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"The Teleprompter Campaign" Good Riddance to Ismail Haniyeh "Pagans in Paris" "Liberal groupthink makes American life creepy and could cost Democrats the election". "Enter Harris, Stage Lef"t Official describes the moment a Butler officer confronted the Trump shooter Jesse Watters: Don’t buy this excuse from the Secret Service Video shows Trump shooter crawling into position while folks point him out to law enforcement Eyewitness believes there was a 'noticeable' difference in security at Trump's rally Trump Assassination Attempt We screamed for 3 minutes at police and Secret Service. They couldn’t see him, so they did nothing. EYEWITNESS SPEAKS OUT — I SAW THE ASSASSIN CRAWLING ACROSS THE ROOF. 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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: 27072 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 Comments (1-81) not displayed.       .       .       . #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   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   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   Trace   Private Reply   #85. To: tpaine (#84) Nobody can be forced to do anything against their will other than die. Most people prefer to obey laws rather than be imprisoned or shot. So yes, most women can be forced to not murder the baby in their womb, because they fear the punishment if they do more than they want to get rid of the baby. Those who care more about killing the baby will do so, and then should be prosecuted as killers. If they want to avoid that, they can flee the country to somewhere without extradition and not come back. Vicomte13  posted on  2015-05-22   19:10:28 ET  Reply   Trace   Private Reply   #86. To: Vicomte13, tpaine (#85) Nobody can be forced to do anything against their will other than die. Would that work as a defense against a rape charge? nolu chan  posted on  2015-05-23   1:06:53 ET  Reply   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   Trace   Private Reply   #88. To: Vicomte13 (#83) 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. I believe this is truly the only possible moral position consistent with the religious belief that all life is sacred and life begins at conception. The real elephant in the room is the health and welfare of the mother exception. Who gets to decide what is necessary for said health and welfare? Even in a case where continuing the pregnancy would result in the death of both mother and child, or endanger the life of the mother, someone must make the determination if an exception to the abortion ban is to be permitted. Is it her doctor, or does she need a permission slip from a government doctor or committee? It might spawn a burgeoning business in selling permission slips. Giving it to government control would require a nation-wide network of government physicians. All decisions, including appeals, would need to be resolved quickly. This exception is a great moral dilemma that seems particularly ill-suited to any legal solution. When a law is adopted against the will of a significant portion of the people, many will choose to disregard the law. It can generate general disregard for the law and the government that made the law, whether the law be excessive taxation, 55 MPH maximum speed, alcohol prohibition, marijuana prohibition, or abortion prohibition. nolu chan  posted on  2015-05-23   2:42:15 ET  Reply   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   Trace   Private Reply   #90. To: nolu chan (#88) No law is respected. We have murders, rapes, robberies, thefts, drug trafficking, tax evasion, perjury, etc. No law is respected, and no law has ever been respected, if by respected we mean that everybody follows it. People always break the law when it is convenient to do so. We all do. This does not mean that law is useless, for it sets the standards and it allows for the punishment, often quite brutal, of those brazen enough to break it in the open, or stupid or unfortunate enough to get themselves caught. One of the strong reasons for having a Fourth Amendment type right of privacy with real teeth is that what people do on private property behind closed doors is practically impossible to track without intrusion. Police forces are always seeking ways to tear down every barrier to surveillance precisely because crime flourishes in private. But that is an important point of privacy: to act as a place where people can do as they please, crime, immorality, or otherwise, because it's private and nobody's business. The laws are enforceable in PUBLIC, but in private the inability to surveil EFFECTIVELY makes many of them unenforceable. And that's the way it ought to be. Finding ways to penetrate the veil of secrecy in private lives in order to "enforce the law" is a disastrous error that ought to be snuffed out. Confucius observed that one must not make the water too pure or the trees growing alongside the stream will cease to grow, and so it is likewise with the morals of the common people. He understood that if you get too obsessed with purifying individual morals, you'll kill society. You'll kill it because people are not moral, they don't actually follow the law and the moral codes, and society would collapse if they did. Society actually NEEDS the grease of immoral, illegal activity, the black market in some things, in order to provide both the grease for the wheels, at the margins of legal business, and to allow the people to blow off steam so they don't explode. Consider what happened when the Puritans won the English Civil War. They chopped off the King's head, they drove the surviving leaders of the Cavalier opposition over to the wilds of Virginia. They invaded Ireland and slaughtered a lot of Catholics in their righteous ire. They shut down all the playhouses, most of the brothels and taverns, stopped dancing and singing, and imposed the moral police everywhere. This was the English Commonwealth, the experiment of a Republic of sorts under Cromwell. And it was SO ODIOUS to the English people that as soon as Cromwell died, the Puritans were out, all of those activities were reopened, and the dead king's son was put on the Throne, the monarchy restored for good measure. And HE was permitted to root out the leaders who had executed his father and hang or behead them. Nobody stood up for the victorious Puritan leaders as they were arrested and executed. In other words, thanks to imposing moral purity, the Puritans actually LOST the English Civil War a decade after it ended, and ended up getting executed or driven off to America - even though they had won the battles - because the people had had enough of them and brought the King back. Vicomte13  posted on  2015-05-23   9:03:30 ET  Reply   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   Trace   Private Reply   #92. To: Vicomte13 (#90) When a law is adopted against the will of a significant portion of the people, many will choose to disregard the law. It can generate general disregard for the law and the government that made the law.... No law is respected. We have murders, rapes, robberies, thefts, drug trafficking, tax evasion, perjury, etc. No law is respected, and no law has ever been respected, if by respected we mean that everybody follows it. People always break the law when it is convenient to do so. We all do. I spoke to generating a general disregard for the law. While perfect conformance will never be acquired, general disregard can and has been acquired. The Declaration of Independence and the Ordinances of Secession come to mind. People do not always break or ignore the law when it is convenient to do so, and American conformance spawned an old European joke. Picture approaching a red light at a crossroads with clear vision in all directions and no other vehicles in sight. The American stops and waits for the light to turn green. The Brit stops, looks both ways, and goes. The Frenchman sees no traffic is coming and just continues. Most Americans comply with all nature of laws when it is not convenient to do so. When the law becomes sufficiently oppressive, it can cause massive resistance, either through ignoring the law, civil disobedience by massive public violation of the law, or violent resistence. If the drugs laws were enforced to the fullest extent possible, half the country might be in prison — but there are not enough cops, courts, or prisons. People today do not see pot as a crime any more than people of the prohibition era saw alcohol as a crime. Laws that criminalize the behavior of a majority of the citizenry are self-defeating. nolu chan  posted on  2015-05-26   18:16:02 ET  Reply   Trace   Private Reply   #93. To: nolu chan (#92) Laws that criminalize the behavior of a majority of the citizenry are self-defeating. Which is why the tax laws cannot be enforced in Greece or Italy. Vicomte13  posted on  2015-05-26   18:40:30 ET  Reply   Trace   Private Reply   #94. To: nolu chan (#92) (Edited) The Supreme Court issued its most sweeping decision concerning the Eighteenth Amendment in June 1920. Seven cases, each raising fundamental questions concerning the constitutionality of the amendment, were consolidated by the Court and labeled the National Prohibition Cases. A host of highly regarded attorneys, including Elihu Root, William D. Guthrie, and Levy Mayer, as well as Herbert A. Rice and Thomas F. McCran, attorneys general for Rhode Island and New Jersey respectively, represented the appellants. The oral arguments lasted for five days, an unusually long time for even the most important cases. Attorney General Rice began by arguing that the amendment invaded the sovereignty of Rhode Island and her people, an invasion not contemplated by the amending clause of the Constitution. Rhode Island had not ratified the Eighteenth Amendment. The amending power, Rice contended, was provided to allow for the correction of errors in the fundamental instrument of government. The first ten amendments were adopted to insure against the encroachment by the federal government upon state functions and powers. If the amending power were to be construed as to allow any type of amendment, the boundary between federal and state authority could be shifted at will, and the people of a state would be at the mercy of others in matters of political institutions and personal rights. Attorney General McCran, arguing along the same lines, stressed tha4 the Tenth Amendment reserved all unenumerated powers to the states and to the people. The right to surrender such rights and powers, McCran contended, belonged exclusively to the people themselves and not their legislative representatives." 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. Root pointed out that if the validity of the prohibition amendment were to be upheld, its repeal could perpetually be prevented by a minority. Repeal could be accomplished only by the passage of another constitutional amendment which, of course, would require the approval of three-fourths of the states. He distinguished between a constitutional amendment which granted the Congress power to prohibit the use of intoxicating liquors and an amendment which required such a prohibition. An amendment of the former sort would leave the question within the control of a majority of the people, but one of the latter type, such as the current amendment, thwarted the democratic process. Finally, Root contended, the Eighteenth Amendment undermined a fundamental principle of the federal system by directly invading the police powers of the states and encroaching upon the right of local self-government. If the amendment were upheld, he told the Court, the states would no longer be indestructible and the federal system of government could be completely subverted. " Root from the outset opposed the form, spirit, purpose, and effect of the Eighteenth Amendment. He told friends that its denial of personal liberty, its potential for eroding respect for law, and its alteration of the balance between local and national government alarmed him." Most members of the bar, however, did not share Root's belief that the amendment was unconstitutional. Even his colleague William D. Guthrie thought his argument weak." But Root gave a memorable peroration: 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." 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. Commenting upon the role of the states under the amendment, the Court declared that the phrase 'concurrent power to enforce" did not include the power to defeat or frustrate prohibition. Concurrent power did not mean joint power or divided power, nor did it require that congressional legislation to enforce the amendment be approved by the states. The power to prohibit granted to Congress was not exclusive; it could be exercised by the states as well, but the law did embrace the entire territory of the United States and could not be avoided by any state. " The National Prohibition Cases decision, therefore, resoundingly endorsed the new and untried law. The announcement of the Supreme Court decisions of June 1920 completed the process of embedding national prohibition in the law of the United States. Drys, as they won victory after victory in the Congress, in the state legislatures, and in the Supreme Court, easily brushed all opposition aside with compelling arguments about the benefits to be obtained from the reform. The prohibitionist success seemed total and permanent. Elihu Root had pointed out to the Supreme Court that once the amendment was emplanted in the Constitution, removing it would probably be impossible. No amendment to the Constitution, once adopted, had ever been repealed. Both supporters and critics of the law recognized this. To its advocates, the reform brought joy. Their arguments appeared to have the support of legislatures, courts, and the masses. To opponents of prohibition, the loss seemed irrevocable. Their objections had been ignored; their influence appeared nonexistent. National prohibition took effect at midnight, January 16, 1920, one year after ratification of the Eighteenth Amendment. America entered the new age quietly, accepting the law as a great step forward or as a fait accompli and in either case believing that its reversal was quite out of the question. The following morning the New York Times reported, "John Barleycorn Died Peacefully At The Toll of 12. " Had Mr. Barleycorn been in a position to reply, he might have chosen Mark Twain's famous response, "The reports of my death are greatly exaggerated." www.druglibrary.o rg/schaffer/history/rnp/RNP1.html tpaine  posted on  2015-05-26   20:59:19 ET  Reply   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   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   Trace   Private Reply   #97. To: Vicomte13 (#13)  According to Catholics, poverty is an indication of societal evil Nice post. I would say that poverty is a less bad condition than a condition of being rich. Rich have to work much harder on their salvation, key part of that work is helping the poor and distributing their wealth. A Pole  posted on  2015-05-27   7:31:38 ET  Reply   Trace   Private Reply   #98. To: A Pole (#97) Rich have to work much harder on their salvation, key part of that work is helping the poor and distributing their wealth. "To you much has been given. Much is now expected." Vicomte13  posted on  2015-05-27   8:01:59 ET  Reply   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   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   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   Trace   Private Reply   #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   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   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   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   Trace   Private Reply   #106. To: Jameson (#0) Be careful ya'll. Remember what happened to Thomas Jefferson. ebonytwix  posted on  2015-05-29   17:30:01 ET  Reply   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   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   Trace   Private Reply   #109. To: nolu chan (#102) - 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. So what? SCOTUS holdings/opinions are NOT BINDING on the other branches of govt, or on we the people. -- They are not law. SCOTUS interprets the Constitution. Legislation passed contrary to a constitutional interpretation of SCOTUS is null and void. Not true. Legislation (or amendments) passed contrary to the constitution, are null and void. SCOTUS opinions apply to the case at hand and are given due consideration by the other branches of govt, and by the people. Only SCOTUS can judicially overturn its holding. That is the opinion of the SCOTUS,-- it is not law. Only an amendment can overturn it by changing the Constitution. An opinion by the SCOTUS that a law or amendment is constitutional, does not change the constitution. -- Only valid amendments, made in 'pursuance thereof' can change the constitution. tpaine  posted on  2015-05-29   18:39:54 ET  Reply   Trace   Private Reply   #110. To: tpaine (#109) YALE LAW JOURNAL Vol XXX FEBRUARY, 1921 No. 4 AMENDING THE FEDERAL CONSTITUTION W. F. Dodd The recent decisions of the United States Supreme Court in the cases of Hawke v. Smith1 and Rhode Island v. Palmer,2 decide a number of issues as to the construction of the amending clause of the United States Constitution. These decisions, therefore, make it appropriate to review with some fullness the whole procedure for the amendment of the federal Constitution. The decision of the Supreme Court in the case of Rhode Island v. Palmer is of little value standing alone. Justice McKenna agreed with the other members of the Court as to the validity of the Eighteenth Amendment, and in the Court’s statement of the grounds for its position. Justice McKenna did, however, think it proper to express a doubt regarding the wisdom of the Court’s action in the Rhode Island Case of announcing merely its conclusions, without any argument or reasons in support of such conclusions, and said that such a policy “will undoubtedly decrease the literature of the Court if it does not increase its lucidity.” The mere brief statement of conclusions in the Rhode Island decision means little when taken by itself, but some of the points decided by the Court become clearer if studied in view of the briefs presented in the cases involving the validity of the Eighteenth Amendment. An effort will, therefore, be made in this discussion to sum up the points made by the several briefs, and to indicate the setting of the conclusions expressed by the Court. The case of Hawke v. Smith presents 1 (1920, U. S.) 40 Sup. Ct. 495. The case of Hawke v. Smith is the Court’s Pronouncement regarding the application of the state referendum to the federal lending process. 2 (1920, U. S.) 40 Sup. Ct 486. The case here referred to as Rhode Island v. Palmer is the Supreme Court’s decision in seven cases involving the validity of the Eighteenth Amendment, among them being the cases of Kentucky Distilleries and Warehouse Co. v. Gregory and Feigenspan v. Bodine, the briefs in which are referred to below. [322] a full review of the issue as to ratification by state legislatures, and it is, therefore, not so necessary to discuss the briefs in connection with the decision in this case. The briefs presented against the validity of the Eighteenth Amendment are addressed more to what the opposing interests thought ought to be, than to any issues which may properly be termed legal in character. When read, these briefs in many cases seem to be arguments of counsel who were employed to find arguments, and must, therefore, do so, even though they knew the arguments to be untenable. The most effective statements presented to the Court were those submitted in behalf of a number of states as amici curiae, in the cases of Kentucky Distilleries and Warehouse Co. v. Gregory and Rhode Island v. Palmer. These briefs bear the name of Mr. Charles E. Hughes. Perhaps in no case since that involving the validity of the Income Tax Act of 1894 have historical arguments been so fully employed in the briefs of counsel as in the cases involving the validity of the Eighteenth Amendment. Historical arguments based upon the intent of the framers of the Constitution were frequently urged; and here, as with reference to other points, those seeking to sustain the Amendment had the better of the argument. Article 5 of the Constitution provides that: “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 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 Constitution provides two methods of proposing amendments and two methods of ratifying amendments, but only one method is here discussed in detail, because it is the only one as yet employed for the purpose of altering the Constitution of the United States. Extent to which the issues were judicially cognizable. In the cases here under discussion, the contention was first made by those supporting the validity of the Eighteenth Amendment that the issues raised against the Amendment were not judicially cognizable. It was urged that an amendment having been proposed by Congress, and the Secretary of State, under the authority of federal law, having certified that this amendment had been ratified by three-fourths of the states, the issues as to proposal and ratification were not judicially cognizable; and that the political nature of the issue was further strengthened by the fact that Congress had recognized the Eighteenth Amendment [323] as a valid part of the Constitution, and had enacted legislation thereunder. It was urged that the issues sought to be presented to the Court in opposition to the Eighteenth Amendment were issues which had been presented to and finally passed upon by the political organs of the United States government. This view is to some extent supported by Jameson’s work on Constitutional Conventions, which suggests that “when the political power has spoken upon the question, the judicial department ought, perhaps, in conformity to the general practice of courts in such cases, to follow its decision.”3 On the other side, however, is to be found the unanimous view in state courts that the question as to whether an amendment to a state constitution has been properly adopted, is a question for judicial determination.4 The statements in the briefs regarding the judicial power to take cognizance of the issues presented against the validity of the Eighteenth Amendment, are not always clear. The brief for the appellees in the case of Feigenspan v. Bodine, presented by the Solicitor General of the United States, says that it is competent for the Court to determine whether the procedure laid down by the Constitution has been complied with; but suggests that the Court must as to certain questions accept the action of the political departments as conclusive. This brief says further that the political “branch having determined that the Eighteenth Amendment has been ratified, the courts must accept its decision and the judicial function is merely one of interpretation and application.”5 Mr. Hughes’ brief in the Kentucky Distilleries case argues at length that the question of ratification has been settled by the political departments of the government.6 On the other hand, Mr. Elihu Root in the appellant’s brief in the case of Feigenspan v. Bodine urged that the questions were properly cognizable by the Court, and said: “It would certainly be vain for a constitution to declare or imply limitations upon the power to amend it, if those limitations could be transgressed at will by the very persons who were intended by the people to be restrained and confined within fixed or prescribed limits.”7 3 J. A. Jameson, A Treatise on Constitutional Conventions (4th ed.) 627. This work is hereafter referred to as “Jameson.” 4 Brief for the states in Kentucky Distilleries and Warehouse Company v. Gregory, at pp. 10-20. 5 A further statement of the development in state courts will be found later in this paper. 6 Brief for appellee in Feigenspan v. Bodine, at pp. 30-32. 7 At p. 128. This brief bears the names of Elihu Root, William D. Guthrie, Robert Crain, and Bernard Hershkopf. For brevity it is sometimes referred to hereafter as Mr. Root’s brief. [324] It may be worth while to review separately the issues which were being presented to the Court in this case, and to discuss separately as to each the arguments bearing upon whether such issues were judicially cognizable. The issues presented to the Court were substantially the following: (a) Did two-thirds of both houses propose the amendment, and what constitutes two-thirds of both houses? It is quite clear that the Court would not go behind the official record of action by the two houses in order to determine what the two houses had actually done. That is, the official record of the action of Congress would be accepted as conclusive, and no effort to disprove such evidence would be admitted by the Court. This is not an assertion that an issue may not be determined by the Court, but is merely a statement as to the evidence which will be admitted in determining that issue. The real issue is, did two-thirds propose, and what properly constitutes two-thirds? This issue, it seems, is clearly one for judicial cognizance, and the Court in passing upon such an issue is merely determining the powers of Congress in the same way that it might determine the powers of the same body to enact legislation. But the proof to be accepted for the determination of the issue is a different matter, and the Court would properly decline to permit evidence to contradict the official records of the two houses. (b) Is the state’s certificate conclusive that there was a proper state ratification under the terms of the Constitution? Mr. Hughes said as to this matter that “we may assume that the Court would not undertake to go behind the certificate of the action of the legislature in any state in order to determine whether in any particular case votes had been cast for or against the ratification differently from what was disclosed by the certifying authority.”8 The issue as to whether the state’s certificate of ratification is conclusive divides itself, however, into two parts. One issue is that as to whether the state’s certification received and accepted by the political organs of the federal government shall be taken as conclusive of what it says. In this case, as in the case of the records of the two houses of Congress, it may be assumed that the state’s certification should be conclusive evidence of what it says. This, however, does not decide the second question, which is, assuming the state’s certification to be conclusive of what it says, does the action certified to amount to a ratification by the state? Mr. Hughes apparently realized this distinction, and urged that to pass upon this second point would be to pass upon the structure of the state government, and to decide an issue political in character.9 However, it does seem that 8 Brief for the states in Kentucky Distilleries and Warehouse Company v. Gregory, at p. 19. 9 Ibid. [325] the second issue suggested above is properly judicially cognizable, for there can be no effective ratification by a state except through the legislature thereof and there appears to be no distinctly political question necessarily involved in the determination as to whether the legislature is the representative body or includes the referendum. (c) A third issue involved is that as to whether the certificate of the Secretary of State of the United States under power conferred by statute is itself conclusive of the facts stated in such certificate. This view was expressly urged in the brief of the Solicitor General in the Feigenspan Case, where it was said: “When an amendment has been, therefore, regularly proposed by Congress, and when the Secretary of State has received official notice that it has been ratified by the required number of legislatures and has proclaimed it to be a part of the Constitution, the political branch of the government has recognized it as a validly adopted amendment and the courts must follow that decision.”10 This view, however, seems to be effectively met by Mr. Root’s brief for the appellant in the Feigenspan Case: “By the express declaration of the Constitution, therefore, only an amendment which has actually become such in truth and in law is provided for, and not an amendment which some ministerial or legislative officer believes or declares to have validly become a part of the Constitution. Thus, an amendment which had been duly ratified by the legislatures of three-fourths of the states would automatically become part of the Constitution despite the fact that the Secretary of State might refuse to announce it, because he erroneously believed the ratifications to be defective for some reason. No court would hesitate to disregard his error of law or fact under the circumstances supposed. Likewise, the action of the Secretary of State in proclaiming that an amendment was in effect, when it had not yet been ratified by the requisite number of states, or when it had not yet been ratified by all the houses of the legislature in the requisite number of states, would have to be regarded as a nullity. Any other result would mean that amendments could be made to the Constitution only if they won the approval of the Secretary of State. Such an interpretation of the fundamental law is plainly erroneous. To refuse an injured party the right to call the action of the Secretary of State into question in the courts, would be, to all practical intents and purposes, refusing to uphold the Constitution and permitting it to be nullified at will by a mere ministerial officer.”11 Mr. Root seems clearly correct in his view that it is the ratification of the states that gives effect to a constitutional amendment and not the ministerial function of the Secretary of State in certifying such 10 At p.31. 