giving them omnipotence over every human freedom of the ,american people who made the command6 ,we know what ,madison told the ,americans in the 8conventions10 when he asked them to make his ,fifth ,article4 ,he told them that it was a 8mode of procedure0 in which either the general government or the state governments could originate1 by proposal1 the introduction of changes into the ,constitution which is both national and federal4 ,he pointedly did not tell those ,americans that the ,fifth ,article is a 8grant0 of any ability to the state governments to make national ,articles and he pointedly did not tell them that it is a 8grant0 of ability to anyone to make any ,articles4 ,why then was it necessary for the leading brief1 in support of the ,eighteenth ,amendment1 to add to ,madison's explanation of his own ,fifth ,article 7the explanation that it was a 8mode of procedure07 the absurd statement that it was a 8grant0 from the 8conventions0 to the 8conventions0 and the state legislatures of power to make ,amendments8 ,why then was it necessary that this brief1 speaking of the ,fifth ,article1 should say3 8,the people thus ordained the mode of ,amendment10 exactly what ,madison said1 8and in their own interest they established this power of ,amendment0--exactly what ,madison pointedly omitted to state to the ,americans he asked to make the ,fifth ,article8 ,the answer is simple4 ,without adding to the ,madison statement what he pointedly omitted to state1 without stating the addition as axiomatic1 ,hughes could not even begin any argument for the ,eighteenth ,amendment4 ,the statement which ,hughes adds to that of ,madison is a statement which flatly contradicts everything we have heard in the 8conventions40 ,it flatly contradicts everything the ,americans did from #agge on4 ,it flatly contradicts the ,tenth ,amendment declaration that the ,fifth ,article gives no power whatever to the states or their governments4 ,the added statement is sheer 8nonsense10 assumed and asserted as axiomatic fact4 ,and1 during the last five years1 how has every argument against the ,eighteenth ,amendment met the 8nonsense0 of the assumption that the ,fifth ,article is a 8grant80 ,in no way at all1 except by assuming and asserting the same 8nonsense10 and by then undertaking to prove another absurdity1 namely1 that the ,fifth ,article does not relate to the making of fundamental changes because the imaginary 8grant0 is limited in extent and does not include power to take away from the importance of the respective political entities which are the states4 ,let no ,american citizen make any mistake as to this one fact4 ,in no argument either for or against the ,eighteenth ,amendment has there been any challenge to the sheer assumption that the ,fifth ,article is a 8grant0 of ability to make changes in the ,constitution which is both federal and national4 ,on the contrary1 in every argument1 the foundation of everything asserted and urged is that very assumption4 ,in every argument against the ,eighteenth ,amendment1 possible changes in the ,constitution 7which is both federal and national7 have been divided into two classes1 but not into the federal class and the national class4 ,it has been invariably contended that the first class include those which can be made under the imaginary 8grant0 of power in the ,fifth ,article and in the mode of procedure therein prescribed4 ,on the other hand1 it has been invariably contended that the other class includes those which cannot be made under that imaginary 8grant0 or in any ,,constitutional procedure because they take away from the citizens of a state their right to govern themselves4 ,all arguments alike1 whether for or against the ,eighteenth ,amendment1 have wholly ignored the fact that the citizens of ,america1 for the protection of the individual liberty of the one ,american people1 ,,in ,,that ,,character1 established the ,constitution and made it the supreme law over the citizens of the respective states and the states themselves and the state governments and the league of the states1 which the citizens of ,america continued as subordinate to their nation of men4 ,for this reason probably1 no argument1 on either side1 has ever recognized the identity of the 8conventions0 of the ,seventh ,article with the 8conventions0 of the ,fifth ,article4 ,for this reason probably1 no argument has ever recognized the identity of both 8conventions0 with the most important factor and reservee in the ,tenth ,amendment1 8the people0 of ,america1 as distinguished from the lesser reservees1 the peoples or citizens of each state1 8the states respectively40 ,it is this very failure to recognize this identity which has forced the opponents of the new ,amendment into the 8nonsense0 of assuming and asserting1 with their adversaries1 that the ,fifth ,article is a 8grant0 to the 8conventions0 and the state 8legislatures40 ,if there had not been this failure1 everyone would have recognized that the 8conventions10 which made the ,constitution1 neither could nor did 8grant0 to themselves1 the 8conventions0 named in the ,fifth ,article1 any or all of the very power which they were then exercising4 ,the 8nonsense0 of the concept of such a 8grant0 is patent once there is recognized the identity between the 8conventions0 with the most important reservee of the ,tenth ,amendment1 the one ,american people of ,marshall4 ,we all know that1 for five years1 that identity has never been known or mentioned4 ,the failure to know or to mention it has been emphasized by the occasional references to 8conventions0 which have been made4 ,in one or two arguments1 there has been passing attempt to support the 8nonsense10 that the ,fifth ,article is a 8grant10 but a 8grant0 limited in extent1 by a suggestion that the ,eighteenth ,amendment could be 8grafted0 on the ,constitution entirely outside of any mode of procedure mentioned in the ,constitution4 ,the suggestion has been that it could be 8grafted0 on the ,constitution by 8conventions0 of the citizens of each state1 provided that the citizens of every state gave their consent4 ,in these suggestions1 we ourselves1 the citizens of ,america1 the whole ,american people of ,marshall1 have figured not at all4 ,we1 who are the citizens of ,america1 must now realize the vital importance to our personal liberty of our own knowledge that we are citizens of ,america as well as citizens of some particular state4 ,wilson pointed out to the ,americans in the ,pennsylvania convention the dual capacity of the ,american1 if the new ,constitution were adopted4 ,we remember his statement that 8it was necessary to observe the two-fold relation in which the people would stand--first as citizens of the general government and1 secondly1 as citizens of their particular state4 ,the general government was meant for them in the first capacity2 the state governments in the second4 ,both governments were derived from the people2 both meant for the people2 both therefore ought to be regulated on the same principles40 ,and we remember the one most important ,american principle1 that every government in ,america must get1 directly from its own citizens1 every power to interfere with their individual freedom4 ,we cannot help contrasting the accurate statement of ,wilson1 8in this ,constitution the citizens of ,america appear dispensing a portion of their power10 with what must be the modern statement1 if the ,eighteenth ,amendment is in the ,constitution1 namely1 8in this ,constitution the state governments appear dispensing to themselves and to the national government another portion of the power of the citizens of ,america40 ,and1 if that modern statement is 8nonsense10 what else but 8nonsense0 are the arguments which rely upon its truth or which do not point out its absurdity8 ,what action of our public leaders1 even in this year #aibc1 does not disclose that they still have the ,tory concept that states and their governments1 both of which are political entities1 can exercise or grant power which the ,tenth ,amendment expressly declares that the ,american citizens reserved exclusively to themselves1 and which the ,supreme ,court1 even as late as #aijg1 clearly held 8could be exercised only by them or upon further grant from them80 ,no discerning ,american has failed to note that the ,senate still clings to the delusion of #aiag1 that states and their citizens and their governments have anything whatever to do with the national part of the ,constitution of the citizens of ,america4 ,in the newspapers1 on ,january #cj1 #aibc1 under the heading1 8,favor ,new ,defense for ,constitution10 appeared a dispatch from ,washington4 ,it told how the senators on the ,judiciary ,sub-,committee had agreed to report favorably a proposal again to amend the ,constitution by changing the language of the ,fifth ,article4 ,and the main element of the proposed change is to provide that any state may require that ratification by its legislature be subject to confirmation by popular vote of the citizens of that state4 ,the citizens of each state make their own ,constitution4 ,in