Section 8 of the First Article of the Proposed New Constitution Read

that “The Congress shall have power to lay and collect taxes, duties, etc.” At Philadelphia, in 1787, a tremendous fight was made against the proposal of this grant by the citizens of America to their government. Many delegates at Philadelphia, who had the financial welfare of their particular state government at heart, contended that, if the new government were given the power of direct taxation of the people, the new government would leave the people with no money to be collected by the state governments for their own purposes. The nationalists at Philadelphia, however, knew that a national government without power of direct taxation over its own citizens would be a helpless government. Therefore, they insisted that the proposed grant of this power remain in the First Article. As a concession to the opposition made on behalf of the state governments, there was added to the proposed First Article a purely federal limitation on the exercise of the national power of direct taxation. This federal limitation, on behalf of the states and their governments, read: “No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.”

In the conventions of the citizens of America, 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 America.

In the Virginia convention, from Randolph and from Henry, arguing respectively for and against the grant, 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 states.

Randolph argued: “The difficulty of justly apportioning the taxes among the states, under the present system, has been complained of; the rule of apportionment being the value of all lands and improvements within the states. The inequality between the rich lands of the James River and the barrens of Massachusetts has been thought to militate against Virginia. If taxes could be laid according to the real value, no inconvenience could follow; but, from a variety of reasons, this value was very difficult to be ascertained; and an error in the estimation must necessarily have been oppressive to a part of the community. But, in this new Constitution, there is a more just and equitable rule fixed--a limitation beyond which they cannot go. Representatives and taxes go hand in hand; according to the one will the other be regulated.... At present, before the population is actually numbered, the number of representatives is 65. Of this number, Virginia has a right to send ten; consequently she will have to pay ten parts out of sixty-five parts of any sum that may be necessary to be raised by Congress. This, sir, is the line.” (Randolph, 3 Ell. Deb. 121.)

As to the granted power of direct taxation, Henry argued: “We all agree that it is the most important part of the body politic. If the power of raising money be necessary for the general government, it is no less so for the states.... The general government being paramount to the state legislatures, if the sheriff is to collect for both--his right hand for Congress, his left for the state--his right hand being paramount over the left, his collections will go to Congress. We shall have the rest. Deficiencies in collections will always operate against the states.... Congress will have an unlimited, unbounded command over the soul of this Commonwealth. After satisfying their uncontrolled demands, what can be left for the states? Not a sufficiency even to defray the expense of their internal administration. They must therefore glide imperceptibly and gradually out of existence.” (Henry, 3 Ell. Deb. 148 et seq.)

The Sixteenth Amendment merely removed, in one respect, this federal limitation upon the exercise of the national power of direct taxation granted by the First Article. The Amendment read: “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.” This Amendment, being nothing but a change in the federal aspect of the Constitution, being a change in the protection given to each state as a political entity, was an Amendment which the state legislatures, each acting as attorney in fact for its own respective state, were entirely competent to make.

The Seventeenth Amendment has no relation to human freedom. It merely provided that the state governments should no longer elect the august Senators in the American Congress, some of whom we shall meet later herein.

This last Amendment, prior to 1917, provided that those Senators should be thereafter elected in our states by ourselves, the American people. Curiously enough, 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 “when” and “how” between 1907 and 1917 we became “subjects” instead of keeping our status as citizens of America.

Early in our education (p. 26) we were informed that our public statesmen and constitutional thinkers brought to the year 1917 the false “knowledge” that legislatures in America, if enough combined, had the omnipotence over individual freedom, which the early Americans denied to the British Parliament. Their false “knowledge” was undoubtedly caused by their failure to appreciate, if they knew or remembered, that America is a national union of men while there is also a subordinate and federal union of states. Ignoring this simple fact, they also ignored the important fact that the Constitution is both national and federal and contains Articles of both kinds. Blind to both important facts, they acquired their false “knowledge” from the fact that the “legislatures,” to whom they ascribed omnipotence over individual freedom, had made the first seventeen Amendments.

The fallacy of their deduction is mathematically demonstrable.

A constitutional Article which gives to government any power to interfere with individual human freedom IS the constitution of government of men. That is why the First Article WAS the constitution of the government of the nation of men. And, in turn, that is why the legal necessity of having it made by the men themselves, in their “conventions,” was “felt and acknowledged by all” Americans.

If one doubts that the First Article WAS the constitution of the government of men, test the truth of the statement in this way. First, assume that the “conventions” made no Article save the First. Then ask yourself if the whole American people would not have constituted their government with its great enumerated powers to interfere with their individual liberty. In the second place, make exactly the opposite assumption. Assume that the “conventions” made all the Articles from the Second to the Seventh, both inclusive, but did not make the First Article. Then ask yourself whether the whole American people would have constituted any government with a single power to interfere with their individual freedom.

Let us now apply exactly the same test to each of the first seventeen Amendments and then to the supposed Eighteenth Amendment.

Take any one of the first seventeen Amendments and assume that anything new which it put into the Constitution was the entire Constitution. Then ask yourself whether, if the Constitution consisted solely of the new matter in the Amendment, there would be any government of the whole American people with a single power to interfere with their individual human liberty. Take all the seventeen Amendments and assume that any change all of them made was the entire Constitution. Then ask yourself whether, if any new matter in the seventeen Amendments composed the entire Constitution, would there be any government of the whole American people with a single power to interfere with their individual human liberty.

Now make the same assumption about the supposed Eighteenth Amendment. Assume that it is the entire Constitution and that there are no other Articles. Immediately it is seen that, if the Eighteenth Amendment were the entire Constitution, there would be a government of the whole American people with an enumerated power to interfere with their individual human liberty.

Now we see the fallacy of the false “knowledge” which our statesmen and constitutional thinkers brought to the year 1917. Now we know the marvelous foresight of Hamilton when he stated his conviction that Amendments would relate to “the organization of the government, not to the mass of its powers.” None of the seventeen Amendments did relate “to the mass of its powers” to interfere with individual human liberty. That is why state legislatures, representing the federal members of the union of states, could make the federal or declaratory seventeen Amendments. The fact that those “legislatures” in 1787 could make Articles of that kind, as they had made them in 1781, did not deceive the Americans at Philadelphia into a false “knowledge” that those “legislatures” could make the First Article with its enumerated powers to interfere with the individual freedom of the members of the nation of men. The fact that the same “legislatures,” still representing the members of the subordinate union of states, still could make declaratory or federal Articles, and had made seventeen Articles of that kind, not one of which constituted new government power to interfere with individual liberty, should not have misled the statesmen and constitutional thinkers of our generation.

But it did.