11 At p. 132. In United States v. Colby (1920, App. D.C.) 265 Fed. 998. the court took the view that the statutory duty of the Secretary of State to proclaim was purely ministerial; and that the approval of the requisite number of states, not the proclamation, brought the amendment into effect. [326] ratification. The issue here presented seems clearly a cognizable one, though great weight in its determination should, of course, be given to the official record of ratification evidenced by the certificate of the Secretary of State. (d) The last real issue which was alleged not to be judicially cognizable, was that as to whether Congress had transcended the limits of the Constitution upon the substantive power of proposing amendments. There are, of course, certain express limitations upon the subject matter of amendments which may be proposed, and those opposing the Eighteenth Amendment also urged that there was a number of implied limitations as to the same matter. There was some apparent contention, in support of the Amendment, that the issue so presented was not judicially cognizable, but the real argument was not so much that the limitations on the amending power were beyond review by the Court, as that it would be highly unwise for the Court to extend those limitations by implication so as to cripple the amending power, and to give to the Court in each case a determination without guidance of any rule of law as to whether any amendment might be properly proposed. Those opposing the Amendment were really contending for a discovery by the Court of broad implied limitations upon the amending power, running actually into limitations found in the nature of the government and not at all imposed by the text itself; and those supporting the Amendment took the view that remote implications against the amending power should not be indulged. That is, those supporting the Amendment contended that the Court could enforce against the amending power only the express limitations of the Constitution, and that it would be unwise and improper to discover implied limitations upon this power which would commit to the courts in each case the determination as to the propriety of any amendment, thus forcing the Court into a field really political in character if it adopted such an interpretation of the Constitution. So far as the Constitution imposes limitations upon the subject-matter of proposed amendments, it seems quite clear that the issue is judicially cognizable, and in order to determine whether Congress had transcended such constitutional limitations, the determination as to what are the limitations imposed by the Constitution was properly a judicial question. The discussion here relates merely to the judicial eognizability of the issue, and later in this paper will be found a discussion of the limits urged by those opposed to the Eighteenth Amendment and properly rejected by the Court. The only issue here is that as to the propriety of the Court’s passing upon the issues so presented. The Court apparently regarded all of the issues suggested above as judicially cognizable, and its decisions (although one of them, without giving reasons) regarded it as proper for it to determine whether the constitutional limits upon the amending power had been observed, and the constitutional methods of proposal and adoption complied with. [327] The issue before the Court was, what are the constitutional requirements, and it regarded it as proper to determine that issue, although had it stated reasons, it would probably have limited itself, as indicated above, to the official evidence for the proof of certain facts to be established in determining the legal issues presented. It may be well to trace briefly the growth of judicial control over the amending process in this country. In Luther v. Borden12 Chief Justice Taney said: “Certainly the question which the plaintiff proposed to raise by the testimony he offered has not heretofore been recognized as a judicial one in any of the state courts. 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, and the judicial power has followed its decision.” State v. McBride13 was the first case to assert the judicial power to inquire into the validity of proposed amendments, and here the amendment was upheld, as also in Green v. Wetter and Dayton v. St. Paul.14 Miles v. Bradford15 denied the power. Collier v. Frierson16 is the only case before 1880 in which a state constitutional amendment was declared invalid because improperly adopted. Hardly more than half a dozen cases involving the proper adoption of proposed amendments arose before 1880. Up to 1890 probably not more than twenty such cases had come before the courts. Since 1890 cases have frequently arisen and the state courts have exercised an effective supervision over all steps in the amending process. The brief for the appellant in the Feigenspan Case17 suggests that where a court is acting under a constitution already in force, the court cannot pass upon the validity of that constitution. The brief for the appellant in the Kentucky Distilleries Case18 in reply to the contention that arguments made against the Eighteenth Amendment would also defeat earlier amendments judicially recognized as valid, said: “In response to the argument that the unbroken practice has been to propose amendments by a two-thirds vote of a quorum, it is sufficient to observe that inasmuch as all the states, and the people have, for so many years acquiesced in the amendments it is now too late to question the validity of the method of their adoption.” 12 (1836) 4 Mo. 303. 13 (1849, U. S.) 7 How. 1, 39. 14 (1856) 32 Miss. 650; (1876) 22 Minn. 400. 15 (1864) 22 Md. 170. See also, Brittle v. People (1872) 2 Neb. 198, 214. 16 (1854) 24 Ala. 100. 17 At p. 129. 18 At p. 30. 19 Some state cases uphold the view expressed by Mr. Root and Messrs. Mayer and Bullitt in these briefs. I have discussed the state cases in a book on the Revision and Amendment of State Constitutions (1910) 86-87, 223-236. See also, State v. Starling (1867, S. C.) 15 Rich. Law, 120; and Carpenter v. Cornish (1912) 83 N. J. L. 696, 8S Atl. 240- [328] Assuming that it is within the province of the Court to enforce the constitutional limitations upon the subject-matter of amendments and upon the methods of proposing and adopting amendments to the Constitution of the United States, we may now proceed to discuss what the limitations are upon both the substantive power and the procedure of amending the Constitution. Proposal of amendments by the two houses. In the case of Missouri Pacific Ry. v. Kansas,20 the Court had before it the question as to what was a compliance with the constitutional provision requiring a vote of two-thirds of each house to pass a bill over the President’s veto, and it was held that this provision means two-thirds of a quorum of each house, and not two-thirds of all the members of that body. A majority of the members of each house constitutes a quorum. In considering this question the Court called attention to the identity between the requirement with respect to the overcoming of a veto and that authorizing the submission of constitutional amendments. This issue was, of course, not involved in that case, and it was vigorously urged in the brief for appellant in the Kentucky Distilleries Case that the expression of the Court should not be regarded as conclusive, but that the slightly different phraseology of the amending clause should be made the basis for a difference in judicial view.21 This argument was based upon so slight a difference in language as to be pretty clearly untenable, and the Court adhered to the view previously expressed, saying in the case of Rhode Island v. Palmer: “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.” In the decision of the case of Rhode Island v. Palmer, the Court says: “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.” This statement seems unnecessary, and is hardly understandable, except as read with the briefs in the cases before the Court. The brief for the state of Rhode Island22 suggests that the members of the two 20 (1919) 248 U. S. 276, 39 Sup. Ct. 93. 21 Brief for appellant in Kentucky Distilltries and Warehouse Co. v. Gregory, p. 16, et seq. 22 At p. 97-98. [329] houses voting to propose any amendment must deem the adoption of that amendment necessary, and this view intimates the possibility of the Court’s being asked to go behind the proposal by the two houses in order to determine whether the members actually voting for a proposed amendment thought that the proposal being voted for was necessary as an amendment to the Constitution. This argument was discussed by the Solicitor General in the Feigenspan Case,23 and also by Mr. Hughes in the Kentucky Distilleries Case,24 and the argument as presented by the state of Rhode Island was shown to be untenable. The nature of action by Congress and by the states in proposing an amendment to the Constitution of the United States was fully discussed in the briefs presented in the Eighteenth Amendment cases, and there was much argument to the effect that the congressional function of proposing an amendment and the state function of ratifying are not merely exercises of either national or state legislative power. As a corollary to the view that the proposal of a constitutional amendment is not merely a function of ordinary congressional power as a legislative body, is the view expressed by Justice Chase in the case of Hollingsworth v. Virginia.”25 “The negative of the President applies only to the ordinary cases of legislation: he has nothing to do with the proposition or adoption of amendments to the Constitution.” Limitations upon the subject-matter of proposed amendments. The question most vigorously debated in the briefs presented in the cases here under discussion, was that as to the limits imposed by the Constitution itself upon the subject matter of proposed amendments. Article 5 provides “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.” 23 At pp. 67-70. 24 In the Kentucky Distilleries and Warehouse Co. brief, at p. 7, Mr. Hughes answered this contention briefly by saying: “It would seem to be a sufficient answer to this contention that the adoption of the joint resolution is in itself an adequate expression by Congress of its judgment in the matter, and that the Court is not at liberty to assume that Congress in passing a joint resolution pursuant to the amending power did not deem the proposed amendment to be necessary.” 25 (1798, U. S.) 3 Dall. 378. See reference to this statement of Justice Chase in Hawke v. Smith, supra. A full review of the precedents with respect to the President’s veto power will be found in H. V. Ames, The Proposed Amendments to the Constitution of the United States during the First Century of Its History (1897) 295; and in Jameson 586-92. Ames’ work will be hereafter referred to merely by the name of the author. [330] The Constitution thus contained two express limitations upon things that might be done by amendment. One of these limitations expired in 1808, and the other is still in force. The prohibition still in force that “no state, without its consent, shall be deprived of its equal suffrage in the Senate,” appears clear and definite both in its language and in its purpose. However, it has been urged that this language imposes a much stricter limitation upon the amending power than it seems to imply; and much of the argument implicit in the briefs against the Eighteenth Amendment, seems to be based upon the notion that either the amending clause or the Constitution as a whole, when read with the amending clause, sets up some distinct sphere of state power not subject to alteration by the amending process. In an article some years ago in the Harvard Law Review,26 it was urged that the word “state” as used in Article 5 of the Constitution means the people of the state having political power, and that an increase of such people deprives the state of its equal representation in the Senate. This argument would also deny the validity of the Woman’s Suffrage Amendment. The arguments of this article received some support in the congressional debates when the Fifteenth Amendment was being proposed. An even more remote limitation is found in the contention recently made that the provision regarding equal representation guarantees the continued existence of the states, and that this continued existence implies a continuance of powers in the states, which may, therefore, not be withdrawn by a federal amendment having the result of increasing national powers.27 Let us turn now from express limitations upon the amending clause to limitations claimed to be derived from the language of the clause itself, although not definitely expressed therein. In favor of the interpretation of the amending clause so as to exclude all implied limitations is the argument that the two express exceptions from the amending power negative the existence of others. The answers to this argument presented in the several briefs are weak, and seek to establish limitations not clearly within the language of the Constitution itself, by strained applications of this language, by remote implications, or by arguments based upon the nature of the federal system. One set of arguments is that based upon the construction of the word “amendment.” Judge M. F. Morris28 suggested some years ago that: 26 Arthur W. Machen, Jr., Is the Fifteenth Amendment Void? (1909) 23 Harv. L Rev. 169. 27 Justin Du Pratt White, Is There an Eighteenth Amendment? (1920) 54 Am. L Rev. 245. 28 M. F. Morris, Is there an Fifteenth Amendment to the Federal Constitution (1909) 54 North Am. Rev. 82. [331] “Amendment may be made and become effective by a vote of three-fourths of the states over the objection of the other fourth, or of any number of the states less than one-fourth. Now, addition is something entirely new and not germane to the original instrument: amendment is alteration or improvement of that which in some form is already there. The distinction between addition and amendment is fundamental, and is very clear to every one.” Although Judge Morris’ argument is not referred to in any of the briefs, argument upon this point may be practically regarded as in many respects an elaboration of the statement quoted above. The argument that the word “amendment” in itself limits the power of Congress with respect to the proposal of amendments, is most fully presented in the brief of the state of Rhode Island, which urges the analogy of the narrow use of the word in judicial procedure and in parliamentary practice. The argument of the state of Rhode Island is perhaps sufficiently summed up in the following quotation: “The word ‘amendment’ is a technical word of common law significance and means simply ‘the correction of an error committed in a process.’ Amendments are thus limited to the correction of errors committed in the framing of the Constitution.”29 In the brief of the state of Rhode Island a serious effort was also made to limit the construction of the word through definitions in dictionaries, and through quotations from debates in the federal Constitutional Convention and in Congress. The appellant’s brief in the Feigenspan Case (which bears Mr. Root’s name) urged also that: “The word ‘amend’ has a necessary relation to some particular, thing which is to be amended. The word has no meaning whatever except in relation to that thing. The change for better or worse which is called an amendment must be a change in the particular thing amended. The necessary relation of amendment to the thing to be amended is ordinarily expressed by the rule that amendments must be germane.”30 These arguments were fully and effectively answered, both on the historical and other bases, by Mr. Hughes’ briefs in the Rhode Island and the Kentucky Distilleries cases. Mr. Hughes shows that the word “amendment” was used generally in the debates and discussions of the time as equivalent to “alteration,” and as permitting any changes which might be regarded as proper or desirable in the operation of the government being set up by the Constitution of 1787.31 The most effective point made against this argument, however, is that the argument, even if admitted, would accomplish nothing so far as the Eighteenth Amendment is concerned. The Solicitor General’s brief in the Feigenspan Case expresses the matter clearly when it says: 29 At pp. 29, 66 et seq. 30 At p. 37. 31 Brief for the states in Kentucky Distilleries and Warehouse Company v. Gregory, at p. 41. et seq.; and in State of Rhode Island v. Palmer, at p. 13, et seq. [332] “But this amendment comes clearly within even the narrow definition suggested, as counsel say the original Constitution granted enlarged powers to the government and distributed those powers and directed how they should be exercised, and imposed limitations both upon the powers granted to the federal government and the powers reserved to the states. In so far as this amendment confers additional powers of legislation upon Congress, it follows in the footsteps of the framers of the Constitution by granting enlarged powers to the federal government. In so far as the powers thus granted are taken from the states, it merely operates to change the original distribution of power.”32 And the brief correctly adds in its further discussion that: “In the very nature of things almost any amendment that could be adopted would take either from the states or the federal government some of the powers belonging to them respectively.” Mr. Hughes sums up the matter perhaps even more clearly when he says that “nothing could be more in consonance with a plan for the amendment of the constitution than provision for a change in the distribution of powers, either by subtracting from those conferred upon the federal government or by taking some part of that which had been reserved and giving it to the federal government”33 Another argument based upon the word “amendment” is that presented by the appellant’s brief in the Feigenspan Case. Here counsel argued that the Eighteenth Amendment is in effect legislation, in that it lays down a rule operative upon the states and upon individuals without the necessity for congressional legislation, and that such an amendment, being legislation, is not within the express power conferred upon Congress by Article 5 of the Constitution. It will be well to quote the language of the brief, which bears Mr. Root’s name: “Our contention is not for a further exception to the power granted; it is that the grant itself does not include the power of ordinary legislation. This is no more affected by the fact that there are express exceptions to the power which was granted than would be the proposition that the grant of the Fifth Article does not include the judicial power or power to command the army and navy.”34 The point under contention is made perhaps even clearer by another statement in this brief: “In this respect a constitutional amendment granting to the government power to prohibit intoxicants would be quite different from an 32 At pp. 34, 35 and 48. 33 Brief for the states in Kentucky Distilleries and Warehouse Company v. Gregory, at p. 40. 34 At p. 16. [333] attempted amendment itself directly declaring the prohibition of intoxicants. The former would merely add to the powers of government and would, therefore, in this regard at least, be a proper form of constitutional amendment; while the latter in its essence neither would add nor withdraw powers of government, but would be direct legislation. The Eighteenth Amendment is, therefore, in substance and effect a statute, not a constitutional provision akin to any in the federal Constitution.” It is sought to bolster up this argument by the provision of the Constitution vesting all legislative power in Congress; and to sustain it further by the purely political argument that legislation thus embodied in the Constitution becomes permanent and beyond the control of the majority, because of the fact that change may be prevented by fourteen states containing only a very small minority of the population of the country.35 A similar argument will be found in an article which recently appeared in the Harvard Law Review.36 This argument might be termed somewhat ridiculous, had it not appeared under the distinguished name of Mr. Elihu Root. The Solicitor General’s brief in the Feigenspan Case reviews a number of provisions of the original Constitution and of amendments thereto before the Eighteenth Amendment, and properly says: “That the provisions referred to are acts of legislation in the sense that they establish rules of law can not be doubted. They and other provisions constitute a body of laws which the framers of the. Constitution deemed of such importance that they should be enacted and placed beyond the control of any branch of the government.”37 Mr. Hughes’ brief in the Kentucky Distilleries Case presents the situation even more vigorously: “And what is ‘legislation’ which is thus said to lie outside the scope of the amending power according to the theory presented? Is it that the amendment must not be self-executing? But the obvious answer is that the Thirteenth Amendment is self-executing and it has been so adjudged by this court.... “Is it that the amendment must not directly affect the rights of persons without the intervention of legislation? The Thirteenth Amendment did that, for it made free men out of slaves. “Is it that the amendment must not directly disturb without further legislation vested rights of property? But the Thirteenth Amendment destroyed property in slaves. “The attempt is made to explain in some way that the Thirteenth 35 pp. 11, 14 et seq., 48. 36 William L. Marbury, The Limitations upon the Amending Power (1919) 33 Harv. L. Rev. 223. See a reply to this article by William L. Frierson, Amending the Constitution of the United States: A Reply to Mr. Marbury (1920) 33 Harv. L. Rev. 659. Mr. Frierson’s name will also be found signed to the brief for the appellees in the case of Feigenspan v. Bodine. 37 At p. 37. [334] Amendment, which did all these things, was not legislation. It is impossible then to understand in what sense the term “legislation” is used. For that which establishes a rule of law which, being self-executing, determines without further legislation the rights and status of persons and rights of property manifestly has the direct operation and effect of legislation.”38 Mr. Root’s brief refers to the case of State ex rel Halliburton v. Roach,39 but does not seek to make much use of this case, and it is doubtful whether the full facts of the case would have aided the contention being made. The court in the Roach Case took the view that it was improper to propose by initiative petition an amendment to the constitution of Missouri providing for the redistricting of the state for the election of state senators. The original constitution of the state provided for senatorial districts, but the original provision had long ceased to be in force because the power to redistrict had, by other provisions of the constitution, been conferred upon and exercised by the state legislature. The court, by a bare majority, said that “the petitioners have no right to undertake to put in the constitution, which is regarded as the organic and permanent law of the state, mere legislative acts providing for the exercise of certain powers.” The decision was pretty clearly a political one for the purpose of maintaining an existing apportionment, and there is no satisfactory authority in support of the view that the court may determine what the amending power in a state shall place within the text of a state constitution. The Roach Case is further weakened by the fact that the language there sought to be embodied in an amendment was of the same type as provisions which will be found in practically every constitution framed by a constitutional convention. For a court to pass upon the propriety of placing a matter in a constitution, either state or federal (except as expressly provided by the language of the constitution itself), would deny the people and the amending process any authority to place in the constitution anything which the court might itself regard as not properly belonging in the text of a constitution, and would introduce into American constitutional practice a highly undesirable scope of judicial control. In the brief of the state of Rhode Island and in Mr. Root’s brief for appellants in the Feigenspan Case, it is urged that the nature of 38 At pp. 51-52. 39 (1910) 230 Mo. 408, 130 S. W. 689. State v. Keith (1869) 63 N. C 140, and Eason v. State (1851) 11 Ark. 481, were referred to in the briefs against the Amendment as sustaining the view sought to be supported also by State ex rel. Halliburton v. Roach, but these cases do not seem to be capable of such a use. State v. Keith says that a state constitutional convention is limited by the Constitution of the United States. Eason v. State finds a state constitutional limitation to be applicable in its terms to the legislative proposal of specific state constitutional amendments. [335] the federal system in some manner forbids constitutional amendments changing the distribution of powers as between the states and the United States and reducing the states’ police power. Mr. Root’s brief sums up this argument as follows: “There can be no reasonable doubt, that it was contemplated by the framers, and is implied in the Constitution itself, that the several states, then existing or thereafter to be created, should be sovereign and autonomous in their spheres of local self-government. Hence any amendment which impairs or tends directly to destroy the right and power of the several states to local self-government should be held void as in conflict with the intent and spirit and implied limitations of the federal Constitution adopted by the people of the United States.”40 A similar view is expressed in the brief of the state of Rhode Island: “Congress may not constitutionally propose, therefore, nor may the legislature of a state constitutionally ratify any proposition as an amendment that involved the exercise or the relinquishment of the sovereign powers of a state.”41 The historical arguments presented in support of this contention were poor, and the whole argument is chiefly one that the amending process is not to be interpreted as unlimited, because if unlimited it might at some time be unwisely employed. A complete answer will be found in Mr. Hughes’ briefs in the cases of Rhode Island v. Palmer42 and Kentucky Distilleries and Warehouse Company v. Gregory.43 In so far as the contention against the Amendment was based upon the claim that the national government may not interfere with the states’ police power, it was perhaps sufficiently met by the fact that the Constitutional Convention of 1787 expressly rejected a proposed limitation upon the amending clause “that no state shall without its consent be affected in its internal police.” Upon principle, however, there seems to be little, if any, basis for a notion that the state is completely in the possession of the police power, and that in some manner the nature of the federal system guarantees this police power of the state against reduction or impairment. The term “police power” is ordinarily employed to define a governmental power to control in a certain manner, and such a power he1ongs to the government which may exercise such a type of control. If “police power” is defined as the state’s power to control (and this definition is implied in the briefs against the Eighteenth Amendment), such power becomes by definition ex- 40 At p. 65. 