it1 they give to their own government what ability they please to interfere with their own individual freedom4 ,what have the citizens of any ,state1 what have the citizens of every state1 in their capacity as state citizens1 to do with grants of power to the ,american government to interfere with the individual liberty of the ,american citizens8 ,have not the ,american citizens1 in every state1 protection against grants of such power to the one government of the ,american people except by the citizens of ,america themselves1 in that character8 ,is there anything in the ,fifth ,article1 as it was written by ,madison and made by the one ,american people1 which permits any state governments--which have no power even over their own respective citizens except by grant from them--to exercise or create new government power to interfere with the liberty of the citizens of the distinct and supreme nation1 ,america8 ,why persistently and insistently ignore the basic ,american legal principle that every state government must get its own power over its own citizens from them and that the only government of the ,american citizens must get its every national 7as distinguished from federal7 power directly from the citizens of ,america1 assembled in the 8conventions0 named in the ,fifth ,article8 ,is there any doubt that ,madison1 who wrote the ,fifth ,article1 knew whom its word 8conventions0 described8 ,when he asked the one ,american people to make the entire ,constitution1 this is what he told them about the ,seventh ,article1 in which the same word 8conventions0 was used3 8,this ,article speaks for itself4 ,the express authority of the people alone could give due validity to the ,constitution40 ,if the ,seventh ,article 8speaks for itself0 and points out that 8the people alone0 are to make the ,constitution1 with its grants of national power in the ,first ,article1 what word in that ,seventh ,article identifies the makers of the ,constitution1 which ,madison and all ,americans know was made by the one people of ,america8 ,is there any word in it except the one word 8conventions0 to describe the people or citizens of ,america8 ,and if that one word 8conventions0 makes the ,article speak for itself and tell us that the ,american citizens themselves made the whole ,constitution1 does not the word 8conventions0 in the ,fifth ,article speak just as plainly for itself and tell us that it also describes and identifies the one people of ,america1 the citizens of ,america8 ,why then tinker with the ,fifth ,article and repeat the monumental error on which the existence of the ,eighteenth ,amendment is assumed8 ,why propose an ,amendment to the ,fifth ,article1 which ,amendment will itself assume that the ,fifth ,article already is a 8grant0 to the state legislatures of ability to give away from the citizens of ,america their exclusive power to say to what extent and in what matters their one ,american government may interfere with their individual freedom in their character as ,american citizens8 ,why not be sane and admit that the ,fifth ,article is not a 8grant0 to the legislatures of state citizens8 ,it is settled fact that each such legislature1 like every legislature in ,america1 must get its every power to govern its own citizens from its own citizens4 ,that is why the ,fourth ,article guarantee of 8a ,republican ,form of ,government0 to every state has taught us 7pp4 #bej-a7 the absurdity of the thought that the ,fifth ,article enables state governments outside ,rhode ,island to give its government power to interfere with the individual freedom of citizens of ,rhode ,island4 ,and there is a further and more monumental absurdity1 in this same respect1 when we contrast this ,fourth ,article guarantee with the assumption that the ,fifth ,article is a 8grant0 to the state legislatures4 ,one of the great purposes for which the whole ,american people made themselves one nation of men was that the strength of such a great nation might be used to secure to the ,americans in every state the ability to govern themselves without any interference from outside the state1 in all matters except those in which the citizens of ,america took from them the ability to govern themselves4 ,that is why the citizens of ,america wrote that guarantee into the ,fourth ,article as a command to their inferiors1 the states and the state governments4 ,having thus secured 8a ,republican ,form of ,government0 to the ,americans in every state by the command of the ,fourth ,article1 is it conceivable that the same whole ,american people1 immediately thereafter and in the ,fifth ,article1 created for the citizens of ,america a government which has not even the semblance of 8a ,republican ,form of ,government08 ,that is the concept on which the existence of the ,eighteenth ,amendment depends4 ,it is not in the ,constitution unless1 immediately after the guarantee of the ,fourth ,article and in the ,fifth ,article1 the whole people of ,america said3 8,we have just insisted that the ,americans in each state must be governed by a government which gets its power directly from them4 ,for ourselves1 however1 as the whole ,american people1 we are content to let two thirds of ,congress and the legislatures of three fourths of the states interfere with our individual freedom1 in all matters whatsoever4 ,for that reason1 we make this grant to those legislatures4 ,for ourselves1 as one people1 we have no desire for a ,republican ,form of ,government40 ,does not the claim that the ,americans did say this in their ,fifth ,article entitle us more justly than ,henry to exclaim3 8,i suppose that ,i am mad1 or that my countrymen are so60 7#c ,ell4 ,deb4 #ddf47 ,we know1 with certainty1 that the ,eighteenth ,amendment is not in our ,constitution1 and we know that the real and invincible challenge to its existence has never been made4 ,what will be the epitaph of the audacious attempt of government to dictate to ,americans as 8subjects10 when the challenge is presented to the ,supreme ,court8 ,no patriotic ,american can have the slightest doubt4 ,no man1 familiar with its history and traditions1 can fail to know the answer of that ,court to the question1 8,citizen or ,subject80 ,it is not unknown that there is growing up in ,america1 even among many public leaders and lawyers1 an unfounded concept that the ,supreme ,court was created by the ,american citizens to make law4 ,such concept is quite in accord with the concept--indeed it is part of the concept--that government can create and constitute new government of men4 ,but the entire history and tradition of the ,supreme ,court flatly denies the existence of any such concept in the mind of the ,court itself4 ,even in the ,national ,prohibition ,cases1 the ,court quickly displayed the ,american concept of the relation of men to all governments in ,america4 ,when the lawyers had finished their incessant talk about the imaginary ,fifth ,article 8grant0 which would make all ,american citizens 8subjects0 of some governments of state citizens1 had the ,tory concept of such a grant made the slightest impression upon the mind of the ,court8 ,we all know that in the decisions1 which merely negatived four unsound challenges to the ,amendment1 the first statement of the ,court was a reference to the power 8,,reserved0 in the ,fifth ,article4 ,and we know how1 in the same litigations1 the ,court wholly ignored the absurd claim1 even when advanced by a former justice of the ,court1 that1 when governments had attempted to put anything into our ,constitution1 so long as the attempt did not involve changing the number of senators from a state1 the ,court was without power to review the action of governments or to protect the ,american citizen against usurpation by government4 ,the ,constitution is not only the same in words1 but the same in meaning1 and delegates the same powers to the government1 and reserves and secures the same rights and privileges to the citizen1 and as long as it continues to exist in its present form1 it speaks not only in the same words1 but with the same meaning and intent with which it spoke when it came from the hands of its framers and was voted on and adopted by the people of the ,united ,states4 ,any other rule of construction would abrogate the judicial character of the ,court1 and make it the mere reflex of the popular opinion or passion of the day4 ,this ,court was not created by the ,constitution for such purposes4 ,higher and graver trusts have been confided to it1 and it must not falter in the path of duty4 7,scott v4 ,sandford1 #ai ,how4 #cic1 at p4 #dbf47 ,the high power has been conferred upon this ,court of passing judgment upon the acts of the state sovereignties and of the legislative and executive branches of the federal government1 of determining whether they are beyond the limits of power marked out for them respectively by the ,constitution of the ,united ,states4 7,luther v4 ,borden1 #ahdi1 #g ,how4 #a at p4 #dg47 ,the ,court will never be called upon to exercise a higher or graver trust than to answer the question 8,citizen or ,subject801 