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In Day of the Lord, 24 Church Elders with Crowns Join Jesus in His Throne In Day of the Lord, 24 Church Elders with Crowns Join Jesus in His Throne Status: Not Logged In; Sign In United States News See other United States News Articles Title: The GOP Is Dying Off. Literally. Source: Politico URL Source: http://www.politico.com/magazine/st ... 8035.html?hp=t2_r#.VVnQK_lVhHx Published: May 17, 2015 Author: DANIEL J. MCGRAW Post Date: 2015-05-18 07:50:21 by Jameson Keywords: Old Angry, White, Guys Views: 27069 Comments: 128 It turns out that one of the Grand Old Party’s biggest—and least discussed—challenges going into 2016 is lying in plain sight, written right into the party’s own nickname. The Republican Party voter is old—and getting older, and as the adage goes, there are two certainties in life: Death and taxes. Right now, both are enemies of the GOP and they might want to worry more about the former than the latter. There’s been much written about how millennials are becoming a reliable voting bloc for Democrats, but there’s been much less attention paid to one of the biggest get-out-the-vote challenges for the Republican Party heading into the next presidential election: Hundreds of thousands of their traditional core supporters won’t be able to turn out to vote at all. The party’s core is dying off by the day. Read more: www.politico.com/magazine...118035.html#ixzz3aURTGXqk Click for Full Text! Post Comment   Private Reply   Ignore Thread   Top • Page Up • Full Thread • Page Down • Bottom/Latest Begin Trace Mode for Comment # 101. #2. To: Jameson (#0) The GOP represents crony capitalists. That's its core. Those are the people who always get everything that want out of the GOP. To get the votes and the seats to advance that agenda, the GOP has in contemporary times made allies with militarists and pro-life Christians, gun nuts and other so-called "conservative" causes. The problem, though, is that crony capitalists in general are liberal rich people, so they WANT abortion rights, and gun control, and open borders, and they want government contracts but not full-on wars to victory that require tax hikes. And, because the Republicans always do the bidding of the crony capitalists, who are really liberal on social issues, the result has been that the systematic betrayal of the Christian pro-lifers, the Borderbots, the gun nuts and the soldiery. Republicans only fight to the death for one thing: low taxes on the rich (and contracts for cronies). Everything else is negotiable. Net result? The crony capitalists are intensely loyal to the GOP base, but others have left, stayed home, given up. And it isn't as though Mexicans, or young people, or really, anybody, is flocking into the GOP. It's time for a new party. Crony capitalism has a death grip on the Republican Party that cannot be, and will never be, pried loose. People have two choices: form a new party, or satisfy themselves with Democrat rule. I'm not satisfied with Democrat rule. I want to see a third party. But Republican rule is godawful and old people are stubborn. So we're going to get Hillary. Oh well. Vicomte13  posted on  2015-05-18   8:13:46 ET  Reply   Untrace   Trace   Private Reply   #12. To: Vicomte13 (#2) Oh well. What are your thoughts on a constitutional convention? Jameson  posted on  2015-05-18   10:35:20 ET  Reply   Untrace   Trace   Private Reply   #14. To: Jameson (#12) What are your thoughts on a constitutional convention? I'm mildly in favor,for the same reason I favor Scottish independence: it will be entertaining. I doubt anything good will come out of a convention, because the entrenched powers are too entrenched, so they'll just use the convention to further entrench and streamline. But I'm prepared to be surprised. A constitutional amendment that stated that life began at conception and (therefore) banned abortion outright would be good. Vicomte13  posted on  2015-05-18   10:41:59 ET  Reply   Untrace   Trace   Private Reply   #82. To: Vicomte13, Jameson (#14) [Vicomte13] A constitutional amendment that stated that life began at conception and (therefore) banned abortion outright would be good. As phrased, the amendment might accomplish nothing. Abortion as interpreted by Roe depends on competing interests of the State and the individual at various stages of development, and whether the fetus is viable. For the purpose you appear to desire, an amendment may be preferred holding that a fetus, from conception, is a person under the 14th Amendment. (If the Union Pacific RR Corp can do it, why not a fetus?) You might want to change the citizenship clause to confer citizenship at conception. This raises a few other issues: The “anchor fetus” would replace the “anchor baby.” In the case of rape, the government would require the impregnated victim of the crime to carry the rapist’s child to term and deliver it. Can the mother, impregnated and forced to give birth against her will, be held responsible for the child or to pay child support? nolu chan  posted on  2015-05-22   17:02:08 ET  Reply   Untrace   Trace   Private Reply   #83. To: nolu chan (#82) Yes, the rape victim must carry the baby. She cannot murder the child. No, she cannot be compelled to provide child support out of the gate. She has the right to give up the child to the state for orphanage or adoption, if she does so at once. However, if she keeps the child, she loses this right. Long-term optionality does not remain. The mother must bear the child, but she either keeps the newborn or hands it over for adoption. In this way, the child is affected least. Of course the abolition of abortion means that there will have to be a larger and more effective social safety net, because without abortion there would be 1.5 million more kids in the country every year, and probably 1,3 million of them would be poor. Vicomte13  posted on  2015-05-22   18:06:09 ET  Reply   Untrace   Trace   Private Reply   #84. To: Vicomte13, nolu chan, Y'ALL (#83) For the purpose you appear to desire, an amendment may be preferred holding that a fetus, from conception, is a person under the 14th Amendment. You might want to change the citizenship clause to confer citizenship at conception. Can the mother, impregnated and forced to give birth against her will, be held responsible for the child or to pay child support? ---- nolu chan No, she cannot be compelled to provide child support out of the gate. She has the right to give up the child to the state for orphanage or adoption, if she does so at once. However, if she keeps the child, she loses this right. Long-term optionality does not remain. The mother must bear the child, but she either keeps the newborn or hands it over for adoption. In this way, the child is affected least. Of course the abolition of abortion means that there will have to be a larger and more effective social safety net, because without abortion there would be 1.5 million more kids in the country every year, and probably 1,3 million of them would be poor. Vicomte13 A better question is: --- Can the impregnated woman be forced to give birth against her will, under the present constitution? -- And would an amendment giving that power to government be valid? tpaine  posted on  2015-05-22   18:29:10 ET  Reply   Untrace   Trace   Private Reply   #87. To: tpaine, Vicomte13 (#84) A better question is: --- Can the impregnated woman be forced to give birth against her will, under the present constitution? -- As currently interpreted under Roe, even a voluntarily impregnated woman cannot be forced to continue the pregnancy against her will. The court found a constitutional right to an abortion emanating from an uncertain penumbra. And would an amendment giving that power to government be valid? I do not see why not. There is no such thing as a legal challenge to the validity of a constitutional provision. SCOTUS could not rule a part of the Constitution invalid. Once the Secretary of State certifies an amendment as having been ratified, the amendment and the process by which it was ratified is beyond judicial review. An amendment saying booze was unconstitutional was valid. Enough people chose to ignore that amendment that it was not enforceable. An anti-abortion amendment would not end abortion. Neither Democrats nor Republicans will touch upon proposing a constitutional amendment. Do nothing, feel good legislation is fair game. nolu chan  posted on  2015-05-23   2:12:37 ET  Reply   Untrace   Trace   Private Reply   #89. To: nolu chan (#87) A better question is: --- Can the impregnated woman be forced to give birth against her will, under the present constitution? -- As currently interpreted under Roe, even a voluntarily impregnated woman cannot be forced to continue the pregnancy against her will. The court found a constitutional right to an abortion emanating from an uncertain penumbra. No, the court opined that a woman has the same rights against involuntary servitude as a man. Call it a penumba if you must. And would an amendment giving that power to government be valid? Ido not see why not. There is no such thing as a legal challenge to the validity of a constitutional provision. SCOTUS could not rule a part of the Constitution invalid. Once the Secretary of State certifies an amendment as having been ratified, the amendment and the process by which it was ratified is beyond judicial review. Not true. The prohibition amendment was so challenged, and the SCOTUS refused to make an opinion on the issue. It remains unresolved.. An amendment saying booze was unconstitutional was valid. No, the issue was unresolved. Enough people chose to ignore that amendment that it was not enforceable. True. An anti-abortion amendment would not end abortion. Neither Democrats nor Republicans will touch upon proposing a constitutional amendment. Do nothing, feel good legislation is fair game. We agree, again. tpaine  posted on  2015-05-23   2:48:07 ET  Reply   Untrace   Trace   Private Reply   #91. To: tpaine (#89) As currently interpreted under Roe, even a voluntarily impregnated woman cannot be forced to continue the pregnancy against her will. The court found a constitutional right to an abortion emanating from an uncertain penumbra. No, the court opined that a woman has the same rights against involuntary servitude as a man. Call it a penumba if you must. No, the court did not opine about involuntary servitude. It opined about a constitutional right to privacy. It is a right that emanates from a penumbra of the 9th or 14th Amendment. 410 U.S. 113, 129 The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); id., at 460 (WHITE, J., concurring in result); or among those rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S., at 486 (Goldberg, J., concurring). 410 U.S. 113, 153 This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The right is somewhere in the Bill of Rights or its penumbras, either in the 9th Amendment or the 14th Amendment, and wherever it is, it "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." I must use the word penumbra as SCOTUS explicitly used that word in locating the constitutional right of privacy. There is no such thing as a legal challenge to the validity of a constitutional provision. SCOTUS could not rule a part of the Constitution invalid. Once the Secretary of State certifies an amendment as having been ratified, the amendment and the process by which it was ratified is beyond judicial review. Not true. The prohibition amendment was so challenged, and the SCOTUS refused to make an opinion on the issue. It remains unresolved.. You're wrong. SCOTUS lacks jurisidiction to issue such an opinion. It has similarly refused to review the process by which the 14th Amendment was ratified. It is non-justiciable. It is a political question given by the constitution to the Legislative Branch to decide. You do not identify a court decision. In 1920, SCOTUS emphatically held of the 18th Amendment, "That Amendment, by lawful proposal and ratification, has become a part of the Constitution, and must be respected and given effect the same as other provisions of that instrument." https://supreme.justia.com/cases/federal/us/253/350/case.html U.S. Supreme Court National Prohibition Cases, 253 U.S. 350 (1920) National Prohibition Cases No. 29, 30, Original, and No. 696, 762, 788, 794, 837 Argued March 8, 9, 10, 29, 30, 1920 Decided June 7, 1920 253 U.S. 350 ORIGINAL, AND APPEALS FROM THE DISTRICT COURTS OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS, THE WESTERN DISTRICT OF KENTUCKY, THE DISTRICT OF NEW JERSEY, THE EASTERN DISTRICT OF WISCONSIN, AND THE EASTERN DISTRICT OF MISSOURI Syllabus The adoption by both houses of Congress, each by a two-thirds vote, of a joint resolution proposing an amendment to the Constitution sufficiently shows that the proposal was deemed necessary by all who voted for it. An express declaration that they regarded it as necessary is not essential. P. 253 U. S. 386. 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 membership, present and absent. Id. Missouri Pacific Ry. Co. v. Kansas, 248 U. S. 276. The referendum provisions of state constitutions and statutes cannot be applied, consistently with the Constitution of the United States, in the ratification or rejection of amendments to it. Id. Hawke v. Smith, ante, 253 U. S. 221. The prohibition of the manufacture, sale, transportation, importation and exportation of intoxicating liquors for beverage purposes, as embodied in the Eighteenth Amendment, is within the power to amend reserved by Article V of the Constitution. Id. That Amendment, by lawful proposal and ratification, has become a part of the Constitution, and must be respected and given effect the same as other provisions of that instrument. Id. [...] See also Coleman v. Miller. https://supreme.justia.com/cases/federal/us/307/433/case.html U.S. Supreme Court Coleman v. Miller, 307 U.S. 433 (1939) Coleman v. Miller No. 7 Argued October 10, 1938 Reargued April 17, 18, 1939 Decided June 5, 1939 307 U.S. 433 CERTIORARI TO THE SUPREME COURT OF KANSAS Syllabus 1. Upon submission of a resolution for ratification of a proposed amendment to the Federal Constitution, known as the Child Labor Amendment, twenty of the forty senators of the State of Kansas voted in favor of its adoption and twenty voted against it. The Lieutenant Governor, the presiding officer of the Senate, then cast his vote in favor of the resolution, and later it was adopted by the other house of the legislature on a vote of a majority of its members. The twenty senators who had voted against ratification, challenging the right of the Lieutenant Governor to cast the deciding vote in the Senate, and alleging that the proposed amendment had lost its vitality because of previous rejection by Kansas and other States and failure of ratification within a reasonable time, sought a writ of mandamus to compel the Secretary of the Senate to erase an endorsement on the resolution, to the effect that it had been adopted by the Senate, and to endorse thereon the words "was not passed," and to restrain the officers of the Senate and House of Representatives from signing the resolution and the Secretary of Kansas from authenticating it and delivering it to the Governor. The State entered its appearance, and the State Supreme Court entertained the action, sustained the right of the plaintiffs to maintain it, but overruled their contentions, upheld the ratification, and denied the writ. Held: (1) The questions decided were federal questions, arising under. Article V of the Constitution. P. 307 U. S. 437. (2) The complaining senators, whose votes against ratification have been overridden and virtually held for naught, although, if they are right in their contentions, their votes would have been sufficient to defeat ratification, have a plain, direct and adequate interest in maintaining the effectiveness of their votes. They have set up and claimed a right and privilege under the Constitution of the United States to have their votes given effect, and the state court has denied that right and privilege. P. 307 U. S. 438. (3) This Court has jurisdiction to review the decision of the state court by certiorari, under Jud.Code § 237(b). P. 307 U. S. 438. Page 307 U. S. 434 2. The Court, being equally divided in opinion as to whether the question presents a justiciable controversy, or is a political question, expresses no opinion upon a contention that the Lieutenant Governor of Kansas was not a part of the "legislature," and, under Article V of the Federal Constitution, could not be permitted a deciding vote on the ratification of the proposed amendment. P. 307 U. S. 446. 3. In accordance with the precedent of the Fourteenth Amendment, the efficacy of ratification of a proposed amendment to the Federal Constitution by a state legislature which had previously rejected the proposal is held a question for the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment. P. 307 U. S. 447. 4. The legislature of Kansas having actually ratified the proposed Child Labor Amendment, this Court should not restrain the state officers from certifying the ratification to the Secretary of State because of an earlier rejection, and thus prevent the question from coming before the political departments. There is found no basis in either Constitution or statute for such judicial action. P. 307 U. S. 450. 5. R.S. § 205; 5 U.S.C. 160, presupposes official notice to the Secretary of State when a state legislature has adopted a resolution of ratification. No warrant is seen for judicial interference with the performance of that duty. P. 307 U. S. 450. 6. The Congress, in controlling the promulgation of the adoption of a constitutional amendment, has the final determination of the question whether, by lapse of time, its proposal of the amendment had lost its vitality before being adopted by the requisite number of legislatures. P. 307 U. S. 451. 7. In determining whether a question falls within the category of political nonjusticiable questions, the appropriateness under our system of government of attributing finality to the action of the political departments, and also the lack of satisfactory criteria for a judicial determination, are dominant considerations. P. 307 U. S. 454. 