41 At p. 120. For a full statement of this contention see the brief of the state of Rhode Island, at p. 37 et seq. 42 At p. 34 et seq. 43 At p. 39. See also, D. O. McGovney, Is the Eighteenth Amendment Void Because of Its Contents? (1920) 20 Col. L. Rev. 499. [336] clusively a state power, and does not include similar national powers of control which result expressly or impliedly from the powers granted to Congress by the United States Constitution. There is, of course, no federal police power independently of the things which the Constitution authorizes Congress to do, just as there is no other federal power independently of the powers conferred by the federal Constitution. The argument that the police power is a state power is merely a play upon words. General police authority belongs to the state, because it relates primarily to matters not granted to the United States, but the general police power of the state yields to federal power in the same field where the national government has authority to act. This is not a statement that the police power is exclusively a state power, for police authority is to a large extent exercised by Congress through commerce, postal, taxing, and other powers. Clearly there is no implication of any sort that police powers belong exclusively to the states, and may not be altered by the federal amending power. The arguments frequently made in the briefs that the two governments move in distinct spheres, and that the federal government has no police power, have long been untrue, if they were ever well founded. The argument that the United States has no police power is true only to the extent that it has no powers except such as are granted to it. An argument somewhat similar to that just referred to appears frequently throughout the briefs, that certain principles of the Constitution are unamendable and are to be read as limitations of the amending article. This view appears frequently in Mr. Root’s brief in the Feigenspan Case. Several quotations from this brief will present his attitude more clearly: “It is inconceivable that both the nation and the states may to all practical intents have their fundamental characters changed or destroyed whenever it pleases two-thirds of the houses of Congress, and three-fourths of the legislatures of the states, which latter may readily represent only a minority of all the people of the United States. The possibility of any such outcome should condemn any rule that would permit it.” And again: “Thus, the provision guaranteeing due process of law is plainly so vital to free government that it may not be destroyed, but the provision against self-incrimination or indictment by a grand jury may well be regarded as standing on a different footing.”44 Similar to this is the view expressed in several parts of Mr. Root’s brief, and the view expressed by Messrs. Mayer and Bullitt in their brief in the Kentucky Distilleries Case, that the Ninth and Tenth Amendments became by adoption limitations applicable to all of the terms of the original Constitution and as such unamendable. The 44 At pp. 92, 98 [337] brief of Messrs. Mayer and Bullitt in the Kentucky Distilleries Case says that: “The powers reserved by the Ninth and Tenth Amendments are powers reserved from the operation of Article 5 as well as from the operation of any other articles of the Constitution.”45 Mr. George Ticknor Curtis’ discussion in his Constitutional History of the United States appears to be the primary source of these arguments of Mr. Mayer and Mr. Root, and also of the general arguments based upon the nature of the federal system.46 The whole argument that the amending process is limited by amendments adopted through such process is sufficiently disposed of by Mr. Hughes’ brief in the case of State of Rhode Island v. Palmer: “Article 5 itself was not amended. And, not being amended, Article 5 stood as effective with respect to the manner in which future amendments might be obtained as it had been prior to the adoption of the first ten amendments. These ten amendments themselves, by virtue of the fact that they were amendments, became part of the Constitution and thus became subject to the amending power contained in Article 5 equally with any other part of the Constitution.”47 Appellant’s brief in the Feigenspan Case apparently takes the view that a convention called under the terms of Article 5 of the Constitution would have greater power than Congress has in the proposal of amendments, although it is difficult to see the basis for such an argument, because the constitutional power conferred is the same as to the two methods of alteration. In this brief, however, the statement is made that: “If fundamental changes become necessary, a convention may be called on the application of two-thirds of the states for that purpose. .... It does not, however, by any means follow that the same unrestrained power is vested in their governmental agents, that is, in two-thirds of the houses of Congress and the legislatures of three-fourths of the states.”48 In the case of Rhode Island v. Palmer, the Supreme Court merely says: 45 At pp. 13, 15. See also, oral argument of Levy Mayer, at p. 15. The same views will be found suggested in Mr. Root’s brief for the appellant in the Feigenspan Case, at pp. 91, 92. 46 The same line of argument will be found in George D. Skinner, Intrinsic Limitations on the Power of Constitutional Amendment (1920) 18 Mich. L. Rev. 213. A contention somewhat similar in character is that made in the brief of appellant in the case of Kentucky Distilleries and Warehouse Company v. Gregory, that the Eighteenth Amendment is subject to the provisions of the Fifth Amendment The argument here is not one as to the constitutionality of the Eighteenth Amendment, however, but is an argument that the Eighteenth Amendment should be construed as subject to the principle laid down in the Fifth Amendment. 47 At p. 35. 48 At pp. 68, 69. [338] “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.” In stating these views the Court has necessarily rejected substantially all of the arguments presented in favor of implied limitations upon the federal amending power, although its statement does not necessarily go to the extent of denying all limitations other than those clearly expressed in the constitutional language itself. The Supreme Court of the United States has at practically all times been liberal in its construction of national powers, and has been unwilling to adopt principles by which limitations upon such powers are implied.49 Every argument of law and policy favors the view that the Court should not read into the amending power limitations not within the constitutional language. Within the constitutional limits the question as to what amendments shall be proposed and adopted, either to the federal Constitution or to state constitutions, is pretty clearly not a proper question for the courts, but to have construed the word “amendment” in a narrow manner or to have adopted other implications urged by those opposing the Eighteenth Amendment, not only would have narrowed the use of the amending clause, but would have left the question of amending power in each case to judicial decision without the guidance of any legal principle. The determination of what was or what was not an amendment under such a plan would become, just as in the Missouri case of State ex rel. Halliburton v. Roach, a question which could be determined only upon the basis of considerations not clearly legal in character. The Solicitor General’s brief in the Feigenspan Case was clearly right, both in law and in fact, when it said that “the Congress itself and the ratifying legislatures have been made the judges of whether a proposed amendment is germane and their decision is final.”50 This does not mean in any way that the Court may not pass upon the limitations imposed by the Constitution, but it does mean that the Court properly took the view that no implications should be constructed by which a court itself should decide upon the propriety of each proposed amendment. Another valid objection to such a broad view as that urged by those opposed to the Eighteenth Amendment is well expressed by Mr. Hughes in his brief in the Rhode Island Case: 49 See article on Implied Powers and Implied Limitations in Constitutional Law (1919) 29 Yale Law Journal, 137. 50 At p. 42. [339] “Such restrictions, established by judicial decree, could not be removed by any process of constitutional amendment which the Constitution affords. As such restrictions would affect the power of amendment, they could not be eliminated by amendment. They would remain unalterable except by the Court itself unless in some manner a new constitution were adopted outside the exercise of amending power contained in the present Constitution.”51 This view of Mr. Hughes is reiterated in the brief which he presented in the case of the Kentucky Distilleries and Warehouse Company, where he again urges that judicial constructions have always been open to change through constitutional amendment, but that for the Court to limit the amending power itself would constitute a constitutional change beyond the reach of popular control.52 Ratification by state legislatures. Another important question in connection with the amending process is that as to the power of Congress to regulate the exercise of this power. The amending power conferred by Article 5 of the Constitution is pretty clearly a power vested by the Constitution in the government of the United States, and Congress has authority “to make all laws which shall be necessary and proper” for the exercise of such a power. The power is one belonging to the government of the United States, of which the states are a part for the purpose of ratification. It is clear, therefore, that Congress has the authority to enact such legislation as that of 1818, making it the duty of the Secretary of State to cause amendments to be promulgated whenever official notice has been received that proposed amendments have been adopted in accordance with the provisions of the Constitution. In proposing the Eighteenth Amendment, Congress provided that the amendment should 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.” No constitutional objections to the Eighteenth Amendment were urged because of this provision, although in 1919 a proposed constitutional amendment was favorably reported upon in the United States Senate which limited the ratification of federal amendments to “six years from the date of their proposal.” This amendment had been proposed by Senator Brandegee, and the need for the amendment was suggested by Senators Brandegee, Ashurst, and Borah, on the ground that a congressional limitation of this type was probably unconstitutional.53 51 At p. 30 52 At pp. 39-41. 53 Cong. Rec. (66th Cong., 1st sess.) 5694-5700; id. (65th Cong., 2d sess.) 471; id. (65th Cong., 1st sess.) 5556-5558. Senator Borah suggested the probable unconstitutionality also of the provision that the amendment if adopted should become operative one year after its ratification. [340] It would seem that congressional legislation may properly be enacted limiting to a reasonable period after submission the power to ratify a proposed amendment to the federal Constitution. Jameson, however, took the opposite view and said: “No power is granted to prescribe conditions as to the time within which the amendments are to be ratified, and hence to do so would be to transcend the power given. The practice of Congress in such cases has always conformed to the implied limitations of the Constitution.54 Jameson’s statement of fact correctly applies to all constitutional amendments proposed before the Eighteenth Amendment. Jameson, however, did take the view that some limitation is desirable, and suggested that a constitutional amendment for the purpose be adopted. Even if Congress were not constitutionally empowered to impose such a limitation, it is probable that the courts would almost of necessity take the view that the proposal of an amendment without an express limitation of time does not keep such proposal indefinitely before the states. In 1873, the senate of Ohio adopted a joint resolution ratifying the second of the twelve amendments submitted to the states by Congress in 1789.55 In 1789 the states numbered thirteen; in 1873 they numbered thirty-eight. It is quite certain that a sufficient number of states would not begin ratifying in 1873 to cause the adoption of an amendment proposed in 1789, but the situation presented is not altogether satisfactory in character. The Eighteenth Amendment placed in the text of the amendment itself the language postponing its application to one year after ratification thereof, and also the language providing that ratification must take place within seven years from the date of submission. It is clearly a proper part of a constitutional amendment to prescribe when it shall take effect, although it is more doubtful whether the provisions of a proposed amendment should contain conditions as to the ratification of that amendment. Clearly if Congress has no power to impose a limit upon the period of ratification, it would have no power to accomplish the same purpose by embodying such a limitation in the proposal itself, so that the state legislatures must either accept the limitation or decline to ratify. However, it is believed that Congress has constitutional power to impose a time limitation upon the ratification of amendments. The power to fix a time limit within which an amendment shall be ratified is not the same as a power to recall an amendment when once it has been submitted. The function of the two houses of Congress is that of submitting an amendment, and when they have done this their power with respect to that amendment may be said to be functus officio. Power has then passed from Congress to the states, and a 54 Jameson, 634 55 Jameson, 635; Ames, 291. [341] reconsideration by Congress at a later period may not destroy the action which states may have already taken, or prevent subsequent state action. To what extent may Congress regulate the procedure of state legislatures in passing upon a proposed constitutional amendment? The state legislatures in passing upon a constitutional amendment may properly be said to act as organs of the national government rather than as state agencies, and if a congressional regulation were necessary and proper, it could be enacted. However, it is clear that the state legislatures are not subject to congressional control as to what they shall do. In 1866 when the Fourteenth Amendment was under consideration in the United States Senate a resolution was proposed that this amendment should be submitted to legislatures which should be chosen, or the members of the most popular branch of which should be chosen, next after the submission of the amendment, at the first session thereof. Several other proposals of a similar character were presented but such proposals were defeated, largely on the ground that they were in violation of the United States Constitution. In 1869 a resolution was proposed in the United States Senate prescribing the rules to be followed by state legislatures in passing upon constitutional amendments.56 It is probably beyond the power of Congress to determine the dates upon which such legislatures shall consider proposed constitutional amendments, or to prescribe the requisite vote in a state legislature for the ratifications of a proposed amendment. These were the things attempted by the Senate proposals of 1869. Clearly no federal legislation may impose conditions or restrictions upon the method of ratification by state legislatures, although the period within which ratifications may be had is probably within congressional control. A reasonable limitation upon the period for ratification may be appropriate as an incident to the purely congressional power of proposing amendments, although it to some extent restricts the complete freedom of state ratification; but it does not restrict the free will of the state legislature in acting on the proposal, or limit the state’s determination as to the organization of its representative legislature. The act of ratifying is a federal function, but the legislature doing the act is the state legislature. Upon the subject of state ratification, the question most vigorously argued in the recent Eighteenth Amendment cases was that as to what are “state legislatures.” The argument was vigorously urged that the term “legislatures” as used in Article 5 of the Constitution signifies “not solely the legislative assembly of a state, but the repository of legislative power therein.”57 The same view was urged in the brief of appellant in the Kentucky Distilleries Case, where it is suggested that “clearly it was intended that the ratification should 56 Ames, 287-291. 57 Brief for appellant in Feigenspan v. Bodine, at p. 120. [342] be by the legislative power of the states as distinguished from the judicial and executive.” In view of this argument it was urged that in the states where a referendum had been adopted, such referendum was one means of exercising legislative power and might be made applicable to federal constitutional amendments. It was said that this referendum constituted a part of the state ratifying machinery. Mr. Root’s brief went so far as to suggest that if a state had once adopted a referendum, this referendum became a part of the state legislature, and that if the state had not made such a referendum applicable to federal amendments, there existed no legislative power in the state capable of action upon such proposed amendments.58 This view is perhaps logical, for if a state had adopted the referendum, and if the referendum were to be treated as a part of the state legislature, it is difficult to see how there could be state legislative ratification without the possibility of using the referendum. If the referendum in its terms were therefore not applicable to federal amendments, Mr. Root might logically urge that there was no authority in that state capable of ratifying a federal amendment. The arguments for an interpretation of the word “legislature” so as to include “referendum,” were effectively met by Mr. Hughes’s brief in the Kentucky Distilleries Case. Mr. Hughes properly calls attention to the fact that proposals for popular ratification of federal amendments were actually made in 1861 and 1869, and that the term “legislature” as used in the constitution is in all cases employed as relating to a representative body.59 He might have added further that the Constitution by its terms provides for ratification either by state legislatures or by conventions in the several states, and that both methods clearly contemplate action through representative bodies rather than through popular voting. Attention may perhaps properly be called to the fact that in recent years, a number of proposals have been made for the ratification of federal constitutional amendments by popular vote in the several states, and in 1919 a proposal was debated in the United States Senate which provided that Congress might specify ratification by electors in the several states as an alternative to ratification by legislatures or by conventions.60 In the case of Hawke v. Smith, the Supreme Court settled the issue as to what constitutes the “legislature” of a state for the purpose of ratification. The court said: “The only question really for determination is: What did the framers of the Constitution mean in requiring ratifications by ‘legislatures’? That was not a term of uncertain meaning when incorporated into the 58 Brief for appellant in Feigenspan v. Bodine, at pp. 115-117. 59 At pp. 24-34. 60 Cong. Rec. (66th Cong., 1st sess.) 5694-5700. For a review of earlier efforts to obtain ratifications by popular vote, see Ames, 293-294. [343] Constitution. What it meant when adopted it still means for the purpose of interpretation. A legislature was then the representative body which made the laws of the people. The term is often used in the Constitution with this evident meaning. Article I, section 2, prescribes the qualifications of electors of Congressmen as ‘those requisite for electors of the most numerous branch of the state legislature.’ Article I, section 3, provided that Senators shall be chosen in each state by the legislature thereof, and this was the method of choosing Senators until the adoption of the Seventeenth Amendment, which made provision for the election of Senators by vote of the people, the electors to have the qualifications requisite for electors of the most numerous branch of the state legislature. That Congress and the states understood that this election by the people was entirely distinct from legislative action is shown by the provision of the amendment giving the legislature of any state the power to authorize the executive to make temporary appointments until the people shall fill the vacancies by election. It was never suggested so far as we are aware, that the purpose of making the office of Senator elective by the people could be accomplished by a referendum vote. The necessity of the amendment to accomplish the purpose of popular election is shown in the adoption of the amendment. In Article IV the United States is required to protect every state against domestic violence upon application of the legislature, or the executive when the legislature cannot be convened. Article VI requires the members of the several legislatures to be bound by oath, or affirmation, to support the Constitution of the United States. By Article I, section 8, Congress is given exclusive jurisdiction over all places purchased by the consent of the legislature of the state in which the same shall be. Article IV, section 3, provides that no new states shall be carved out of old states without the consent of the legislatures of the states concerned. “There can be no question that the framers of the Constitution clearly understood and carefully used the terms in which that instrument referred to the action of the legislatures of the States. When they intended that direct action by the people should be had they were no less accurate in the use of apt phraseology to carry out such purpose. The members of the House of Representatives were required to be chosen by the people of the several states. Article I, section 2. “It is true that the power to legislate in the enactment of the laws of a state is derived from the people of the state. But the power to ratify a proposed amendment to the federal Constitution has its source in the federal Constitution. The act of ratification by the state derives its authority from the federal Constitution to which the state and its people have alike assented. . . . Any other view might lead to endless confusion in the manner of ratification of federal amendments. The choice of means of ratification was wisely withheld from conflicting action in the several states.”61 61 The Court readily distinguished the view in this case from that taken in State of Ohio ex rel. Davis v. Hildebrant (1916) 241 U. S. 565. 36 Sup. Ct. 708. See also Ex parte Dillon (1920, N. D. Calif.) 262 Fed. 563; and article by W. H. Taft, Can Ratification of an Amendment to the Constitution Be Made to Depend on a Referendum? (1930) 29 Yale Law Journal, 821. In view of the decision of the United States Supreme Court regarding state referenda upon proposed amendments to the federal Constitution, little attention need be given to the decisions of state courts with respect to the application of the state [344] The case of Hawke v. Smith arose under an Ohio constitutional amendment which expressly provides that the action of the legislature in ratifying a proposed federal amendment shall be subject to the referendum. The Court said as to such a state requirement: “The argument to support the power of the state to require the approval by the people of the state of the ratification of amendments to the federal Constitution through the medium of a referendum rests upon the proposition that the federal Constitution requires ratification by the legislative action of the states through the medium provided at the time of the proposed approval of an amendment. This argument is fallacious in this—ratification by a state of a constitutional amendment is not an act of legislation within the proper sense of the word. It is but the expression of the assent of the state to a proposed amendment.” The view taken by the Court clearly makes it improper for a state constitution to impose limitations upon the exercise by the legislature of its power to ratify a federal constitutional amendment. If a state may not require a referendum, nor impose conditions upon the exercise of the power of the state legislature as a federal agency, clearly there is no power in the state to impose the condition now found in the constitution of Missouri that *’the legislature is not authorized to adopt nor will the people of this state ever assent to any amendment or change of the Constitution of the United States which may in any wise impair the right of local self-government belonging to the people of this state.”62 Clearly, also, a state constitution has no authority to impose the limitations found in the constitutions of Florida and Tennessee, that no convention or legislature of the state shall act upon any amendment to the Constitution of the United States, unless such convention or legislature shall have been elected after the amendment is submitted.63 It should be remembered, however, that ratification is by state legislatures, and that although the state may not provide any other 61 cntd referendum to federal amendments. Decisions holding state referenda applicable to the federal amending process are Hawke v. Smith (1919, Ohio) 126 N. E. 400 (reversed by the United States Supreme Court); State v. Howell (1919, Wash.) 181 Pac. 920; State v. Amsberry (1919, D. C. Lancaster County, Neb.); Carson v. Sullivan (1919, C. C. Cole County, Mo.). A contrary view as to the state referendum was taken in the Opinion of the Justices (1919, Me.) 107 Atl. 673; Herbring v. Brown (1919) 92 Ore. 176, 180 Pac. 328; Whittemore v. Terral (1919, Ark.) 215 S. W. 686; Prior v. Noland (1920, Colo.) 188 Pac. 729; Barlotti v. Lyons (1920, Calif.) 189 Pac. 282; and Decker v. Vaughan (1920, Mich.) 177 N. W. 388. State v. Morris (1920, Okla.) 191 Pac. 364, and Carson v. Sullivan (1920, Mo.) 191 Pac. 571, were decided after the decision of Hawke v. Smith in the Supreme Court. Ohio was the only state having a constitutional provision expressly providing for the use of the referendum upon proposed federal amendments. 62 Const, of Mo. (1875) Art. 2, sec. 3. 63 Const. of Fla. (1885) Art. 16, Sec. 19; Const. of Tenn. (1870) Art. 2, sec 32. [345] method of ratification or impose limitations upon the power to ratify, it does seem to be clearly within the power of the state through its constitution or otherwise to determine what shall be the organization of the state’s representative legislative body, and what shall be the quorum for action by that body. It, of course, also rests within the power of the state itself as to when regular or special sessions of the state’s representative body shall meet, and as to how that representative body shall be organized. The brief for appellant in the Kentucky Distilleries Case urged that the states by abolishing a representative legislative body might destroy the possibility of future amendments to the Constitution, except so far as ratification may be provided by conventions. This argument is based upon too remote a possibility to have much weight, and even assuming that representative state legislatures should disappear, the federal amending process would still be capable of effective operation through congressional provision for ratification by conventions in the several states. An issue which presents itself with respect to state ratifications is that as to whether the governor has any veto power over the state legislative action in this regard. It has already been suggested that the President of the United States has no power to disapprove the action of Congress in proposing constitutional amendments to the states, and this view is taken because the proposal of constitutional amendments is not regarded as a regular function of legislation, the Constitution prescribing it as a different process to be exercised in a different manner. The same view applies with respect to the governor’s power of vetoing the state legislative ratification of a federal amendment. The state legislature here is not acting as a state legislative body under the terms of the state constitution, but is, in the clear view expressed by the Supreme Court, acting as an agent of the national government in the performance of a function specified by the Constitution of the United States. The governor has, by the terms of the federal Constitution, no share in this function. The governor of New Hampshire vetoed the resolution of the legislature of that state ratifying the Twelfth Amendment, but as the vote of the state was not needed to make up the three-fourths vote required for the ratification of the amendment, no issue seems to have been made about the matter.64 When the legislature of the state of Kentucky rejected the Thirteenth Amendment, the resolution was presented to the governor of that state. The governor, although disagreeing with the legislative action, merely transmitted the action of the general assembly to the federal authorities.65 When the income tax amendment was pending, Mr. Hughes, who was then governor of New York, sent a message to the legislature of that state recommending that the amendment be not approved, but nothing in the circumstances indicated any view upon his part that he had any negative power over 64 Ames, 297. 65 Ames, 297; Jameson, 630. [346] such action as might be taken by the legislature. In the state of Arkansas, the legislative action ratifying the income tax amendment was submitted to the governor and was vetoed by him. The action of the legislature was, however, transmitted to the Secretary of State of the United States, and Arkansas was properly counted as one of the states ratifying that amendment.66 What constitutes ratification by a state? Clearly a constitutional amendment is submitted to the state without conditions, and no state can ratify conditionally. Such a ratification is merely equivalent to a rejection or failure to ratify. The question has presented itself several times as to whether a state which has once ratified may withdraw its ratification of a federal amendment. The states of New Jersey, Ohio, and Oregon, after giving their consent to the Fourteenth Amendment, sought to withdraw this consent;67 and the state of New York sought to withdraw its consent to the Fifteenth Amendment.68 Jameson takes the view, and the view is incontrovertible, that a state, once having ratified, may not withdraw that ratification. He suggests that to construe the Constitution otherwise, would be to permit great confusion in that no state in ratifying could know what the status of the amendment was if at the same time other states were permitted to withdraw. Of course, confusion would occur also in that it would be difficult to know when three-fourths of the states had ratified. Clearly, no state could be permitted to withdraw after three-fourths had ratified and adhered to their ratification. The function of ratification seems to be one which, when once done, is fully completed, and leaves no power whatever in the hands of the state legislature. This is the view taken in connection with the Fourteenth Amendment. In the case of the Fourteenth Amendment, the Secretary of State of the United States issued a certificate in which he declared the amendment adopted, provided the ratifications of New Jersey and Ohio were to be considered as still valid. On the following day a concurrent resolution was passed by Congress pronouncing the ratification of the amendment valid and sufficient.69 As Jameson says, Congress has definitely taken the view in this instance that a state once having ratified may not withdraw its ratification of a federal amendment. This view seems clearly a correct one. The recent action in Tennessee on the woman suffrage amendment presents the latest case of an attempt to withdraw ratification. 