when the real challenge is made to the new attempted constitution of government of men entirely by government4 ,the ,court is not unaware that the whole ,american people established their ,constitution for the one purpose of protecting individual liberty4 ,the simple1 classical1 precise1 yet comprehensive language in which it is couched1 leaves1 at most1 but very little latitude for construction2 and when its intent and meaning is discovered1 nothing remains but to execute the will of those who made it1 in the best manner to effect the purposes intended4 ,the great and paramount purpose was to unite this mass of wealth and power1 for the protection of the humblest individual2 his rights1 civil and political1 his interests and prosperity1 are the sole end2 the rest are nothing but the means4 7,justice ,johnson1 ,gibbons v4 ,ogden1 #i ,wheat4 #a1 at p4 #bbc47 ,nor will anyone familiar with the unbroken tradition of the ,supreme ,court listen1 with aught but mingled incredulity and indignation1 to the suggestion that the ,court itself has not always understood that it is itself but a part of the limited government of the one ,american people1 created by that people as one means to that sole end4 8,it is emphatically the province and duty of the ,judiciary ,department to say what the law is40 ,this is the clear statement of ,marshall in ,marbury v4 ,madison1 #a ,cranch4 #acg1 declaring unconstitutional a section of an act of ,congress1 which had been passed at the first session in #aghi4 ,the entire ,bench and ,bar of ,america1 including the ,supreme ,court1 for fourteen years1 had practiced on the assumption that the section was constitutional4 ,yet in #ahjc1 the ,supreme ,court declared it to be unconstitutional4 ,nothing could more clearly establish the knowledge of the ,supreme ,court that no continued thought 7even by the ,court itself71 that any command of legislatures is valid1 will ever blind the ,court to its bounden duty to announce the fact that the command was made without authority from the people1 when that fact is once made clear to the ,court4 ,exactly the same attitude was taken by the ,court in relation to an income tax and a federal limitation on a national power given to impose direct taxation4 ,when that federal limitation was imposed it was aimed only at taxation on land and at what were then known as 8poll0 or 8capitation0 taxes4 ,in the days of the 8conventions0 where we have sat1 all other kinds of taxation were deemed to be indirect taxation4 ,in the very early days of the ,supreme ,court1 this knowledge of the 8convention0 days was echoed in decisions which1 on that ground1 held that certain taxes1 which today might be regarded as direct taxation1 were not within the federal limitation as to apportionment of direct taxes among the states4 ,among those taxes1 those imposed without apportionment1 were a tax on carriages and receipts of insurance companies and on the inheritance of real estate4 ,even as late as the days of the ,civil ,war1 when a tax was imposed upon incomes and without apportionment among states1 the ,supreme ,court held that such tax was not a direct tax within the meaning of 8direct tax0 to those who imposed the federal limitation4 ,nevertheless1 when the income tax law of #ahid had been enacted1 its opponents again carried to the ,supreme ,court the claim that it violated the federal limitation on the power of direct taxation1 because it did not apportion the tax among the states4 ,and the ,supreme ,court1 by a divided vote and on the ground that a tax on the income from land was a tax on the land itself and consequently a direct tax1 held the ,income ,tax ,law of #ahid to be void4 ,it was by reason of this decision that the ,sixteenth ,amendment was proposed and adopted1 making the federal change in the ,constitution that lifted the federal limitation from the national power of direct taxation insofar as a tax on incomes was concerned4 ,in these decisions1 as in the many others which have followed the same clear ,american concept of duty and power1 the ,supreme ,court has always known and followed the reason stated by ,hamilton for its existence as part of the limited government of the one ,american people4 ,in ,federalist1 ,nos4 #gh and #ha1 appealing to the ,americans to make the ,constitution1 ,hamilton points out that the ,constitution does not authorize the ,supreme ,court to exercise its will to make the law what the ,court thinks it ought to be1 but does impose upon the ,court the duty of exercising its judgment to ascertain what the law has been made by those competent to make it4 ,and then he points out that the ,supreme ,court1 in this ,constitution of a self-governing people1 is made the great bulwark of the people against legislative encroachment upon the rights or powers of the people reserved to themselves4 ,this knowledge of ,hamilton has been the knowledge of the ,supreme ,court from its institution4 ,it has been reiterated and explained and expounded in that ,court from the days of ,marshall to our own day4 ,it has become part and parcel of the great traditions of that ,court1 which are the foundation of the great respect which the average ,american citizen pays to its decisions and its authority as his own great protection against usurpation of power by other departments of his various governments4 ,and so the average ,american citizen will look forward with certainty to the decision of that ,court when the real challenge is made to the existence of the ,eighteenth ,amendment by an ,american who does know and assert the plain facts which mean that either there is no ,eighteenth ,amendment or there never has been an ,american citizen4 ,it is simple fact that the existence of the ,eighteenth ,amendment1 that government-made constitution of government of men1 is absolutely incompatible with the existence of a citizen of ,america4 ,it is simple fact that the ,fifth ,article did not grant to state governments or to any governments the ability to make ,articles like the ,first ,article or the ,eighteenth ,amendment1 or else the ,fifth ,article made all ,americans 8subjects0 of a part of the state governments1 with omnipotent ability in those governments to legislate for ,americans 8in all matters whatsoever40 ,and it is simple fact that the ,supreme ,court must and will--when the real challenge is at last made--decide that the ,eighteenth ,amendment is not in the national part of the ,american ,constitution because it was made by governments and not by the 8conventions0 of the ,fifth ,article4 ,otherwise1 in the face of history1 in the face of the record of the 8conventions0 of the ,american citizens1 and in the face of all that the ,supreme ,court has hitherto decided1 the ,court must decide that the ,american citizen has never existed4 ,the possibility that there should be such a decision is absolutely beyond conception4 ,what the decision will be was long ago foreshadowed and forecast by ,daniel ,webster4 ,it would almost seem as if ,webster had heard the ,sheppard claim that the states made the ,constitution and that the states had then agreed between themselves that the governments of thirty-six of the states1 in combination1 could command the ,american citizen in any matter of his individual freedom4 ,it would almost seem as if ,webster had heard ,hughes deny1 while his associate lawyers for the ,eighteenth ,amendment still asserted with ,sheppard1 that the ,constitution was a compact between states and then had heard them all insist that the ,fifth ,article was a 8grant0 which made thirty-six governments of state citizens an omnipotent ,parliament over all citizens of ,america4 8,when the gentleman says1 the ,constitution is a compact between the states1 he uses language exactly applicable to the old ,confederation4 ,he speaks as if he were in ,congress before #aghi4 ,he describes fully that old state of things then existing4 ,the ,confederation was1 in strictness1 a compact2 the states1 as states1 were parties to it4 ,we had no other general government4 ,but that was found insufficient1 and inadequate to the public exigencies4 ,the people were not satisfied with it1 and undertook to establish a better4 ,they undertook to form a general government which would stand on a new basis--not a confederacy1 not a league1 not a compact between states1 but a constitution2 a popular government1 founded in popular election1 directly responsible to the people themselves1 and divided into branches1 with prescribed limits of power1 and prescribed duties4 ,they ordained such a government2 they gave it the name of a constitution2 and therein they established a distribution of powers between this1 their general government1 and their several state governments4 ,when they shall have become dissatisfied with this distribution1 they can alter it4 ,their own power over their own instrument remains4 ,but until they shall alter it1 it must stand as their will1 and is equally binding on the general government and on the states40 7,webster's concluding remarks in the reply to ,hayne1 #d ,ell4 ,deb4 #eah47 ,is not the same