146 Kan. 390; 71 P.2d 518, reversed. nolu chan  posted on  2015-05-26   18:13:17 ET  Reply   Untrace   Trace   Private Reply   #95. To: nolu chan (#91) There is no such thing as a legal challenge to the validity of a constitutional provision. SCOTUS could not rule a part of the Constitution invalid. Once the Secretary of State certifies an amendment as having been ratified, the amendment and the process by which it was ratified is beyond judicial review. Not true. The prohibition amendment was so challenged, and the SCOTUS refused to make an opinion on the issue. It remains unresolved.. You're wrong. SCOTUS lacks jurisidiction to issue such an opinion. It has similarly refused to review the process by which the 14th Amendment was ratified. It is non-justiciable. It is a political question given by the constitution to the Legislative Branch to decide. That's your opinion. Just above I posted Roots opinion, -- and the court refused to issue an opinion on the constitutional issues HE raised. -- They remain unresolved.. tpaine  posted on  2015-05-26   21:51:56 ET  Reply   Untrace   Trace   Private Reply   #96. To: tpaine (#95) [tpaine #95] The prohibition amendment was so challenged, and the SCOTUS refused to make an opinion on the issue. It remains unresolved.. [tpaine #95] That’s your opinion. Just above I posted Roots opinion -- and the court refused to issue an opinion on the constitutional issues HE raised. -- They remain unresolved.. [tpaine #94] Neither Root’s reasoning nor his emotional oratory moved the Court. On June 7, 1920, it rejected every argument of the appellants in the National Prohibition Cases. Unanimously upholding the constitutionality of the Eighteenth Amendment, the justices also approved the method by which the state legislatures had ratified it. They held that the prohibition embodied in the amendment was within the power to amend reserved by Article V of the Constitution, and that therefore the amendment must be respected and observed. There is no Root opinion. Courts issue opinions. “No. 788. Argued March 29 and 30, 1920: Messrs. Elihu Root and William D. Guthrie, both of New York City, for appellant.” Root presented an argument for the Appellant in one of seven cases. It was a LOSING argument. With a resounding slam dunk, SCOTUS posterized the constitutional argument. The Court REJECTED every argument of appellants. You posted that at #94. I quoted from the actual opinion of the U.S. Supreme Court, captioned National Prohibition Cases, or State of Rhode Island v. Palmer, 253 U.S. 350 (1920). The issues were resolved. The constitutional argument was held contrary to the Constitution. The 18th Amendment was held to be in force throughout the United States. The Volstead Act was upheld. No injunction was granted. Here is the opinion of the court: http://laws.findlaw.com/us/253/350.html U.S. Supreme Court State of Rhode Island v. Palmer, 253 U.S. 350 (1920), National Prohibition Cases 253 U.S. 350 STATE OF RHODE ISLAND v. PALMER, Atty. Gen., et al. STATE OF NEW JERSEY v. SAME. DEMPSEY v. BOYNTON, U. S. Atty., et al. KENTUCKY DISTILLERIES & WAREHOUSE CO. v. GREGORY, U. S. Atty., et al. CHRISTIAN FEIGENSPAN v. BODINE, U. S. Atty., et al. SAWYER, U. S. Atty., et al. v. MANITOWOC PRODUCTS CO. ST. LOUIS BREWING ASS’N v. MOORE, Collector, et al. No. 29, Original. No. 30, Original. No. 696. No. 752. No. 788. No. 794. No. 837. Decided June 7, 1920. [253 U.S. 350, 353] [No. 29. Argued March 8 and 9, 1920: Mr. Herbert A. Rice, of Providence, R. I., for complainant. Mr. Solicitor General King and Mr. Assistant Attorney General Frierson, for respondents. No. 30. Argued March 29, 1920: Mr. Thomas F. McCran, of Paterson, N. J., for complainant. Mr. Assistant Attorney General Frierson, for respondents. No. 696. Argued March 9, 1920: Mr. Patrick Henry Kelley, of Boston, Mass., for appellant. Mr. Assistant Attorney General Frierson, for appellees. No. 752. Argued March 9 and 10, 1920: Messrs. Levy Mayer, of Chicago, Ill., and William Marshall Bullitt, of Louisville, Ky., for appellant. Mr. Solicitor General King and Mr. Assistant Attorney General Frierson, for appellees. No. 788. Argued March 29 and 30, 1920: Messrs. Elihu Root and William D. Guthrie, both of New York City, for appellant. Mr. Solicitor General King and Mr. Assistant Attorney General Frierson, for appellees. No. 794. Argued March 30, 1920: Mr. Solicitor General King and Mr. Assistant Attorney General Frierson, for appellants. Mr. Ralph W. Jackman, of Madison, Wis., for appellee. No. 837. Submitted March 29, 1920: Messrs. Charles A. Houts, John T. Fitzsimmons, and Edward C. Crow, all of St. Louis, Mo., for appellant. Mr. Solicitor General King and Mr. Assistant Attorney General Frierson, for appellees. [253 U.S. 350, 384] Mr. Justice VAN DEVANTER announced the conclusions of the Court. Power to amend the Constitution was reserved by article 5, which reads: ‘The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures [253 U.S. 350, 385] of two-thirds of the several States, shall call a Convention for proposing Amendments, which, in either case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; 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 Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.’ The text of the Eighteenth Amendment, proposed by Congress in 1917 and proclaimed as ratified in 1919 (40 Stat. 1050, 1941), is as follows: ‘Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. ‘Sec. 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.’ We here are concerned with seven cases involving the validity of that amendment and of certain general features of the National Prohibition Law, known as the Volstead Act, c. 85, Acts 66th Cong., 1st Sess. (41 Stat. 305 ), which was adopted to enforce the amendment. The relief sought in each case is an injunction against the execution of that act. Two of the cases — Nos. 29 and 30, original, —were brought in this court, and the others in District Courts. Nos. 696, 752, 788, and 837 are here on appeals from decrees refusing injunctions, and No. 794 from a decree granting an injunction. The cases have been elaborately argued at the bar and in [253 U.S. 350, 386] printed briefs; and the arguments have been attentively considered, with the result that we reach and announce the following conclusions on the questions involved: 1. The adoption by both houses of Congress, each by a two-thirds vote, of a joint resolution proposing an amendment to the Constitution sufficiently shows that the proposal was deemed necessary by all who voted for it. An express declaration that they regarded it as necessary is not essential. None of the resolutions whereby prior amendments were proposed contained such a declaration. 2. 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 membership, present and absent. Missouri Pacific Ry. Co. v. Kansas, 248 U.S. 276 , 39 Sup. Ct. 93, 2 A. L. R. 1589 3. The referendum provisions of state Constitutions and statutes cannot be applied, consistently with the Constitution of the United States, in the ratification or rejection of amendments to it. Hawke v. Smith, 253 U.S. 221 , 40 Sup. Ct. 495, 64 L. Ed. --, decided June 1, 1920. 4. The prohibition of the manufacture, sale, transportation, importation and exportation of intoxicating liquors for beverage purposes, as embodied in the Eighteenth Amendment, is within the power to amend reserved by article 5 of the Constitution. 5. That amendment, by lawful proposal and ratification, has become a part of the Constitution, and must be respected and given effect the same as other provisions of that instrument. 6. The first section of the amendment — the one embodying the prohibition — is operative throughout the entire territorial limits of the United States, binds all legislative bodies, courts, public officers and individuals within those limits, and of its own force invalidates every [253 U.S. 350, 387] legislative act, whether by Congress, by a state Legislature, or by a territorial assembly, which authorizes or sanctions what the section prohibits. 7. The second section of the amendment — the one declaring ‘The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation’ — does not enable Congress or the several states to defeat or thwart the prohibition, but only to enforce it by appropriate means. 8. The words ‘concurrent power,’ in that section, do not mean joint power, or require that legislation thereunder by Congress, to be effective, shall be approved or sanctioned by the several states or any of them; nor do they mean that the power to enforce is divided between Congress and the several states along the lines which separate or distinguish foreign and interstate commerce from intrastate affairs. 9. The power confided to Congress by that section, while not exclusive, is territorially coextensive with the prohibition of the first section, embraces manufacture and other intrastate transactions as well as importation, exportation and interstate traffic, and is in no wise dependent on or affected by action or inaction on the part of the several states or any of them. 10. That power may be exerted against the disposal for beverage purposes of liquors manufactured before the amendment became effective just as it may be against subsequent manufacture for those purposes. In either case it is a constitutional mandate or prohibition that is being enforced. 11. While recognizing that there are limits beyond which Congress cannot go in treating beverages as within its power of enforcement, we think those limits are not transcended by the provision of the Volstead Act (title 2, 1), wherein liquors containing as much as one-half of 1 percent. of alcohol by volume and fit for use for beverage [253 U.S. 350, 388] purposes are treated as within that power. Jacob Ruppert v. Caffey, 251 U.S. 264 , 40 Sup. Ct. 141, 64 L. Ed. --. Giving effect to these conclusions, we dispose of the cases as follows: In Nos. 29 and 30, original, the bills are dismissed. In No. 794, the decree is reversed. In Nos. 696, 752, 788 and 837, the decrees are affirmed. See also, https://www.law.cornell.edu/supremecourt/text/282/716 United States v. Sprague, 282 U.S. 716 (1931) 282 U.S. 716 (51 S.Ct. 220, 75 L.Ed. 640) UNITED STATES v. SPRAGUE et al. No. 606. Argued: Jan. 21, 1931. Decided: Feb. 24, 1931. [...] The United States asserts that article 5 is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction. A mere reading demonstrates that this is true. It provides two methods for proposing amendments. Congress may propose them by a vote of two-thirds of both houses; or, on the application of the legislatures of two-thirds of the States, must call a convention to propose them. Amendments proposed in either way become a part of the Constitution, ‘when ratified by the Legislatures of three-fourths of the several States or by Conventions in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress. * * *’ The choice, therefore, of the mode of ratification, lies in the sole discretion of Congress. [...] This Court has repeatedly and consistently declared that the choice of mode rests solely in the discretion of Congress. Dodge v. Woolsey, 18 How. 331, 348, 15 L. Ed. 401; Hawke v. Smith (No. 1), 253 U. S. 221, 40 S. Ct. 495, 64 L. Ed. 871, 10 A. L. R. 1504; Dillon v. Gloss, 256 U. S. 368, 41 S. Ct. 510, 65 L. Ed. 994; National Prohibition Cases, 253 U. S. 350, 40 S. Ct. 486, 488, 64 L. Ed. 946. Appellees urge that what was said on the subject in the first three cases cited is dictum. And they argue that although in the last mentioned it was said the ‘Amendment, by lawful proposal and ratification, has become a part of the Constitution,’ the proposition they now present was not before the Court. While the language used in the earlier cases was not in the strict sense necessary to a decision, it is evident that article 5 was carefully examined and that the Court’s statements with respect to the power of Congress in proposing the mode of ratification were not idly or lightly made. In the National Prohibition Cases, as shown by the briefs, the contentions now argued were made-the only difference between the presentation there and here being one of form rather than of substance. [...] The United States relies upon the fact that every amendment has been adopted by the method pursued in respect of the Eighteenth. Appellees reply that all these save the Eighteenth dealt solely with governmental means and machinery rather than with the rights of the individual citizen. But we think that several amendments touch rights of the citizens, notably the Thirteenth, Fourteenth, Fifteenth, Sixteenth and Nineteenth, and in view of this, weight is to be given to the fact that these were adopted by the method now attacked. The Pocket Veto Case, supra. For these reasons we reiterate what was said in the National Prohibition Cases, supra, that the ‘Amendment, by lawful proposal and ratification, has become a part of the Constitution.’ The order of the court below is reversed. nolu chan  posted on  2015-05-27   1:34:44 ET  Reply   Untrace   Trace   Private Reply   #99. To: nolu chan (#96) The prohibition amendment was so challenged, (on constitutional grounds, by Root) and the SCOTUS refused to make an opinion on the issue. It remains unresolved.. Just above I posted Roots opinion -- and the court refused to issue an opinion on the constitutional issues HE raised. -- They remain unresolved. here is no Root opinion. Courts issue opinions. Root made a constitutional argument. SCOTUS did not address that specific constitutional argument. That specific issue remains unresolved. “No. 788. Argued March 29 and 30, 1920: Messrs. Elihu Root and William D. Guthrie, both of New York City, for appellant.” Root presented an argument for the Appellant in one of seven cases. Thanks for finally admitting that fact. It was a LOSING argument. With a resounding slam dunk, SCOTUS posterized the constitutional argument. SCOTUS did NOT specifically address the constitutional aspects of Roots arguement, they ignored those constitutional issues. The Court REJECTED every argument of appellants. You posted that at #94. Of course I did, and, -- I objected to their nonspecific rejection. -- They did not resolve the constitutional issues Root argued. Iquoted from the actual opinion of the U.S. Supreme Court, captioned National Prohibition Cases, or State of Rhode Island v. Palmer, 253 U.S. 350 (1920). The issues were resolved. The constitutional argument was held contrary to the Constitution. They issued a nonspecific opinion, The constitutional argument is not resolved. tpaine  posted on  2015-05-27   11:19:15 ET  Reply   Untrace   Trace   Private Reply   #100. To: tpaine (#99) The prohibition amendment was so challenged, (on constitutional grounds, by Root) and the SCOTUS refused to make an opinion on the issue. It remains unresolved.. The Court did not refuse to make an opinion. It not only rendered an opinion, I quoted it from start to finish. As you quoted at your #94, "Neither Root's reasoning nor his emotional oratory moved the Court. On June 7, 1920, it rejected every argument of the appellants in the National Prohibition Cases." Just above I posted Roots opinion -- and the court refused to issue an opinion on the constitutional issues HE raised. -- They remain unresolved. You quoted an article about the argument made by attorney Elihu Root. The Court rejected his argument as without merit. Root made a constitutional argument. SCOTUS did not address that specific constitutional argument. That specific issue remains unresolved. The Court did not waste words giving Root a long explanation. They gave him a short opinion rejecting his argument and ruling against his client. From the Article you quoted at #94: The argument of Elihu Root attracted the most attention. The former Secretary of War, Secretary of State, and senator represented a New Jersey brewer. Drys jested that "Hires Root Beer" had been changed to "Beer Hires Root," but they were clearly worried about the impact this distinguished attorney might have on the Court. Root asserted that the Eighteenth Amendment was simply unconstitutional. The substantive portion of the so-called Eighteenth Amendment, he said, did not relate to the powers or organization of government, as constitutional provisions ordinarily do. Rather, it was a direct act of legislation. He denied that the amending provision of the Constitution, Article V, authorized this type of amendment. [...] Neither Root's reasoning nor his emotional oratory moved the Court. On June 7, 1920, it rejected every argument of the appellants in the National Prohibition Cases. Unanimously upholding the constitutionality of the Eighteenth Amendment, the justices also approved the method by which the state legislatures had ratified it. They held that the prohibition embodied in the amendment was within the power to amend reserved by Article V of the Constitution, and that therefore the amendment must be respected and observed. The Court ruled in the National Prohibition Cases, 4. The prohibition of the manufacture, sale, transportation, importation and exportation of intoxicating liquors for beverage purposes, as embodied in the Eighteenth Amendment, is within the power to amend reserved by article 5 of the Constitution. 5. That amendment, by lawful proposal and ratification, has become a part of the Constitution, and must be respected and given effect the same as other provisions of that instrument. I objected to their nonspecific rejection. -- They did not resolve the constitutional issues Root argued. They specifically, unanimously and emphatically resolved the issue Root argued. The Court directly addressed it and held that it had no legal merit, leaving nothing to resolve. It is clear and explicit for all but those who will not see. It is established and well settled precedent. They issued a nonspecific opinion, The constitutional argument is not resolved. They clearly, emphatically and unanimously held what the law is. They rejected the argument of Root. Root “denied that the amending provision of the Constitution, Article V, authorized this type of amendment.” The unanimous Court held, “The prohibition of the manufacture, sale, transportation, importation and exportation of intoxicating liquors for beverage purposes, as embodied in the Eighteenth Amendment, is within the power to amend reserved by article 5 of the Constitution.” I do not see how the Court could more specifically reject the argument of Root. He argued the Amendment was not within the power of Article 5. The Court explicitly and unanimously held that the Amendment was within the power to amend reserved by Article 5. A unanimous rejection by the U.S. Supreme Court resolves a constitutional argument unless it is overturned or the Constitution is amended. nolu chan  posted on  2015-05-27   18:39:36 ET  Reply   Untrace   Trace   Private Reply   #101. To: nolu chan (#100) Root argued: --- "If your Honors shall find a way to declare this so-called Amendment to the Federal Constitution valid, then the Government of the United States as it has been known to us and to our forefathers will have ceased to exist. Your Honors will have discovered a new legislative authority hitherto unknown to the Constitution and quite untrammelled by any of its limitations. You will have declared that two thirds of a quorum of each House of the Congress, plus a majority of a quorum of each of the two Houses of the Legislatures of three fourths of the States, may enact any legislation they please without any reference to the limitations of the Constitution, including the Bill of Rights itself. In that case, Your Honors, John Marshall need never have sat upon that bench." They clearly, emphatically and unanimously held what the law is. They rejected the argument of Root. ---- Root “denied that the amending provision of the Constitution, Article V, authorized this type of amendment.” The unanimous Court held, “The prohibition of the manufacture, sale, transportation, importation and exportation of intoxicating liquors for beverage purposes, as embodied in the Eighteenth Amendment, is within the power to amend reserved by article 5 of the Constitution.” The SCOTUS did NOT address the limits on power, placed on ALL three branches of govt, by the constitution, -- as Root argued. I do not see how the Court could more specifically reject the argument of Root. I do not see WHY you want to see the fiat rejection by the Court as more than it is, but so it goes. He argued the Amendment was not within the power of Article 5. The Court explicitly and unanimously held that the Amendment was within the power to amend reserved by Article 5. ----- A unanimous rejection by the U.S. Supreme Court resolves a constitutional argument unless it is overturned or the Constitution is amended. Tell that to Dread Scott. -- The opinions of the SCOTUS are not law, and they do not 'resolve' constitutional issues. And amendments to the constitution can be deemed unconstitutional. tpaine  posted on  2015-05-27   21:04:18 ET  Reply   Untrace   Trace   Private Reply   Replies to Comment # 101. #102. To: tpaine (#101) Root argued: --- "If your Honors shall find a way to declare this so-called Amendment to the Federal