66 The Department of State has on several other occasions taken the view that the governor has no power with respect to the state’s ratification. In all of the states in which the issue has arisen, the view has been taken that the proposal of state constitutional amendments is not subject to the veto power of the governor. See discussion in my book, The Revision and Amendment of State Constitutions (1910) 148-152. 67 The state of Oregon did not withdraw her consent until after the adoption of the amendment. 68 Ames, 299; Jameson,631. 69 Jameson, 628-633. [347] On the other hand, it is perhaps clear that a state legislature has a continuing power of ratification until an amendment is adopted, or until such a long period has elapsed that a sort of statute of limitations may be said to have run against any power to ratify the proposal. It may be remembered that the power in the state legislature is one derived from the federal Constitution, and is a power to ratify, not a power to reject. If a constitutional amendment is proposed, one state legislative session may not by explicitly rejecting prevent the further exercise of the federal power conferred upon the state legislature. Rejection by a state legislature is in this respect equivalent to the negative result arising from state legislative inaction. There is no power in and of itself to reject a federal constitutional amendment, and failure to act by one-fourth of the states is sufficient. In the case of the Thirteenth Amendment, New Jersey first rejected the amendment and then ratified. In the case of the Fourteenth Amendment, four states (North Carolina, South Carolina, Georgia, and Virginia) rejected and then ratified. In the case of the Fifteenth Amendment, Ohio and New Jersey rejected and then ratified. In all of these cases, where the action was taken previous to the issuance of the proclamation that an amendment had been adopted, the states were included by the Secretary of State as ratifying.70 The question presented itself in connection with the adoption of the Thirteenth Amendment as to what constitutes three-fourths of the states. Several of the states counted in the ratification of that amendment had not been readmitted to representation in Congress, and a question was raised as to whether they could give valid assent to an amendment. In the case of the Fourteenth and Fifteenth Amendments ratification by a sufficient number of states was obtained by requiring approval of one or both of the amendments as a condition precedent to the admission of representatives to the federal Congress, from the states which had recently been in rebellion. When an amendment is pending for some time before it obtains ratification, the number of states may have increased, and it is quite dear that three-fourths of the number at the time of ratification is required, rather than three-fourths at the time of the proposal of the amendment. The ratification must be by three-fourths of the state legislatures, and such a ratification could not be had unless at the time of final adoption of the amendment three-fourths of the states then in the Union had agreed thereto. Jameson suggests a difficulty in the counting of three-fourths which would present itself were a state permitted to withdraw after it has once ratified an amendment. This difficulty might present itself when nearly three-fourths had ratified, for a campaign to obtain withdrawals of ratification might leave a proposed amendment in suspense even though a state had ratified, which would be sufficient to make the three-fourths had another 70 Ames 300; Jameson, 629-630. [348] state not withdrawn. However, as has already been indicated, it is clear that a state may not withdraw its ratification. The case of Hawke v. Smith lays down clearly the principle that the whole power of proposing and ratifying amendments to the Constitution of the United States has its source in that instrument. The states have no independent power with respect to the matter, except so far as it is expressed in the federal Constitution, and Congress has no power except so far as power is necessary and proper to carry out the authority so conferred. In this discussion only incidental attention has been paid to the possible use of conventions for the amendment of the Constitution of the United States. Congress has authority to call a convention on the application of the legislatures of two-thirds of the states, and a number of states have in particular instances passed resolutions asking that such a convention be called. The issue of calling a federal constitutional convention has, however, not seriously presented itself.71 Efforts have several times been made to have proposed constitutional amendments submitted to conventions in the several states instead of to state legislatures, but such efforts have been unsuccessful.72 A curious case of convention ratification was the ratification of the so-called Corwin amendment, proposed in 1861, by the state constitutional convention in Illinois in 1862. This amendment was proposed by Congress to the state legislatures, and a convention assembled for the purpose of revising a state constitution had no authority whatever to pass upon the proposed amendment, but the issue as to its action never presented itself, because the proposal received little attention. Operation of the federal amending clause. Affirmatively, it is clear that the federal amending clause makes necessary the concurrence in sentiment both of the states and of the population of the states, in order to adopt an amendment to the Constitution. After an amendment is once proposed by the two houses of Congress, three-fourths of the states, having less than one-half of the population, may ratify such an amendment, but clearly sufficient protection is accorded to population by the requirement of two-thirds of the members of the House of Representatives to propose an amendment, and a further protection is accorded to the states by the requirement of a two-thirds vote by the Senate. It is true, of course, that the two-thirds of each house required is but two-thirds of a quorum, and that an amendment might actually be approved by the House of Representatives through the action of members representing a minority of the people of the country, but in case of any issue in which the 71 A review of efforts to call conventions before 1890 will be found in Ames, 281-283. 72 Ames, 286-287. [349] larger states might be arrayed against the smaller, it may well be expected that all members of both houses would be present when so important a matter as a federal amendment is to be voted upon. Looking at the matter from a negative standpoint, however, it is clear that a small number of smaller states may prevent an amendment to the Constitution of the United States, and that without any union among the smaller states for such a purpose a proposed amendment may be defeated, although it has in its favor a distinct preponderance of opinion not only in a majority of the states, but also upon the part of the great majority of the people of the country. The senators from one more than one-third of the states may prevent the proposal of a federal constitutional amendment, and this fact places a negative upon such proposal in the hands of seventeen states, which might represent a very small proportion of the population of the country.73 After an amendment is once proposed, a small group of states has power more completely in its hands, for the ratification of an amendment may be prevented by thirteen states. Upon the basis of this fact, it was urgently contended in the briefs opposed to the Eighteenth Amendment that the prohibition of traffic in liquors was a matter of temporary or legislative policy being placed in the Constitution, and that placing it in the Constitution established a permanent control over this matter by a minority, inasmuch as more than one-third of the members of the House and Senate could prevent any proposal of amendment to change the existing policy, and thirteen out of forty-eight states could prevent the ratification of any such change. It is true, of course, that less than ten per cent of the population of the United States, living in thirteen states, may control the issue as to whether a constitutional change shall be made, but since the adoption of the federal Constitution there has never been a definite alignment in this country of the smaller states against the larger, and there is no likelihood that the smaller states will so unite. So, also, if the larger states had a greater power in the proposal and ratification of amendments, there would be practically no possibility of all the larger states, distributed as they are in different parts of the country, uniting against the states of smaller population, which are also so distributed. As a matter of fact, it may be said that there is greater practical difficulty in obtaining the proposal of amendments than in obtaining their ratification. The four amendments proposed in recent years were ratified without material delay. Professor H. V. Ames published in 1897 a complete review of the proposed amendments to the federal Constitution during the hundred year period from 1789 to 1889. During this period fifteen amendments were adopted; and 73 Since the popular election of United States Senators, Senators cannot be said to represent the state as a political organization quite as distinctly as they did when elected by state representative bodies. [350] four other amendments were proposed by Congress to the states for ratification, but not adopted. The proposed amendments not adopted related to the apportionment of representatives (proposed in 1789) ; compensation of members of Congress (proposed in 1789) ; titles of nobility (proposed in 1810) ; and, a proposal prohibiting the abolition of slavery (proposed in 1861). The proposal in 1861 came too late in the slavery struggle to receive any favorable action by the states. Two of the four proposals which failed of ratification (that on apportionment of representatives and that on titles of nobility), failed of adoption by only one state’s ratification. During the same period eighteen proposed amendments were approved by one house but not by the other, nine by the Senate and nine by the House of Representatives. Since 1889 each amendment proposed by the two houses of Congress has been ratified by the states; but a number proposed by one house has failed in the other. Proposals for the popular election of Senators were a number of times agreed on by the House of Representatives but not by the Senate, before the final proposal of this amendment. It may be true, of course, and probably is, that many proposed amendments have failed in the two houses because of the knowledge that ratification by the states would be difficult if not impossible, but so far as the facts indicate, ratification of the amendments proposed has been less difficult than has been the proposal of amendments by the two houses.74 For years it has been contended with some show of reason that the federal amending process is too difficult.75 Proposals for the alteration and simplication of the amending process have been frequently made. A review of such proposals down through the year 1889 will be found in Ames’ work on Proposed Amendments to the Constitution of the United States during the First Century of Its History,76 and in an unpublished continuation of Ames’ study prepared by Jacob Tanger of Pennsylvania State College. It may be worth while to review briefly the more important changes suggested in the federal amending process. Professor J. W. Burgess in his Political Science and Comparative Constitutional Law, published in 1893, suggested that a plan be adopted as follows: “Proposal of amendments by two successive Congresses, Senators and Representatives acting in joint assembly and resolving by simple majority vote; submission of proposals to the legislatures of the several states, these again acting in joint assembly and resolving by simple majority vote; assignment to each state of the same weight in the count of votes as in 74 Ames, 300. 75 See Ames, 300 et seq; Munroe Smith, Shall We Make Our Constitution Flexible? (1911) 194 North Am. Rev. 657; J. David Thompson, The Amendment of the Federal Constitution, (1912) 3 Publications of the Academy of Political Science, No. 2. 76 At pp. 292-293. [351] a presidential election, and ratification of amendments by a simple majority of the state votes thus weighted.” Professor Munroe Smith has suggested a plan somewhat different from this, as follows: “Proposal of amendments by the majority vote of both houses in two successive Congresses; submission of such proposals to the legislatures of the several states or to conventions in the several states or directly to the voters in each of the states, as one or another of these modes of ratification may be proposed by Congress; and ratification of proposals by a majority of the states, provided that the ratifying states contain, according to the last preceding enumeration, a majority of the total population of all the states.” Both of these plans diminish the apparent control by states, as such, over the amending process; but as has already been said, the participation of the states, as such, is really unnecessary for the protection of either the large or the small states. Both of these plans give, of course, a much greater degree of power to the states with the larger populations. The proposal of Professor Burgess leaves no decisive control even to a majority of the states, and departs materially from the federal principle in our system of government. The plan suggested by Professor Munroe Smith preserves the federal principle more completely, by providing not only for a separate vote in the Senate, but also by providing that the ratification of a proposed amendment shall be by a majority of the states as well as by a majority of the total population. The more important general proposals recently made for a change in the method of amending the federal Constitution, are those of Senators Cummins, La Follette, and Owen. Senator Cummins proposed, in 1913, that there be added to the present amending article of the Constitution the following language: “Whenever the legislatures of sixteen states shall adopt resolutions proposing any amendment, and the same are certified to the President of the United States, or whenever fifteen per centum of the voters in twenty-four states present to the President petitions authenticated by the respective governors of the said states proposing any amendment, the President shall submit the same to the several states, and in either case any such amendment shall be valid to all intents and purposes as a part of the Constitution when ratified by two-thirds of the several states acting either by direct vote of the people or by the legislatures, as may be determined by state law: Provided, that no state, without its consent, shall be deprived of its equal suffrage in the Senate.” An adverse report upon this proposal was submitted by the Senate Committee on the Judiciary in 1914, and a minority report presented by seven members of the committee urged that an easier method of amendment was desirable, although only two members (Senators Cummins and Ashurst) agreed in approving Senator Cummins’ proposal. The proposal introduced in 1913 by Senator La Follette reads as follows: [352] “The Congress, whenever a majority of both houses shall propose amendments to this Constitution, or on the application of the legislatures of ten states, or on the application of ten states through the vote of a majority of the electors of each, voting upon the question of such application, shall propose amendments to this Constitution, to be submitted for ratification in each of the several states to the electors qualified to vote for the election of Representatives. And the vote shall be taken at the next ensuing election of Representatives in such manner as the Congress may prescribe. And if in a majority of the states a majority of the electors voting thereon approve any proposed amendment, and if a majority of all the electors voting thereon also approve any proposed amendment, it shall be valid to all intents and purposes as part of this Constitution.” In this form Senator La Follette’s proposal is merely an addition to Article 5 of the Constitution. Senator Owen has several times proposed in Congress a plan by which a majority of the members of both houses may propose amendments, or by which either house alone may propose an amendment if the other twice rejects the proposal. He would also permit proposal upon application of a majority of the state legislatures. For ratification, his proposal adopts the plan of submission to the voters directly, and adoption, if ratified by a majority of the voters, provided the amendment also receives a favorable vote in a majority of the congressional districts. This plan (just as that of Professor Burgess) to a large extent disregards the federal principle in the proposal and adoption of constitutional amendments. In connection with proposals which attempt to reduce materially the share of Senators in the proposal of constitutional amendments, or which tend (as do the Burgess and Owen proposals) to destroy the equal share of each state in the proposal of amendments, the question presents itself as to whether there may not be a violation of the limitation that no state without its consent shall be deprived of its equal suffrage in the Senate. The proposals referred to above contemplate a substantial change in the whole procedure for the amendment of the federal Constitution. Comment should properly be made regarding proposals which do not seek to go quite so far. Senator Brandegee has several times introduced a proposed amendment which permits Congress to submit an amendment for ratification either to the state legislatures or to state conventions, or to the electors in the several states. Senator Brandegee’s proposal, which has been twice unanimously reported by the Senate Committee on the Judiciary, also limits state ratifications to six years from the date of the proposal of an amendment.77 Mr. Seba Eldridge has for a number of years been urging a change in the federal amending process by which the question of calling a 77 Cong. Rec. (66th Cong., 1st sess.) 5694-5700. [353] federal constitutional convention should be submitted each twenty years to the voters of the several states. This plan is copied from that in force in some states by which the question of calling a state constitutional convention is submitted at periodical intervals.78 A few years ago it was thought that the difficulties of amending the federal Constitution were insurmountable except in times of grave crises. Ten amendments had been added to the Constitution almost immediately after the federal government went into operation, but these amendments might really be termed a supplement to the original Constitution. The Eleventh and Twelfth Amendments were adopted without great difficulty. Then followed a period of more than sixty years (1804-1865) in which no amendment to the Constitution was proposed and ratified. The three war amendments were adopted in the short period between 1865 and 1870, but their adoption came as a result of a grave national crisis, and the ratification of these amendments by the states was obtained in part by methods not available in ordinary times, and perhaps not appropriate at any time. However, at the present time the difficulties of federal amendment do not appear quite so great as they did a few years ago, because of the fact that since 1909 four amendments have been ratified. In the briefs against the Eighteenth Amendment, efforts were made to have the Supreme Court adopt further limitations upon the federal amending process than those clearly appearing in the Constitution itself, and the Court was urged to take such a view largely on account of the great dangers urged as existing now because of an easy amending process, but it did not take the view of those seeking to destroy the Prohibition Amendment. The arguments for a more restricted amending process than that now appearing in the express language of the Constitution were, of course, arguments for the purpose of sustaining a particular view in order to destroy, if possible, the establishment of federal prohibition in the Constitution. These arguments should, therefore, not be treated too seriously. However, it is true that the view as to the difficulty of amending the federal Constitution is now quite different from the view which existed ten or twelve years ago. This changed attitude has, to some extent, made the federal amending process easier, for a part of the difficulty, at least before the ratification of the Sixteenth Amendment, was due to the feeling that the amending machinery was unworkable rather than to the unworkability of that machinery. It should on the other hand 78 New Hampshire requires a vote of this character each seven years; Iowa each ten years; Michigan each sixteen years; Maryland, New York, and Ohio each twenty years. The Oklahoma constitution leaves to the legislature the discretion as to when such a question shall be submitted to the people, but requires the question to be submitted at least once in every twenty years. [354] be borne in mind that the four amendments proposed in recent years have all been ones which involved neither political nor sectional issues. Moreover, all of these amendments have related to matters as to which, at the time of submission, a generally favorable view had been reached. This statement may be contradicted with respect to the Eighteenth Amendment regarding federal prohibition, but the statement here made relates to the view existing at the time of proposal and ratification, and not to any views which may develop as a result of dissatisfaction with the Amendment in its actual operation. A serious question presents itself as to whether the federal amending process should be so easy as to permit the introduction into the Constitution of provisions which involve distinctly sectional or political issues. Clearly the federal Constitution performs a function different from that of the state constitutions, and should be less flexible than the state constitutions may properly be. The function of the federal Constitution is primarily that of drawing a line between national and state powers, and such a line should not be subject to frequent variations. It is true, of course, that the inflexibility of the federal Constitution has thrown upon the courts a greater burden than they would otherwise have had, and the courts have to a large extent, by construction, enlarged the powers once conferred upon the federal government. However, this judicial enlargement comes gradually, and the United States Supreme Court, in its function of preserving the balance between national and state powers, has on the whole performed its service efficiently and in a statesmanlike manner. The federal amending process should be easier, but in bringing about a change in the federal Constitution or in any other constitution, two elements must unite: (a) the sentiment of the people in favor of change, and particularly in favor of the specific change being urged; and (b) operation of the machinery for the purpose of effecting such a change. A real change in the federal amending process has already been accomplished through a change in the first of the two elements just referred to, in that the view has been broken down that the present amending machinery is substantially unworkable. The machinery itself may still need to be changed, but in changing it attention should be given to the peculiar function of the federal Constitution, and no change should be made of such a character as to bring about constant agitation for a change of the boundaries between national and state powers, and a frequent shifting of the line drawn by the Constitution between national and state authority in this country. nolu chan  posted on  2015-05-31   15:48:35 ET  Reply   Trace   Private Reply   #111. To: nolu chan (#110) [Home] [Headlines] [Latest Articles] [Latest Comments] [Post] [Mail] [Sign-in] [Setup] [Help] [Register] Post Comment Please cut and paste the portion of the text to which you are replying, if any, into the "Quote" box using your computer's editing features. On 2015-05-31 15:48:35, nolu chan wrote: To: tpaine YALE LAW JOURNAL Vol XXX FEBRUARY, 1921 No. 4 AMENDING THE FEDERAL CONSTITUTION W. F. Dodd The recent decisions of the United States Supreme Court in the cases of Hawke v. Smith1 and Rhode Island v. Palmer,2 decide a number of issues as to the construction of the amending clause of the United States Constitution. These decisions, therefore, make it appropriate to review with some fullness the whole procedure for the amendment of the federal Constitution. The decision of the Supreme Court in the case of Rhode Island v. Palmer is of little value standing alone. Justice McKenna agreed with the other members of the Court as to the validity of the Eighteenth Amendment, and in the Court’s statement of the grounds for its position. Justice McKenna did, however, think it proper to express a doubt regarding the wisdom of the Court’s action in the Rhode Island Case of announcing merely its conclusions, without any argument or reasons in support of such conclusions, and said that such a policy “will undoubtedly decrease the literature of the Court if it does not increase its lucidity.” The mere brief statement of conclusions in the Rhode Island decision means little when taken by itself, but some of the points decided by the Court become clearer if studied in view of the briefs presented in the cases involving the validity of the Eighteenth Amendment. An effort will, therefore, be made in this discussion to sum up the points made by the several briefs, and to indicate the setting of the conclusions expressed by the Court. The case of Hawke v. Smith presents 1 (1920, U. S.) 40 Sup. Ct. 495. The case of Hawke v. Smith is the Court’s Pronouncement regarding the application of the state referendum to the federal lending process. 2 (1920, U. S.) 40 Sup. Ct 486. The case here referred to as Rhode Island v. Palmer is the Supreme Court’s decision in seven cases involving the validity of the Eighteenth Amendment, among them being the cases of Kentucky Distilleries and Warehouse Co. v. Gregory and Feigenspan v. Bodine, the briefs in which are referred to below. [322] a full review of the issue as to ratification by state legislatures, and it is, therefore, not so necessary to discuss the briefs in connection with the decision in this case. The briefs presented against the validity of the Eighteenth Amendment are addressed more to what the opposing interests thought ought to be, than to any issues which may properly be termed legal in character. When read, these briefs in many cases seem to be arguments of counsel who were employed to find arguments, and must, therefore, do so, even though they knew the arguments to be untenable. The most effective statements presented to the Court were those submitted in behalf of a number of states as amici curiae, in the cases of Kentucky Distilleries and Warehouse Co. v. Gregory and Rhode Island v. Palmer. These briefs bear the name of Mr. Charles E. Hughes. Perhaps in no case since that involving the validity of the Income Tax Act of 1894 have historical arguments been so fully employed in the briefs of counsel as in the cases involving the validity of the Eighteenth Amendment. Historical arguments based upon the intent of the framers of the Constitution were frequently urged; and here, as with reference to other points, those seeking to sustain the Amendment had the better of the argument. Article 5 of the Constitution provides that: “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 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 Constitution provides two methods of proposing amendments and two methods of ratifying amendments, but only one method is here discussed in detail, because it is the only one as yet employed for the purpose of altering the Constitution of the United States. Extent to which the issues were judicially cognizable. In the cases here under discussion, the contention was first made by those supporting the validity of the Eighteenth Amendment that the issues raised against the Amendment were not judicially cognizable. It was urged that an amendment having been proposed by Congress, and the Secretary of State, under the authority of federal law, having certified that this amendment had been ratified by three-fourths of the states, the issues as to proposal and ratification were not judicially cognizable; and that the political nature of the issue was further strengthened by the fact that Congress had recognized the Eighteenth Amendment [323] as a valid part of the Constitution, and had enacted legislation thereunder. It was urged that the issues sought to be presented to the Court in opposition to the Eighteenth Amendment were issues which had been presented to and finally passed upon by the political organs of the United States government. This view is to some extent supported by Jameson’s work on Constitutional Conventions, which suggests that “when the political power has spoken upon the question, the judicial department ought, perhaps, in conformity to the general practice of courts in such cases, to follow its decision.”3 On the other side, however, is to be found the unanimous view in state courts that the question as to whether an amendment to a state constitution has been properly adopted, is a question for judicial determination.4 The statements in the briefs regarding the judicial power to take cognizance of the issues presented against the validity of the Eighteenth Amendment, are not always clear. The brief for the appellees in the case of Feigenspan v. Bodine, presented by the Solicitor General of the United States, says that it is competent for the Court to determine whether the procedure laid down by the Constitution has been complied with; but suggests that the Court must as to certain questions accept the action of the political departments as conclusive. This brief says further that the political “branch having determined that the Eighteenth Amendment has been ratified, the courts must accept its decision and the judicial function is merely one of interpretation and application.”5 Mr. Hughes’ brief in the Kentucky Distilleries case argues at length that the question of ratification has been settled by the political departments of the government.6 On the other hand, Mr. Elihu Root in the appellant’s brief in the case of Feigenspan v. Bodine urged that the questions were properly cognizable by the Court, and said: “It would certainly be vain for a constitution to declare or imply limitations upon the power to amend it, if those limitations could be transgressed at will by the very persons who were intended by the people to be restrained and confined within fixed or prescribed limits.”7 3 J. A. Jameson, A Treatise on Constitutional Conventions (4th ed.) 627. This work is hereafter referred to as “Jameson.” 