doctrine certain from the ,court which knew the whole ,constitution so well that it decided1 in the important case of ,barron v4 ,mayor of ,baltimore1 supra1 p4 #cgf1 that the entire ,constitution gave no power of any kind to the state governments8 ,is not the same doctrine certain from the ,court which held3 ,the powers the people have given to the ,general ,government are named in the ,constitution1 and all not there named1 either expressly or by implication1 are reserved to the people1 and can be exercised only by them1 or upon further grant from them4 7,turner v4 ,williams1 #aid ,u4 ,s4 #bgi at #bif47 ,when the real challenge to the ,eighteenth ,amendment is presented before that ,court1 it will be necessary for the defenders of the ,amendment to abandon the disguise in which they attempt to conceal the real nature of their ,tory concept4 ,no one of them has been bold enough to state in words the real claim about the ,fifth ,article4 ,that real claim is that the ,article is a 8grant0 and that the 8grant0 gives to thirty-six governments of state citizens unrestricted ability to interfere with the freedom of the ,american citizen on every subject enumerated in the ,first ,article and on every subject not enumerated in the ,first ,article4 ,that is not the way any defender of the ,amendment states his claim4 ,it is always stated that those thirty-six governments can change the ,constitution by putting into it anything which the ,american citizens1 assembled in their 8conventions10 can put into it4 ,our education with the ,americans in the 8conventions0 has taught us that both statements are exactly the same statement4 ,if the thirty-six state governments can make the command to the ,american citizens which is embodied in the ,first ,section of the ,eighteenth ,amendment1 by putting that command into the national part of our ,constitution1 any thirty-six state legislatures can make any command to the ,american citizens on any subject enumerated or not enumerated in the ,first ,article4 ,the claim1 that the ,fifth ,article 8grants0 to the thirty-six state governments the right to put the command in the ,constitution1 is identical with the claim that the ,fifth ,article 8grants0 to the state governments the right to make the command to the citizens of ,america4 ,a legislative command to human beings1 interfering with their individual freedom1 is a legislative command by whatever name it may be called4 ,mere omission to call a legislative command by the usual names1 an 8,act0 or 8,statute10 cannot alter its essential nature4 ,from ,june #bast1 #aghh1 the birthday of the ,american nation of men1 there has been but one possible answer to the question which is the title of this book4 ,that one answer was known to everyone in the 8conventions0 which made the ,fifth ,article4 ,the ,americans in those conventions all knew that they were becoming 8citizens0 of ,america1 not 8subjects0 of any governments4 ,they knew that they were dispensing part of the power of the ,american citizens to ,congress in the ,first ,article2 and that the rest of that power they were reserving to themselves4 ,they knew that they were giving no power whatever to the state governments with whom they never deal except to command those governments4 ,that is why ,pendleton1 in the ,virginia convention1 made his statement of fact in the oratorical form of a question1 because the one answer to the question was known and 8felt and acknowledged by all40 ,his statement of fact1 made in the oratorical form of a question1 is1 in substance1 exactly the title of this book3 8,who but the people can delegate powers8444 ,what have the state governments to do with it80 7#c ,ell4 ,deb4 #cg47 ,,appendices ,,appendix ,i ,,the ,,original ,,constitution ,,of ,,the ,,united ,,states ,we the ,people of the ,united ,states1 in ,order to form a more perfect ,union1 establish ,justice1 insure domestic ,tranquility1 provide for the common defence1 promote the general ,welfare1 and secure the ,blessings of ,liberty to ourselves and our ,posterity1 do ordain and establish this ,constitution for the ,united ,states of ,america4 ,article4 ,i4 ,section1 #a4 ,all legislative ,powers herein granted shall be vested in a ,congress of the ,united ,states1 which shall consist of a ,senate and ,house of ,representatives4 ,section4 #b4 ,the ,house of ,representatives shall be composed of ,members chosen every second ,year by the ,people of the several ,states1 and the ,electors in each ,state shall have the ,qualifications requisite for ,electors of the most numerous ,branch of the ,state ,legislature4 ,no ,person shall be a ,representative who shall not have attained to the ,age of twenty five ,years1 and been seven ,years a ,citizen of the ,united ,states1 and who shall not1 when elected1 be an ,inhabitant of that ,state in which he shall be chosen4 ,representatives and direct ,taxes shall be apportioned among the several ,states which may be included within this ,union1 according to their respective ,numbers1 which shall be determined by adding to the whole ,number of free ,persons1 including those bound to ,service for a ,term of ,years1 and excluding ,indians not taxed1 three fifths of all other ,persons4 ,the actual ,enumeration shall be made within three ,years after the first ,meeting of the ,congress of the ,united ,states1 and within every subsequent ,term of ten ,years1 in such ,manner as they shall by ,law direct4 ,the ,number of ,representatives shall not exceed one for every thirty ,thousand1 but each ,state shall have at ,least one ,representative2 and until such enumeration shall be made1 the ,state of ,new ,hampshire shall be entitled to chuse three1 ,massachusetts eight1 ,rhode-,island and ,providence ,plantations one1 ,connecticut five1 ,new-,york six1 ,new ,jersey four1 ,pennsylvania eight1 ,delaware one1 ,maryland six1 ,virginia ten1 ,north ,carolina five1 ,south ,carolina five1 and ,georgia three4 ,when vacancies happen in the ,representation from any ,state1 the ,executive ,authority thereof shall issue ,writs of ,election to fill such ,vacancies4 ,the ,house of ,representatives shall chuse their ,speaker and other ,officers2 and shall have the sole ,power of ,impeachment4 ,section4 #c4 ,the ,senate of the ,united ,states shall be composed of two ,senators from each ,state1 chosen by the ,legislature thereof1 for six ,years2 and each ,senator shall have one ,vote4 ,immediately after they shall be assembled in ,consequence of the first ,election1 they shall be divided as equally as may be into three ,classes4 ,the ,seats of the ,senators of the first ,class shall be vacated at the ,expiration of the second ,year1 of the second ,class at the ,expiration of the fourth ,year1 and of the third ,class at the ,expiration of the sixth ,year1 so that one third may be chosen every second ,year2 and if ,vacancies happen by ,resignation1 or otherwise1 during the ,recess of the ,legislature of any ,state1 the ,executive thereof may make temporary ,appointments until the next ,meeting of the ,legislature1 which shall then fill such ,vacancies4 ,no ,person shall be a ,senator who shall not have attained to the ,age of thirty ,years1 and been nine ,years a ,citizen of the ,united ,states1 and who shall not1 when elected1 be an ,inhabitant of that ,state for which he shall be chosen4 ,the ,vice ,president of the ,united ,states shall be ,president of the ,senate1 but shall have no ,vote1 unless they be equally divided4 ,the ,senate shall chuse their other ,officers1 and also a ,president pro tempore1 in the ,absence of the ,vice ,president1 or when he shall exercise the ,office of ,president of the ,united ,states4 ,the ,senate shall have the sole ,power to try all ,impeachments4 ,when sitting for that ,purpose1 they shall be on ,oath or ,affirmation4 ,when the ,president of the ,united ,states is tried the ,chief ,justice shall preside3 ,and no ,person shall be convicted without the ,concurrence of two thirds of the ,members present4 ,judgment in ,cases of ,impeachment shall not extend further than to removal from ,office1 and disqualification to hold and enjoy any ,office of honor1 ,trust or ,profit under the ,united ,states3 but the ,party convicted shall nevertheless be liable and subject to ,indictment1 ,trial1 ,judgment and ,punishment1 according to ,law4 ,section4 #d4 ,the ,times1 ,places and ,manner of holding ,elections for ,senators and ,representatives1 shall be prescribed in each ,state by the ,legislature thereof2 but the ,congress may at any time by ,law make or alter such ,regulations1 except as to the ,places of chusing ,senators4 ,the ,congress shall assemble at least once in every ,year1 and such ,meeting shall be on the first ,monday in ,december1 unless they shall by ,law appoint a different ,day4 ,section4 #e4 ,each ,house shall be the ,judge of the ,elections1 ,returns and ,qualifications of its own ,members1 and a ,majority of each shall constitute a ,quorum to do ,business2 but a smaller ,number may adjourn from day to day1 and may be authorized to compel the ,attendance of absent ,members1 in such ,manner1 