Constitution valid, then the Government of the United States as it has been known to us and to our forefathers will have ceased to exist. Your Honors will have discovered a new legislative authority hitherto unknown to the Constitution and quite untrammelled by any of its limitations. You will have declared that two thirds of a quorum of each House of the Congress, plus a majority of a quorum of each of the two Houses of the Legislatures of three fourths of the States, may enact any legislation they please without any reference to the limitations of the Constitution, including the Bill of Rights itself. In that case, Your Honors, John Marshall need never have sat upon that bench." They clearly, emphatically and unanimously held what the law is. They rejected the argument of Root. ---- Root “denied that the amending provision of the Constitution, Article V, authorized this type of amendment.” The unanimous Court held, “The prohibition of the manufacture, sale, transportation, importation and exportation of intoxicating liquors for beverage purposes, as embodied in the Eighteenth Amendment, is within the power to amend reserved by article 5 of the Constitution.” The SCOTUS did NOT address the limits on power, placed on ALL three branches of govt, by the constitution, -- as Root argued. Root's argument is extensively quoted at 253 U.S. 361-367. The first paragraph above, apparently from Oral Argument, contains crowd pleasing declarative statements but no legal argument. The second paragraph give a capsule rendition of the Article V argument. This argument was rejected by the District Court and by the unanimous Supreme Court. The Supreme Court affirmed the decree in Feigenspan v. Bodine where Root's argument was dissected and rejected by the District Court. He argued the Amendment was not within the power of Article 5. The Court explicitly and unanimously held that the Amendment was within the power to amend reserved by Article 5. ----- A unanimous rejection by the U.S. Supreme Court resolves a constitutional argument unless it is overturned or the Constitution is amended. Tell that to Dread Scott. -- The opinions of the SCOTUS are not law, and they do not 'resolve' constitutional issues. And amendments to the constitution can be deemed unconstitutional. The holdings of SCOTUS are binding on all lower courts. SCOTUS interprets the Constitution. Legislation passed contrary to a constitutional interpretation of SCOTUS is null and void. Only SCOTUS can judicially overturn its holding. Only an amendment can overturn it by changing the Constitution. You have obviously not read the decree of the District Court which was explicitly affirmed by the U.S. Supreme Court. The 13th Amendment is cited as one of the reasons that Root's argument fails as it did what he said cannot be done. Feigenspan: The Emancipation Proclamation of President Lincoln (12 Stat, 1268), and the Reconstruction Acts of Congress, were war measures and applicable solely to the States then or then recently in a state of rebellion. None was intended to have, nor could have had, any effect upon the other States. The legal right of the States to establish and maintain slavery was the right of all the States, and without the adoption of the Thirteenth Amendment none of the States which had not joined in the Rebellion could have been legally prevented by any power other than their own from establishing slavery and giving it the protection of their laws. An amendment to the United States Constitution was the only way to abolish such a right, and this was effected by the Thirteenth Amendment. This was done not by empowering Congress so to do, but by a positive mandate similar to the Eighteenth Amendment, and was as much legislation as is the latter. These two amendments also have a close analogy in the control exercised over the conduct of private individuals. By the Thirteenth Amendment the right of an individual to buy, sell, possess, transport and use another human being was absolutely prohibited. By substituting “slavery” of the Thirteenth Amendment, for “intoxicating liquors for beverage purposes” of the Eighteenth Amendment, we have in legal effect the same kind of mandatory prohibition. Every argument advanced here to deny the power to incorporate the Eighteenth Amendment into the Constitution could be applied equally against the power to ordain the Thirteenth Amendment. Indeed, in view of several provisions in the original Constitution giving distinct recognition of the right of one to hold another in involuntary servitude (Art. 1, sec. 9, cl. 1; Art. IV, sec. 2, cl. 3), much more forcible argument could have been made to raise an implied limitation against the power of abolishing slavery by constitutional amendment, than could be made to the Eighteenth Amendment. To attempt to distinguish between the two prohibitions or amendments on the ground that the Thirteenth was the decision of war is futile. That the Proclamation of Emancipation and the Reconstruction Acts referred to were such, may be conceded, and that the causes which led to the war and its outcome furnished the motive for the adoption of the Thirteenth Amendment, is highly probable, but that does not refute the argument that the Thirteenth Amendment was necessary to prohibit slavery throughout the United States and every place subject to its jurisdiction. nolu chan  posted on  2015-05-29 17:21:02 ET  Reply   Untrace   Trace   Private Reply   #103. To: tpaine (#101) And amendments to the constitution can be deemed unconstitutional. After the Secretary of State proclaims an amendment has been adopted, no power can rule it unconstitional. You are just wrong. The new amendment has become valid, to all intents and purposes, as a part of the constitution of the United States. The Constitution cannot be held unconstitutional. LaVergne v Bryson, Secretary of Commerce, 3rd Cir 12-1171 (20 Sep 2012) LaVergne’s claims also fail on other grounds, including lack of justiciability. LaVergne’s constitutional challenge to § 2a is primarily based on his argument that the apportionment method violates Article the First. He alleges that this proposed constitutional amendment was ratified by the states in November 1791 or June 1792. Putting aside the considerable factual and historical problems with his argument, “[t]he issue of whether a constitutional amendment has been properly ratified is a political question.” United States v. McDonald, 919 F.2d 146, 1990 WL 186103 (table), at *3 (9th Cir. 1990) (per curiam) (citing Coleman v. Miller, 307 U.S. 433, 450 (1939)). In Coleman, the Supreme Court held that “the question of the efficacy of ratifications by state legislatures . . . should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment.” 307 U.S. at 450. See also Luther v. Borden, 48 U.S. (7 How.) 1, 39 (1849) (holding that “the political department has always determined whether the proposed constitution or amendment was ratified or not by the people of the State, and the judicial power has followed its decision”); United States v. Foster, 789 F.2d 457, 463 n.6 (7th Cir. 1986) (holding that the issue of “the validity of an amendment’s ratification [is] a non-justiciable political question” and citing, among other cases, Leser v. Garnett, 258 U.S. 130, 137 (1922), and Coleman, 307 U.S. at 450). US v McDonald, 9th Cir 88-5239, 919 F.2d 146 (26 Nov 1990) Because the ratification of a constitutional amendment is a political question, the Secretary of State's certification that the required number of states have ratified an amendment is binding on the courts. See Leser v. Garnett, 258 U.S. 130, 137 (1922) (Secretary of State's certification that the Nineteenth Amendment had been ratified by the requisite number of state legislatures was conclusive upon the courts); United States v. Stahl, 792 F.2d 1438, 1439 (9th Cir. 1986) (Secretary of State's certification that the Sixteenth Amendment was properly ratified was conclusive upon the courts), cert. denied, 479 U.S. 1036 (1987). In the case of the Fourteenth Amendment, Secretary of State William J. Seward certified that the required number of states ratified the Amendment on July 28, 1868. 15 Stat. 708 (1867-69). In accordance with the authority cited above, we are bound by Secretary Seward's finding. The fact that the appellant is alleging fraud in the ratification process does not alter our conclusion. Stahl, 702 F.2d at 1440. United States v. Stahl, 792 F.2d 1438, 1439 (9th Cir. 1986) Stahl argues that the sixteenth amendment was never ratified by the requisite number of states because of clerical errors in the ratifying resolutions of the various state legislatures and other errors in the ratification process. He further argues that Secretary of State Knox committed fraud by certifying the adoption of the amendment despite these alleged errors. Secretary of State Knox certified that the sixteenth amendment had been ratified by the legislatures of thirty-eight states, two more than the thirty-six then required for ratification. His certification of the adoption of the amendment was made pursuant to Section 205 of the Revised Statutes of the United States which provided: Whenever official notice is received at the Department of State that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Secretary of State shall forthwith cause the amendment to be published in the newspapers authorized to promulgate the laws, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States. Act of April 20, 1818, ch. 80, Sec. 2, Rev.Stat. Sec. 205 (2d ed. 1878) (amended version codified at 5 U.S.C. § 160 (1940) (repealed Oct. 31, 1951); current version, as amended, at 1 U.S.C. § 106b (Supp. II 1984)). Secretary of State Knox's certification of the adoption of the sixteenth amendment is conclusive upon the courts. United States v. Thomas, 788 F.2d 1250, 1253-54 (7th Cir. 1986); see also Leser v. Garnett, 258 U.S. 130, 137, 42 S. Ct. 217, 218, 66 L. Ed. 505 (1922). In Leser suit was brought to strike the names of two women from the list of qualified voters in Maryland on the ground that the constitution of Maryland limited suffrage to men. Maryland had refused to ratify the Nineteenth Amendment. The necessary minimum of thirty-six states had ratified the amendment. The Secretary of State of the United States had certified its adoption. It was contended, however, that the ratifying resolutions of Tennessee and West Virginia, two of the states that had ratified the amendment, were inoperative because the resolutions of those states had been adopted in violation of their rules of legislative procedure. In answer to that contention the Court ruled: The proclamation by the Secretary certified that from official documents on file in the Department of State it appeared that the proposed Amendment was ratified by the legislatures of thirty-six States, and that it "has become valid to all intents and purposes as a part of the Constitution of the United States." As the legislatures of Tennessee and of West Virginia had power to adopt the resolutions of ratification, official notice to the Secretary, duly authenticated, that they had done so was conclusive upon him, and, being certified to by his proclamation, is conclusive upon the courts. Luther v Borden, 48 US 1, 39 (1849) In forming the constitutions of the different States, after the Declaration of Independence, and in the various changes and alterations which have since been made, the political department has always determined whether the proposed constitution or amendment was ratified or not by the people of the State, and the judicial power has followed its decision. http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=003/llsl003.db&recNum=480 15 Stat. 439, 1st Sess (1818) Act of April 20, 1818, To provide for the publication of the laws of the United States, and for other purposes. SEC. 2. And be it further enacted, That, whenever official notice shall have been received, at the Department of State, that any amendment which heretofore has been, or hereafter may be, proposed to the constitution of the United States, has been adopted, according to the provisions of the constitution, it shall be the duty of the said Secretary of State forthwith to cause the said amendment to be published in the said newspapers authorized to promulgate the laws, with his certificate, specifying the states by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the constitution of the United States. nolu chan  posted on  2015-05-29 17:21:32 ET  Reply   Untrace   Trace   Private Reply   #104. To: tpaine (#101) Root “denied that the amending provision of the Constitution, Article V, authorized this type of amendment.” The unanimous Court held, “The prohibition of the manufacture, sale, transportation, importation and exportation of intoxicating liquors for beverage purposes, as embodied in the Eighteenth Amendment, is within the power to amend reserved by article 5 of the Constitution.” United States Reports, Volume 253, page 350 United States Supreme Court OCTOBER TERM, 1919. Syllabus. NATIONAL PROHIBITION CASES. ORIGINAL, AND APPEALS FROM THE DISTRICT COURTS OF TUB UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS, THE WESTERN DISTRICT OF KENTUCKY, THE DISTRICT OF NEW JERSEY, THE EASTERN DISTRICT OF WISCONSIN, AND THE EASTERN DISTRICT OF MISSOURI. Nos. 29, 30, Original, and Nos. 095, 752, 788, 794, 887.—Argued March 8, 9, 10, 29, 30, 1920.—Decided June 7, 1920. [...] [352] No. 788. Christian Feigenspan, a corporation, v. Joseph L. Bodine, United States Attorney for the District of New Jersey, and Charles V. Duffey, Collector of Internal Revenue of the Fifth District of New Jersey. Appeal from the District Court of the United States for the District of New Jersey. Decree refusing injunction affirmed. [...] [361] Mr. Root for the appellant in No. 788: I. The substantive and operative part of the so-called Eighteenth Amendment is contained in its first section. This provision does not relate to the powers or organisation of government, as does an ordinary constitutional [362] Argument for Appellant in No, 788. provision. On the contrary, it is itself an exercise of the legislative power of government, and a direct act of legislation regulating the conduct of life of the individual. The first question before the court is, therefore, whether Article V of the Constitution authorises any amendment which in substance and effect is merely a police regulation or statute. To uphold such a power of amendment would do violence to what Hamilton (Federalist, No. 22, p. 135, Ford’s ed.) described as “the fundamental maxim of republican government . . . which requires that the sense of the majority should prevail.” If the so-called Eighteenth Amendment be a valid part of the Constitution, its repeal can hereafter be perpetually prevented by a minority, for if but one State more than one-fourth of the States refuse to assent thereto, it is irrepealable. The census of 1910 discloses that there are in the Union thirteen States whose aggregate population does not equal five per cent. of the entire population of the United States. Consequently, however vast the majority of the population in the future may be who are persuaded by experience that this direct legislative regulation of their lives and personal habits was or has become unwise and unnecessary, they will be helpless to change the law if there be dissent on the part of a minority representing only five per cent, of the population or perhaps less. There is plainly a distinction in this respect between the so-called amendment as adopted and as it would be if it had conferred power upon Congress to prohibit the use of intoxicating liquors. An amendment in the latter form would, it is true, be precisely as irrepealable as the one here in question, but the conduct of individual life thereunder would at all times be within the control of representatives of the majority of the people. Congress would then have the power to prohibit intoxicants or not, completely or qualifiedly, as it from tube to time deemed [363] Argument for Appellant in No. 788. best; and if the majority of the people then desired prohibition, Congress could respond to their wish; and if, on the other hand, the majority thereafter became persuaded that extreme prohibition was no longer necessary, in that respect also Congress could effectuate the will of the people. In every free government the direct regulation of the lives of the people by legislation should at all times be in the hands of the majority, however the powers of government may be distributed and allocated. This fundamental consideration differentiates sharply the Eighteenth Amendment from the Thirteenth Amendment, to which the Eighteenth bears a superficial resemblance. As is now universally conceded, slavery was the creation of positive law, and it was always unauthorised unless some exercise of government permitted it. A constitutional declaration that slavery was prohibited, would, therefore, in substance, be only the withdrawal from every governmental authority of the power to license or permit involuntary servitude. That amendment, consequently, only affected the powers of government, and did not constitute, as does the so-called Eighteenth Amendment, a direct legislative exercise of those powers. Article V of the Constitution should not be construed to confer unlimited legislative power upon the amending authorities. To assume that it does is inconsistent with the plain provision of § 1 of Article I of the Constitution that “all legislative powers herein granted shall be vested in a Congress of the United States,” and with the terms of Article V itself, as the proceedings of the Constitutional Convention disclose that the framers themselves understood those terms. The framers undoubtedly regarded the power to amend only as authorizing the inclusion of matter of the same general character as the instrument or thing to be amended; and as all the constitutions of their day were concerned solely with the distribution and limitation of the powers of government, [364] Argument for Appellant in No. 788. and not with the direct exercise thereof by the constitution makers themselves, no amendment of the latter sort would have been deemed appropriate or germane by them. It does not advance the discussion to urge that the people can adopt any amendment to the Constitution they see fit. No doubt an amendment of any sort could be adopted by the same means as were employed in the adoption of the Constitution itself. In that manner alone do or can the people themselves act. But the amending authorities provided for in Article V of the Constitution, as clearly appears from the debates in the Constitutional Convention, are only agents of the people and not the people themselves. They must, therefore, act within the authority conferred in Article V, and that authority does not embrace the right under color of amendment to adopt mere sumptuary laws which are not constitutional amendments in truth or essence. The people could by appropriate proceedings amend the Constitution so as to impair such vital rights as freedom of religion, but it is inconceivable that any such unlimited power has been delegated to the amending agents, who may represent but a minority of the people. The census discloses that there are three-fourths of the States of the Union whoee total population amounts to less than forty-five per oent. of the people of the United States, and two-thirds of a quorum of both houses of Congress may, therefore, likewise represent only a minority of the population. Ratification by state legislatures does not as matter of fact provide an opportunity for the people to express their will regarding the proposed Eighteenth Amendment as the calling of conventions might have done. Thus, for example, the Missouri legislature ratified it, notwithstanding an express provision of the Missouri constitution (Art II, §3) forbidding them so to do, and in Ohio ratification by the legislature was subsequently rejected by the people at the polls, while in other States the people [365] Argument for Appellant in No. 788. have been denied all right to have the question of ratification referred to them for approval. If, as contended by the defendants, the power of amendment vested in Congress and three-fourths of the state legislatures be absolute and unrestricted, then there would be no limitation whatever upon their legislative authority. They could then by amendment establish a state religion, or oppress or discriminate against any denomination, or authorize the taking away of life, liberty and property, without due process of law, etc., etc. This would destroy the most essential limitation upon power under the American system of government, which is that the rights of the individual citizen shall be protected by withholding from the legislative function the power to do certain things inconsistent with individual liberty. This was the reason of the irresistible demand for the first ten amendments. When the Federal Constitution was adopted, the people of practically every State had limited by bills of rights their own governments in their own States, which were composed of men elected by themselves. We are not at liberty to assume that in and by Article V it was contemplated that they were vesting legislative power without limitation in the Congress and the legislatures of three-quarters of the States. For these reasons and others it is submitted that the adoption of the so-called Eighteenth Amendment by the agents of the people was beyond the amending power of such agents and therefore invalid.1 ___________________ 1 Journal of Constitutional Convention of 1787, pp. 370, 70; 3 Documentary History of U.S. Constitution, pp. 405, 409, 410, 518; McCulloch v. Maryland, 4 Wheat. 