4 Brief for the states in Kentucky Distilleries and Warehouse Company v. Gregory, at pp. 10-20. 5 A further statement of the development in state courts will be found later in this paper. 6 Brief for appellee in Feigenspan v. Bodine, at pp. 30-32. 7 At p. 128. This brief bears the names of Elihu Root, William D. Guthrie, Robert Crain, and Bernard Hershkopf. For brevity it is sometimes referred to hereafter as Mr. Root’s brief. [324] It may be worth while to review separately the issues which were being presented to the Court in this case, and to discuss separately as to each the arguments bearing upon whether such issues were judicially cognizable. The issues presented to the Court were substantially the following: (a) Did two-thirds of both houses propose the amendment, and what constitutes two-thirds of both houses? It is quite clear that the Court would not go behind the official record of action by the two houses in order to determine what the two houses had actually done. That is, the official record of the action of Congress would be accepted as conclusive, and no effort to disprove such evidence would be admitted by the Court. This is not an assertion that an issue may not be determined by the Court, but is merely a statement as to the evidence which will be admitted in determining that issue. The real issue is, did two-thirds propose, and what properly constitutes two-thirds? This issue, it seems, is clearly one for judicial cognizance, and the Court in passing upon such an issue is merely determining the powers of Congress in the same way that it might determine the powers of the same body to enact legislation. But the proof to be accepted for the determination of the issue is a different matter, and the Court would properly decline to permit evidence to contradict the official records of the two houses. (b) Is the state’s certificate conclusive that there was a proper state ratification under the terms of the Constitution? Mr. Hughes said as to this matter that “we may assume that the Court would not undertake to go behind the certificate of the action of the legislature in any state in order to determine whether in any particular case votes had been cast for or against the ratification differently from what was disclosed by the certifying authority.”8 The issue as to whether the state’s certificate of ratification is conclusive divides itself, however, into two parts. One issue is that as to whether the state’s certification received and accepted by the political organs of the federal government shall be taken as conclusive of what it says. In this case, as in the case of the records of the two houses of Congress, it may be assumed that the state’s certification should be conclusive evidence of what it says. This, however, does not decide the second question, which is, assuming the state’s certification to be conclusive of what it says, does the action certified to amount to a ratification by the state? Mr. Hughes apparently realized this distinction, and urged that to pass upon this second point would be to pass upon the structure of the state government, and to decide an issue political in character.9 However, it does seem that 8 Brief for the states in Kentucky Distilleries and Warehouse Company v. Gregory, at p. 19. 9 Ibid. [325] the second issue suggested above is properly judicially cognizable, for there can be no effective ratification by a state except through the legislature thereof and there appears to be no distinctly political question necessarily involved in the determination as to whether the legislature is the representative body or includes the referendum. (c) A third issue involved is that as to whether the certificate of the Secretary of State of the United States under power conferred by statute is itself conclusive of the facts stated in such certificate. This view was expressly urged in the brief of the Solicitor General in the Feigenspan Case, where it was said: “When an amendment has been, therefore, regularly proposed by Congress, and when the Secretary of State has received official notice that it has been ratified by the required number of legislatures and has proclaimed it to be a part of the Constitution, the political branch of the government has recognized it as a validly adopted amendment and the courts must follow that decision.”10 This view, however, seems to be effectively met by Mr. Root’s brief for the appellant in the Feigenspan Case: “By the express declaration of the Constitution, therefore, only an amendment which has actually become such in truth and in law is provided for, and not an amendment which some ministerial or legislative officer believes or declares to have validly become a part of the Constitution. Thus, an amendment which had been duly ratified by the legislatures of three-fourths of the states would automatically become part of the Constitution despite the fact that the Secretary of State might refuse to announce it, because he erroneously believed the ratifications to be defective for some reason. No court would hesitate to disregard his error of law or fact under the circumstances supposed. Likewise, the action of the Secretary of State in proclaiming that an amendment was in effect, when it had not yet been ratified by the requisite number of states, or when it had not yet been ratified by all the houses of the legislature in the requisite number of states, would have to be regarded as a nullity. Any other result would mean that amendments could be made to the Constitution only if they won the approval of the Secretary of State. Such an interpretation of the fundamental law is plainly erroneous. To refuse an injured party the right to call the action of the Secretary of State into question in the courts, would be, to all practical intents and purposes, refusing to uphold the Constitution and permitting it to be nullified at will by a mere ministerial officer.”11 Mr. Root seems clearly correct in his view that it is the ratification of the states that gives effect to a constitutional amendment and not the ministerial function of the Secretary of State in certifying such 10 At p.31. 11 At p. 132. In United States v. Colby (1920, App. D.C.) 265 Fed. 998. the court took the view that the statutory duty of the Secretary of State to proclaim was purely ministerial; and that the approval of the requisite number of states, not the proclamation, brought the amendment into effect. [326] ratification. The issue here presented seems clearly a cognizable one, though great weight in its determination should, of course, be given to the official record of ratification evidenced by the certificate of the Secretary of State. (d) The last real issue which was alleged not to be judicially cognizable, was that as to whether Congress had transcended the limits of the Constitution upon the substantive power of proposing amendments. There are, of course, certain express limitations upon the subject matter of amendments which may be proposed, and those opposing the Eighteenth Amendment also urged that there was a number of implied limitations as to the same matter. There was some apparent contention, in support of the Amendment, that the issue so presented was not judicially cognizable, but the real argument was not so much that the limitations on the amending power were beyond review by the Court, as that it would be highly unwise for the Court to extend those limitations by implication so as to cripple the amending power, and to give to the Court in each case a determination without guidance of any rule of law as to whether any amendment might be properly proposed. Those opposing the Amendment were really contending for a discovery by the Court of broad implied limitations upon the amending power, running actually into limitations found in the nature of the government and not at all imposed by the text itself; and those supporting the Amendment took the view that remote implications against the amending power should not be indulged. That is, those supporting the Amendment contended that the Court could enforce against the amending power only the express limitations of the Constitution, and that it would be unwise and improper to discover implied limitations upon this power which would commit to the courts in each case the determination as to the propriety of any amendment, thus forcing the Court into a field really political in character if it adopted such an interpretation of the Constitution. So far as the Constitution imposes limitations upon the subject-matter of proposed amendments, it seems quite clear that the issue is judicially cognizable, and in order to determine whether Congress had transcended such constitutional limitations, the determination as to what are the limitations imposed by the Constitution was properly a judicial question. The discussion here relates merely to the judicial eognizability of the issue, and later in this paper will be found a discussion of the limits urged by those opposed to the Eighteenth Amendment and properly rejected by the Court. The only issue here is that as to the propriety of the Court’s passing upon the issues so presented. The Court apparently regarded all of the issues suggested above as judicially cognizable, and its decisions (although one of them, without giving reasons) regarded it as proper for it to determine whether the constitutional limits upon the amending power had been observed, and the constitutional methods of proposal and adoption complied with. [327] The issue before the Court was, what are the constitutional requirements, and it regarded it as proper to determine that issue, although had it stated reasons, it would probably have limited itself, as indicated above, to the official evidence for the proof of certain facts to be established in determining the legal issues presented. It may be well to trace briefly the growth of judicial control over the amending process in this country. In Luther v. Borden12 Chief Justice Taney said: “Certainly the question which the plaintiff proposed to raise by the testimony he offered has not heretofore been recognized as a judicial one in any of the state courts. 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, and the judicial power has followed its decision.” State v. McBride13 was the first case to assert the judicial power to inquire into the validity of proposed amendments, and here the amendment was upheld, as also in Green v. Wetter and Dayton v. St. Paul.14 Miles v. Bradford15 denied the power. Collier v. Frierson16 is the only case before 1880 in which a state constitutional amendment was declared invalid because improperly adopted. Hardly more than half a dozen cases involving the proper adoption of proposed amendments arose before 1880. Up to 1890 probably not more than twenty such cases had come before the courts. Since 1890 cases have frequently arisen and the state courts have exercised an effective supervision over all steps in the amending process. The brief for the appellant in the Feigenspan Case17 suggests that where a court is acting under a constitution already in force, the court cannot pass upon the validity of that constitution. The brief for the appellant in the Kentucky Distilleries Case18 in reply to the contention that arguments made against the Eighteenth Amendment would also defeat earlier amendments judicially recognized as valid, said: “In response to the argument that the unbroken practice has been to propose amendments by a two-thirds vote of a quorum, it is sufficient to observe that inasmuch as all the states, and the people have, for so many years acquiesced in the amendments it is now too late to question the validity of the method of their adoption.” 12 (1836) 4 Mo. 303. 13 (1849, U. S.) 7 How. 1, 39. 14 (1856) 32 Miss. 650; (1876) 22 Minn. 400. 15 (1864) 22 Md. 170. See also, Brittle v. People (1872) 2 Neb. 198, 214. 16 (1854) 24 Ala. 100. 17 At p. 129. 18 At p. 30. 19 Some state cases uphold the view expressed by Mr. Root and Messrs. Mayer and Bullitt in these briefs. I have discussed the state cases in a book on the Revision and Amendment of State Constitutions (1910) 86-87, 223-236. See also, State v. Starling (1867, S. C.) 15 Rich. Law, 120; and Carpenter v. Cornish (1912) 83 N. J. L. 696, 8S Atl. 240- [328] Assuming that it is within the province of the Court to enforce the constitutional limitations upon the subject-matter of amendments and upon the methods of proposing and adopting amendments to the Constitution of the United States, we may now proceed to discuss what the limitations are upon both the substantive power and the procedure of amending the Constitution. Proposal of amendments by the two houses. In the case of Missouri Pacific Ry. v. Kansas,20 the Court had before it the question as to what was a compliance with the constitutional provision requiring a vote of two-thirds of each house to pass a bill over the President’s veto, and it was held that this provision means two-thirds of a quorum of each house, and not two-thirds of all the members of that body. A majority of the members of each house constitutes a quorum. In considering this question the Court called attention to the identity between the requirement with respect to the overcoming of a veto and that authorizing the submission of constitutional amendments. This issue was, of course, not involved in that case, and it was vigorously urged in the brief for appellant in the Kentucky Distilleries Case that the expression of the Court should not be regarded as conclusive, but that the slightly different phraseology of the amending clause should be made the basis for a difference in judicial view.21 This argument was based upon so slight a difference in language as to be pretty clearly untenable, and the Court adhered to the view previously expressed, saying in the case of Rhode Island v. Palmer: “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.” In the decision of the case of Rhode Island v. Palmer, the Court says: “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.” This statement seems unnecessary, and is hardly understandable, except as read with the briefs in the cases before the Court. The brief for the state of Rhode Island22 suggests that the members of the two 20 (1919) 248 U. S. 276, 39 Sup. Ct. 93. 21 Brief for appellant in Kentucky Distilltries and Warehouse Co. v. Gregory, p. 16, et seq. 22 At p. 97-98. [329] houses voting to propose any amendment must deem the adoption of that amendment necessary, and this view intimates the possibility of the Court’s being asked to go behind the proposal by the two houses in order to determine whether the members actually voting for a proposed amendment thought that the proposal being voted for was necessary as an amendment to the Constitution. This argument was discussed by the Solicitor General in the Feigenspan Case,23 and also by Mr. Hughes in the Kentucky Distilleries Case,24 and the argument as presented by the state of Rhode Island was shown to be untenable. The nature of action by Congress and by the states in proposing an amendment to the Constitution of the United States was fully discussed in the briefs presented in the Eighteenth Amendment cases, and there was much argument to the effect that the congressional function of proposing an amendment and the state function of ratifying are not merely exercises of either national or state legislative power. As a corollary to the view that the proposal of a constitutional amendment is not merely a function of ordinary congressional power as a legislative body, is the view expressed by Justice Chase in the case of Hollingsworth v. Virginia.”25 “The negative of the President applies only to the ordinary cases of legislation: he has nothing to do with the proposition or adoption of amendments to the Constitution.” Limitations upon the subject-matter of proposed amendments. The question most vigorously debated in the briefs presented in the cases here under discussion, was that as to the limits imposed by the Constitution itself upon the subject matter of proposed amendments. Article 5 provides “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.” 23 At pp. 67-70. 24 In the Kentucky Distilleries and Warehouse Co. brief, at p. 7, Mr. Hughes answered this contention briefly by saying: “It would seem to be a sufficient answer to this contention that the adoption of the joint resolution is in itself an adequate expression by Congress of its judgment in the matter, and that the Court is not at liberty to assume that Congress in passing a joint resolution pursuant to the amending power did not deem the proposed amendment to be necessary.” 25 (1798, U. S.) 3 Dall. 378. See reference to this statement of Justice Chase in Hawke v. Smith, supra. A full review of the precedents with respect to the President’s veto power will be found in H. V. Ames, The Proposed Amendments to the Constitution of the United States during the First Century of Its History (1897) 295; and in Jameson 586-92. Ames’ work will be hereafter referred to merely by the name of the author. [330] The Constitution thus contained two express limitations upon things that might be done by amendment. One of these limitations expired in 1808, and the other is still in force. The prohibition still in force that “no state, without its consent, shall be deprived of its equal suffrage in the Senate,” appears clear and definite both in its language and in its purpose. However, it has been urged that this language imposes a much stricter limitation upon the amending power than it seems to imply; and much of the argument implicit in the briefs against the Eighteenth Amendment, seems to be based upon the notion that either the amending clause or the Constitution as a whole, when read with the amending clause, sets up some distinct sphere of state power not subject to alteration by the amending process. In an article some years ago in the Harvard Law Review,26 it was urged that the word “state” as used in Article 5 of the Constitution means the people of the state having political power, and that an increase of such people deprives the state of its equal representation in the Senate. This argument would also deny the validity of the Woman’s Suffrage Amendment. The arguments of this article received some support in the congressional debates when the Fifteenth Amendment was being proposed. An even more remote limitation is found in the contention recently made that the provision regarding equal representation guarantees the continued existence of the states, and that this continued existence implies a continuance of powers in the states, which may, therefore, not be withdrawn by a federal amendment having the result of increasing national powers.27 Let us turn now from express limitations upon the amending clause to limitations claimed to be derived from the language of the clause itself, although not definitely expressed therein. In favor of the interpretation of the amending clause so as to exclude all implied limitations is the argument that the two express exceptions from the amending power negative the existence of others. The answers to this argument presented in the several briefs are weak, and seek to establish limitations not clearly within the language of the Constitution itself, by strained applications of this language, by remote implications, or by arguments based upon the nature of the federal system. One set of arguments is that based upon the construction of the word “amendment.” Judge M. F. Morris28 suggested some years ago that: 26 Arthur W. Machen, Jr., Is the Fifteenth Amendment Void? (1909) 23 Harv. L Rev. 169. 27 Justin Du Pratt White, Is There an Eighteenth Amendment? (1920) 54 Am. L Rev. 245. 28 M. F. Morris, Is there an Fifteenth Amendment to the Federal Constitution (1909) 54 North Am. Rev. 82. [331] “Amendment may be made and become effective by a vote of three-fourths of the states over the objection of the other fourth, or of any number of the states less than one-fourth. Now, addition is something entirely new and not germane to the original instrument: amendment is alteration or improvement of that which in some form is already there. The distinction between addition and amendment is fundamental, and is very clear to every one.” Although Judge Morris’ argument is not referred to in any of the briefs, argument upon this point may be practically regarded as in many respects an elaboration of the statement quoted above. The argument that the word “amendment” in itself limits the power of Congress with respect to the proposal of amendments, is most fully presented in the brief of the state of Rhode Island, which urges the analogy of the narrow use of the word in judicial procedure and in parliamentary practice. The argument of the state of Rhode Island is perhaps sufficiently summed up in the following quotation: “The word ‘amendment’ is a technical word of common law significance and means simply ‘the correction of an error committed in a process.’ Amendments are thus limited to the correction of errors committed in the framing of the Constitution.”29 In the brief of the state of Rhode Island a serious effort was also made to limit the construction of the word through definitions in dictionaries, and through quotations from debates in the federal Constitutional Convention and in Congress. The appellant’s brief in the Feigenspan Case (which bears Mr. Root’s name) urged also that: “The word ‘amend’ has a necessary relation to some particular, thing which is to be amended. The word has no meaning whatever except in relation to that thing. The change for better or worse which is called an amendment must be a change in the particular thing amended. The necessary relation of amendment to the thing to be amended is ordinarily expressed by the rule that amendments must be germane.”30 These arguments were fully and effectively answered, both on the historical and other bases, by Mr. Hughes’ briefs in the Rhode Island and the Kentucky Distilleries cases. Mr. Hughes shows that the word “amendment” was used generally in the debates and discussions of the time as equivalent to “alteration,” and as permitting any changes which might be regarded as proper or desirable in the operation of the government being set up by the Constitution of 1787.31 The most effective point made against this argument, however, is that the argument, even if admitted, would accomplish nothing so far as the Eighteenth Amendment is concerned. The Solicitor General’s brief in the Feigenspan Case expresses the matter clearly when it says: 29 At pp. 29, 66 et seq. 30 At p. 37. 31 Brief for the states in Kentucky Distilleries and Warehouse Company v. Gregory, at p. 41. et seq.; and in State of Rhode Island v. Palmer, at p. 13, et seq. [332] “But this amendment comes clearly within even the narrow definition suggested, as counsel say the original Constitution granted enlarged powers to the government and distributed those powers and directed how they should be exercised, and imposed limitations both upon the powers granted to the federal government and the powers reserved to the states. In so far as this amendment confers additional powers of legislation upon Congress, it follows in the footsteps of the framers of the Constitution by granting enlarged powers to the federal government. In so far as the powers thus granted are taken from the states, it merely operates to change the original distribution of power.”32 And the brief correctly adds in its further discussion that: “In the very nature of things almost any amendment that could be adopted would take either from the states or the federal government some of the powers belonging to them respectively.” Mr. Hughes sums up the matter perhaps even more clearly when he says that “nothing could be more in consonance with a plan for the amendment of the constitution than provision for a change in the distribution of powers, either by subtracting from those conferred upon the federal government or by taking some part of that which had been reserved and giving it to the federal government”33 Another argument based upon the word “amendment” is that presented by the appellant’s brief in the Feigenspan Case. Here counsel argued that the Eighteenth Amendment is in effect legislation, in that it lays down a rule operative upon the states and upon individuals without the necessity for congressional legislation, and that such an amendment, being legislation, is not within the express power conferred upon Congress by Article 5 of the Constitution. It will be well to quote the language of the brief, which bears Mr. Root’s name: “Our contention is not for a further exception to the power granted; it is that the grant itself does not include the power of ordinary legislation. This is no more affected by the fact that there are express exceptions to the power which was granted than would be the proposition that the grant of the Fifth Article does not include the judicial power or power to command the army and navy.”34 The point under contention is made perhaps even clearer by another statement in this brief: “In this respect a constitutional amendment granting to the government power to prohibit intoxicants would be quite different from an 32 At pp. 34, 35 and 48. 33 Brief for the states in Kentucky Distilleries and Warehouse Company v. Gregory, at p. 40. 34 At p. 16. [333] attempted amendment itself directly declaring the prohibition of intoxicants. The former would merely add to the powers of government and would, therefore, in this regard at least, be a proper form of constitutional amendment; while the latter in its essence neither would add nor withdraw powers of government, but would be direct legislation. The Eighteenth Amendment is, therefore, in substance and effect a statute, not a constitutional provision akin to any in the federal Constitution.” It is sought to bolster up this argument by the provision of the Constitution vesting all legislative power in Congress; and to sustain it further by the purely political argument that legislation thus embodied in the Constitution becomes permanent and beyond the control of the majority, because of the fact that change may be prevented by fourteen states containing only a very small minority of the population of the country.35 A similar argument will be found in an article which recently appeared in the Harvard Law Review.36 This argument might be termed somewhat ridiculous, had it not appeared under the distinguished name of Mr. Elihu Root. The Solicitor General’s brief in the Feigenspan Case reviews a number of provisions of the original Constitution and of amendments thereto before the Eighteenth Amendment, and properly says: “That the provisions referred to are acts of legislation in the sense that they establish rules of law can not be doubted. They and other provisions constitute a body of laws which the framers of the. Constitution deemed of such importance that they should be enacted and placed beyond the control of any branch of the government.”37 Mr. Hughes’ brief in the Kentucky Distilleries Case presents the situation even more vigorously: “And what is ‘legislation’ which is thus said to lie outside the scope of the amending power according to the theory presented? Is it that the amendment must not be self-executing? But the obvious answer is that the Thirteenth Amendment is self-executing and it has been so adjudged by this court.... “Is it that the amendment must not directly affect the rights of persons without the intervention of legislation? The Thirteenth Amendment did that, for it made free men out of slaves. “Is it that the amendment must not directly disturb without further legislation vested rights of property? But the Thirteenth Amendment destroyed property in slaves. “The attempt is made to explain in some way that the Thirteenth 35 pp. 11, 14 et seq., 48. 36 William L. Marbury, The Limitations upon the Amending Power (1919) 33 Harv. L. Rev. 223. See a reply to this article by William L. Frierson, Amending the Constitution of the United States: A Reply to Mr. Marbury (1920) 33 Harv. L. Rev. 659. Mr. Frierson’s name will also be found signed to the brief for the appellees in the case of Feigenspan v. Bodine. 