and under such ,penalties as each ,house may provide4 ,each ,house may determine the ,rules of its ,proceedings1 punish its ,members for disorderly ,behaviour1 and1 with the ,concurrence of two thirds1 expel a ,member4 ,each ,house shall keep a ,journal of its ,proceedings1 and from time to time publish the same1 excepting such ,parts as may in their ,judgment require ,secrecy2 and the ,yeas and ,nays of the ,members of either ,house on any question shall1 at the ,desire of one fifth of those ,present1 be entered on the ,journal4 ,neither ,house1 during the ,session of ,congress1 shall1 without the ,consent of the other1 adjourn for more than three days1 nor to any other ,place than that in which the two ,houses shall be sitting4 ,section4 #f4 ,the ,senators and ,representatives shall receive a ,compensation for their ,services1 to be ascertained by ,law1 and paid out of the ,treasury of the ,united ,states4 ,they shall in all ,cases1 except ,treason1 ,felony and ,breach of the ,peace1 be privileged from ,arrest during their ,attendance at the ,session of their respective ,houses1 and in going to and returning from the same2 and for any ,speech or ,debate in either ,house1 they shall not be questioned in any other ,place4 ,no ,senator or ,representative shall1 during the ,time for which he was elected1 be appointed to any civil ,office under the ,authority of the ,united ,states1 which shall have been created1 or the ,emoluments whereof shall have been encreased during such time2 and no ,person holding any ,office under the ,united ,states1 shall be a ,member of either ,house during his ,continuance in ,office4 ,section4 #g4 ,all ,bills for raising ,revenue shall originate in the ,house of ,representatives2 but the ,senate may propose or concur with ,amendments as on other ,bills4 ,every ,bill which shall have passed the ,house of ,representatives and the ,senate1 shall1 before it become a ,law1 be presented to the ,president of the ,united ,states2 ,if he approve he shall sign it1 but if not he shall return it1 with his ,objections to that ,house in which it shall have originated1 who shall enter the ,objections at large on their ,journal1 and proceed to reconsider it4 ,if after such ,reconsideration two thirds of that ,house shall agree to pass the ,bill1 it shall be sent1 together with the ,objections1 to the other ,house1 by which it shall likewise be reconsidered1 and if approved by two thirds of that ,house1 it shall become a ,law4 ,but in all such ,cases the ,votes of both ,houses shall be determined by yeas and ,nays1 and the ,names of the ,persons voting for and against the ,bill shall be entered on the ,journal of each ,house respectively4 ,if any ,bill shall not be returned by the ,president within ten ,days 7,sundays excepted7 after it shall have been presented to him1 the ,same shall be a ,law1 in like ,manner as if he had signed it1 unless the ,congress by their ,adjournment prevent its ,return1 in which ,case it shall not be a ,law4 ,every ,order1 ,resolution1 or ,vote to which the ,concurrence of the ,senate and ,house of ,representatives may be necessary 7except on a question of ,adjournment7 shall be presented to the ,president of the ,united ,states2 and before the ,same shall take ,effect1 shall be approved by him1 or being disapproved by him1 shall be repassed by two thirds of the ,senate and ,house of ,representatives1 according to the ,rules and ,limitations prescribed in the ,case of a ,bill4 ,section4 #h4 ,the ,congress shall have ,power ,to lay and collect ,taxes1 ,duties1 ,imposts and ,excises1 to pay the ,debts and provide for the common ,defence and general ,welfare of the ,united ,states2 but all ,duties1 ,imposts and ,excises shall be uniform throughout the ,united ,states2 ,to borrow ,money on the credit of the ,united ,states2 ,to regulate ,commerce with foreign ,nations1 and among the several ,states1 and with the ,indian ,tribes2 ,to establish an uniform ,rule of ,naturalization1 and uniform ,laws on the subject of ,bankruptcies throughout the ,united ,states2 ,to coin ,money1 regulate the ,value thereof1 and of foreign ,coin1 and fix the ,standard of ,weights and ,measures2 ,to provide for the ,punishment of counterfeiting the ,securities and current ,coin of the ,united ,states2 ,to establish ,post ,offices and post ,roads2 ,to promote the ,progress of ,science and useful ,arts1 by securing for limited ,times to ,authors and ,inventors the exclusive ,right to their respective ,writings and ,discoveries2 ,to constitute ,tribunals inferior to the supreme ,court2 ,to define and punish ,piracies and ,felonies committed on the high ,seas1 and ,offences against the ,law of ,nations2 ,to declare ,war1 grant ,letters of ,marque and ,reprisal1 and make ,rules concerning ,captures on ,land and ,water2 ,to raise and support ,armies1 but no ,appropriation of ,money to that ,use shall be for a longer ,term than two ,years2 ,to provide and maintain a ,navy2 ,to make ,rules for the ,government and ,regulation of the land and naval ,forces2 ,to provide for calling forth the ,militia to execute the ,laws of the ,union1 suppress ,insurrections and repel ,invasions2 ,to provide for organizing1 arming1 and disciplining1 the ,militia1 and for governing such ,part of them as may be employed in the ,service of the ,united ,states1 reserving to the ,states respectively1 the ,appointment of the ,officers1 and the ,authority of training the ,militia according to the discipline prescribed by ,congress2 ,to exercise exclusive ,legislation in all ,cases whatsoever1 over such ,district 7not exceeding ten ,miles square7 as may1 by ,cession of particular ,states1 and the ,acceptance of ,congress1 become the ,seat of the ,government of the ,united ,states1 and to exercise like ,authority over all ,places purchased by the ,consent of the ,legislature of the ,state in which the ,same shall be1 for the ,erection of ,forts1 ,magazines1 ,arsenals1 dock-,yards1 and other needful ,buildings2--,and ,to make all ,laws which shall be necessary and proper for carrying into ,execution the foregoing ,powers1 and all other ,powers vested by this ,constitution in the ,government of the ,united ,states1 or in any ,department or ,officer thereof4 ,section4 #i4 ,the ,migration or ,importation of such ,persons as any of the ,states now existing shall think proper to admit1 shall not be prohibited by the ,congress prior to the ,year one thousand eight hundred and eight1 but a ,tax or duty may be imposed on such ,importation1 not exceeding ten dollars for each ,person4 ,the ,privilege of the ,writ of ,habeas ,corpus shall not be suspended1 unless when in ,cases of ,rebellion or ,invasion the public ,safety may require it4 ,no ,bill of ,attainder or ex post facto ,law shall be passed4 ,no ,capitation1 or other direct1 ,tax shall be laid1 unless in ,proportion to the ,census or ,enumeration herein before directed to be taken4 ,no ,tax or ,duty shall be laid on ,articles exported from any ,state4 ,no ,preference shall be given by any ,regulation of ,commerce or ,revenue to the ,ports of one ,state over those of another3 nor shall ,vessels bound to1 or from1 one ,state1 be obliged to enter1 clear1 or pay ,duties in another4 ,no ,money shall be drawn from the ,treasury1 but in ,consequence of ,appropriations made by ,law2 and a regular ,statement and ,account of the ,receipts and ,expenditures of all public ,money shall be published from time to time4 ,no ,title of ,nobility shall be granted by the ,united ,states3 ,and no ,person holding any ,office of ,profit or ,trust under them1 shall1 without the ,consent of the ,congress1 accept of any present1 ,emolument1 ,office1 or ,title1 of any kind whatever1 from any ,king1 ,prince1 or foreign ,state4 ,section4 #aj4 ,no ,state shall enter into any ,treaty1 ,alliance1 or ,confederation2 grant ,letters of ,marque and ,reprisal2 coin ,money2 emit ,bills of ,credit2 make any ,thing but gold and silver ,coin a ,tender in ,payment of ,debts2 pass any ,bill of ,attainder1 ex post facto ,law1 or ,law impairing the ,obligation of ,contracts1 or grant any ,title of ,nobility4 ,no ,state shall1 without the ,consent of the ,congress1 lay any ,imposts or ,duties on ,imports or ,exports1 except what may be absolutely necessary for executing it's inspection ,laws3 and the net ,produce of all ,duties and ,imposts1 laid by any ,state on ,imports or ,exports1 shall be for the ,use of the ,treasury of the ,united ,states2 and all such ,laws shall be subject to the ,revision and ,controul of the ,congress4 ,no ,state shall1 without the ,consent of ,congress1 lay any ,duty of ,tonnage1 keep ,troops1 or ,ships of ,war in time of ,peace1 enter into any ,agreement or ,compact with another ,state1 or with a foreign ,power1 or engage in ,war1 unless actually invaded1 or in such imminent ,danger as will not admit of delay4 ,article4 ,,ii4 ,section4 #a4 ,the executive ,power shall be vested in a ,president of the ,united ,states of ,america4 ,he shall hold his ,office during the ,term of four ,years1 and1 together with the ,vice ,president1 chosen for the