316, 403, 407; Cohens v. Virginia, 6 Wheat 264, 389; State ex rel. Mullen v. Howell, 107 Washington, 167; Opinion of the Justices, 118 Maine, 544; Federalist, No. 33 (Ford’s ed.), pp. 202, 260, 263; 2 Elliot’s Debates, pp. 126,128, 364; 4 id., pp. 144, 176, 188; 1 Bryce’s American Commonwealth, p. 360; Story on the Constitution, 5th ed., § 352; Cooley on Constitutional limitations, [366] Argument for Appellant in No. 788. II. The Eighteenth Amendment, furthermore, if valid, would tend to undermine a fundamental principle of our federal system. As Chief Justice Chase declared in Texas v. White, 7 Wall 700, 725, “the Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.” Manifestly, the federal system of government created in the Constitution contemplated indestructible States—not indestructible geographic units merely, but indestructible self-governing, local sovereignties. The establishment of our dual system of government must necessarily imply that neither government shall be permitted to destroy the other, and that the States must be preserved, not as mere electoral and administrative districts of a unified and consolidated national government, but as true local, self-governing sovereignties, inviolate and indestructible members of a dual, and not a consolidated, system of government, and with a perma- ___________________ 7th ed., pp. 2-4,50; Jameson on Constitutional Conventions, 4th ed., H 63, 85; Vanhorne’s Lessee v. Dorrance, 2 Dall. 304, 308; Century Dictionary, tit. “Constitution”; Encyclopaedia Britannica (9th ed.), tit. “Constitution”; Holland’s Jurisprudence, 11th ed., p. 365; Hie Constitutional Review, April, 1918, p. 97; Mass. Law Quarterly, May, 1918, p. 334; Southern Pac. Co. v. Jensen, 244 U. S. 205, 227; Federalist, No. 15 (Ford’s ed.), p. 87; Marbury v. Madison, 1 Cranch, 137,176; In re Pennsylvania Tel. Co., 2 Chester Co. Rep. 129; 6 Hinds’ Precedents, §§ 5753, 5767; Gagnon v. United States, 193 U. S. 451, 457; Shields v. Barrow, 17 How. 130, 144; Federalist No. 43 (Ford’s ed.), p. 291; id., No. 85, p. 586; 3 Elliot’s Debates, pp. 233-4; Commonwealth v. Griest, 196 Pa. St. 396, 404; Warfield v. Vandiver, 101 Md. 78; Livermore v. Waits, 102 Cal. 113, 118, 119; Gibbons v. Ogden, 9 Wheat. 1, 187,188; Calder v. Bull, 3 Dall. 386, 388; Fletcher v. Peck, 6 Cranch, 87, 139; Loan Association v. Topeka, 20 Wall. 655, 663; Murphy v. Ramsey, 114 U. S. 15, 44; Collector v. Day, 11 Wall. 113, 127; Hollingsworth v. Virginia, 3 Dall. 378; Madison’s Notes, Sept. 12, 1787, p. 720, Legal Tender Cases, 12 Wall 457; Texas v. White, 7 Wall. 700, 720, 724; Sturges v. Crowninshield, 4 Wheat 122, 192; 3 Elliot’s Debates, pp. 446-7; Somerset v. Stewart, 20 State Trials, 1, 82; 2 Mass. Law Quarterly, pp. 437-44; Slaughter-House Cases, 16 Wall 36, 67, 68. [367] Argument for Appellant in No. 788. nent and effectual reason for being, namely, the possession of the power and the right to exercise forever the functions of internal and local self-government. The so-called Eighteenth Amendment directly invades the police powers of the States and directly encroaches upon their right of local self-government. If this amendment be valid, then any amendment which directly impairs the police powers of the States and absolutely withdraws from them their right to local self-government in any important particular, heretofore indisputably a matter of internal concern, must likewise be valid. In other words, if the so-called Eighteenth Amendment be lawful, then the States are not in truth indestructible. It must be manifest that the precedent necessarily erected by a holding that the Eighteenth Amendment is constitutional, would authorize the complete subversion of our dual and federal system of government. It is submitted that the authority conferred in Article V to amend the Constitution carries no power to destroy its federal principle in a most fundamental aspect. The Civil War amendments afford no justification for the Eighteenth Amendment. Their primary purpose was to crystallise into the Constitution some of the essentials of a free republican government, and it was expressly made the constitutional duty of the Federal Government to guarantee to the States such a form of government. This federal duty the Civil War amendments helped to realise; and the fact that, as an incident and indirectly, they interfered to some extent with the States is of no consequence. They are not like the Eighteenth Amendment, which is germane to no original federal duty, and which directly, primarily and deliberately invades the right of the States to govern themselves.1 ____________________ 1 McCulloch v. Maryland, 4 Wheat. 316, 327, 403, 431; Cohens v. Virginia, 6 Wheat. 264, 389; Texas v. White, 7 Wall 700, 726, 728; Hammer v. Dagenhart, 247 U. S. 261,275; Gordon v. United States, 117 nolu chan  posted on  2015-05-29 17:26:51 ET  Reply   Untrace   Trace   Private Reply   #105. To: tpaine (#101) In Feigenspan v. Bodine, et al., District Court of New Jersey (9 Mar 1920), Elihu Root represented Christian Feigenspan, a corporation. Basically, Root represented a brewery, and Feigenspan the natural person was president of the U.S. Brewer’s Association. The decree in Feigenspan addressed the argument of Root and ruled against Feigenspan. In the National Prohibition Cases 253 U.S. 350 at 352, No. 788. Christian Feigenspan, a corporation v. Joseph L. Bodine, United States Attorney for the District of New Jersey, and Charles V. Duffey, Collector of Internal Revenue of the Fifth District of New Jersey. Appeal from the District Court of the United States for the District of New Jersey. Decree refusing injunction affirmed. Below is the decree in Feigenspan which SCOTUS affirmed. [100] THE NEW JERSEY LAW JOURNAL FEIGENSPAN v. BODINE, ET AL. (U. S. Dist. Court, Dist. of New Jersey, March 9, 1920). The Prohibition Amendment and Volstead Acts—Power of Amendment and of Congress, Etc. Case of Christian Feigenspan, a corporation, against Joseph L. Bodine, United States Attorney, and Charles V. Duffy, Collector of Internal Revenue. On Bill in equity. Motion by Plaintiff for preliminary injunction denied. Motion by Defendants to dismiss bill granted. Mr. Harrison P. Lindabury (Mr. Elihu Root and Mr. William D. Guthrie of counsel) for Plaintiff. Mr. Joseph L. Bodine for Defendants. Mr. Wayne B. Wheeler, Mr. George S. Hobart and Mr. G. Rowland Munroe, Amici Curiae. RELLSTAB, District Judge: The plaintiff, Christian Feigenspan, is a New Jersey corporation authorized by the laws of that State to manufacture and sell lager beer and other malt liquors. The defendant, Joseph L. Bodine, is the United States Attorney of the District of New Jersey; and the defendant, Charles V. Duffy, is the Collector of Internal Revenue of the Revenue District of New Jersey, wherein the plaintiff has its principal place of business. Generally stated, (references of greater detail to appear later on) the bill alleges that plaintiff, the owner of a brewery and its appurtenances, for a number of years prior to August 10, 1917 (the date of the enactment of the Act of Congress popularly known as the “Lever Act”), was actively and extensively engaged in the manufacture and sale of fermented malt liquors for beverage purposes, commercially known as lager beer, ale and porter; that on October 28, 1919, (the date of the passage of the Act of Congress, the short title of which is the “National Prohibition Act,”) it had, and still has on hand a large quantity of non-intoxicating malt liquors containing more than one-half of one per cent, of alcohol by volume, but less than 2.75 per cent, by weight, which, in volume, is less than 3.4 per cent., commercially called “War beer,” and which it had theretofore lawfully manufactured in the ordinary course of its business, pursuant to the Presidential proclamation made under the [101] authority of the “Lever Act”; that unless enjoined, the defendant, acting under the “National Prohibition Act,” (which the plaintiff declares to be unconstitutional) will enforce its provisions against the plaintiff, its agents and customers, and prevent it from carrying on its business as a manufacturer and vendor of non-intoxicating malt beverages, to its irreparable injury and damage. The plaintiff prays that the defendants be enjoined from enforcing or attempting to enforce against it, or its agents or customers, any of the penalties, seizures and forfeitures authorized by the provisions of Title II of the “National Prohibition Act,” for or on account of its “manufacture or sale of non-intoxicating malt beverages.” The cause is before the Court on the plaintiff’s motion for a preliminary injunction, and the motion of the defendants to dismiss the bill. The scope of the allegation of fact and prayer of the bill limits the judicial inquiry on both motions. The questions argued on the hearing of these motions involve the validity of the Eighteenth Amendment to the Constitution of the United States, and of Title II of the “National Prohibition Act.” Broadly stated, the validity of the Amendment is challenged on the grounds that it is not germane to any of the powers conferred upon the United States or those prohibited to the States, and cannot be added to the United States Constitution by Amendment under Article V thereof; and that it was neither proposed to the States, nor ratified by them in the only way authorized by that Article. The invalidity of Title II of the “National Prohibition Act” is said to exist because it is based on no other authority than the Eighteenth Amendment, which is itself null and void; that the State of New Jersey has not concurred therein; that its definition of intoxicating liquor is arbitrary, and that its forfeiture provisions are confiscatory. Concerning the defendants’ grounds for their motion to dismiss the bill, it is sufficient to say that they assert that the grounds of attack upon the validity of the amendment present non-justifiable questions; that the National Prohibition Act is valid; and that no equitable ground for the relief prayed for is alleged. The matter will be considered by taking up the plaintiff’s grounds under two heads: I. THE ALLEGED INVALIDITY OF THE AMENDMENT. The Amendment reads: “Article 18. “Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes, is hereby prohibited. “Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation. “Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the Legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.” [102] The liquor traffic, differing from other kinds of business, has always needed regulating. State after State, beginning several decades ago, has amended its constitution to prohibit absolutely this business, so that at the time Congress proposed this Amendment to the States for their ratification, more than two-thirds of them had decreed it to be an outlaw. Previous to such submission, in response to persistent demands from the people of those States, Congress, in the exercise of its power to regulate interstate commerce, and for the purpose of aiding such States to enforce more effectively their prohibition laws, successfully passed laws known as the Wilson Act, August 8, 1890, c. 728, 26 Stat. 313; the Webb-Ken-yon Act, March 1, 1913, c. 90, 37 Stat. 699, and the Reed Amendment, March 3, 1917, c. 162, 39 Stat. 1058, 1069, sec. 5. These Acts, as well as numerous statutes of these States passed to enforce their prohibition laws, were held constitutional and valid by the United States Supreme Court. In re Rahrer, 140 U. S. 545; Clark Distilling Co. v. Western Maryland Ry. Co., 242 U. S. 311; United States v. Hill, 248 U. S. 420. Section 1 of the Eighteenth Amendment (which alone concerns us at present), it will be noted, is not a delegation of power to be exercised, but a mandate operative by its own terms. If valid, it prohibits the manufacture of, and all dealings in, intoxicating liquors for beverage purposes throughout the United States and all the territory subject to its jurisdiction. For brevity, the transactions thereby prohibited will be hereinafter referred to as the “liquor traffic” or “trafficking in liquors.” The prohibition covers both intrastate and interstate business in such beverages. Plaintiff alleges it is invalid: First, because of its subject-matter. At the outset let us keep clearly in mind that the issue here relates solely to power—the power to amend the United States Constitution. In discussing the challenges of the plaintiff articulated under this head, that fact must not be forgotten. The other attacks upon the Amendment, to be considered under separate heads, relate to the use made of the power, if it be found to exist. If the plaintiff is right in its contention of lack of power to insert the Eighteenth Amendment into the United States Constitution because of its subject-matter, it follows that there is no way to incorporate it and others of like character into the National organic law, except through revolution. This, the plaintiff concedes, is the inevitable conclusion of its contention. This is so startling a proposition that the judicial mind may be pardoned for not readily acceding to it, and for insisting that only the most convincing reasons will justify its acceptance. Article V of the United States Constitution, which gives express power to amend that instrument, is as follows: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the Legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amend [103] ment 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 article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate.” This power, by the terms of this Article, is not unlimited, but of the express limitations the only one now operative relates to a subject not touched upon by the Eighteenth Amendment. However, it is said the word “amendment” used in this Article carries its own limitations; that it is confined to corrections of the text, or at the most to changes in the scope of the subjects dealt with in the Constitution. “Words in the Constitution of the United States do not ordinarily receive a narrow and contracted meaning, but are presumed to have been used in a broad sense with a view of covering all contingencies.” In re Strauss, 197 U. S. 324. The definitions of the word “amendment” include additions to, as well as corrections of, matters already treated; and there is nothing in its immediate context (Article V) which suggests that it was used in a restricted sense. But it is argued that the Eighteenth Amendment is not germane to the powers granted to the United States by the Constitution, nor to those prohibited by it to the States; that it tends to the destruction of the several States in respect to governmental powers expressly reserved to them; and that it is an attempt to effect a fundamental change through the exercise of legislative power which deals solely with the conduct of private individuals. All this, it is said by plaintiff, is so inconsistent with the fundamental principles and spirit of the Constitution as to be prohibited by necessary implication. If this be so, then, as plaintiff contends, we have here a plain usurpation of power by both Congress and the ratifying States. But where is the usurpation? That the Eighteenth Amendment differs substantially from all the other amendments, save the Thirteenth, may be conceded; also that of its own force it ordains a law binding upon the several States as well as the United States. But how does this violate fundamental principles? As an answer we are referred to Article 1, section 1 of the Constitution. This reads: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Based upon this vesting in Congress of all the legislative power granted in the Constitution, the claim is that the grant is exclusive and that the people whose predecessors ordained the Constitution may not legislate save through the instrumentality of Congress. But in the last analysis the people are the sovereigns, and both the States and the United States are only serving instrumentalities. Whatever limitations are on such sovereignty are self-imposed. Turning to Article I, referred to, it is noted that the grant of legislative power is limited to the enumeration of powers appearing in the subsequent provisions. The division into three separate, distinct and independent departments is the outstanding, dominant feature of the governmental structure created by the Constitution. In the distribution of legislative, executive and judicial powers, all the legislative powers grant- [104] ed in the Constitution were by Article I vested solely in the legislative department, called the Congress. Among these three departments of government, the power to legislate is exclusive in the Congress, but there is no warrant here for the assumption that, as between Congress and the people, in whom the ultimate right of sovereignty resides, only Congress could legislate. The limitations upon the people’s power to change their Constitution are no more than they have chosen to make them. So far as Article I of the Constitution is concerned, there is no limitation upon the sovereign right of the people to legislate a rule, act or principle into their organic law. But it is said that the Eighteenth Amendment, in respect to its subject-matter, not incidentally but directly and deliberately, destroys the police power of the several States, in violation of the Tenth Article of Amendment. This article is as follows: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” That the police power in a very large sense is the State itself, and that no express grant or delegation of such power has ever been made to the United States Government, is conceded. License Cases, 46 U. S. (5 How.) 504; Keller v. United States, 213 U. S. 138; Noble State Bank v. Haskell, 219 U. S. 104; Sligh v. Kirkwood, 237 U. S. 52. However, every grant of power to the United States, whether by the Constitution as originally framed, or by subsequent amendment, of necessity diminished the powers of the several States, and Congress, upon the making of such grant, was immediately vested with all needed and appropriate power to enforce or carry out such grants. These powers, while they remained in the States, were part of their police power. Whatever they may be termed after they become vested in the Congress, they are, in essence and practical effect, the same as had theretofore resided in the several States. McCulloch v. Maryland, 17 U. S. (4 Wheat.) 