37 At p. 37. [334] Amendment, which did all these things, was not legislation. It is impossible then to understand in what sense the term “legislation” is used. For that which establishes a rule of law which, being self-executing, determines without further legislation the rights and status of persons and rights of property manifestly has the direct operation and effect of legislation.”38 Mr. Root’s brief refers to the case of State ex rel Halliburton v. Roach,39 but does not seek to make much use of this case, and it is doubtful whether the full facts of the case would have aided the contention being made. The court in the Roach Case took the view that it was improper to propose by initiative petition an amendment to the constitution of Missouri providing for the redistricting of the state for the election of state senators. The original constitution of the state provided for senatorial districts, but the original provision had long ceased to be in force because the power to redistrict had, by other provisions of the constitution, been conferred upon and exercised by the state legislature. The court, by a bare majority, said that “the petitioners have no right to undertake to put in the constitution, which is regarded as the organic and permanent law of the state, mere legislative acts providing for the exercise of certain powers.” The decision was pretty clearly a political one for the purpose of maintaining an existing apportionment, and there is no satisfactory authority in support of the view that the court may determine what the amending power in a state shall place within the text of a state constitution. The Roach Case is further weakened by the fact that the language there sought to be embodied in an amendment was of the same type as provisions which will be found in practically every constitution framed by a constitutional convention. For a court to pass upon the propriety of placing a matter in a constitution, either state or federal (except as expressly provided by the language of the constitution itself), would deny the people and the amending process any authority to place in the constitution anything which the court might itself regard as not properly belonging in the text of a constitution, and would introduce into American constitutional practice a highly undesirable scope of judicial control. In the brief of the state of Rhode Island and in Mr. Root’s brief for appellants in the Feigenspan Case, it is urged that the nature of 38 At pp. 51-52. 39 (1910) 230 Mo. 408, 130 S. W. 689. State v. Keith (1869) 63 N. C 140, and Eason v. State (1851) 11 Ark. 481, were referred to in the briefs against the Amendment as sustaining the view sought to be supported also by State ex rel. Halliburton v. Roach, but these cases do not seem to be capable of such a use. State v. Keith says that a state constitutional convention is limited by the Constitution of the United States. Eason v. State finds a state constitutional limitation to be applicable in its terms to the legislative proposal of specific state constitutional amendments. [335] the federal system in some manner forbids constitutional amendments changing the distribution of powers as between the states and the United States and reducing the states’ police power. Mr. Root’s brief sums up this argument as follows: “There can be no reasonable doubt, that it was contemplated by the framers, and is implied in the Constitution itself, that the several states, then existing or thereafter to be created, should be sovereign and autonomous in their spheres of local self-government. Hence any amendment which impairs or tends directly to destroy the right and power of the several states to local self-government should be held void as in conflict with the intent and spirit and implied limitations of the federal Constitution adopted by the people of the United States.”40 A similar view is expressed in the brief of the state of Rhode Island: “Congress may not constitutionally propose, therefore, nor may the legislature of a state constitutionally ratify any proposition as an amendment that involved the exercise or the relinquishment of the sovereign powers of a state.”41 The historical arguments presented in support of this contention were poor, and the whole argument is chiefly one that the amending process is not to be interpreted as unlimited, because if unlimited it might at some time be unwisely employed. A complete answer will be found in Mr. Hughes’ briefs in the cases of Rhode Island v. Palmer42 and Kentucky Distilleries and Warehouse Company v. Gregory.43 In so far as the contention against the Amendment was based upon the claim that the national government may not interfere with the states’ police power, it was perhaps sufficiently met by the fact that the Constitutional Convention of 1787 expressly rejected a proposed limitation upon the amending clause “that no state shall without its consent be affected in its internal police.” Upon principle, however, there seems to be little, if any, basis for a notion that the state is completely in the possession of the police power, and that in some manner the nature of the federal system guarantees this police power of the state against reduction or impairment. The term “police power” is ordinarily employed to define a governmental power to control in a certain manner, and such a power he1ongs to the government which may exercise such a type of control. If “police power” is defined as the state’s power to control (and this definition is implied in the briefs against the Eighteenth Amendment), such power becomes by definition ex- 40 At p. 65. 41 At p. 120. For a full statement of this contention see the brief of the state of Rhode Island, at p. 37 et seq. 42 At p. 34 et seq. 43 At p. 39. See also, D. O. McGovney, Is the Eighteenth Amendment Void Because of Its Contents? (1920) 20 Col. L. Rev. 499. [336] clusively a state power, and does not include similar national powers of control which result expressly or impliedly from the powers granted to Congress by the United States Constitution. There is, of course, no federal police power independently of the things which the Constitution authorizes Congress to do, just as there is no other federal power independently of the powers conferred by the federal Constitution. The argument that the police power is a state power is merely a play upon words. General police authority belongs to the state, because it relates primarily to matters not granted to the United States, but the general police power of the state yields to federal power in the same field where the national government has authority to act. This is not a statement that the police power is exclusively a state power, for police authority is to a large extent exercised by Congress through commerce, postal, taxing, and other powers. Clearly there is no implication of any sort that police powers belong exclusively to the states, and may not be altered by the federal amending power. The arguments frequently made in the briefs that the two governments move in distinct spheres, and that the federal government has no police power, have long been untrue, if they were ever well founded. The argument that the United States has no police power is true only to the extent that it has no powers except such as are granted to it. An argument somewhat similar to that just referred to appears frequently throughout the briefs, that certain principles of the Constitution are unamendable and are to be read as limitations of the amending article. This view appears frequently in Mr. Root’s brief in the Feigenspan Case. Several quotations from this brief will present his attitude more clearly: “It is inconceivable that both the nation and the states may to all practical intents have their fundamental characters changed or destroyed whenever it pleases two-thirds of the houses of Congress, and three-fourths of the legislatures of the states, which latter may readily represent only a minority of all the people of the United States. The possibility of any such outcome should condemn any rule that would permit it.” And again: “Thus, the provision guaranteeing due process of law is plainly so vital to free government that it may not be destroyed, but the provision against self-incrimination or indictment by a grand jury may well be regarded as standing on a different footing.”44 Similar to this is the view expressed in several parts of Mr. Root’s brief, and the view expressed by Messrs. Mayer and Bullitt in their brief in the Kentucky Distilleries Case, that the Ninth and Tenth Amendments became by adoption limitations applicable to all of the terms of the original Constitution and as such unamendable. The 44 At pp. 92, 98 [337] brief of Messrs. Mayer and Bullitt in the Kentucky Distilleries Case says that: “The powers reserved by the Ninth and Tenth Amendments are powers reserved from the operation of Article 5 as well as from the operation of any other articles of the Constitution.”45 Mr. George Ticknor Curtis’ discussion in his Constitutional History of the United States appears to be the primary source of these arguments of Mr. Mayer and Mr. Root, and also of the general arguments based upon the nature of the federal system.46 The whole argument that the amending process is limited by amendments adopted through such process is sufficiently disposed of by Mr. Hughes’ brief in the case of State of Rhode Island v. Palmer: “Article 5 itself was not amended. And, not being amended, Article 5 stood as effective with respect to the manner in which future amendments might be obtained as it had been prior to the adoption of the first ten amendments. These ten amendments themselves, by virtue of the fact that they were amendments, became part of the Constitution and thus became subject to the amending power contained in Article 5 equally with any other part of the Constitution.”47 Appellant’s brief in the Feigenspan Case apparently takes the view that a convention called under the terms of Article 5 of the Constitution would have greater power than Congress has in the proposal of amendments, although it is difficult to see the basis for such an argument, because the constitutional power conferred is the same as to the two methods of alteration. In this brief, however, the statement is made that: “If fundamental changes become necessary, a convention may be called on the application of two-thirds of the states for that purpose. .... It does not, however, by any means follow that the same unrestrained power is vested in their governmental agents, that is, in two-thirds of the houses of Congress and the legislatures of three-fourths of the states.”48 In the case of Rhode Island v. Palmer, the Supreme Court merely says: 45 At pp. 13, 15. See also, oral argument of Levy Mayer, at p. 15. The same views will be found suggested in Mr. Root’s brief for the appellant in the Feigenspan Case, at pp. 91, 92. 46 The same line of argument will be found in George D. Skinner, Intrinsic Limitations on the Power of Constitutional Amendment (1920) 18 Mich. L. Rev. 213. A contention somewhat similar in character is that made in the brief of appellant in the case of Kentucky Distilleries and Warehouse Company v. Gregory, that the Eighteenth Amendment is subject to the provisions of the Fifth Amendment The argument here is not one as to the constitutionality of the Eighteenth Amendment, however, but is an argument that the Eighteenth Amendment should be construed as subject to the principle laid down in the Fifth Amendment. 47 At p. 35. 48 At pp. 68, 69. [338] “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.” In stating these views the Court has necessarily rejected substantially all of the arguments presented in favor of implied limitations upon the federal amending power, although its statement does not necessarily go to the extent of denying all limitations other than those clearly expressed in the constitutional language itself. The Supreme Court of the United States has at practically all times been liberal in its construction of national powers, and has been unwilling to adopt principles by which limitations upon such powers are implied.49 Every argument of law and policy favors the view that the Court should not read into the amending power limitations not within the constitutional language. Within the constitutional limits the question as to what amendments shall be proposed and adopted, either to the federal Constitution or to state constitutions, is pretty clearly not a proper question for the courts, but to have construed the word “amendment” in a narrow manner or to have adopted other implications urged by those opposing the Eighteenth Amendment, not only would have narrowed the use of the amending clause, but would have left the question of amending power in each case to judicial decision without the guidance of any legal principle. The determination of what was or what was not an amendment under such a plan would become, just as in the Missouri case of State ex rel. Halliburton v. Roach, a question which could be determined only upon the basis of considerations not clearly legal in character. The Solicitor General’s brief in the Feigenspan Case was clearly right, both in law and in fact, when it said that “the Congress itself and the ratifying legislatures have been made the judges of whether a proposed amendment is germane and their decision is final.”50 This does not mean in any way that the Court may not pass upon the limitations imposed by the Constitution, but it does mean that the Court properly took the view that no implications should be constructed by which a court itself should decide upon the propriety of each proposed amendment. Another valid objection to such a broad view as that urged by those opposed to the Eighteenth Amendment is well expressed by Mr. Hughes in his brief in the Rhode Island Case: 49 See article on Implied Powers and Implied Limitations in Constitutional Law (1919) 29 Yale Law Journal, 137. 50 At p. 42. [339] “Such restrictions, established by judicial decree, could not be removed by any process of constitutional amendment which the Constitution affords. As such restrictions would affect the power of amendment, they could not be eliminated by amendment. They would remain unalterable except by the Court itself unless in some manner a new constitution were adopted outside the exercise of amending power contained in the present Constitution.”51 This view of Mr. Hughes is reiterated in the brief which he presented in the case of the Kentucky Distilleries and Warehouse Company, where he again urges that judicial constructions have always been open to change through constitutional amendment, but that for the Court to limit the amending power itself would constitute a constitutional change beyond the reach of popular control.52 Ratification by state legislatures. Another important question in connection with the amending process is that as to the power of Congress to regulate the exercise of this power. The amending power conferred by Article 5 of the Constitution is pretty clearly a power vested by the Constitution in the government of the United States, and Congress has authority “to make all laws which shall be necessary and proper” for the exercise of such a power. The power is one belonging to the government of the United States, of which the states are a part for the purpose of ratification. It is clear, therefore, that Congress has the authority to enact such legislation as that of 1818, making it the duty of the Secretary of State to cause amendments to be promulgated whenever official notice has been received that proposed amendments have been adopted in accordance with the provisions of the Constitution. In proposing the Eighteenth Amendment, Congress provided that the amendment should 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.” No constitutional objections to the Eighteenth Amendment were urged because of this provision, although in 1919 a proposed constitutional amendment was favorably reported upon in the United States Senate which limited the ratification of federal amendments to “six years from the date of their proposal.” This amendment had been proposed by Senator Brandegee, and the need for the amendment was suggested by Senators Brandegee, Ashurst, and Borah, on the ground that a congressional limitation of this type was probably unconstitutional.53 51 At p. 30 52 At pp. 39-41. 53 Cong. Rec. (66th Cong., 1st sess.) 5694-5700; id. (65th Cong., 2d sess.) 471; id. (65th Cong., 1st sess.) 5556-5558. Senator Borah suggested the probable unconstitutionality also of the provision that the amendment if adopted should become operative one year after its ratification. [340] It would seem that congressional legislation may properly be enacted limiting to a reasonable period after submission the power to ratify a proposed amendment to the federal Constitution. Jameson, however, took the opposite view and said: “No power is granted to prescribe conditions as to the time within which the amendments are to be ratified, and hence to do so would be to transcend the power given. The practice of Congress in such cases has always conformed to the implied limitations of the Constitution.54 Jameson’s statement of fact correctly applies to all constitutional amendments proposed before the Eighteenth Amendment. Jameson, however, did take the view that some limitation is desirable, and suggested that a constitutional amendment for the purpose be adopted. Even if Congress were not constitutionally empowered to impose such a limitation, it is probable that the courts would almost of necessity take the view that the proposal of an amendment without an express limitation of time does not keep such proposal indefinitely before the states. In 1873, the senate of Ohio adopted a joint resolution ratifying the second of the twelve amendments submitted to the states by Congress in 1789.55 In 1789 the states numbered thirteen; in 1873 they numbered thirty-eight. It is quite certain that a sufficient number of states would not begin ratifying in 1873 to cause the adoption of an amendment proposed in 1789, but the situation presented is not altogether satisfactory in character. The Eighteenth Amendment placed in the text of the amendment itself the language postponing its application to one year after ratification thereof, and also the language providing that ratification must take place within seven years from the date of submission. It is clearly a proper part of a constitutional amendment to prescribe when it shall take effect, although it is more doubtful whether the provisions of a proposed amendment should contain conditions as to the ratification of that amendment. Clearly if Congress has no power to impose a limit upon the period of ratification, it would have no power to accomplish the same purpose by embodying such a limitation in the proposal itself, so that the state legislatures must either accept the limitation or decline to ratify. However, it is believed that Congress has constitutional power to impose a time limitation upon the ratification of amendments. The power to fix a time limit within which an amendment shall be ratified is not the same as a power to recall an amendment when once it has been submitted. The function of the two houses of Congress is that of submitting an amendment, and when they have done this their power with respect to that amendment may be said to be functus officio. Power has then passed from Congress to the states, and a 54 Jameson, 634 55 Jameson, 635; Ames, 291. [341] reconsideration by Congress at a later period may not destroy the action which states may have already taken, or prevent subsequent state action. To what extent may Congress regulate the procedure of state legislatures in passing upon a proposed constitutional amendment? The state legislatures in passing upon a constitutional amendment may properly be said to act as organs of the national government rather than as state agencies, and if a congressional regulation were necessary and proper, it could be enacted. However, it is clear that the state legislatures are not subject to congressional control as to what they shall do. In 1866 when the Fourteenth Amendment was under consideration in the United States Senate a resolution was proposed that this amendment should be submitted to legislatures which should be chosen, or the members of the most popular branch of which should be chosen, next after the submission of the amendment, at the first session thereof. Several other proposals of a similar character were presented but such proposals were defeated, largely on the ground that they were in violation of the United States Constitution. In 1869 a resolution was proposed in the United States Senate prescribing the rules to be followed by state legislatures in passing upon constitutional amendments.56 It is probably beyond the power of Congress to determine the dates upon which such legislatures shall consider proposed constitutional amendments, or to prescribe the requisite vote in a state legislature for the ratifications of a proposed amendment. These were the things attempted by the Senate proposals of 1869. Clearly no federal legislation may impose conditions or restrictions upon the method of ratification by state legislatures, although the period within which ratifications may be had is probably within congressional control. A reasonable limitation upon the period for ratification may be appropriate as an incident to the purely congressional power of proposing amendments, although it to some extent restricts the complete freedom of state ratification; but it does not restrict the free will of the state legislature in acting on the proposal, or limit the state’s determination as to the organization of its representative legislature. The act of ratifying is a federal function, but the legislature doing the act is the state legislature. Upon the subject of state ratification, the question most vigorously argued in the recent Eighteenth Amendment cases was that as to what are “state legislatures.” The argument was vigorously urged that the term “legislatures” as used in Article 5 of the Constitution signifies “not solely the legislative assembly of a state, but the repository of legislative power therein.”57 The same view was urged in the brief of appellant in the Kentucky Distilleries Case, where it is suggested that “clearly it was intended that the ratification should 56 Ames, 287-291. 57 Brief for appellant in Feigenspan v. Bodine, at p. 120. [342] be by the legislative power of the states as distinguished from the judicial and executive.” In view of this argument it was urged that in the states where a referendum had been adopted, such referendum was one means of exercising legislative power and might be made applicable to federal constitutional amendments. It was said that this referendum constituted a part of the state ratifying machinery. Mr. Root’s brief went so far as to suggest that if a state had once adopted a referendum, this referendum became a part of the state legislature, and that if the state had not made such a referendum applicable to federal amendments, there existed no legislative power in the state capable of action upon such proposed amendments.58 This view is perhaps logical, for if a state had adopted the referendum, and if the referendum were to be treated as a part of the state legislature, it is difficult to see how there could be state legislative ratification without the possibility of using the referendum. If the referendum in its terms were therefore not applicable to federal amendments, Mr. Root might logically urge that there was no authority in that state capable of ratifying a federal amendment. The arguments for an interpretation of the word “legislature” so as to include “referendum,” were effectively met by Mr. Hughes’s brief in the Kentucky Distilleries Case. Mr. Hughes properly calls attention to the fact that proposals for popular ratification of federal amendments were actually made in 1861 and 1869, and that the term “legislature” as used in the constitution is in all cases employed as relating to a representative body.59 He might have added further that the Constitution by its terms provides for ratification either by state legislatures or by conventions in the several states, and that both methods clearly contemplate action through representative bodies rather than through popular voting. Attention may perhaps properly be called to the fact that in recent years, a number of proposals have been made for the ratification of federal constitutional amendments by popular vote in the several states, and in 1919 a proposal was debated in the United States Senate which provided that Congress might specify ratification by electors in the several states as an alternative to ratification by legislatures or by conventions.60 In the case of Hawke v. Smith, the Supreme Court settled the issue as to what constitutes the “legislature” of a state for the purpose of ratification. The court said: “The only question really for determination is: What did the framers of the Constitution mean in requiring ratifications by ‘legislatures’? That was not a term of uncertain meaning when incorporated into the 58 Brief for appellant in Feigenspan v. Bodine, at pp. 115-117. 59 At pp. 24-34. 60 Cong. Rec. (66th Cong., 1st sess.) 5694-5700. For a review of earlier efforts to obtain ratifications by popular vote, see Ames, 293-294. [343] Constitution. What it meant when adopted it still means for the purpose of interpretation. A legislature was then the representative body which made the laws of the people. The term is often used in the Constitution with this evident meaning. Article I, section 2, prescribes the qualifications of electors of Congressmen as ‘those requisite for electors of the most numerous branch of the state legislature.’ Article I, section 3, provided that Senators shall be chosen in each state by the legislature thereof, and this was the method of choosing Senators until the adoption of the Seventeenth Amendment, which made provision for the election of Senators by vote of the people, the electors to have the qualifications requisite for electors of the most numerous branch of the state legislature. That Congress and the states understood that this election by the people was entirely distinct from legislative action is shown by the provision of the amendment giving the legislature of any state the power to authorize the executive to make temporary appointments until the people shall fill the vacancies by election. It was never suggested so far as we are aware, that the purpose of making the office of Senator elective by the people could be accomplished by a referendum vote. The necessity of the amendment to accomplish the purpose of popular election is shown in the adoption of the amendment. In Article IV the United States is required to protect every state against domestic violence upon application of the legislature, or the executive when the legislature cannot be convened. Article VI requires the members of the several legislatures to be bound by oath, or affirmation, to support the Constitution of the United States. By Article I, section 8, Congress is given exclusive jurisdiction over all places purchased by the consent of the legislature of the state in which the same shall be. Article IV, section 3, provides that no new states shall be carved out of old states without the consent of the legislatures of the states concerned. “There can be no question that the framers of the Constitution clearly understood and carefully used the terms in which that instrument referred to the action of the legislatures of the States. When they intended that direct action by the people should be had they were no less accurate in the use of apt phraseology to carry out such purpose. The members of the House of Representatives were required to be chosen by the people of the several states. Article I, section 2. “It is true that the power to legislate in the enactment of the laws of a state is derived from the people of the state. But the power to ratify a proposed amendment to the federal Constitution has its source in the federal Constitution. The act of ratification by the state derives its authority from the federal Constitution to which the state and its people have alike assented. . . . Any other view might lead to endless confusion in the manner of ratification of federal amendments. The choice of means of ratification was wisely withheld from conflicting action in the several states.”61 61 The Court readily distinguished the view in this case from that taken in State of Ohio ex rel. Davis v. Hildebrant (1916) 241 U. S. 565. 36 Sup. Ct. 708. See also Ex parte Dillon (1920, N. D. Calif.) 262 Fed. 563; and article by W. H. Taft, Can Ratification of an Amendment to the Constitution Be Made to Depend on a Referendum? (1930) 29 Yale Law Journal, 821. In view of the decision of the United States Supreme Court regarding state referenda upon proposed amendments to the federal Constitution, little attention need be given to the decisions of state courts with respect to the application of the state [344] The case of Hawke v. Smith arose under an Ohio constitutional amendment which expressly provides that the action of the legislature in ratifying a proposed federal amendment shall be subject to the referendum. The Court said as to such a state requirement: “The argument to support the power of the state to require the approval by the people of the state of the ratification of amendments to the federal Constitution through the medium of a referendum rests upon the proposition that the federal Constitution requires ratification by the legislative action of the states through the medium provided at the time of the proposed approval of an amendment. This argument is fallacious in this—ratification by a state of a constitutional amendment is not an act of legislation within the proper sense of the word. It is but the expression of the assent of the state to a proposed amendment.” The view taken by the Court clearly makes it improper for a state constitution to impose limitations upon the exercise by the legislature of its power to ratify a federal constitutional amendment. If a state may not require a referendum, nor impose conditions upon the exercise of the power of the state legislature as a federal agency, clearly there is no power in the state to impose the condition now found in the constitution of Missouri that *’the legislature is not authorized to adopt nor will the people of this state ever assent to any amendment or change of the Constitution of the United States which may in any wise impair the right of local self-government belonging to the people of this state.”62 Clearly, also, a state constitution has no authority to impose the limitations found in the constitutions of Florida and Tennessee, that no convention or legislature of the state shall act upon any amendment to the Constitution of the United States, unless such convention or legislature shall have been elected after the amendment is submitted.63 It should be remembered, however, that ratification is by state legislatures, and that although the state may not provide any other 61 cntd referendum to federal amendments. Decisions holding state referenda applicable to the federal amending process are Hawke v. Smith (1919, Ohio) 126 N. E. 400 (reversed by the United States Supreme Court); State v. Howell (1919, Wash.) 181 Pac. 920; State v. Amsberry (1919, D. C. Lancaster County, Neb.); Carson v. Sullivan (1919, C. C. Cole County, Mo.). A contrary view as to the state referendum was taken in the Opinion of the Justices (1919, Me.) 107 Atl. 673; Herbring v. Brown (1919) 92 Ore. 176, 180 Pac. 328; Whittemore v. Terral (1919, Ark.) 215 S. W. 686; Prior v. Noland (1920, Colo.) 188 Pac. 729; Barlotti v. Lyons (1920, Calif.) 