same ,term1 be elected1 as follows3 ,each ,state shall appoint1 in such ,manner as the ,legislature thereof may direct1 a ,number of ,electors1 equal to the whole ,number of ,senators and ,representatives to which the ,state may be entitled in the ,congress3 but no ,senator or ,representative1 or ,person holding an ,office of ,trust or ,profit under the ,united ,states1 shall be appointed an ,elector4 ,the ,electors shall meet in their respective ,states1 and vote by ,ballot for two ,persons1 of whom one at least shall not be an ,inhabitant of the same ,state with themselves4 ,and they shall make a ,list of all the ,persons voted for1 and of the ,number of ,votes for each2 which ,list they shall sign and certify1 and transmit sealed to the ,seat of the ,government of the ,united ,states1 directed to the ,president of the ,senate4 ,the ,president of the ,senate shall1 in the ,presence of the ,senate and ,house of ,representatives1 open all the ,certificates1 and the ,votes shall then be counted4 ,the ,person having the greatest ,number of ,votes shall be the ,president1 if such ,number be a ,majority of the whole ,number of ,electors appointed2 and if there be more than one who have such ,majority1 and have an equal ,number of ,votes1 then the ,house of ,representatives shall immediately chuse by ,ballot one of them for ,president2 and if no ,person have a ,majority1 then from the five highest on the ,list the said ,house shall in like ,manner chuse the ,president4 ,but in chusing the ,president1 the ,votes shall be taken by ,states1 the ,representation from each ,state having one ,vote2 ,a quorum for this ,purpose shall consist of a ,member or ,members from two thirds of the ,states1 and a ,majority of all the ,states shall be necessary to a ,choice4 ,in every ,case1 after the ,choice of the ,president1 the ,person having the greatest ,number of ,votes of the ,electors shall be the ,vice ,president4 ,but if there should remain two or more who have equal ,votes1 the ,senate shall chuse from them by ,ballot the ,vice ,president4 ,the ,congress may determine the ,time of chusing the ,electors1 and the ,day on which they shall give their ,votes2 which ,day shall be the same throughout the ,united ,states4 ,no ,person except a natural born ,citizen1 or a ,citizen of the ,united ,states1 at the time of the ,adoption of this ,constitution1 shall be eligible to the ,office of ,president2 neither shall any ,person be eligible to that ,office who shall not have attained to the ,age of thirty-five ,years1 and been fourteen ,years a ,resident within the ,united ,states4 ,in ,case of the ,removal of the ,president from ,office1 or of his ,death1 ,resignation1 or ,inability to discharge the ,powers and ,duties of the said ,office1 the ,same shall devolve on the ,vice ,president1 and the ,congress may by ,law provide for the ,case of ,removal1 ,death1 ,resignation or ,inability1 both of the ,president and ,vice ,president1 declaring what ,officer shall then act as ,president1 and such ,officer shall act accordingly1 until the ,disability be removed1 or a ,president shall be elected4 ,the ,president shall1 at stated ,times1 receive for his ,services1 a ,compensation1 which shall neither be encreased nor diminished during the ,period for which he shall have been elected1 and he shall not receive within that ,period any other ,emolument from the ,united ,states1 or any of them4 ,before he enter on the ,execution of his ,office1 he shall take the following ,oath or ,affirmation3--8,i do solemnly swear 7or affirm7 that ,i will faithfully execute the ,office of ,president of the ,united ,states1 and will to the best of my ,ability1 preserve1 protect and defend the ,constitution of the ,united ,states40 ,section4 #b4 ,the ,president shall be ,commander in ,chief of the ,army and ,navy of the ,united ,states1 and of the ,militia of the several ,states1 when called into the actual ,service of the ,united ,states2 he may require the ,opinion1 in writing1 of the principal ,officer in each of the executive ,departments1 upon any ,subject relating to the ,duties of their respective ,offices1 and he shall have ,power to grant ,reprieves and ,pardons for ,offences against the ,united ,states1 except in ,cases of ,impeachment4 ,he shall have ,power1 by and with the ,advice and ,consent of the ,senate1 to make ,treaties1 provided two thirds of the ,senators present concur2 and he shall nominate1 and by and with the ,advice and ,consent of the ,senate1 shall appoint ,ambassadors1 other public ,ministers and ,consuls1 ,judges of the supreme ,court1 and all other ,officers of the ,united ,states1 whose ,appointments are not herein otherwise provided for1 and which shall be established by ,law3 but the ,congress may by ,law vest the ,appointment of such inferior ,officers1 as they think proper1 in the ,president alone1 in the ,courts of ,law1 or in the ,heads of ,departments4 ,the ,president shall have ,power to fill up all ,vacancies that may happen during the ,recess of the ,senate1 by granting ,commissions which shall expire at the ,end of their next ,session4 ,section4 #c4 ,he shall from time to time give to the ,congress ,information of the ,state of the ,union1 and recommend to their ,consideration such ,measures as he shall judge necessary and expedient2 he may1 on extraordinary ,occasions1 convene both ,houses1 or either of them1 and in ,case of ,disagreement between them1 with ,respect to the ,time of ,adjournment1 he may adjourn them to such ,time as he shall think proper2 he shall receive ,ambassadors and other public ,ministers2 he shall take ,care that the ,laws be faithfully executed1 and shall ,commission all the ,officers of the ,united ,states4 ,section4 #d4 ,the ,president1 ,vice ,president and all civil ,officers of the ,united ,states1 shall be removed from ,office on ,impeachment for1 and ,conviction of1 ,treason1 ,bribery1 or other high ,crimes and ,misdemeanors4 ,article ,,iii4 ,section4 #a4 ,the judicial ,power of the ,united ,states1 shall be vested in one supreme ,court1 and in such inferior ,courts as the ,congress may from time to time ordain and establish4 ,the ,judges1 both of the supreme and inferior ,courts1 shall hold their ,offices during good ,behaviour1 and shall1 at stated ,times1 receive for their ,services1 a ,compensation1 which shall not be diminished during their ,continuance in ,office4 ,section4 #b4 ,the judicial ,power shall extend to all ,cases1 in ,law and ,equity1 arising under this ,constitution1 the ,laws of the ,united ,states1 and ,treaties made1 or which shall be made1 under their ,authority2--to all ,cases affecting ,ambassadors1 other public ,ministers and ,consuls2--to all ,cases of admiralty and maritime ,jurisdiction2--to ,controversies to which the ,united ,states shall be a ,party2--to ,controversies between two or more ,states2--between a ,state and ,citizens of another ,state2--between ,citizens of different ,states1--between ,citizens of the same ,state claiming ,lands under ,grants of different ,states1 and between a ,state1 or the ,citizens thereof1 and foreign ,states1 ,citizens or ,subjects4 ,in all ,cases affecting ,ambassadors1 other public ,ministers and ,consuls1 and those in which a ,state shall be ,party1 the supreme ,court shall have original ,jurisdiction4 ,in all the other ,cases before mentioned1 the supreme ,court shall have appellate ,jurisdiction1 both as to ,law and ,fact1 with such ,exceptions1 and under such ,regulations as the ,congress shall make4 ,the ,trial of all ,crimes1 except in ,cases of ,impeachment1 shall be by ,jury2 and such ,trial shall be held in the ,state where the said ,crimes shall have been committed2 but when not committed within any ,state1 the ,trial shall be at such ,place or ,places as the ,congress may by ,law have directed4 ,section4 #c4 ,treason against the ,united ,states1 shall consist only in levying ,war against them1 or in adhering to their ,enemies1 giving them ,aid and ,comfort4 ,no ,person shall be convicted of ,treason unless on the ,testimony of two ,witnesses to the same overt ,act1 or on ,confession in open ,court4 ,the ,congress shall have ,power to declare the ,punishment of ,treason1 but no ,attainder of ,treason shall work ,corruption of ,blood1 or ,forfeiture except during the ,life of the ,person attainted4 ,article4 ,,iv4 ,section4 #a4 ,full ,faith and ,credit shall be given in each ,state to the public ,acts1 ,records1 and judicial ,proceedings of every other ,state4 ,and the ,congress may by general ,laws prescribe the ,manner in which such ,acts1 ,records and ,proceedings shall be proved1 and the ,effect thereof4 ,section4 #b4 ,the ,citizens of each ,state shall be entitled to all ,privileges and ,immunities of ,citizens in the several ,states4 ,a ,person charged in any ,state with ,treason1 ,felony1 or other ,crime1 who shall flee from ,justice1 and be found in another ,state1 shall on ,demand of the executive ,authority of the ,state from which he fled1 be delivered up1 to be removed to the ,state having ,jurisdiction of the ,crime4 ,no ,person held to ,service