316; Lottery Cases, 188 U. S. 321, 355; Hipolite Egg Co. v. United States, 220 U. S. 45; Hoke v. United States, 227 U. S. 308. The Tenth Article of Amendment, if not merely declaratory of what was necessarily implied in the Constitution as originally adopted, established that the undelegated powers were reserved to the several States or to the people. However, this residuum was not a fixed quantity, but would change, becoming less or greater, as an amendment increased or diminished the powers of the United States Government. Therefore, the fact that the Eighteenth Amendment is a further entrenchment upon the police power of the States, is not in itself a violation of the social compact or fundamental principles evidenced by the Constitution; nor is the fact that this amendment’s encroachment is more extensive than some or even all of its predecessors. That it does not surpass in that respect the Thirteenth Amendment must be conceded, but, if it did, that fact alone would not violate the Tenth Article of Amendment. The extent of the encroachment upon the police powers of the States is a political matter to be determined by the people. That the exercise of the amending power granted by Article V may encroach upon [105] some of the State rights, is true, but that is inevitable and was necessarily contemplated when the power to amend was granted. That the recognition and sanction of power to prohibit the liquor traffic mean the existence of power to prohibit commerce in other commodities does not follow. The traffic in intoxicating liquor stands on an entirely different footing from the commerce in ordinary commodities. In Mugler v. Kansas, 123 U. S. 623, 662, which sustained the Kansas Prohibition Law, Mr. Justice Harlan, for the Supreme Court, said: “We cannot shut out of view the fact, within the knowledge of all, that the public health, the public morals, and the public safety, may be endangered by the general use of intoxicating drinks; nor the fact, established by statistics accessible to every one, that the idleness, disorder, pauperism, and crime existing in the country are, in some degree at least, traceable to this evil.” The fear that sustaining the right of the people to extinguish the traffic in intoxicating liquors opens the door to a like prohibition of other business, therefore, is not well founded. But if it were, it would be of little force in dealing with the question of power. The right to exercise power inevitably carries with it the possibility of abuse, but abuse in the exercise of power is no argument against its existence. The line between a proper use and abuse of power cannot be settled in advance, but it may be said, and that is as far as the present inquiry warrants, that whenever any other business produces like evils it may be disposed of in the same way. The plaintiff also charges that this Amendment is but legislation controlling the conduct of private individuals, not alterable by the will of the majority, and is not within the power of amendment granted by Article V. Undoubtedly it is not subject to change by a majority. But everything in the United States Constitution is subject to the same limitation. Whatever becomes a part of that Constitution endures until changed in the method prescribed therein. That method, by express language, prevents alteration by a mere majority. If it were otherwise, there would be little need of a written constitution. The manifest purpose of the limitation upon the power to amend is to prevent hasty action in altering the organic or fundamental law of the nation, and to ensure ample time and careful and deliberate consideration before a change can be effected. The checks provided in requiring two-thirds of each House of Congress and the Legislatures of three-fourths of the States to concur before any alteration can be made, have hitherto proved sufficient for such purpose, and the steps leading up to the introduction of the Eighteenth Amendment into the organic law but emphasizes that this continues to be so. The movement so to amend the Constitution had its beginning several decades ago when the first State, by amending its Constitution, prohibited the traffic in intoxicating liquor. Its progress is marked by a procession of States amending their Constitutions for a like purpose. Whatever the motive that brought about this organic change, it cannot be said that it was hasty and unattended with deliberate action. There being no express inhibition in the Constitution of the United States against ordaining a final permanent law, what authority is there for implying one? As already noted, Article I is not a limitation upon the [106] law-making power of the people, acting through constitutional means, and I fail to perceive anything in any part of the organic law that would justify a judicial interpretation forbidding the people to do so when they are convinced that on a given subject the time has come to prevent perennial changes in respect thereto. Does the fact that this mandate denies the right of the individual to make, buy, transport and sell intoxicating liquors, require a different judgment? The power to prohibit the trafficking in intoxicating liquor is not a new one. It is now well settled that on account of the recognized noxious qualities of, and the extraordinary evils shown by experience commonly following the use of intoxicating liquors, the Government has absolute power to prohibit the traffic therein. Mugler v. Kansas, 123 U. S. 623; Crowley v. Christensen, 137 U. S. 86, 91; Crane v. Campbell, 245 U. S. 304, 307. As noted, that always resided in the several States and the greater number thereof have interdicted it by constitutional mandate. What the Amendment does is to extend this prohibition throughout the whole Union. The power so to regulate individual conduct is no different now from what it was before the Amendment was adopted, considered merely as a power; it is simply more extended in its application. It is now no longer limited to the people of the States who secured it by amending their Constitutions. It now embraces the people of the other States as well. As a legal proposition the effect upon the individual’s mode of living in the non-ratifying States does not differ from that upon the non-assenting people of the several States, the greater number of the people whereof wrote prohibition into their organic law. The prohibition in the latter States applied to the non-assenting people therein, and the prohibition now written into the United States Constitution applies in the same way to the people of the non-ratifying States. The right of the people by their representatives acting in accordance with Article V to write legislation into their organic law is not without precedent. A striking example is found in the Thirteenth Article of Amendment, prohibiting slavery throughout the United States. Abhorrent as it is to us of this day, the doctrine that one human being might have ownership in another and traffic in him as if he were a chattel had a legal basis. The right so to own, etc., was the creature of the laws of a number of States. This right the Thirteenth Amendment annulled. Therefore it is not accurate to say that all this Amendment did was to prevent the revival of the status of slavery. That presupposes slavery to have been previously abolished and that the whole purpose of the Amendment was to prevent its revival. So far as the States which sought to secede from the Union are concerned, that perhaps was its effect, but that is not so as to the other States. The Emancipation Proclamation of President Lincoln (12 Stat, 1268), and the Reconstruction Acts of Congress, were war measures and applicable solely to the States then or then recently in a state of rebellion. None was intended to have, nor could have had, any effect upon the other States. The legal right of the States to establish and maintain slavery was the right of all the States, and without the adoption of the Thirteenth Amendment none of the States which had not joined in the Rebellion could have been legally prevented by any power other than their own [107] from establishing slavery and giving it the protection of their laws. An amendment to the United States Constitution was the only way to abolish such a right, and this was effected by the Thirteenth Amendment. This was done not by empowering Congress so to do, but by a positive mandate similar to the Eighteenth Amendment, and was as much legislation as is the latter. These two amendments also have a close analogy in the control exercised over the conduct of private individuals. By the Thirteenth Amendment the right of an individual to buy, sell, possess, transport and use another human being was absolutely prohibited. By substituting “slavery” of the Thirteenth Amendment, for “intoxicating liquors for beverage purposes” of the Eighteenth Amendment, we have in legal effect the same kind of mandatory prohibition. Every argument advanced here to deny the power to incorporate the Eighteenth Amendment into the Constitution could be applied equally against the power to ordain the Thirteenth Amendment. Indeed, in view of several provisions in the original Constitution giving distinct recognition of the right of one to hold another in involuntary servitude (Art. 1, sec. 9, cl. 1; Art. IV, sec. 2, cl. 3), much more forcible argument could have been made to raise an implied limitation against the power of abolishing slavery by constitutional amendment, than could be made to the Eighteenth Amendment. To attempt to distinguish between the two prohibitions or amendments on the ground that the Thirteenth was the decision of war is futile. That the Proclamation of Emancipation and the Reconstruction Acts referred to were such, may be conceded, and that the causes which led to the war and its outcome furnished the motive for the adoption of the Thirteenth Amendment, is highly probable, but that does not refute the argument that the Thirteenth Amendment was necessary to prohibit slavery throughout the United States and every place subject to its jurisdiction. The framers of the Constitution from their experience with the Articles of Confederation, which, among other defects, failed to provide for their amendment, purposely inserted Article V to avoid that particular and very serious defect. This Article, the proper interpretation of which controls the attack here considered, took on its present form only after a number of propositions were offered, considered and rejected or modified. It is the product of careful thought and deliberation, and was adopted with a full consciousness of the transcendent powers thereby granted. (See Madison Papers, pp. 531, 532, 551, 552; also Vol. 1, Elliott’s Debates, pp. 316, 317). The rejection of most of the proposed limitations on this power and the inclusion of but one permanent disability or restriction is strong evidence that, save as to the included exception, it was intended that the legislative departments of the governments of both the United States and the several States, acting in a special capacity for such purpose, should be practically unlimited in their power to propose and adopt amendments. In this connection it should not be overlooked that the ultimate power to amend the United States Constitution is not given to the Federal Government, but to the people of the several States. The power of Congress in that respect ends with its proposing the Amendment to the States. The [108] ultimate and controlling act is by the people themselves, acting through their chosen representatives. To declare an Amendment so ordained void, on the ground that it runs counter to the implied limitations arising from the original document, is fraught with such dire possibilities that the power so to do by any other than the political departments of the government may well be doubted. But so far as concerns the present inquiry, it is not necessary to hold or intimate that there may not be implied limitations upon this power of amendment. The Eighteenth Amendment but carries forward into the national Constitution what had already been inserted into the organic law of the greater number of States, and if the reasons herein expressed are sound there is no limitation in the United States Constitution, express or implied, that forbids its incorporation therein by action pursuant to Art. V thereof. Second, Because Congress failed to propose the Amendment in the only way authorized by Article V. The initiative in proposing this amendment was taken by Congress. Article V of the Constitution, as to such proposal, as noted, provides “The Congress, whenever two-thirds of both houses shall deem necessary, shall propose amendments,,, etc. The concurrent resolution of Congress proposing this Amendment to the States, fails to declare that they “deem it necessary.” That a necessity should exist, and that Congress must deem it necessary before it proposes an Amendment is undoubted, but how does the failure of Congress so to declare in its resolution proposing the Amendment establish that it did not deem it necessary ? It is a general rule that individuals, and collections of individuals such as legislative bodies, express their real mental conclusions nearer correctly and more forcibly by what they do than by what they say. Article V does not require that two-thirds of both Houses shall state in words that they “deem it necessary.” If they express their conclusions in actions rather than in words, that is a compliance with the terms of the Article. Other Amendments, which are now a part of our organic law, were proposed to the State by Congress without such formal declaration. The public Statutes at Large, published by authority of Congress, show that all of the concurrent resolutions proposing Amendments omitted such declaration— (See, as to the first ten Amendments, I Stat. 97-8; as to the eleventh, 1 Stat. 402; as to the twelfth, 2 Stat. 306; as to the thirteenth, 13 Stat. 567; as to the fourteenth, 14 Stat. 358; as to the fifteenth, 15 Stat. 346; as to the sixteenth, 36 Stat. 184, and as to the seventeenth, 37 Stat. 646). The plaintiff asserts that as to the first ten amendments the official publication of statutes is inaccurate, and that the resolution proposing such amendments declared that they were deemed necessary. However, it concedes that as to the subsequent amendment, no such declaration is contained in the concurrent resolutions. None of these amendments has been challenged for that reason. Therefore, in proposing the Eighteenth Amendment, Congress followed a long-continued and unchallenged practice, and its omission to declare that it deemed such amendment necessary, is, to say the least, not evidence of its failure to determine such necessity. Congress is not a subordinate tribunal, but a coordinate branch of the United States Government, and is not required to set forth in [109] its resolutions the jurisdictional facts upon which it bases its governmental action, or the reasons that influenced it thereto. Furthermore, it alone, of all such departments of the government, is entrusted with the power of proposing Amendments to the Constitution. In the performance of that function, it acts exclusively of all the other departments, and its resolution proposing the Eighteenth Amendment to the several States carried with it the presumption that it deemed the Amendment necessary. Its motives or purposes in passing the resolution are not subject to judicial investigation, McCray v. United States, 195 U. S. 27; Hamilton v. Ky. Distilleries, (Jan. 15, 1920), and much less so is the form of the resolution in which it proposed this Amendment to the States. Third. Because the Amendment has not been ratified by the requisite number of States. Article V, on the subject of ratification of Amendments proposed by Congress, as noted, provides that an Amendment “shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several States.” On January 29, 1919, the Acting Secretary of State of the United States, pursuant to R. S., Section 205, certified and published that, from official documents on file in the Department of State, the Legislatures of three-fourths of the whole number of States had ratified the Amendment in question, and that it had become a part of the Constitution of the United States. In this certificate appears the names of thirty-six States whose legislatures had so ratified. Since such publication the legislatures of nine other States have ratified the amendment. Of the ratifying States 21 have embodied in their Constitutions what is known as the referendum provision, by which the people have reserved to themselves the right to pass upon the measures passed by their Legislatures and either approve or reject them, which States will hereinafter be called Referendum States. The ratification of this Amendment depends upon counting the ratifying action of the Legislatures of 12 of the Referendum States. With reference to such action, the bill, in substance, alleges that the Legislatures of the Referendum States treated this ratification as final, without submission to the people thereof. It names no Referendum State, and the plaintiff relies solely upon the Court’s taking judicial notice of the provisions of the Constitutions and laws of the several States. Thus taking knowledge, the Court finds that, under the Constitutions of such States, the right of referendum is not absolute, but conditional, and that unless the conditions are met the acts of the Legislatures become final. Stated generally, the conditions are that only a certain number or percentage of the qualified electors can invoke the referendum, and that the proceedings for such purpose must be instituted within certain specified or limited periods. Also, the bill is silent as to whether any referendum was invoked to review or pass upon any of the ratifications in question, and for aught that appears they may have become effective by lapse of time through non-action on the part of the voters. However, without passing upon the effect such omissions might [110] have on the plaintiff’s motion for a preliminary injunction, the question whether, in spite of such referendum provisions, the ratification by the Legislatures of the Referendum States was effective, will be considered on the defendant’s motion to dismiss the bill. The question thus raised turns solely upon the interpretation of the word “Legislature” in Article V. This Article has never been altered since it was incorporated in the Constitution as originally adopted. It, and not the Constitutions of the several States, controls the method by which the United States Constitution may be amended. At the time of the adoption of the Constitution the term “Legislature” had a well denned meaning. The thirteen original States each had a representative Assembly, generally known as a Legislature. That it was a Legislature of this kind, viz., a representative body empowered to act for the people in the matter of legislation, and distinct from the people