189 Pac. 282; and Decker v. Vaughan (1920, Mich.) 177 N. W. 388. State v. Morris (1920, Okla.) 191 Pac. 364, and Carson v. Sullivan (1920, Mo.) 191 Pac. 571, were decided after the decision of Hawke v. Smith in the Supreme Court. Ohio was the only state having a constitutional provision expressly providing for the use of the referendum upon proposed federal amendments. 62 Const, of Mo. (1875) Art. 2, sec. 3. 63 Const. of Fla. (1885) Art. 16, Sec. 19; Const. of Tenn. (1870) Art. 2, sec 32. [345] method of ratification or impose limitations upon the power to ratify, it does seem to be clearly within the power of the state through its constitution or otherwise to determine what shall be the organization of the state’s representative legislative body, and what shall be the quorum for action by that body. It, of course, also rests within the power of the state itself as to when regular or special sessions of the state’s representative body shall meet, and as to how that representative body shall be organized. The brief for appellant in the Kentucky Distilleries Case urged that the states by abolishing a representative legislative body might destroy the possibility of future amendments to the Constitution, except so far as ratification may be provided by conventions. This argument is based upon too remote a possibility to have much weight, and even assuming that representative state legislatures should disappear, the federal amending process would still be capable of effective operation through congressional provision for ratification by conventions in the several states. An issue which presents itself with respect to state ratifications is that as to whether the governor has any veto power over the state legislative action in this regard. It has already been suggested that the President of the United States has no power to disapprove the action of Congress in proposing constitutional amendments to the states, and this view is taken because the proposal of constitutional amendments is not regarded as a regular function of legislation, the Constitution prescribing it as a different process to be exercised in a different manner. The same view applies with respect to the governor’s power of vetoing the state legislative ratification of a federal amendment. The state legislature here is not acting as a state legislative body under the terms of the state constitution, but is, in the clear view expressed by the Supreme Court, acting as an agent of the national government in the performance of a function specified by the Constitution of the United States. The governor has, by the terms of the federal Constitution, no share in this function. The governor of New Hampshire vetoed the resolution of the legislature of that state ratifying the Twelfth Amendment, but as the vote of the state was not needed to make up the three-fourths vote required for the ratification of the amendment, no issue seems to have been made about the matter.64 When the legislature of the state of Kentucky rejected the Thirteenth Amendment, the resolution was presented to the governor of that state. The governor, although disagreeing with the legislative action, merely transmitted the action of the general assembly to the federal authorities.65 When the income tax amendment was pending, Mr. Hughes, who was then governor of New York, sent a message to the legislature of that state recommending that the amendment be not approved, but nothing in the circumstances indicated any view upon his part that he had any negative power over 64 Ames, 297. 65 Ames, 297; Jameson, 630. [346] such action as might be taken by the legislature. In the state of Arkansas, the legislative action ratifying the income tax amendment was submitted to the governor and was vetoed by him. The action of the legislature was, however, transmitted to the Secretary of State of the United States, and Arkansas was properly counted as one of the states ratifying that amendment.66 What constitutes ratification by a state? Clearly a constitutional amendment is submitted to the state without conditions, and no state can ratify conditionally. Such a ratification is merely equivalent to a rejection or failure to ratify. The question has presented itself several times as to whether a state which has once ratified may withdraw its ratification of a federal amendment. The states of New Jersey, Ohio, and Oregon, after giving their consent to the Fourteenth Amendment, sought to withdraw this consent;67 and the state of New York sought to withdraw its consent to the Fifteenth Amendment.68 Jameson takes the view, and the view is incontrovertible, that a state, once having ratified, may not withdraw that ratification. He suggests that to construe the Constitution otherwise, would be to permit great confusion in that no state in ratifying could know what the status of the amendment was if at the same time other states were permitted to withdraw. Of course, confusion would occur also in that it would be difficult to know when three-fourths of the states had ratified. Clearly, no state could be permitted to withdraw after three-fourths had ratified and adhered to their ratification. The function of ratification seems to be one which, when once done, is fully completed, and leaves no power whatever in the hands of the state legislature. This is the view taken in connection with the Fourteenth Amendment. In the case of the Fourteenth Amendment, the Secretary of State of the United States issued a certificate in which he declared the amendment adopted, provided the ratifications of New Jersey and Ohio were to be considered as still valid. On the following day a concurrent resolution was passed by Congress pronouncing the ratification of the amendment valid and sufficient.69 As Jameson says, Congress has definitely taken the view in this instance that a state once having ratified may not withdraw its ratification of a federal amendment. This view seems clearly a correct one. The recent action in Tennessee on the woman suffrage amendment presents the latest case of an attempt to withdraw ratification. 66 The Department of State has on several other occasions taken the view that the governor has no power with respect to the state’s ratification. In all of the states in which the issue has arisen, the view has been taken that the proposal of state constitutional amendments is not subject to the veto power of the governor. See discussion in my book, The Revision and Amendment of State Constitutions (1910) 148-152. 67 The state of Oregon did not withdraw her consent until after the adoption of the amendment. 68 Ames, 299; Jameson,631. 69 Jameson, 628-633. [347] On the other hand, it is perhaps clear that a state legislature has a continuing power of ratification until an amendment is adopted, or until such a long period has elapsed that a sort of statute of limitations may be said to have run against any power to ratify the proposal. It may be remembered that the power in the state legislature is one derived from the federal Constitution, and is a power to ratify, not a power to reject. If a constitutional amendment is proposed, one state legislative session may not by explicitly rejecting prevent the further exercise of the federal power conferred upon the state legislature. Rejection by a state legislature is in this respect equivalent to the negative result arising from state legislative inaction. There is no power in and of itself to reject a federal constitutional amendment, and failure to act by one-fourth of the states is sufficient. In the case of the Thirteenth Amendment, New Jersey first rejected the amendment and then ratified. In the case of the Fourteenth Amendment, four states (North Carolina, South Carolina, Georgia, and Virginia) rejected and then ratified. In the case of the Fifteenth Amendment, Ohio and New Jersey rejected and then ratified. In all of these cases, where the action was taken previous to the issuance of the proclamation that an amendment had been adopted, the states were included by the Secretary of State as ratifying.70 The question presented itself in connection with the adoption of the Thirteenth Amendment as to what constitutes three-fourths of the states. Several of the states counted in the ratification of that amendment had not been readmitted to representation in Congress, and a question was raised as to whether they could give valid assent to an amendment. In the case of the Fourteenth and Fifteenth Amendments ratification by a sufficient number of states was obtained by requiring approval of one or both of the amendments as a condition precedent to the admission of representatives to the federal Congress, from the states which had recently been in rebellion. When an amendment is pending for some time before it obtains ratification, the number of states may have increased, and it is quite dear that three-fourths of the number at the time of ratification is required, rather than three-fourths at the time of the proposal of the amendment. The ratification must be by three-fourths of the state legislatures, and such a ratification could not be had unless at the time of final adoption of the amendment three-fourths of the states then in the Union had agreed thereto. Jameson suggests a difficulty in the counting of three-fourths which would present itself were a state permitted to withdraw after it has once ratified an amendment. This difficulty might present itself when nearly three-fourths had ratified, for a campaign to obtain withdrawals of ratification might leave a proposed amendment in suspense even though a state had ratified, which would be sufficient to make the three-fourths had another 70 Ames 300; Jameson, 629-630. [348] state not withdrawn. However, as has already been indicated, it is clear that a state may not withdraw its ratification. The case of Hawke v. Smith lays down clearly the principle that the whole power of proposing and ratifying amendments to the Constitution of the United States has its source in that instrument. The states have no independent power with respect to the matter, except so far as it is expressed in the federal Constitution, and Congress has no power except so far as power is necessary and proper to carry out the authority so conferred. In this discussion only incidental attention has been paid to the possible use of conventions for the amendment of the Constitution of the United States. Congress has authority to call a convention on the application of the legislatures of two-thirds of the states, and a number of states have in particular instances passed resolutions asking that such a convention be called. The issue of calling a federal constitutional convention has, however, not seriously presented itself.71 Efforts have several times been made to have proposed constitutional amendments submitted to conventions in the several states instead of to state legislatures, but such efforts have been unsuccessful.72 A curious case of convention ratification was the ratification of the so-called Corwin amendment, proposed in 1861, by the state constitutional convention in Illinois in 1862. This amendment was proposed by Congress to the state legislatures, and a convention assembled for the purpose of revising a state constitution had no authority whatever to pass upon the proposed amendment, but the issue as to its action never presented itself, because the proposal received little attention. Operation of the federal amending clause. Affirmatively, it is clear that the federal amending clause makes necessary the concurrence in sentiment both of the states and of the population of the states, in order to adopt an amendment to the Constitution. After an amendment is once proposed by the two houses of Congress, three-fourths of the states, having less than one-half of the population, may ratify such an amendment, but clearly sufficient protection is accorded to population by the requirement of two-thirds of the members of the House of Representatives to propose an amendment, and a further protection is accorded to the states by the requirement of a two-thirds vote by the Senate. It is true, of course, that the two-thirds of each house required is but two-thirds of a quorum, and that an amendment might actually be approved by the House of Representatives through the action of members representing a minority of the people of the country, but in case of any issue in which the 71 A review of efforts to call conventions before 1890 will be found in Ames, 281-283. 72 Ames, 286-287. [349] larger states might be arrayed against the smaller, it may well be expected that all members of both houses would be present when so important a matter as a federal amendment is to be voted upon. Looking at the matter from a negative standpoint, however, it is clear that a small number of smaller states may prevent an amendment to the Constitution of the United States, and that without any union among the smaller states for such a purpose a proposed amendment may be defeated, although it has in its favor a distinct preponderance of opinion not only in a majority of the states, but also upon the part of the great majority of the people of the country. The senators from one more than one-third of the states may prevent the proposal of a federal constitutional amendment, and this fact places a negative upon such proposal in the hands of seventeen states, which might represent a very small proportion of the population of the country.73 After an amendment is once proposed, a small group of states has power more completely in its hands, for the ratification of an amendment may be prevented by thirteen states. Upon the basis of this fact, it was urgently contended in the briefs opposed to the Eighteenth Amendment that the prohibition of traffic in liquors was a matter of temporary or legislative policy being placed in the Constitution, and that placing it in the Constitution established a permanent control over this matter by a minority, inasmuch as more than one-third of the members of the House and Senate could prevent any proposal of amendment to change the existing policy, and thirteen out of forty-eight states could prevent the ratification of any such change. It is true, of course, that less than ten per cent of the population of the United States, living in thirteen states, may control the issue as to whether a constitutional change shall be made, but since the adoption of the federal Constitution there has never been a definite alignment in this country of the smaller states against the larger, and there is no likelihood that the smaller states will so unite. So, also, if the larger states had a greater power in the proposal and ratification of amendments, there would be practically no possibility of all the larger states, distributed as they are in different parts of the country, uniting against the states of smaller population, which are also so distributed. As a matter of fact, it may be said that there is greater practical difficulty in obtaining the proposal of amendments than in obtaining their ratification. The four amendments proposed in recent years were ratified without material delay. Professor H. V. Ames published in 1897 a complete review of the proposed amendments to the federal Constitution during the hundred year period from 1789 to 1889. During this period fifteen amendments were adopted; and 73 Since the popular election of United States Senators, Senators cannot be said to represent the state as a political organization quite as distinctly as they did when elected by state representative bodies. [350] four other amendments were proposed by Congress to the states for ratification, but not adopted. The proposed amendments not adopted related to the apportionment of representatives (proposed in 1789) ; compensation of members of Congress (proposed in 1789) ; titles of nobility (proposed in 1810) ; and, a proposal prohibiting the abolition of slavery (proposed in 1861). The proposal in 1861 came too late in the slavery struggle to receive any favorable action by the states. Two of the four proposals which failed of ratification (that on apportionment of representatives and that on titles of nobility), failed of adoption by only one state’s ratification. During the same period eighteen proposed amendments were approved by one house but not by the other, nine by the Senate and nine by the House of Representatives. Since 1889 each amendment proposed by the two houses of Congress has been ratified by the states; but a number proposed by one house has failed in the other. Proposals for the popular election of Senators were a number of times agreed on by the House of Representatives but not by the Senate, before the final proposal of this amendment. It may be true, of course, and probably is, that many proposed amendments have failed in the two houses because of the knowledge that ratification by the states would be difficult if not impossible, but so far as the facts indicate, ratification of the amendments proposed has been less difficult than has been the proposal of amendments by the two houses.74 For years it has been contended with some show of reason that the federal amending process is too difficult.75 Proposals for the alteration and simplication of the amending process have been frequently made. A review of such proposals down through the year 1889 will be found in Ames’ work on Proposed Amendments to the Constitution of the United States during the First Century of Its History,76 and in an unpublished continuation of Ames’ study prepared by Jacob Tanger of Pennsylvania State College. It may be worth while to review briefly the more important changes suggested in the federal amending process. Professor J. W. Burgess in his Political Science and Comparative Constitutional Law, published in 1893, suggested that a plan be adopted as follows: “Proposal of amendments by two successive Congresses, Senators and Representatives acting in joint assembly and resolving by simple majority vote; submission of proposals to the legislatures of the several states, these again acting in joint assembly and resolving by simple majority vote; assignment to each state of the same weight in the count of votes as in 74 Ames, 300. 75 See Ames, 300 et seq; Munroe Smith, Shall We Make Our Constitution Flexible? (1911) 194 North Am. Rev. 657; J. David Thompson, The Amendment of the Federal Constitution, (1912) 3 Publications of the Academy of Political Science, No. 2. 76 At pp. 292-293. [351] a presidential election, and ratification of amendments by a simple majority of the state votes thus weighted.” Professor Munroe Smith has suggested a plan somewhat different from this, as follows: “Proposal of amendments by the majority vote of both houses in two successive Congresses; submission of such proposals to the legislatures of the several states or to conventions in the several states or directly to the voters in each of the states, as one or another of these modes of ratification may be proposed by Congress; and ratification of proposals by a majority of the states, provided that the ratifying states contain, according to the last preceding enumeration, a majority of the total population of all the states.” Both of these plans diminish the apparent control by states, as such, over the amending process; but as has already been said, the participation of the states, as such, is really unnecessary for the protection of either the large or the small states. Both of these plans give, of course, a much greater degree of power to the states with the larger populations. The proposal of Professor Burgess leaves no decisive control even to a majority of the states, and departs materially from the federal principle in our system of government. The plan suggested by Professor Munroe Smith preserves the federal principle more completely, by providing not only for a separate vote in the Senate, but also by providing that the ratification of a proposed amendment shall be by a majority of the states as well as by a majority of the total population. The more important general proposals recently made for a change in the method of amending the federal Constitution, are those of Senators Cummins, La Follette, and Owen. Senator Cummins proposed, in 1913, that there be added to the present amending article of the Constitution the following language: “Whenever the legislatures of sixteen states shall adopt resolutions proposing any amendment, and the same are certified to the President of the United States, or whenever fifteen per centum of the voters in twenty-four states present to the President petitions authenticated by the respective governors of the said states proposing any amendment, the President shall submit the same to the several states, and in either case any such amendment shall be valid to all intents and purposes as a part of the Constitution when ratified by two-thirds of the several states acting either by direct vote of the people or by the legislatures, as may be determined by state law: Provided, that no state, without its consent, shall be deprived of its equal suffrage in the Senate.” An adverse report upon this proposal was submitted by the Senate Committee on the Judiciary in 1914, and a minority report presented by seven members of the committee urged that an easier method of amendment was desirable, although only two members (Senators Cummins and Ashurst) agreed in approving Senator Cummins’ proposal. The proposal introduced in 1913 by Senator La Follette reads as follows: [352] “The Congress, whenever a majority of both houses shall propose amendments to this Constitution, or on the application of the legislatures of ten states, or on the application of ten states through the vote of a majority of the electors of each, voting upon the question of such application, shall propose amendments to this Constitution, to be submitted for ratification in each of the several states to the electors qualified to vote for the election of Representatives. And the vote shall be taken at the next ensuing election of Representatives in such manner as the Congress may prescribe. And if in a majority of the states a majority of the electors voting thereon approve any proposed amendment, and if a majority of all the electors voting thereon also approve any proposed amendment, it shall be valid to all intents and purposes as part of this Constitution.” In this form Senator La Follette’s proposal is merely an addition to Article 5 of the Constitution. Senator Owen has several times proposed in Congress a plan by which a majority of the members of both houses may propose amendments, or by which either house alone may propose an amendment if the other twice rejects the proposal. He would also permit proposal upon application of a majority of the state legislatures. For ratification, his proposal adopts the plan of submission to the voters directly, and adoption, if ratified by a majority of the voters, provided the amendment also receives a favorable vote in a majority of the congressional districts. This plan (just as that of Professor Burgess) to a large extent disregards the federal principle in the proposal and adoption of constitutional amendments. In connection with proposals which attempt to reduce materially the share of Senators in the proposal of constitutional amendments, or which tend (as do the Burgess and Owen proposals) to destroy the equal share of each state in the proposal of amendments, the question presents itself as to whether there may not be a violation of the limitation that no state without its consent shall be deprived of its equal suffrage in the Senate. The proposals referred to above contemplate a substantial change in the whole procedure for the amendment of the federal Constitution. Comment should properly be made regarding proposals which do not seek to go quite so far. Senator Brandegee has several times introduced a proposed amendment which permits Congress to submit an amendment for ratification either to the state legislatures or to state conventions, or to the electors in the several states. Senator Brandegee’s proposal, which has been twice unanimously reported by the Senate Committee on the Judiciary, also limits state ratifications to six years from the date of the proposal of an amendment.77 Mr. Seba Eldridge has for a number of years been urging a change in the federal amending process by which the question of calling a 77 Cong. Rec. (66th Cong., 1st sess.) 5694-5700. [353] federal constitutional convention should be submitted each twenty years to the voters of the several states. This plan is copied from that in force in some states by which the question of calling a state constitutional convention is submitted at periodical intervals.78 A few years ago it was thought that the difficulties of amending the federal Constitution were insurmountable except in times of grave crises. Ten amendments had been added to the Constitution almost immediately after the federal government went into operation, but these amendments might really be termed a supplement to the original Constitution. The Eleventh and Twelfth Amendments were adopted without great difficulty. Then followed a period of more than sixty years (1804-1865) in which no amendment to the Constitution was proposed and ratified. The three war amendments were adopted in the short period between 1865 and 1870, but their adoption came as a result of a grave national crisis, and the ratification of these amendments by the states was obtained in part by methods not available in ordinary times, and perhaps not appropriate at any time. However, at the present time the difficulties of federal amendment do not appear quite so great as they did a few years ago, because of the fact that since 1909 four amendments have been ratified. In the briefs against the Eighteenth Amendment, efforts were made to have the Supreme Court adopt further limitations upon the federal amending process than those clearly appearing in the Constitution itself, and the Court was urged to take such a view largely on account of the great dangers urged as existing now because of an easy amending process, but it did not take the view of those seeking to destroy the Prohibition Amendment. The arguments for a more restricted amending process than that now appearing in the express language of the Constitution were, of course, arguments for the purpose of sustaining a particular view in order to destroy, if possible, the establishment of federal prohibition in the Constitution. These arguments should, therefore, not be treated too seriously. However, it is true that the view as to the difficulty of amending the federal Constitution is now quite different from the view which existed ten or twelve years ago. This changed attitude has, to some extent, made the federal amending process easier, for a part of the difficulty, at least before the ratification of the Sixteenth Amendment, was due to the feeling that the amending machinery was unworkable rather than to the unworkability of that machinery. It should on the other hand 78 New Hampshire requires a vote of this character each seven years; Iowa each ten years; Michigan each sixteen years; Maryland, New York, and Ohio each twenty years. The Oklahoma constitution leaves to the legislature the discretion as to when such a question shall be submitted to the people, but requires the question to be submitted at least once in every twenty years. [354] be borne in mind that the four amendments proposed in recent years have all been ones which involved neither political nor sectional issues. Moreover, all of these amendments have related to matters as to which, at the time of submission, a generally favorable view had been reached. This statement may be contradicted with respect to the Eighteenth Amendment regarding federal prohibition, but the statement here made relates to the view existing at the time of proposal and ratification, and not to any views which may develop as a result of dissatisfaction with the Amendment in its actual operation. A serious question presents itself as to whether the federal amending process should be so easy as to permit the introduction into the Constitution of provisions which involve distinctly sectional or political issues. Clearly the federal Constitution performs a function different from that of the state constitutions, and should be less flexible than the state constitutions may properly be. The function of the federal Constitution is primarily that of