or ,labour in one ,state1 under the ,laws thereof1 escaping into another1 shall1 in ,consequence of any ,law or ,regulation therein1 be discharged from such ,service or ,labour1 but shall be delivered up on ,claim of the ,party to whom such ,service or ,labour may be due4 ,section4 #c4 ,new ,states may be admitted by the ,congress into this ,union2 but no new ,state shall be formed or erected within the ,jurisdiction of any other ,state2 nor any ,state be formed by the ,junction of two or more ,states1 or ,parts of ,states1 without the ,consent of the ,legislatures of the ,states concerned as well as of the ,congress4 ,the ,congress shall have ,power to dispose of and make all needful ,rules and ,regulations respecting the ,territory or other ,property belonging to the ,united ,states2 and nothing in this ,constitution shall be so construed as to ,prejudice any ,claims of the ,united ,states1 or of any particular ,state4 ,section4 #d4 ,the ,united ,states shall guarantee to every ,state in this ,union a ,republican ,form of ,government1 and shall protect each of them against ,invasion2 and on ,application of the ,legislature1 or of the ,executive 7when the ,legislature cannot be convened7 against domestic ,violence4 ,article4 ,v4 ,the ,congress1 whenever two thirds of both ,houses shall deem it necessary1 shall propose ,amendments to this ,constitution1 or1 on the ,application of the ,legislatures of two thirds of the several ,states1 shall call a ,convention for proposing ,amendments1 which1 in either ,case1 shall be valid to all ,intents and ,purposes1 as ,part of this ,constitution1 when ratified by the ,legislatures of three fourths of the several ,states1 or by ,conventions in three fourths thereof1 as the one or the other ,mode of ,ratification may be proposed by the ,congress2 ,provided that no ,amendment which may be made prior to the ,year ,one thousand eight hundred and eight shall in any ,manner affect the first and fourth ,clauses in the ,ninth ,section of the first ,article2 and that no ,state1 without its ,consent1 shall be deprived of it's equal ,suffrage in the ,senate4 ,article4 ,,vi4 ,all ,debts contracted and ,engagements entered into1 before the ,adoption of this ,constitution1 shall be as valid against the ,united ,states under this ,constitution1 as under the ,confederation4 ,this ,constitution1 and the ,laws of the ,united ,states which shall be made in ,pursuance thereof2 and all ,treaties made1 or which shall be made1 under the ,authority of the ,united ,states1 shall be the supreme ,law of the ,land2 and the ,judges in every ,state shall be bound thereby1 any ,thing in the ,constitution or ,laws of any ,state to the ,contrary notwithstanding4 ,the ,senators and ,representatives before mentioned1 and the ,members of the several ,state ,legislatures1 and all executive and judicial ,officers1 both of the ,united ,states and of the several ,states1 shall be bound by ,oath or ,affirmation1 to support this ,constitution2 but no religious ,test shall ever be required as a ,qualification to any ,office or public ,trust under the ,united ,states4 ,article4 ,,vii4 ,the ,ratification of the ,conventions of nine ,states1 shall be sufficient for the ,establishment of this ,constitution between the ,states so ratifying the ,same4 ,the ,word1 8the10 being interlined between the seventh and eighth ,lines of the first ,page1 ,the ,word 8,thirty0 being partly written on an ,erazure in the fifteenth ,line of the first ,page1 ,the ,words 8is tried0 being interlined between the thirty second and thirty third ,lines of the first ,page and the ,word 8the0 being interlined between the forty third and forty fourth ,lines of the second ,page4 ,attest ,,william ,,jackson ,secretary done in ,convention by the ,unanimous ,consent of the ,states present the ,seventeenth ,day of ,september in the ,year of our ,lord one thousand seven hundred and ,eighty seven and of the ,independence of the ,united ,states of ,america the ,twelfth4 ,in witness whereof ,we have hereunto subscribed our ,names1 ,,go ,,washington--,presidt and deputy from ,virginia ,new ,hampshire ,,john ,,langdon ,,nicholas ,,gilman ,massachusetts ,,nathaniel ,,gorham ,,rufus ,,king ,connecticut ,,wm4 ,,saml4 ,,johnson ,,roger ,,sherman ,new ,york ,,alexander ,,hamilton ,,wil3 ,,livingston ,,david ,,brearley4 ,new ,jersey ,,wm ,,paterson4 ,,jona3 ,,dayton ,b ,,franklin ,,thomas ,,mifflin ,,robt ,,morris ,,geo4 ,,clymer ,pennsylvania ,,thos ,,fitzsimons ,,jared ,,ingersoll ,,james ,,wilson ,,gouv ,,morris ,,geo3 ,,read ,,gunning ,,bedford jun ,delaware ,,john ,,dickinson ,,richard ,,bassett ,,jaco3 ,,broom ,,james ,,mchenry ,maryland ,,dan ,,of ,,st ,,thos ,,jenifer ,,dan4 ,,carroll ,,john ,,blair ,virginia ,,james ,,madison ,jr4 ,,wm ,,blount ,north ,carolina ,,richd ,,dobbs ,,spaight4 ,,hu ,,williamson ,j4 ,,rutledge ,,charles ,,cotesworth ,,pinckney ,south ,carolina ,,charles ,,pinckney ,,pierce ,,butler4 ,,william ,,few ,georgia ,,abr ,,baldwin ,,appendix ,,ii ,,the ,,resolution ,,which ,,proposed ,,the ,,constitution ,,to ,,the ,,conventions ,,of ,,the ,,people ,,of ,,america ,in ,convention ,monday ,september #agth #aghg4 ,present ,the ,states of ,new ,hampshire1 ,massachusetts1 ,connecticut1 ,mr4 ,hamilton from ,new ,york1 ,new ,jersey1 ,pennsylvania1 ,delaware1 ,maryland1 ,virginia1 ,north ,carolina1 ,south ,carolina and ,georgia4 ,resolved1 ,that the preceding ,constitution be laid before the ,united ,states in ,congress assembled1 and that it is the ,opinion of this ,convention1 that it should afterwards be submitted to a ,convention of ,delegates1 chosen in each ,state by the ,people thereof1 under the ,recommendation of its ,legislature1 for their ,assent and ,ratification2 and that each ,convention assenting to1 and ratifying the ,same1 should give ,notice thereof to the ,united ,states in ,congress assembled4 ,resolved1 ,that it is the ,opinion of this ,convention1 that as soon as the ,conventions of nine ,states shall have ratified this ,constitution1 the ,united ,states in ,congress assembled should fix a ,day on which ,electors should be appointed by the ,states which shall have ratified the same1 and a ,day on which the ,electors should assemble to vote for the ,president1 and the ,time and ,place for commencing ,proceedings under this ,constitution4 ,that after such ,publication the ,electors should be appointed1 and the ,senators and ,representatives elected3 ,that the ,electors should meet on the ,day fixed for the ,election of the ,president1 and should transmit their ,votes certified1 signed1 sealed and directed1 as the ,constitution requires1 to the ,secretary of the ,united ,states in ,congress assembled1 that the ,senators and ,representatives should convene at the ,time and ,place assigned2 that the ,senators should appoint a ,president of the ,senate1 for the sole ,purpose of receiving1 opening and counting the ,votes for ,president2 and1 that after he shall be chosen1 the ,congress1 together with the ,president1 should1 without ,delay1 proceed to execute this ,constitution4 ,by the ,unanimous ,order of the ,convention ,,go ,,washington ,presidt ,w4 ,,jackson ,secretary4 ,,appendix ,,iii ,,the ,,first ,,seventeen ,,amendments ,,to ,,the ,,constitution #a4 ,congress shall make no law respecting an establishment of religion1 or prohibiting the free exercise thereof2 or abridging the freedom of speech1 or of the press2 or the right of the people peaceably to assemble1 and to petition the ,government for a redress of grievances4 #b4 ,a well regulated ,militia1 being necessary to the security of a free ,state1 the right of the people to keep and bear ,arms1 shall not be infringed4 #c4 ,no ,soldier shall1 in time of peace be quartered in any house1 without the consent of the ,owner1 nor in time of war1 but in a manner to be prescribed by law4 #d4 ,the right of the people to be secure in their persons1 houses1 papers1 and effects1 against unreasonable searches and seizures1 shall not be violated1 and no ,warrants shall issue1 but upon probable cause1 supported by ,oath or affirmation1 and particularly describing the place to be searched1 and the persons or things to be seized4 #e4 ,no person shall be held to answer for a capital1 or otherwise infamous crime1 unless on a presentment or indictment of a ,grand ,jury1 except in cases arising in the land or naval forces1 or in the ,militia1 when in actual service in time of ,war or public danger2 nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb2 nor shall be compelled in any criminal case to be a witness against himself1 nor to be deprived of life1 liberty1 or property1 without due process of law2 nor shall private property be taken for public use1 without just compensation4 #f4 ,in all criminal prosecutions1 the accused shall enjoy the right to a speedy and public trial1 by an impartial jury of the ,state and district wherein the crime shall have been committed1 which district shall have been previously ascertained by law1 and to be informed of the nature and cause of the accusation2 to be confronted with the witnesses against