themselves, which was in the minds of those who constituted the Convention which framed the United States Constitution, is established by the uses made of such term throughout the whole document. Of these I note that by Art. I, U. S. Const., Sec. 3, cl. 1 and 2, the United States Senators are to be chosen by the Legislatures of their State; and vacancies occurring during the recess of the State Legislatures are to be filled by the Executive of such State until the next meeting of the Legislature. This has been changed by the adoption of the Seventeenth Amendment, and concededly there was no other way to bring about the election of United States Senators directly by the people. By Art. IV, sec. 4, wherein the United States is charged with the duty of guaranteeing a republican form of government to every State, the United States is required, on the application of the Legislature, or of the Executive of a State (when the Legislature cannot be convened) to protect such State against domestic violence. In these two provisions we have striking evidence that a body distinct and acting separately from the people was intended by the use of the term “Legislature”—a body meeting periodically, and which may be in recess. The people cannot be in a state of recess and they cannot be convened. However, their representatives in legislative assembly do convene periodically and, therefore, are at times in recess. By Art. VI, cl. 3, the members of the several State legislatures are to be bound by oath or affirmation to support the United States Constitution. This also unerringly points to a body separate and distinct from the people at large, for the latter are not required so to swear or affirm, and, in fact, none save naturalized citizens do so. The same idea dominates the use of the word in the Fourteenth Article of Amendment adopted eighty years after the framing of the Constitution. Sec. 2 thereof refers to the possible denial of United States citizens’ right to vote for the members of the State Legislatures; and section 3 to the disqualification to hold office of any person who, having previously taken an oath as a member of any State Legislature to support the Constitution of the United States, had engaged in insurrection, etc. In all the particulars here referred to, “Legislature” by no possibility could have meant the body of the people. This word occurs twice in Article V (one of the uses being now under consideration), and also in parts of the Constitution other than here particularly pointed out; but in no instance is there any indication that it was used to refer to the [111] people, or to any body other than their chosen representatives to whom they had delegated a part of the State’s governmental powers. Congress, in its concurrent resolution proposing the Eighteenth Amendment, as well as in its previous proposals of amendments to the States, referred to “Legislature” in relation to their ratification by the States, and all the Amendments that have become a part of the United States Constitution have been submitted to and ratified by the legislative assembly referred to, and not by the people direct. The ratifications here challenged have been recognized as effective by the two political departments of the United States government. The proclamation of the adoption of the Eighteenth Amendment by the Acting Secretary of State, the enactment by Congress of the “National Prohibition Act,” and the enforcement of such legislation by the Department of Justice, are all founded thereon. In Art. V, as noted, two methods are authorized for the ratification of Amendments, one by Convention and the other by Legislatures. If the method by Convention had been chosen, would the ratifying action by the Convention have been subject to a referendum vote by the people? Manifestly not, if the express language of the Constitution is conclusive. And if not, where is the warrant for holding that ratification by the Legislatures requires such a referendum vote? The two methods are alike in the respect that the act of ratifying is done not by the people direct, but by their representatives in Conventions or Legislatures. The people of the thirteen original States, through their conventions called pursuant to Article VII of the proposed United States Constitution, ratified it in the form proposed. In so ratifying, they delegate the power of amendment to their representatives,—designating them and prescribing the function of each. Dodge v. Woolsey, 59 U. S. (18 How.) 331, 348. This delegated power the people have never retaken. Having so delegated the power of amendment, it cannot be executed in any way other than as prescribed, nor by any instrumentality other than there designated. If a change in the method of proposing or ratifying Amendments to the United States Constitution is desired, the way to bring it about is by altering Article V thereof, and that cannot be done by changing merely the Constitutions of the individual States. However effective the State referendum requirements may be as to matters affecting the State alone, or in influencing members of the legislature not to ratify proposed Amendments to the United States Constitution without causing a referendum to be taken, such requirements cannot affect the United States Constitution, or bring about a change in the method of amending it. Neither Congress in proposing the Amendments, nor the State Legislatures in ratifying, act in their legislative capacity, but in pursuance of a special power granted them by Article V. Neither proposal nor ratification need be presented to the Executive, or any one else for approval. Both acts are complete when performed. When the Legislature (the assembled representatives of the people as distinguished from the people themselves) of a Referendum State ratifies an Amendment to the United States Constitution, such act is the ratification contemplated by Article V of that Constitution, even though made without an approving referendum vote. [112] The Courts of the Referendum States that have had occasion to pass upon the question here considered are in disagreement. I am in accord with the following cases: Herbring v. Brown (Ore.) 180 Pac 328; In re Opinion of the Justices (Me.) 107 Atl. 673. I have read the majority opinion in State ex rel Mullen v. Howell (Wash.) 181 Pac. 920, holding a contrary view, but cannot agree with the reasoning thereof. II. The Alleged Invalidity of Title II of The “National Prohibition Act.” First. Because the Act lacks the concurrence of the State of New Jersey. The allegation of the bill in this behalf is: “Because the State of New Jersey has not concurred in the provisions of said Act of Congress of October 28, 1919, Exhibit II, and said provisions, if enforced without its concurrence, would violate, override and nullify the rights and powers vested in and reserved to the State of New Jersey in respect of its internal and intrastate affairs and concerns under the Constitution of the United States and the amendments thereto, and would deny to the plaintiff its constitutional right and liberty to carry on its business and manufacture and sell its non-intoxicating products as duly authorized by the laws of the State of New Jersey.” (Par. XII, cl. 5). This involves the interpretation of section 2 of the Eighteenth Amendment, and in particular the meaning of the word “concurrent” as used therein. The section reads as follows: “Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.” This word is defined by the Century Dictionary as: “1. Meeting in a point; passing through a common point. 2. Concurring, or acting in conjunction; agreeing in the same act; contributing to the same event or effect; operating with; coincident. 3. Conjoined; joint; concomitant; co-ordinate, combined.” By Funk & Wagnalls Standard Dictionary as: “1. Occurring or acting together; as, concurrent signs, concurrent forces. 2. Meeting or joining at the same point; running together; as, concurrent lines. 3. United in action or application; co-ordinate; concomitant; as, concurrent remedies or jurisdiction. Concurrent days, days added to make the civil correspond to the solar year.” And by ‘Black’s Law Dictionary (2nd Ed.) as: “Having the same authority; contemporaneous.” Of these different definitions, the plaintiff has accepted: “Having the same authority; acting in conjunction,” and “agreeing in the same Act,” and insists that these are the meanings intended by Congress in inserting “concurrent” into the second section of this amendment. Under such restricted meanings, Congress and the Legislatures of the several States would have to agree upon every phase of the intended enforcing legislation, either as a whole in one act of legislation—practicably impossible—or by separate acts of legislation applicable to the several States respectively . This would lead to irreconcilable differences rather than to practical enforcing legislation. To impute to Congress and the ratifying States such an impracticable purpose in the use of that word is unthinkable, and such imputation is not to be accepted unless no other meaning of the word is permissible, or it clearly appears that such restricted mean- [113] ing was the only one in the mind of Congress when this section was framed. Of the other authorized definitions of the word, we have, as noted, “Contributing to the same act or effect; operating with; coincident.” “Occurring or acting together; as, concurrent signs; concurrent forces.” “Meeting or joining at the same point; running together; as, concurrent lines.” “United in action or application . . . concurrent remedies or jurisdiction.” Congress framed the proposed Amendment, and to it was open any of these meanings of the word, and it is not to be restricted to any one meaning that the spirit of advocacy of any particular construction may suggest. That meaning which will carry out the intended purpose of Congress should be given to this word. The thing sought to be prohibited is the manufacture of and commerce in intoxicating liquors for beverage purposes, and the prohibition extends throughout the United States and all territory subject to its jurisdiction. Only the enforcement of this prohibition is subject to the legislative power, and this power is delegated to both Congress and the several States. If Congressional action to be effective is dependent upon each of the States joining with it in its enforcement legislation, an absolute failure to effect such legislation is not merely possible but decidedly probable. Based upon its selection of the more restricted meaning of “concurrent,” the plaintiff contends that, so far as concerns the manufacture, sale and transportation of intoxicating liquors for beverage purposes within a State (intrastate business), no enforcement act of Congress, affecting such business, has any legal force or effect unless the State concurs therein. The practical effect of this limitation of the power of Congress is to confine its enforcement legislation to such manufacture as might be carried on in territories subject to the United States and to commerce with foreign nations (imports and exports) and among the several States (interstate). Such a limitation would deprive Congress of any effective control over by far the greater part of the business, the outlawry of which the Amendment was intended to accomplish. It would give it no voice as to what should constitute intoxicating liquor when made the subject of intrastate business, and no regulation prescribed by it would have any effect on such business. In such a division of power, no uniformity as to what is intoxicating liquor, or of regulations to prevent or detect violations, could be reasonably expected. The differences in the percentages of alcohol allowed could be as numerous as the States, and the power of Congress would be practically confined to the prevention of smuggling the intoxicating liquor containing the greater quantity of alcohol from the States where it could lawfully be made and vended, to those States where only that of a lesser alcoholic content was lawful. When results of this kind are likely to flow from accepting the more limited definition of the word “concurrent” and the division of power built thereon, one naturally looks to the more enlarged meaning as more likely to reflect the purpose of Congress in using that word. Turning to the Amendment, it is not perceived that any division in the enforcing power, such as is contended for by the plaintiff, was contemplated. It makes no such division; it deals with the subject-matter as an entirety; operates upon the whole of the United States and all territory subject to its jurisdiction; and the grant of power [114] to enforce its prohibitions is as comprehensive as may be necessary or appropriate. The Amendment obliterates the distinction between interstate and intrastate commerce, so far as its subject-matter is concerned. The prohibition of the first section of the Amendment is self-executing to the extent that it outlaws the manufacture of and commerce in intoxicating liquors as a beverage throughout the entire nation. It takes no note of State boundaries, whether the prohibited business is carried on exclusively within a State or extends beyond. The enforcing power granted by section 2 is intended to prevent a violation of the prohibition of section 1. This power so to enforce is granted to both Congress and the States. The word “concurrent” does not divide the power, but authorizes them both to exercise it by “appropriate legislation.” The failure of Congress to enact enforcing legislation would not affect the right of the States to do so. In such case, if the State acted, its legislation would be the only rule on the subject. However, such legislation would be operative only within the boundaries of the State. This, not because of any express limitation contained in the Amendment, but solely for the reason that its jurisdiction extends no farther. But when Congress acts to enforce this Amendment, its command extends throughout the Union. This also is not due to any express authority found in the Amendment, but because its enactments operate throughout the whole land. In thus legislating it acts independently of and without consulting the States. Whether the States concur therein is a matter for their sole determination. Failure on their part to co-operate with Congress casts the duty of enforcing the Amendment within the boundaries of the non-concurring States, solely on the United States authorities. Again, if a State enacts legislation which in any particular is antagonistic to the law of Congress, such legislation must give way to the act of Congress. This supremacy of the acts of Congress results not from any express provision to that effect contained in the Eighteenth Amendment, but because of other provisions of the United States Constitution. In Article VI thereof, it is declared that: “This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” By reason of this provision such a thing as a legal conflict between the laws of Congress, enacted pursuant to the powers granted or delegated to it, and the legislation of any of the States, is constitutionally impossible. The United States and the several States have concurrent power over other subjects than the one dealt with by this amendment. In the exercise thereof by both the State Legislatures and Congress, it has occasionally happened that conflicts in legislation resulted. However, the moment the antagonism occurs, the legal conflict is ended in favor of the acts of Congress, and an attempt to substitute the State legislation for that of Congress is abortive. Such conflicts began quite early after the inauguration of our system of dual government. In Gibbons v. Ogden, 22 U. S. [115] (9 Wheat.) 1, 210, in a conflict engendered by the passage of an Act by the New York Legislature granting exclusive navigation of all the waters within the jurisdiction of that State to certain persons, Chief Justice Marshall, speaking for the Supreme Court, said: “Since, however, in exercising the power of regulating their own purely internal affairs, whether of trading or police, the States may sometimes enact laws, the validity of which depends on their interfering with, and being contrary to, an Act of Congress passed in pursuance of the Constitution, the Court will enter upon the inquiry, whether the laws of New York, as expounded by the highest tribunal of that State, have, in their application to this case, come into collision with an Act of Congress, and deprived a citizen of a right to which that Act entitles him. Should this collision exist, it will be immaterial, whether those laws were passed in virtue of a concurrent power ‘to regulate commerce with foreign nations and among the several states/ or in virtue of a power to regulate their domestic trade and police. In one case and the other, the Acts of New York must yield to the law of Congress; and the decision sustaining the privilege they confer against a right given by a law of the Union must be erroneous. This opinion has been frequently expressed in this Court, and is founded, as well on the nature of the government, as on the words of the Constitution. In argument, however, it has been contended, that if a law passed by a State, in the exercise of its acknowledged sovereignty, comes into conflict with a law passed by Congress in pursuance of the Constitution, they affect the subject, and each other, like equal opposing powers. But the framers of our Constitution foresaw this state of things, and provided for it, by declaring the supremacy not only of itself, but of the laws made in pursuance of it. The nullity of any Act, inconsistent with the Constitution, is produced by the declaration, that the Constitution is the supreme law. The appropriate application of that part of the clause which confers the same supremacy on laws and treaties is to such acts of the State Legislatures as do not transcend their powers, but, though enacted in the execution of acknowledged State powers, interfere with, or are contrary to, the laws of Congress, made in pursuance of the Constitution, or some treaty made under the authority of the United States. In every such case the Act of Congress, or the treaty, is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it.” The doctrine here announced has been consistently adhered to. Mr. Justice Harlan, in Northern Securities Co. v. United States, 193 U. S. 197, 347, said that this was “vital to the United States as well as to the States, that a State enactment, even if passed in the exercise of is acknowledged powers, must yield, in case of conflict, to the supremacy of the Constitution of the United States and the Acts of Congress enacted in pursuance of its provisions. This results, the Court has said, as well from the nature of the Government as from the words of the Constitution.” (pp. 347-8). If section 2 of the Amendment had not been ordained, Congress would still have had ample power to enforce the prohibition decreed by section 1 thereof by appropriate legislation enacted under Article 1, sec. 8, last clause, of the Constitution of the United States, which reads as follows: [116] “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” But, without section 2 of the Eighteenth Amendment, the States would have had no power to enforce the prohibition. This disability was removed by including the States with Congress in that section. However, the use of the word “concurrent” gave the States no power to engage in a legislative conflict with Congress. The States possess power granted by this Amendment as they possess all other concurrent powers; dominant, when they alone exercise it; subordinate, when it is exercised by Congress. The prohibitory