Constitutional history -- United States; United States -- Politics and government; United States. Constitution. 18th Amendment
Because Mark Twain is dead, we must get from those briefs, without
his aid, the knowledge that the new Article depends entirely on the
extraordinary concept that the Fifth Article constituted a hitherto
unknown government of all American citizens, not our government
of enumerated First Article powers but an entirely distinct
government--not a member of it chosen by American citizens--“invested
with power to legislate for us in all cases whatsoever.”
In other words, we are to learn from the briefs _for_ the new Article
that our supposed only and supreme American government is, and that
all American citizens are, subject to the omnipotence of a still more
supreme legislative government, consisting of the state legislative
governments on whose behalf some of the most distinguished lawyers
of 1920 appeared. It is the clear concept of those lawyers that upon
the _will_ of the governments they represented, a will subject to
the restraint of no Constitution in America, depends entirely what
measure of human freedom we individual American citizens may enjoy.
This concept stands out clear and sharply defined in their briefs,
although neither they nor their opponent lawyers grasp the fact. On
the fact that the Fifth Article _mentions_ their client governments,
the state legislatures, they base the entire claim that the Eighteenth
Amendment is in our Constitution. On this _mention_ rests their
extraordinary assumption that the Fifth Article is a _“grant”_ of power
to those governments--and to the very “conventions” which made the
Fifth Article--to make new Articles of every kind, whether _federal_
to govern states or _national_ to interfere with the freedom of the
individual.
Public-domain text, read in full here on John Shaqi.
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