him2 to have compulsory process for obtaining witnesses in his favor1 and to have the ,assistance of ,counsel for his defence4 #g4 ,in ,suits at common law1 where the value in controversy shall exceed twenty dollars1 the right of trial by jury shall be preserved1 and no fact tried by a jury1 shall be otherwise re-examined in any ,court of the ,united ,states1 than according to the rules of the common law4 #h4 ,excessive bail shall not be required1 nor excessive fines imposed1 nor cruel and unusual punishments inflicted4 #i4 ,the enumeration in the ,constitution1 of certain rights1 shall not be construed to deny or disparage others retained by the people4 #aj4 ,the powers not delegated to the ,united ,states by the ,constitution1 nor prohibited by it to the ,states1 are reserved to the ,states respectively1 or to the people4 #aa4 ,the ,judicial power of the ,united ,states shall not be construed to extend to any suit in law or equity1 commenced or prosecuted against one of the ,united ,states by ,citizens of another ,state1 or by ,citizens or ,subjects of any ,foreign ,state4 #ab4 ,the ,electors shall meet in their respective states1 and vote by ballot for ,president and ,vice-,president1 one of whom1 at least1 shall not be an inhabitant of the same state with themselves2 they shall name in their ballots the person voted for as ,president1 and in distinct ballots the person voted for as ,vice-,president1 and they shall make distinct lists of all persons voted for as ,president1 and of all persons voted for as ,vice-,president1 and of the number of votes for each1 which lists they shall sign and certify1 and transmit sealed to the seat of the government of the ,united ,states directed to the ,president of the ,senate2--,the ,president of the ,senate shall1 in the presence of the ,senate and ,house of ,representatives1 open all the certificates and the votes shall then be counted2--,the person having the greatest number of votes for ,president1 shall be the ,president1 if such number be a majority of the whole number of ,electors appointed2 and if no person have such majority1 then from the persons having the highest numbers not exceeding three on the list of those voted for as ,president1 the ,house of ,representatives shall choose immediately1 by ballot1 the ,president4 ,but in choosing the ,president1 the votes shall be taken by states1 the representation from each state having one vote2 a quorum for this purpose shall consist of a member or members from two-thirds of the states1 and a majority of all the states shall be necessary to a choice4 ,and if the ,house of ,representatives shall not choose a ,president whenever the right of choice shall devolve upon them1 before the fourth day of ,march next following1 then the ,vice-,president shall act as ,president1 as in the case of death or other constitutional disability of the ,president4--,the person having the greatest number of votes as ,vice-,president1 shall be the ,vice-,president1 if such number be a majority of the whole number of ,electors appointed1 and if no person have a majority1 then from the two highest numbers on the list1 the ,senate shall choose the ,vice-,president2 a quorum for the purpose shall consist of two-thirds of the whole number of ,senators1 and a majority of the whole number shall be necessary to a choice4 ,but no person constitutionally ineligible to the office of ,president shall be eligible to that of ,vice-,president of the ,united ,states4 #ac4 ,section #a4 ,neither slavery nor involuntary servitude1 except as a punishment for crime whereof the party shall have been duly convicted1 shall exist within the ,united ,states1 or any place subject to their jurisdiction4 ,section #b4 ,congress shall have power to enforce this article by appropriate legislation4 #ad4 ,section #a4 ,all persons born or naturalized in the ,united ,states1 and subject to the jurisdiction thereof1 are citizens of the ,united ,states and of the ,state wherein they reside4 ,no ,state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the ,united ,states2 nor shall any ,state deprive any person of life1 liberty1 or property1 without due process of law2 nor deny to any person within its jurisdiction the equal protection of the laws4 ,section #b4 ,representatives shall be apportioned among the several ,states according to their respective numbers1 counting the whole number of persons in each ,state1 excluding ,indians not taxed4 ,but when the right to vote at any election for the choice of electors for ,president and ,vice ,president of the ,united ,states1 ,representatives in ,congress1 the ,executive and ,judicial officers of a ,state1 or the members of the ,legislature thereof1 is denied to any of the male inhabitants of such ,state1 being twenty-one years of age1 and citizens of the ,united ,states1 or in any way abridged1 except for participation in rebellion1 or other crime1 the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such ,state4 ,section #c4 ,no person shall be a ,senator or ,representative in ,congress1 or elector of ,president and ,vice ,president1 or hold any office1 civil or military1 under the ,united ,states1 or under any ,state1 who1 having previously taken an oath1 as a member of ,congress1 or as an officer of the ,united ,states1 or as a member of any ,state legislature1 or as an executive or judicial officer of any ,state1 to support the ,constitution of the ,united ,states1 shall have engaged in insurrection or rebellion against the same1 or given aid or comfort to the enemies thereof4 ,but ,congress may by a vote of two-thirds of each ,house1 remove such disability4 ,section #d4 ,the validity of the public debt of the ,united ,states1 authorized by law1 including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion1 shall not be questioned4 ,but neither the ,united ,states nor any ,state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the ,united ,states1 or any claim for the loss or emancipation of any slave2 but all such debts1 obligations and claims shall be held illegal and void4 ,section #e4 ,the ,congress shall have power to enforce1 by appropriate legislation1 the provisions of this article4 #ae4 ,section #a4 ,the right of citizens of the ,united ,states to vote shall not be denied or abridged by the ,united ,states or by any ,state on account of race1 color1 or previous condition of servitude-- ,section #b4 ,the ,congress shall have power to enforce this article by appropriate legislation-- #af4 ,the ,congress shall have power to lay and collect taxes on incomes1 from whatever source derived1 without apportionment among the several ,states1 and without regard to any census or enumeration4 #ag4 ,the ,senate of the ,united ,states shall be composed of two ,senators from each ,state1 elected by the people thereof1 for six years2 and each ,senator shall have one vote4 ,the electors in each ,state shall have the qualifications requisite for electors of the most numerous branch of the ,state legislatures4 ,when vacancies happen in the representation of any ,state in the ,senate1 the executive authority of such ,state shall issue writs of election to fill such vacancies3 ,provided1 ,that the legislature of any ,state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct4 ,this amendment shall not be so construed as to affect the election or term of any ,senator chosen before it becomes valid as part of the ,constitution4 ,,appendix ,,iv ,,the ,,alleged ,,eighteenth ,,amendment ,section #a4 ,after one year from the ratification of this article the manufacture1 sale1 or transportation of intoxicating liquors within1 the importation thereof into1 or the exportation thereof from the ,united ,states and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited4 ,sec4 #b4 ,the ,congress and the several ,states shall have concurrent power to enforce this article by appropriate legislation4 ,sec4 #c4 ,this article shall be inoperative unless it shall have been ratified as an amendment to the ,constitution by the legislatures of the several ,states1 as provided in the ,constitution1 within seven years from the date of the submission hereof to the ,states by the ,congress4 ,,appendix ,v ,,the ,,nineteenth ,,amendment ,the right of citizens of the ,united ,states to vote shall not be denied or abridged by the ,united ,states or by any ,state on account of sex4 ,congress shall have power to enforce this article by appropriate legislation4 ,transcriber's ,notes ,minor punctuation errors have been fixed4 ,page xvii3 8state legislalatures0 changed to 8state legislatures0 ,page #cd3 8independent governernments0 changed to 8independent governments0 ,page #gf3 8,this govermnent0 changed to 8,this government0 ,page #bij3 8entire subesquent0 changed to 8entire subsequent0 ,page #dcb3 8the semblence of0 changed to 8the semblance of0 ,page #ddh3 8he appointed0 changed to 8be appointed0 ,page #def3 8of the ,independance0 changed to 8of the ,independence0 ,page #deg3 8,pensylvania0 changed to 8,pennsylvania0 ,page #deh3 8the preceeding ,constitution0 changed to 8the preceding ,constitution0