section of the Eighteenth Amendment is of national scope and operation, and its efficacy depends upon its being nationally enforced. Its enforcement section was nationally envisaged, as was the need of the cooperation of the several States to secure general observance. To carry out such a concept Congress alone of all the legislative bodies must take the lead, and its leadership when assumed dominates. The administrative machinery of the several States is well adapted for immediate and efficient use, and the cooperation by the States with Congress would be of great value to the Federal authorities who, under the National Prohibition Act, are required initially to carry out its provisions. But, as noted, there is no constitutional constraint upon a State so to cooperate. It may choose so to do or not. If it fails to act at all, the enforcement of such statute within its borders falls exclusively upon the Executive departments of the United States Government. If the State enacts legislation, whether under the Eighteenth Amendment or in pursuance of its police power, and it authorizes or permits the doing of anything already forbidden by the acts of Congress (as the State of New Jersey has done since the filing of this bill) such authorization or permis-mission, for the reasons given, will be rendered unlawful ab initio by such contrary determination of Congress, and will afford no protection to any who may violate the Congressional statute. Second. Because its definition of intoxicating liquor is wholly without basis in fact, and, therefore, arbitrary and oppressive and unconstitutional. In section I of Title II of the “National Prohibition Act” Congress has defined what is intoxicating liquor, within the meaning of that Act. The section, so far as it relates to such definition, is as follows: “Sec.I. When used in Title II and Title III of this Act (i), the word ‘liquor’ or the phrase ‘intoxicating liquor’ shall be construed to include alcohol, brandy, whiskey, rum, gin, beer, ale, porter, and wine, and in addition thereto any spirituous, vinous, malt, or fermented liquor, liquids, and compounds, whether medicated, proprietary, patented, or not, and by whatever name called, containing one-half of one per centum or more of alcohol by volume which are fit for use for beverage purposes: Provided, That the foregoing definition shall not extend to dealcoholized wine, nor to any beverage or liquid produced by the process by which beer, ale, porter or wine is produced, if it contains less than one-half of one per centum of alcohol by volume, and is made as prescribed in [117] section 37 of this title, and is otherwise denominated than as beer, ale, or porter, and is contained and sold in, or from, such sealed and labelled bottles, casks, or containers as the commissioner may by regulation prescribe.” The plaintiff not only assails the general definition which makes a liquor containing one-half of one per centum or more of alcohol by volume intoxicating, but also the more restricted definition which also makes beer, ale, or porter containing “less than one-half of 1 per centum of alcohol by volume” intoxicating, unless they are otherwise denominated than such beverages and are contained and sold in containers sealed and labelled in accordance with the regulations prescribed by the Commissioner of Internal Revenue. But the plaintiff’s bill is not framed to question this additional and more restricted definition. The bill alleges that the plaintiff has on hand large quantities of “non-intoxicating War beer,” concededly containing more than one-half of one per centum of alcohol (Par. VII), and that for it to discontinue the manufacture and sale of that kind of beer, to comply with the provisions of the “National Prohibition Act,” would be destructive of its business and property. (Par. XIV). The bill nowhere alleges that the plaintiff has on hand, or intends to manufacture and sell, beer, ale or porter containing less than one-half of one per centum of alcohol. On the contrary it alleges that beer containing less than that percentage “cannot be successfully or profitably substituted by it in its business for the War beer it has heretofore manufactured and sold.” (Par. XV). In paragraph V, devoted to stating the percentage of alcohol contained in the plaintiff’s products since the passage of the Act of Congress of August 10, 1917 (the Lever Act), there is a parenthetical statement that, since October 28, 1919, plaintiff has manufactured and sold some malt liquors containing less than one-half of one per cent., of .alcohol by volume. But nowhere is there an allegation that plaintiff has any such liquor on hand, which it desires to sell in containers labelled otherwise than the act provides, or that it desires to resume the manufacture or sale of any such liquors. The gravamen of the complaint is that the Congressional definition that malt liquors containing one-half of one per centum of alcohol by volume, which are fit for use for beverage purposes, are intoxicating, is illegal, and that the defendants intend to prevent plaintiff from manufacturing and selling liquor containing that percentage of alcohol and its so-called War beer which have a greater alcoholic content but not exceeding 3.4 per cent, in volume. The judicial inquiry here is, therefore, limited to whether Congress has the power under the Eighteenth Amendment to determine that malt liquors containing but one-half of one per cent, of alcohol, and fit for beverage purposes, are intoxicating. Plaintiff does not contend that Congress may not enact a definition. It undoubtedly has the power, within limitations, to determine facts. Sec Jacobson v. Massachusetts, 197 U. S. 11. However, the determination must not be arbitrary. Is the definition of intoxicating liquors as “containing one-half of one per centum or more of alcohol by volume which are fit for use for bev- [118] erage purposes,” without basis in fact, and, therefore, arbitrary and void? It is the presence of alcohol that makes liquor intoxicating. Experts differ in their beliefs and opinions as to what quantity of alcohol will or will not produce intoxication. The effect of the same quantity upon different persons varies, depending upon a number of conditions and defying exact definition. A failure to define legislatively what was intoxicating liquor would of necessity refer that question to judicial decision. This would inevitably result in a serious lack of uniformity of decision as to what constitutes intoxicating liquor. As persons are effected differently by liquor containing the same per centage of alcohol, and as, in the absence of a fixed standard, the effect upon the individual would most frequently control the decision, we would have conflicting decisions as to liquor drawn or poured from the same container at the same time. Such results would conduce neither to a proper enforcement of the prohibition Amendment nor to a due respect for the administration of laws generally. Therefore, when Congress concluded, as it had a constitutional right to do, that a definition was necessary for a proper enforcement of the prohibition Amendment, it, in determining what should be the standard, engaged in a work that necessarily involved discretion, the bounds of which were only that it should be reasonably exercised. If, in its exercise of such discretion, it determined that the proper enforcement of such prohibition required that a percentage be adopted that would certainly prevent intoxicating liquors being made and bartered, and the adopted basis or percentage has a reasonably appreciable relation to the subject-matter of the prohibition, it cannot be judicially condemned as arbitrary. This seems to be the rationale of both the prevailing and dissenting opinions in Ruppert v. Caffey, et al. (decided January 5, 1920, adv. sheets). In that case the definition of intoxicating liquor, for the purposes of Title I of this same enactment—National Prohibition Act—was under attack. The decision there reached is controlling here. Title I of the Act had for its purpose the enforcement of War Prohibition, and defined the words “beer, wine, or other intoxicating malt or vinous liquors,” as contained in the War Prohibition Act, “to mean any such beverages which contains one half of one per centum or more of alcohol by volume.” At the time of the passage of the National Prohibition Act, the Eighteenth Amendment had not become a part of the Constitution, and, therefore, was lacking as an express authorization to enforce the definition contained in that Title. However, the power of Congress to define what is intoxicating liquor for the purpose of enforcing the War Prohibition Act, as well as the particular definition there drawn into question, was upheld as within the war powers of Congress. In the prevailing opinion Mr. Justice Brandeis, in support of such proposition, said: “If the war power of Congress to effectively prohibit the manufacture and sale of intoxicating liquors in order to promote the Nation’s efficiency in men, munitions and supplies is as full and complete as the police power of the States to effectively enforce such prohibition in order to promote the health, safety and morals of the community, it is clear that this provision of the Volstead Act is valid and has rendered immaterial the question whether plaintiff’s beer is intoxicating. For the legislation and decisions of the highest Courts of nearly all of the States establish [119] that it is deemed impossible to effectively enforce either prohibitory laws or other laws merely regulating the manufacture and sale of intoxicating liquors, if liability or inclusion within the law is made to depend upon the issuable fact whether or not a particular liquor made or sold as a beverage is intoxicating. . . . A test often used to determine whether a beverage is to be deemed intoxicating within the meaning of the liquor law is whether it contains one half of one per cent, of alcohol by volume. . . . The decision of the Courts, as well as the action of the Legislatures, make it clear—or, at least, furnish ground upon which Congress reasonably might conclude—that a rigid classification of beverages is an essential of either effective regulation or effective prohibition of intoxicating liquors.” This decision was by a bare majority, but the minority opinion based its dissent not upon the lack of power in Congress to give to the word “intoxicating” a legislative meaning which would be conclusive in litigation, but that as the Eighteenth Amendment had not become effective, Congress had “no general power to prohibit the manufacture and sale of liquors,” and that there is no appreciably reasonable relationship between the challenged enactment and the war power, which was the only constitutional power that could then be invoked for such definition. The identical definition sustained in that case was employed by Congress in Title II of the same Act, which contains the provisions for the enforcement of the Constitutional prohibition then soon to go into effect. If, as held in the cited case, the war power of Congress is sufficient to sustain its definition of what is intoxicating liquor, where the purpose was the enforcement of legislation prohibiting the sale of intoxicating liquors for beverage purposes until the termination of the war—at most a temporary period—it follows beyond peradventure that Congress possesses the same power of definition in enacting legislation directed to the enforcement of the constitutional mandate prohibiting permanently the traffic in the same commodity. The definition is not arbitrary, but, on the contrary, has a rational basis for its support. Indeed, keeping in mind the purpose of Congress to enforce the Prohibition Amendment, it is very appropriate legislation. Third. Because it takes without compensation and destroys plaintiff’s non-intoxicating beverages without due process of law in violation of the Fifth Article of Amendment to the Constitution. The pertinent part of this Amendment is: “Nor shall private property be taken for public use without just compensation.” The allegations of the bill on which this attack is based, in substance, are, that the plaintiff, on the date of the passage of the “National Prohibition Act,” had and still has on hand a large quantity of valuable non-intoxicating War beer theretofore lawfully produced; that the Act allows no reasonable period for its sale or disposition (Par. VII); that plaintiff cannot convert said War beer into beer containing less than one-half of one per cent, of alcohol without destroying a large part of the value of said product (Par. XV) ; and to enforce against the plaintiff the provisions of Title II of the Act, and thereby prevent it from manufacturing and selling War beer, “its valuable business and good will would be destroyed, all profit therefrom would be rendered impossible, the value of its property as a going concern would be destroyed and dissipated, . . . its intricate and costly plant and physical assets would be at once [120] depreciated to its junk or salvage value only,” to its “great and irreparable injury and damage.” (Par. XIV). The alleged destruction of plaintiff’s business and good will and the depreciation in value of its physical property, are not a taking of property for public use, within the meaning of the Fifth Article of Amendment. This is no longer an open question. In Ruppert v. Caffey, et als., supra, this same question was necessarily passed upon, and was decided against the contention that is now made here. There it was held competent for Congress, in the exercise of its war powers, if, in its opinion, an immediate cessation of the traffic in like liquors was necessary, to order its discontinuance. In this connection the Supreme Court, speaking by Mr. Justice Brandeis, said: “Hardship resulting from making an Act take effect upon its passage is a frequent incident of permissible legislation; but whether it shall be imposed rests wholly in the discretion of the law-making body. That the prohibition of the manufacture of non-intoxicating beer, if permissible at all, may be made to take effect immediately follows necessarily from the principle acted upon in Mugler v. Kansas, 123 U. S. 623, 669, since the incidents attending the exercise by Congress of the war power to prohibit the liquor traffic are the same as those that attend the States’ prohibition under the police power. In the Mugler case, also, the breweries were erected at a time when the State did not forbid the manufacture of malt liquors; and there it was alleged that the prohibition, which became effective almost immediately, would reduce the value of one of the breweries by three-fourths and would render the other of little value. Here, as there, the loss resulting to the plaintiff from inability to use the property for brewery purposes is an incident of the peculiar nature of the property and of the war need which, we must assume, demanded that the discontinuance of use be immediate. Plaintiff cannot complain because a discontinuance later would have caused him a smaller loss. This, indeed, appears to be conceded so far as concerns the brewery and appurtenances. The objection on the ground that the prohibition takes effect immediately is confined to the prohibition of the sale of the beer on hand at the time of the passage of the act. But as to that also we cannot say that the action of Congress was unreasonable or arbitrary.” What Congress has the power to do in exercising an implied power it assuredly may do in the carrying out of an express power. The alleged loss to plaintiff, which it is said will necessarily result from an enforcement of the “National Prohibition Act,” is incidental to the exercise by Congress of a constitutional power, and it alone determines whether compensation shall be made for such loss. In view of these conclusions the plaintiff’s motion for a preliminary injunction is denied and the defendants’ motion to dismiss the bill is granted. ___________________ In computing the total indebtedness of an alleged bankrupt, in order to determine whether he owes debts amounting to not less than $1,000, claims paid by preferential and fraudulent transfers must be counted. Boston West Africa Trading Co. v. Quaker City Morocco Co., 44 Am. B. R. 315. nolu chan  posted on  2015-05-29 17:27:56 ET  Reply   Untrace   Trace   Private Reply   #107. To: tpaine (#101) Alexander M. Bickel,Civil Disobedience and the Duty to Obey, Gonzaga Law Review, Vol 8, No 2, Spring 1973, p. 206: About the latter, it is to be remembered that Prohibition was authorized by constitutional amendment. The amendment was proposed by the necessary two-thirds vote of the Congress, and was ratified by the legislatures of ten more states than necessary, 46 in all. That was the kind of consensus on which it rested initially. There was some thought that prohibition might be unconstitutional even though enacted pursuant to a constitutional amendment. The issue was carried to the Supreme Court by eminent counsel, Elihu Root of New York among them. The Court held otherwise. The point is that there had been not only a constitutional amendment, but a favorable adjudication as well. Charles K. Burdick, The Law of the American Constitution, Chapter III, Amending the Constitution, 1922, p. 37 c. Congress, whenever two thirds of both Houses shall deem it necessary shall propose amendments to the Constitution." In the National Prohibition Cases the Supreme Court stated the rather obvious conclusion, but one which had been combated by counsel, that "the adoption by both Houses of Congress, each by a two-thirds vote, of a joint resolution proposing an amendment to the Constitution sufficiently shows that the proposal was deemed necessary by all who voted for it. An express declaration that they regarded it as necessary is not essential. None of the resolutions whereby prior amendments were proposed contained such a declaration." In the same cases it was also very urgently insisted that the requirement of a two-thirds vote in each House meant two thirds of the whole membership, and that two thirds of a quorum was not sufficient. It is true that some sections of the Constitution expressly provide for congressional action by a named portion "of those present," and from this it was argued that when such expression is not used the framers intended that action should only be taken by the named portion of the whole House. On the other hand the Constitution provides that "a majority of each [House] shall constitute a quorum to do business," and the acts of a quorum are for all parliamentary purposes the acts of the body in question, unless otherwise provided. It would, therefore, follow that "two thirds of both houses," when used in the provision as to amendments means two thirds of a quorum. This view has been several times taken by the Houses of Congress, and was finally declared to be the correct one in the National Prohibition Cases. Id. at 40: § 22. Are There Implied Limitations from the Power to Amend? The Eighteenth Amendment was vigorously attacked in the National Prohibition Cases by eminent counsel, including Elihu Root, and by writers in legal periodicals, on the ground that it overstepped certain implied limitations upon the constitutional amending power. It is contended in the first place that the Eighteenth Amendment is not in fact an "amendment," for an amendment is an alteration or improvement of that which is already contained in the Constitution, and the term is not intended to include any addition of entirely new grants of power. Charles E. Hughes, in his brief on behalf of a number of States as amici curiae, pointed out at length from the records of the Constitutional Convention