drawing a line between national and state powers, and such a line should not be subject to frequent variations. It is true, of course, that the inflexibility of the federal Constitution has thrown upon the courts a greater burden than they would otherwise have had, and the courts have to a large extent, by construction, enlarged the powers once conferred upon the federal government. However, this judicial enlargement comes gradually, and the United States Supreme Court, in its function of preserving the balance between national and state powers, has on the whole performed its service efficiently and in a statesmanlike manner. The federal amending process should be easier, but in bringing about a change in the federal Constitution or in any other constitution, two elements must unite: (a) the sentiment of the people in favor of change, and particularly in favor of the specific change being urged; and (b) operation of the machinery for the purpose of effecting such a change. A real change in the federal amending process has already been accomplished through a change in the first of the two elements just referred to, in that the view has been broken down that the present amending machinery is substantially unworkable. The machinery itself may still need to be changed, but in changing it attention should be given to the peculiar function of the federal Constitution, and no change should be made of such a character as to bring about constant agitation for a change of the boundaries between national and state powers, and a frequent shifting of the line drawn by the Constitution between national and state authority in this country. Enter Screen Names of recipients separated by commas or semicolons. To: Make blank lines new paragraphs Auto Hyperlink Web Addresses The text you wish to Quote: Your Comments/Response: Hint: Paragraphs beginning with ">>" (2 greater-than symbols) will be auto-indented! Please report web page problems, questions and comments to webmaster@libertysflame.com Thanks for your spam reply, above. Perhaps you can explain what it has to do with my post #109? tpaine  posted on  2015-05-31   17:33:11 ET  Reply   Trace   Private Reply   #112. To: tpaine (#109) - 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. I note that when confronted with the actual argument of Elihu Root, you can only resort to diversionary blather. You certainly do not offer any alternative to a constitutional amendment or SCOTUS overturning its own holding interpreting the Constitution. Perhaps you mean a revolution. As for the diversionary name-dropping of Dred Scott, and your invitation to address Dred Scott, I must say that your Hitlerian avocation of consolidating newfound powers in the central government, at the expense of the descendents of Dred Scott shows only that you continue to talk but refuse to read. Tell Dred Scott why you want to find the 13th Amendment null and void and send him back to the plantation or Mrs. Emerson. As noted in W. F. Dodd, Amending the Federal Constitution, Yale Law Journal, Vl XXX, No. 4, February 1921, The briefs presented against the validity of the Eighteenth Amendment are addressed more to what the opposing interests thought ought to be, than to any issues which may properly be termed legal in character. When read, these briefs in many cases seem to be arguments of counsel who were employed to find arguments, and must, therefore, do so, even though they knew the arguments to be untenable. The most effective statements presented to the Court were those submitted in behalf of a number of states as amici curiae, in the cases of Kentucky Distilleries and Warehouse Co. v. Gregory and Rhode Island v. Palmer. These briefs bear the name of Mr. Charles E. Hughes. The most effective arguments were presented in statements made by Charles Evans Hughes, not Elihu Root. Charles Evans Hughes was a giant of the legal profession. The arguments of Charles Evans Hughes were adopted by the Court, repeatedly. Hughes is by far the more renowned attorney, and he had a case to make where Root did not. In any case, the result was 9-zip and Root did not persuade anybody on the Court. As there is no legal distinction to be made between the 13th Amendment and the 18th Amendment regarding the argument of Elihu Root which you blindly support, the result of the Court finding a hitherto unknown broad limitation on the amending power of the people emanating from a penumbra of the 5th Amendment, would be to not only overturn the 18th Amendment but the 13th as well. As the Supreme Court could intervene in all cases to determine whether content met its approval for adding to the Constitution, your (Root's) course would reduce the sovereign people to having to ask their Daddies on the Court they created, if they may please amend the Constitution they created. Their Daddies on the court could stop any amendment by saying the amendment content did not meet their approval. Indeed, Dodd in the Yale Law Journal was moved to comment that, "This argument might be termed somewhat ridiculous, had it not appeared under the distinguished name of Mr. Elihu Root." Even with Root's name on it, it was somewhat ridiculous. Feigenspan v. Bodine, et al., (U. S. Dist. Court, Dist. of New Jersey, March 9, 1920). 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. W. F. Dodd, Amending the Federal Constitution, Yale Law Journal, Vl XXX, No. 4, February 1921. “Our contention is not for a further exception to the power granted; it is that the grant itself does not include the power of ordinary legislation. This is no more affected by the fact that there are express exceptions to the power which was granted than would be the proposition that the grant of the Fifth Article does not include the judicial power or power to command the army and navy.”34 The point under contention is made perhaps even clearer by another statement in this brief: “In this respect a constitutional amendment granting to the government power to prohibit intoxicants would be quite different from an 34 At p. 16. [333] attempted amendment itself directly declaring the prohibition of intoxicants. The former would merely add to the powers of government and would, therefore, in this regard at least, be a proper form of constitutional amendment; while the latter in its essence neither would add nor withdraw powers of government, but would be direct legislation. The Eighteenth Amendment is, therefore, in substance and effect a statute, not a constitutional provision akin to any in the federal Constitution.” It is sought to bolster up this argument by the provision of the Constitution vesting all legislative power in Congress; and to sustain it further by the purely political argument that legislation thus embodied in the Constitution becomes permanent and beyond the control of the majority, because of the fact that change may be prevented by fourteen states containing only a very small minority of the population of the country.35 A similar argument will be found in an article which recently appeared in the Harvard Law Review.36 This argument might be termed somewhat ridiculous, had it not appeared under the distinguished name of Mr. Elihu Root. The Solicitor General’s brief in the Feigenspan Case reviews a number of provisions of the original Constitution and of amendments thereto before the Eighteenth Amendment, and properly says: “That the provisions referred to are acts of legislation in the sense that they establish rules of law can not be doubted. They and other provisions constitute a body of laws which the framers of the. Constitution deemed of such importance that they should be enacted and placed beyond the control of any branch of the government.”37 Mr. Hughes’ brief in the Kentucky Distilleries Case presents the situation even more vigorously: “And what is ‘legislation’ which is thus said to lie outside the scope of the amending power according to the theory presented? Is it that the amendment must not be self-executing? But the obvious answer is that the Thirteenth Amendment is self-executing and it has been so adjudged by this court.... “Is it that the amendment must not directly affect the rights of persons without the intervention of legislation? The Thirteenth Amendment did that, for it made free men out of slaves. “Is it that the amendment must not directly disturb without further legislation vested rights of property? But the Thirteenth Amendment destroyed property in slaves. “The attempt is made to explain in some way that the Thirteenth 35 pp. 11, 14 et seq., 48. 36 William L. Marbury, The Limitations upon the Amending Power (1919) 33 Harv. L. Rev. 223. See a reply to this article by William L. Frierson, Amending the Constitution of the United States: A Reply to Mr. Marbury (1920) 33 Harv. L. Rev. 659. Mr. Frierson’s name will also be found signed to the brief for the appellees in the case of Feigenspan v. Bodine. 37 At p. 37. [334] Amendment, which did all these things, was not legislation. It is impossible then to understand in what sense the term “legislation” is used. For that which establishes a rule of law which, being self-executing, determines without further legislation the rights and status of persons and rights of property manifestly has the direct operation and effect of legislation.”38 In 264 Federal Reporter 186, on the Feigenspan case, the headnotes read, 1. Eighteenth Amendment, with respect to its subject-matter, held within the power to amend given by article 5, and valid. 2. Every grant of power to the federal government, whether by the Constitution as orlglnally framed or by subsequent amendment, necessariy diminished powers of the several st.ates, and that an amendment takes away a pollce power previously In the state dpes not render It invalid. 3. That a constitutional ameudment is in effect legislation controlling the conduct of private lndividuals, in that it ordains a final permanent law prohibiting certain acts, not alterable at the will of a majority, does not render it invalid. 4. The provision of Const. art. 5, authorizing Congress to propose amendments "whenever two-thirds of both houses shall deem it necessary," does not require that a joint resolution proposing an amendment shall expressly declare that it is deemed necessary. 5. Congress alone, of all departments of the federal government, is intrusted with the power of proposing amendments to the Constitution, and the form of resolutions by which it proposes an amendment is not subject to judicial investigation. 6. In Const. art. 5, providing that a proposed amendment shall be valid "when ratified by the legislatures of three-fourths of the several states," when that mode shall be proposed by Congress, the word "Legislature" means the then recognized representative law-making bodies of the states, and the validity of an amendment ratified by the requisite number of such Legislatures cannot be affected by state laws providing for, or permitting, a referendum vote on legislative acts. 7. Eighteenth Amendment, § 2, providing that "the Congress and the several states shall have concurrent power to enforce this article by appropriate legislatlon," must be construed, in harmony with its purpose, to expressly authorize effective legislation for enforcement of section 1, which excludes a construction making concurrence of the states necessary to tbe effectiveness of congressional legislation, and such legislation, if enacted, is parramount, and, while it may be supplemented by state legislation, it cannot be defeated by any action or nonaction of the states. In the absence of action by Congress, any state may enact enforcement legislation effective within its borders. 8. National Prohibition Act Oct. 28, 1919, § 1, in providing that "intoxicating liquor" as used in the act, shall be construed to include all liquors, liquids, or compounds containing one-half of 1 per centum or more of alcohol by volume, does not make a definition which may be declared arbitrary and unconstitutional by the courts, but one which it was within the reasonable discretion of Congress to make for the purposes of the act. 9. National Prohibition Act Oct 28, 1919, held not invalid, as taking private property for public use without just compensution, in violation of Fifth Amendment, because, as incidental to the exercise of a lawful power, loss may result to certain species of property. 10. "Amendment" includes additions to, as well as corrections of, matters already treated, and there is nothing in the context of Const. art. 5, providing that Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments, which suggests that it was used in a restricted sense. The Decree in Feigenspan was affirmed by SCOTUS. 253 US 350, 40 Sup Ct 486. nolu chan  posted on  2015-05-31   20:26:54 ET  Reply   Trace   Private Reply   #113. To: tpaine (#109) SCOTUS holdings/opinions are NOT BINDING on the other branches of govt, or on we the people. -- They are not law. http://law.justia.com/cases/ U.S. Case Law U.S. Federal Courts U.S. Supreme Court (1759 - present) Case Law. The aggregate of reported cases as forming a body of jurisprudence, or the law of a particular subject as evidenced or formed b te adjudged cases, in distinction to statutes and other sources of law. It includes the aggregate of reported cases that interpret statutes, regulations, and constitutional provisions. Black's Law Dictionary, 6th Ed. Common Law. As distinguished from statutory law created by the enact.ment of legislatures, the common law comprises the body of those principles and rules of action, relating to the government and security of persons and property, which derive theIr authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs; and, in this sense, particularly the ancient unwritten law of England. In general, it is a body of law that develops and derives through judicial decisions, as distinguished from legislative enactments. The "common law" is all the statutory and case law background of England and the American colonies before the American revolution. People v. Rehman, 253 C.A.2d 119, 61 Cal. Rptr. 65, 85. It consists of those principles, usage and rules of action applicable to government and security of persons and property which do not rest for their authori· ty upon any express and positive declaration of the will of the legislature. Bishor v. U. S., D.C.Tex., 334 F.Supp. 415, 418. As distinguished from ecclesiastical law, it is the system of jurisprudence administered by the purely secular tribunals. Calif. Civil Code, Section 22.2, provides that the "common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the court.s of this State." In a broad sense, "common law" may designate all that part of the positive law. juristic theory, and ancient custom of any state or nation which is of general and universal application, thus marking off special or local rules or customs. Id. Each of the original States adopted the common law of England, either in their constitution or by statute law, to the extent they were compatible with our Constitution. Federal law operates on the common law system of law. All of the states operated on the common law system except Louisiana. See the California Civil Code quoted above in Black's definition of common law. When SCOTUS interprets the Constitution, their interpretation is the law, binding upon the Executive and the Legislative branches. The Legislature cannot pass valid legislation repugnant to the Constitution as interpreted by SCOTUS. Laws, federal or state, that prohibit abortion are unlawful because of the way SCOTUS interpreted the Constitution. Interrogation without a Miranda warning is unlawful because of the way SCOTUS interpreted the Constitution. Legislation (or amendments) passed contrary to the constitution, are null and void. SCOTUS opinions apply to the case at hand and are given due consideration by the other branches of govt, and by the people. Roe interpreted the Constitution to recognize a woman's right to abortion. Why can't congress or the States pass laws limiting or prohibiting abortion? SCOTUS holdings apply to cases being heard by all inferior courts, that is all State courts, and all other Federal courts. SCOTUS are to be complied with, not given due consideration. SCOTUS has the final word on interpreting the Constitution. Adopted amendments are part of the Constitution, with the full force of other parts, and cannot be declared null and void by any branch of the government. Only SCOTUS can judicially overturn its holding. That is the opinion of the SCOTUS,-- it is not law. That is FACT. Only SCOTUS can judicially overturn its holding. Lower courts, which includes all Federal and State courts, cannot overturn a SCOTUS holding. If SCOTUS issues a holding re Federal legislation, the legislature can change or replace the legislation. If SCOTUS issues a holding re the Constitution, only SCOTUS or another amendment can overturn it. An opinion by the SCOTUS that a law or amendment is constitutional, does not change the constitution. -- Only valid amendments, made in 'pursuance thereof' can change the constitution. By interpretation, SCOTUS says what the law is. That is not changing the law or amendment. In Plessy v. Ferguson, SCOTUS held that separate but equal was constitutional. That was the law of the land until SCOTUS changed its mind in Brown v. Board of Education, holding that separqate but equal was inherently unequal. Now that is the law of the land. The law does not change, but their interpretation of it can and does. But, of course, you already knew that. nolu chan  posted on  2015-05-31   20:27:49 ET  Reply   Trace   Private Reply   #114. To: tpaine (#111) Thanks for your spam reply, above. Perhaps you can explain what it has to do with my post #109? It serves as more proof by yet another legal expert, that you never read the argument of Elihu Root and were totally unaware of the 90+ year old debunking of that pile of crap, just as you were unaware that it was Charles Evans Hughes who thumped point after point of the Root argument. As long as you keep trying to push legal spam such as the long-settled issue being unsettled, or the case not having been decided, I will keep posting actual legal experts and court docments that you are unable to reply to in substance. nolu chan  posted on  2015-05-31   20:42:47 ET  Reply   Trace   Private Reply   #115. To: nolu chan, Y'ALL (#109) 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. An opinion by the SCOTUS that a law or amendment is constitutional, does not change the constitution. -- Only valid amendments, made in 'pursuance thereof' can change the constitution. By interpretation, SCOTUS says what the law is. That is not changing the law or amendment. "By interpretation" means you admit that this is an opinion by the SCOTUS. -- So we agree; such opinions do not change the constitution. But you know that.. In Plessy v. Ferguson, SCOTUS held that separate but equal was constitutional. That was the law of the land until SCOTUS changed its mind in Brown v. Board of Education, holding that separqate but equal was inherently unequal. Now that is the law of the land. The law does not change, but their interpretation of it can and does. But, of course, you already knew that. No, that is not true. Such court holdings are NOT the law of the land. BTW,--- your multi thousand word posts, wherein you try to overwhelm my arguments with legalized bullshit spam, are a joke. -- All you're really doing is proving that you have access to a legal library. ---- BFD.... tpaine  posted on  2015-05-31   21:41:31 ET  Reply   Trace   Private Reply   #116. To: tpaine (#115) An opinion by the SCOTUS that a law or amendment is constitutional, does not change the constitution. -- Only valid amendments, made in 'pursuance thereof' can change the constitution. Mindless diversion. Of course a SCOTUS opinion does not change the Constitution. However, a SCOTUS interpretation of the Constitution is binding until it overrules itself or another Amendment changes the Constitution. In Plessy v. Ferguson, SCOTUS held that separate but equal was constitutional. That was the law of the land until SCOTUS changed its mind in Brown v. Board of Education, holding that separqate but equal was inherently unequal. Now that is the law of the land. The law does not change, but their interpretation of it can and does. But, of course, you already knew that. No, that is not true. Such court holdings are NOT the law of the land. More mindless blather. SCOTUS has ruled that abortion in the first trimester is protected by the Constitution, citing the 9th and 14th Amendments. That is the law. Neither the Federal legislature nor the States have authority to act contrary to that holding. BTW,--- your multi thousand word posts, wherein you try to overwhelm my arguments with legalized bullshit spam, are a joke. -- All you're really doing is proving that you have access to a legal library. ---- BFD.... The only thing you have proven is that you are too incompetent or lazy to use the Google effectively. Your best attempt was to use the first googlehit on Elihu Root. Your claims in your #89 are shown to be made without looking at the court decision in question about prohibition, and without knowledge of the argument in question, which you obviously had not bothered to read. In short, you attempted to bullshit me and failed. You attempted to bullshit your way out and failed. The law of digging holes asserts that when you are in up to your neck, stop digging. #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 According to you: In Roe, "the court opined that a woman has the same rights against involuntary servitude as a man. Call it a penumba if you must." "The prohibition amendment was so challenged [as invalid], and the SCOTUS refused to make an opinion on the issue. It remains unresolved." You have yet to find where, in Roe, "the court opined that a woman has the same rights against involuntary servitude as a man." I did not have the same problem finding their citation of a penumbra. You have yet to find where "the SCOTUS refused to make an opinion on the issue." Where is this imaginary refusal? The 18th Amendment was held to be valid. The decree of the lower court in Feigenspan was affirmed. 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. http://en.wikipedia.org/wiki/Alexander_Bickel Alexander Mordecai Bickel (December 17, 1924 – November 8, 1974) was a law professor and expert on the United States Constitution. One of the most influential constitutional commentators of the twentieth century, his writings emphasize judicial restraint. Elihu Root argued, "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." The Court ruled that, "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." From the opinion of the Court in the National Prohibition Cases, 253 U.S. 350, 385-8 (1920): The cases have been elaborately argued at the bar and in 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 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 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. And from the year prior to the above opinion, see SCOTUS in Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146 (1919) (9-0) At 161-2: No principle of our constitutional law is more firmly established than that this Court may not, in passing upon the validity of a statute, inquire into the motives of Congress. United States v. Des Moines Navigation Co., 142 U. S. 510, 142 U. S. 544; McCray v. United States, 195 U. S. 27, 195 U. S. 53-59; Weber v. Freed, 239 U. S. 325, 239 U. S. 330; Dakota Central Telephone Co. v. South Dakota, 250 U. S. 163, 250 U. S. 184. Nor may the court inquire into the wisdom of the legislation. McCulloch v. Maryland, 4 Wheat. 316, 17 U. S. 421; Gibbons v. Ogden, 9 Wheat. 1, 22 U. S. 197; Brushaber v. Union Pacific Railroad Co., 240 U. S. 1, 240 U. S. 25; Rast v. Van Deman & Lewis, 240 U. S. 342, 240 U. S. 357. Nor may it pass upon the necessity for the exercise of a power possessed, since the possible abuse of a power is not an argument against its existence. Lottery Case, 188 U. S. 321, 188 U. S. 363. At 164: The Eighteenth Amendment, with its implications, if any, is binding not only in times of peace, but in war. nolu chan  posted on  2015-06-02   3:21:15 ET  Reply   Trace   Private Reply   #117. To: nolu chan (#116) Elihu Root argued, "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". This specific argument was not addressed by the court, -- as is evidenced by the citation at #4 below, which merely repeats that Article V gives that power. -- Article V does NOT give the power to prohibit commerce. -- The issue remains unresolved.. From the opinion of the Court in the National Prohibition Cases, 253 U.S. 350, 385-8 (1920): The cases have been elaborately argued at the bar and in 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. tpaine  posted on  2015-06-03   11:46:03 ET  Reply   Trace   Private Reply   #118. To: nolu chan (#116) 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. You have yet to find where, in Roe, "the court opined that a woman has the same rights against involuntary servitude as a man." I did not have the same problem finding their citation of a penumbra. Read your own post just above, it's where I found the involuntary servitude bit, as 'a woman cannot be forced to continue a pregnancy against her will'. Call that a penumba if you must. -- I call it an opinion. tpaine  posted on  2015-06-03   12:07:16 ET  Reply   Trace   Private Reply   #119. To: tpaine (#117) From the opinion of the Court in the National Prohibition Cases, 253 U.S. 350, 385-8 (1920) You do good cut and paste but your citation is incorrect. Elihu Root argued, "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". This specific argument was not addressed by the court, -- as is evidenced by the citation at #4 below, which merely repeats that Article V gives that power. -- Article V does NOT give the power to prohibit commerce. -- The issue remains unresolved.. Your argument is BULLSHIT. The Court explicitly held that the entire 18th Amendment was, indeed, within the amending power of the agents of the people. What Root said was invalid, the Court said was valid. From the opinion of the Court in the National Prohibition Cases, 253 U.S. 350, 386-8 (1920) 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 legislative act, whether by Congress, by a state Legislature, or by a territorial assembly, which authorizes or sanctions what the section prohibits. [..] 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 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. nolu chan  posted on  2015-06-03   15:37:40 ET  Reply   Trace   Private Reply   #120. To: tpaine (#118) No, the court opined that a woman has the same rights against involuntary servitude as a man. Until you can cite or quote this imaginary nonsense from within the court opinion, I continue to call BULLSHIT. Read your own post just above, it's where I found the involuntary servitude bit, as 'a woman cannot be forced to continue a pregnancy against her will'. Your claim is BULLSHIT. Affirmatively finding a constitutional right to an abortion is not a finding about involuntary servitude. nolu chan  posted on  2015-06-03   15:38:17 ET  Reply   Trace   Private Reply   #121. To: nolu chan (#120) How weird. LP's resident self proclaimed legal expert is reduced to generalized proclaiminations of, -- "BULLSHIT" -- , to my specific arguments. The issues I've outlined remain unresolved. tpaine  posted on  2015-06-03   15:55:38 ET  Reply   Trace   Private Reply   #122. To: tpaine, A K A Stone (#109) #109. To: nolu chan (#102) - 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. [...] SCOTUS interprets the Constitution. Legislation passed contrary to a constitutional interpretation of SCOTUS is null and void. Not true. Legislation (or amendments) passed contrary to the constitution, are null and void. SCOTUS opinions apply to the case at hand and are given due consideration by the other branches of govt, and by the people. [...] tpaine posted on 2015-05-29 18:39:54 ET The Federalist No. 81 May 28, 1788 Publius [Alexander Hamilton] [excerpt] The theory, neither of the British, nor the State constitutions, authorizes the revisal of a judicial sentence by a legislative act. Nor is there any thing in the proposed Constitution, more than in either of them, by which it is forbidden. In the former, as well as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle. A legislature, without exceeding its province, cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases. This is the principle, and it applies in all its consequences, exactly in the same manner and extent, to the State governments, as to the national government now under consideration. Citing Coleman v Miller, 307 U.S. 433 (1939), Laurence H. Tribe wrote in American Constitutional Law, Third Edition, Volume 1, at 105, that "Coleman can be regarded today as imposing an absolute bar on judicial review of the amendment process. The Court's instinct that most questions regarding the amendment process should be nonjusticiable is on target: constitutional amendment is a political, not legal, process, and judicial supervision of that process threatens to undermine the independence of Article V from normal legal processes—and poses particular problems when the amendment at issue is one proposed in response to judicial decisions." holding that the official notice to the Secretary of State, duly authenticated, of the action of the legislatures of the States, whose alleged ratifications were assailed, was conclusive upon the Secretary of State, and that his proclamation accordingly of ratification was conclusive upon the courts, we affirmed the judgment of the state court. Coleman at 440. nolu chan  posted on  2015-07-08   1:04:29 ET  Reply   Trace   Private Reply         .       .       . Comments (123 - 128) not displayed. Top • Page Up • Full Thread • Page Down • Bottom/Latest

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