and of the ratifying state conventions that the framers of the Constitution contemplated that the framework of government which was being set up would be found imperfect, and that alterations of any kind. except those covered in the proviso, could be made at any time. Again it is contended that the Eighteenth Amendment is not an amendment within the meaning of the Constitution because it is in its nature legislation; that an amendment to the Constitution can only affect the powers of government, and cannot act directly upon the rights of individuals, the latter power being essentially legislative. Answer is made to this argument that it is directed to the wisdom and not to the constitutionality of the amendment; that there is no such restriction in the Constitution upon the amending power; that as has been pointed out, the framers of that instrument apparently intended to give the widest power of amendment; and that in the Thirteenth Amendment we have a precedent for an amendment which acted directly upon individuals, and directly deprived them of their property in slaves. Hawke v. Smith, 253 U.S. 221, 226-27 (1 Jun 1920) This article makes provision for the proposal of amendments either by two-thirds of both houses of Congress or on application of the legislatures of two-thirds of the states, thus securing deliberation and consideration before any change can be proposed. The proposed change can only become effective by the ratification of the legislatures of three-fourths of the states or by conventions in a like number of states. The method of ratification is left to the choice of Congress. Both methods of ratification, by legislatures or conventions, call for action by deliberative assemblages representative of the people, which it was assumed would voice the will of the people. The Fifth Article is a grant of authority by the people to Congress. The determination of the method of ratification is the exercise of a national power specifically granted by the Constitution; that power is conferred upon Congress, and is limited to two methods, by action of the legislatures of three-fourths of the states, or conventions in a like number of states. Dodge v. Woolsey, 18 How. 331, 59 U. S. 348. The framers of the Constitution might have adopted a different method. Ratification might have been left to a vote of the people, or to some authority of government other than that selected. The language of the article is plain, and admits of no doubt in its interpretation. It is not the function of courts or legislative bodies, national or state, to alter the method which the Constitution has fixed. nolu chan  posted on  2015-05-29 17:32:56 ET  Reply   Untrace   Trace   Private Reply   #108. To: tpaine (#101) Root: We are of opinion that a state legislature cannot rescind or with­draw its ratification of an amendment after three-fourths of the states have duly ratified it. The Constitution expressly provides that the amendment shall then become "valid to all intents and purposes, as part of this Constitution," and we think this conclusive. That's right. The 18th Amendment was ratified in 1919. However, the ques­tion of the power so to rescind or withdraw before three-fourths of the states have duly ratified an amendment presents, in our opinion, an essentially different question. Neither aspect has been passed upon by the Supreme Court of the United States. Different question, same answer. States can't rescind at any time after they have ratified. Root's paid opinion on the Volstead Act was equally successful in Court. Pure Products, Volume XVI, 1920 6 Opinion of Counsel as to Constitutionality of National Prohibition Act (Under date of December 18, 1919, Elihu Root and William D. Guthrie, counsel for the United States Brewers' Association, gave out the following opinion as to certain questions arising under the Eighteenth Amendment and Act of Congress of October 28, 1919, generally called the "Volstead Act."— Ed. Note.) THE opinion of counsel has been requested upon three questions arising in connection with the Eighteenth Amendment and the Act of Congress of October 28, 1919, styled the "National Pro­hibition Act." The first of these questions is whether or not a state may rescind or repeal its ratification of an amendment to the Constitu­tion of the United States; the second is whether or not legislation by Congress to enforce the amendment must be concurred in by the states in respect of intra-state commerce, and the third is as to the legal effect of state legislation passed to enforce the Eighteenth Amendment in local or intra-state commerce which conflicts with provisions of an act of Congress. I. As to the power of a legislature to rescind or withdraw a prior ratification of a constitutional amendment, there are two aspects: the one before the legislatures of "three-fourths of the several states" have ratified the amendment and the other after the requisite three-fourths have duly ratified it. We are of opinion that a state legislature cannot rescind or with­draw its ratification of an amendment after three-fourths of the states have duly ratified it. The Constitution expressly provides that the amendment shall then become "valid to all intents and purposes, as part of this Constitution," and we think this conclusive. However, the ques­tion of the power so to rescind or withdraw before three-fourths of the states have duly ratified an amendment presents, in our opinion, an essentially different question. Neither aspect has been passed upon by the Supreme Court of the United States. It is, of course, familiar history that the question of the power of a state legislature to rescind a resolution ratifying an amendment before three-fourths of the states had duly ratified it, arose in connection with the Fourteenth and Fifteenth Amendments. The legislatures of the States of New Jersey and Ohio ratified the Fourteenth Amendment in 1866 and 1867, respectively, but in each case a subsequent legislature, in 1868, passed a resolution withdrawing the ratification (15 U. S. Stat., appx. XI); the legislature of New York ratified the Fifteenth Amend­ment in 1869, but a subsequent legislature, in 1870, passed a resolution withdrawing the ratification (16 U. S. Sat., appx. IX), and a concurrent resolution was passed by Congress on July 21, 1868, so worded as to imply a declaration on its part that New Jersey and Ohio could not withdraw their ratification of the Fourteenth Amendment. 7 Although in each of the three cases above mentioned (that is, in New Jersey, Ohio and New York), the attempted rescission or with­drawal was made before three-fourths of the states had ratified, never­theless, as the necessary number of ratifying states was subsequently secured, the question became of no practical importance thereafter. Hence, no occasion arose calling upon the courts to determine whether or not a state could rescind or withdraw its ratification of an amend­ment before three-fourths of the states had duly ratified it. Some authors of legal treatises have expressed the opinion that whilst a state legislature could not rescind its ratification of an amendment either before or after three—fourths of the several states had ratified it, a state legislature could rescind its rejection of and refusal to ratify an amendment and thereupon ratify it. It seems to us difficult to reconcile these two points of view. If it be true in any aspect that action upon a proposed amendment is final and that the power or function provided for in Article V of the Constitution of the United States becomes ex­hausted or spent by a resolution of ratification, then it should logically follow that it is equally final and exhausted by a resolution of rejection. If a state be competent to rescind its refusal to ratify an amendment, it should, as it seems to us, be equally competent to rescind a ratification of an amendment which has not become effective because three-fourths of the several states have not yet ratified it. The underlying theory of Article V undoubtedly is that the Constitution may be amended if there be at the time of ratification a consensus of approval on the part of three-fourths of the states, and violence will be done to this principle if change of circumstance or opinion with regard to the proposed amend­ment has created a condition where one or more of the states that have ratified no longer approve it and no longer deem it necessary or advis­able. The conclusion we reach is that where a state legislature has rati­fied an amendment, but before it has become effective by ratification of three-fourths of the several states, it appears that there has been a change of circumstance or opinion, then the state legislature has the power and ought to voice such change by a resolution of rescission, to the end that the other states may be advised of the true opinion and po­sition of the state in regard to the amendment. In the case of the proposed Eighteenth Amendment, it has been suggested to us that there is grave doubt as to the power of a number of the state legislatures that have ratified the amendment to do so in view of the referendum provisions of their respective constitutions vest­ing legislative power in the electorate, and that the exercise of such referendum, as recently in the State of Ohio, may operate to annul the legislative resolution of ratification. We have not studied the laws of these states sufficiently to express a definite opinion as to the effect of the several referendum provisions in question under the respective state constitutions. The question de- 8 pends in each case upon the local constitution and laws, upon which we would want to consult local counsel. But until the question of the effect of these referendum provisions is finally decided, it seems to us that it would be proper and prudent to assume that it may be held by the courts that adverse action on the referendum will nullify the ratification, and that thereby the number of states duly ratifying may be reduced to less than the three-fourths required. If the very important and undetermined question of the power of a state to withdraw its ratification before three-fourths of the states havs ratified it should arise in connection with the Eighteenth Amendment, it would become a matter of profound concern to all interested in our constitutional form of government that it should be promptly presented to the Supreme Court for definite settlement. II. Concurrent power to legislate upon the subject of the enforce­ment of the prohibitions contained in the Eighteenth Amendment is vested in the Congress and the several states by the following language: "Section 2. The Congress and the several states shall have con­current power to enforce this article by appropriate legislation." This provision for concurrent power is unique; its equivalent is not to be found either in the Constitution or in any of the prior articles of amendment. It will be recalled that .the prohibitions contained in sec­tion 1 of the Amendment are definite and absolute, and are expressly confined to "intoxicating liquors/' and section 2, therefore, confers concurrent power only to enforce these specific prohibitions by appropriate legislation. The true construction of this novel provision may well be held to require concurrent action on the part of the Congress and the states in respect of intra-state commerce, and the effect of the amendment may well be limited so as to extend the power of Congress to regulate intra­state commerce in intoxicating liquors only when the states in which such legislation is to be enforced have concurred in the legislation. There is judicial authority tending to support the view that the term "concurrent power*' as used in this amendment will be held to mean and imply that the Congress and the several states must act in conjunction in respect at least of intra-state commerce. Illustrations will be found in the case of Nielsen v. Oregon, 212 U. S. 315, 321, and the cases there cited, and Congress must be presumed to have had these cases in mind in 1917 when it used the phrase "concurrent power." Had it been intended in and by the amendment to provide not for action in conjunction, but for separate and independent action, the obvious phras­ing would have been to the effect either that— "The Congress or the several states shall have power to enforce this article by appropriate legislation," or that— "The Congress shall have power to enforce this article by appro­priate legislation, but in the absence of any such legislation by the Congress, the several states may pass appropriate legislation." 9 It has been urged that although the amendment expressly provides for its enforcement by the exercise of concurrent power, it may, never­theless, be enforced by legislation of Congress acting alone, and that if federal and state legislation should conflict, the former would prevail as "the supreme law of the land" under Article VI of the Constitution of the United States. But in our opinion this provision of Article VI does not necessarily control and overthrow or annul conflicting state legislation. The pro­vision refers to laws "made in pursuance of" the Constitution. Obvi­ously, if the term "concurrent power" as used in the Eighteenth Amend­ment requires concurrent action by a state, then legislation by Congress without such concurrence would not be in pursuance of the Constitution. Moreover, it must be manifest that if this provision of Article VI controls and the legislation of Congress under the Eighteenth Amend­ment without concurrence by the state must be treated as supreme or as overriding any state legislation to the contrary, then the grant of "concurrent power" to the several states would become futile and leave practically nothing for the states to legislate upon. Their legislation to enforce the amendment would be idle and inoperative whenever it conflicted with legislation by Congress, and wholly futile, unnecessary and useless whenever it happened to agree with that of Congress. It is hardly reasonable to assume that the framers of the Eighteenth Amendment intended that the states should have power merely to con­cur in whatever Congress saw fit to enact and power to legislate inde­pendently only where Congress was silent. The sounder view would seem to be that it was the intention to confer on the states a co-operat­ing function by the term and the grant of "concurrent power," and to require concurrence in legislation, especially as to intra-state commerce, which it was contemplated might well be appropriate in one or more states and not at all appropriate elsewhere by reason of varying con­ditions. III. The "National Prohibition Act" passed by Congress October 28, 1919, over the veto of the President of the United States, is gener­ally called the Volstead Act, and it provides in Title II as follows: "When used in Title II and Title III of this Act (1) Tlie word 'liquor' or the phrase 'intoxicating liquor' shall be construed to in­clude alcohol, brandy, whisky, rum, gin, beer, ale, porter, and wine, and in addition thereto any spirituous, vinous, malt, or fermented liquor, liquids, and compounds, whether medicated, proprietary, pat­ented, or not, and by whatever name called, containing one-half of 1 per centum or more of alcohol by volume which are fit for use for beverage purposes; Provided, That the foregoing definition shall not extend to dealcoholized wine nor to any beverage or liquid pro­duced by the process by which beer, ale, porter or wine is produced, if it contains less than one-half of 1 per centum of alcohol by vol­ume, and is made as prescribed in section 37 of this title, and is 10 otherwise denominated than as beer, ale, or porter, and is contained and sold in, or from, such sealed and labeled bottles, casks, or con­tainers as the commissioner may by regulation prescribe." In the legal proceedings now pending in the Southern District of New York and elsewhere, it has been established by the affidavits of exceptionally competent and distinguished scientists and medical experts of high national repute that beer containing 2.75 per cent, by weight of alcohol cannot be deemed intoxicating within any reasonable or accepted definition of that term, and that one-half of one per cent, by volume (that is, about one-seventh of 2.75 per cent, by weight) could not by any practical possibility be intoxicating. This being so, the definition by-Congress of "intoxicating liquors" would seem to be an erroneous and arbitrary one. The grant of power in the Eighteenth Amendment is expressly confined to "intoxicating liquors." Congress cannot, by means of an erroneous definition of the term "intoxicating liquors." extend its power beyond the grant so as to include non-intoxicating beverages. In our opinion this definition, if proved to be clearly erroneous and arbi­trary, should be held not to be appropriate legislation. Plainly, on the face of the Volstead Act, non-intoxicating beer has been prohibited, not because Congress deemed this an appropriate means for the enforce­ment of the Eighteenth Amendment, but because it erroneously and arbitrarily assumed and therefore declared it to be intoxicating as mat­ter of fact. It seems to us of great importance that the legislatures of the sev­eral states should now promptly and independently investigate and de­termine the question of fact whether light beers and light wines contain­ing so small a content of alcohol as three or four per cent, by weight or volume can be deemed intoxicating within any reasonable and accepted definition of that term, and further and separately whether and how far it is reasonably necessary or appropriate to prohibit beverages which are indisputably non-intoxicating for the alleged purpose of effectively reaching and prohibiting intoxicating liquors. If state legislatures should promptly determine after due investigation that light wines an4 light beers containing not to exceed three or four per cent, of alcohol by weight or volume were clearly not as matter of fact intoxicating, and that the prohibition of beverages containing as little as one-half of one per cent, by volume was an arbitrary and unwarranted interference with individual rights and in no reasonable degree authorized by or appropri­ate for the enforcement of, the Eighteenth Amendment, it would pre­sent the questions as to the alleged controlling and supreme power of Congress and the validity of the Volstead Act in their clearest and most striking aspects. A very serious and grave question of permanent importance is thus presented to the state legislatures by the legislation contained in the act of Congress of October 28, 1919, known as the Volstead Act, This leg­islation embodies so drastic an enforcement of prohibition that, if valid, 11 it will deprive the inhabitants of the several states of the right hereafter to use nutritious and healthful beverages which are not as matter of fact intoxicating, and this may cause much hardship, discontent and just resentment. If one class of non-intoxicating beverages may be thus pro­hibited, it is difficult to perceive why many harmless beverages, even those containing no alcohol whatever, cannot be equally prohibited. If the states now acquiesce in this drastic, if not arbitrary, legislation, such acquiescence may operate to render any challenge in the future entirely futile, or at least much more difficult and unpromising than it would be if prompt state action had been taken. ELIHU ROOT, WILLIAM D. GUTHRIE. New York, December 18, 1919. nolu chan  posted on  2015-05-29 17:58:31 ET  Reply   Untrace   Trace   Private Reply   End Trace Mode for Comment # 101. Top • Page Up • Full Thread • Page Down • Bottom/Latest

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