[Footnote 1: Texas v. White, 7 Wall., 700.]

IV

THE EIGHTEENTH AMENDMENT

Could Washington, Madison, and the other framers of the Federal Const.i.tution revisit the earth in this year of grace 1922, it is likely that nothing would bewilder them more than the recent Prohibition Amendment. Railways, steamships, the telegraph, the telephone, automobiles, flying machines, submarines-all these developments of science, unknown in their day, would fill them with amazement and admiration. They would marvel at the story of the rise and downfall of the German Empire; at the growth and present greatness of the Republic they themselves had founded. None of these things, however, would seem to them to involve any essential change in the beliefs and purposes of men as they had known them. The Prohibition Amendment, on the contrary, would evidence to their minds the breaking down of a principle of government which they had deemed axiomatic, the abandonment of a purpose which they had supposed immutable. As students of the science of government they would realize that the most fundamental change which can overtake a free people is a change in their frame of mind, for to that everything else must sooner or later conform.

The amendment was proposed by Congress in 1917 and proclaimed as having been ratified in 1919.[1]

[Footnote 1: 40 Stat. 1050, 1941.]

The comparative ease and dispatch with which it was put through argue alike the skill and vigor of its sponsors and the strength of the sentiment behind them. Legal warfare over the amendment did not end, however, with its ratification by the legislatures of the requisite number of states. Pa.s.sions had been aroused. Vast property interests were menaced. Moreover, in the minds of students of government the amendment stirred misgivings which were quite independent of the sentimental and material considerations involved. Eminent counsel were retained and a determined effort was made to defeat or nullify the amendment in the courts. To this end suits were begun in various jurisdictions to test its validity and enjoin the enforcement of the Volstead Act, which sought to carry it into effect. Two sovereign states (Rhode Island and New Jersey) joined in the attack and through their respective Attorneys General brought original suits in the United States Supreme Court to have the amendment declared invalid. Seven test cases were argued together in the Supreme Court, five days in all being devoted to the argument. It will be of interest to note some of the reasons advanced against the validity of the amendment, as they are summarized in the official report.[1]

[Footnote 1: National Prohibition cases, 253 U.S., 350.]

The Attorney General of the State of Rhode Island argued[1] that:

The amendment is an invasion of the sovereignty of the complaining state and her people, not contemplated by the amending clause of the Const.i.tution. The amending power ... is not a substantive power but a precautionary safeguard inserted incidentally to insure the ends set forth in that instrument against errors and oversights committed in its formation. Amendments, as the term indeed implies, are to be limited to the correction of such errors....

It is "This Const.i.tution" that may be amended. "This Const.i.tution" is not a code of transient laws but a framework of government and an embodiment of fundamental principles. By an amendment, the ident.i.ty or purpose of the instrument is not to be changed; its defects may be cured, but "This Const.i.tution" must remain. It would be the greatest absurdity to contend that there was a purpose to create a limited government and at the same time to confer upon that government a power to do away with its own limitations.

[Footnote 1: Id., pp. 354-356.]

The Attorney General of the State of New Jersey:[1]

attacked the amendment as an invasion of state sovereignty not authorized by the amending clause and as not, properly speaking, an amendment, but legislation, revolutionary in character.

[Footnote 1: 253 U.S., pp. 356-357.]

The eminent Chicago lawyer, Levy Mayer, and ex-Solicitor General William Marshall Bullitt, contended,[1] among other things, that the power of "amendment" contained in Art. V does not authorize the invasion of the sovereign powers expressly reserved to the states and the people by the Ninth and Tenth Amendments, except with the consent of all the states....

If amendment under Art. V were unlimited, three-fourths of the legislatures would have it in their power to establish a state religion and prohibit free exercise of other religious beliefs; to quarter a standing army in the houses of citizens; to do away with trial by jury and republican form of government; to repeal the provision for a president; and to abolish this court and with it the whole judicial power vested by the Const.i.tution.

[Footnote 1: Id., pp. 357-361.]

Elihu Root, preeminent as a const.i.tutional lawyer, appeared as counsel in one of the test cases. His main contention was summarized in his brief as follows:[1]

(a) That the authority to amend the Const.i.tution is a continuance of the const.i.tution-making power and as such is a power quite different and altogether distinct from the law-making power under the Const.i.tution.

(b) That a grant of the one power does not include or imply a grant of the other.

(c) That the natural and ordinary meaning of the words used in Article V of the Const.i.tution [the article providing for amendment] limits the power granted to the function of const.i.tution-making as distinguished from ordinary law-making.

(d) That the purposes of the grant imply the same limitation.

(e) That other parts of the Const.i.tution-notably Article I-express the same limitation.

(f) That the existence of authority under Article V to enact ordinary laws regulating the conduct of private citizens under color of amendment, would be so in conflict with the fundamental principles and spirit of the Const.i.tution that such a construction is not permissible.

[Footnote 1: For the Reporter's Summary see 253 U.S., pp. 361-367.]

There were other arguments of a more technical character. Article V of the Const.i.tution provides that the Congress shall propose amendments "whenever two-thirds of both Houses shall deem it necessary." It was urged that this required the affirmative vote of two-thirds of the entire membership of both Houses, and that two-thirds of a quorum was not sufficient. It was also urged that the proposal was fatally defective because it did not on its face declare that both Houses deemed the amendment necessary. It was also argued that the amendment had not been effectively ratified in certain of the states where it had been approved by the state legislature (notably Ohio) because under the const.i.tutions of those states it was subject to a referendum to the people before becoming effective. The Supreme Court of Ohio had so decided[1] and a referendum had actually been held in that state, resulting in a rejection of the amendment by popular vote. Various arguments were also advanced based on the puzzling phraseology of Section 2 of the amendment that "the Congress and the several States shall have concurrent power to enforce this article by appropriate legislation." The eminent const.i.tutional lawyer, W.D. Guthrie, addressed himself particularly to this phase of the controversy.[2] It was urged with much force that the effect of these words was to save the rights of the states, in respect of intrastate matters, by requiring their concurrence in any legislation of Congress regulating such matters.

[Footnote 1: See Hawke v. Smith, 253 U.S., 221.]

[Footnote 2: 253 U.S., pp. 368-380.]

All the arguments advanced were alike unavailing. The nine members of the Supreme Court were unanimous in sustaining the validity of the amendment, holding that it "by lawful proposal and ratification, has become a part of the Const.i.tution, and must be respected and given effect the same as other provisions of that instrument."[1] The Court, however, adopted the very unusual course of deciding the various cases before it (affirming four, reversing one, and dismissing the original bills filed by the states of Rhode Island and New Jersey) without any written opinion. Speaking through Mr. Justice Van Devanter, the Court merely announced its conclusions. This was an unprecedented procedure in a case involving const.i.tutional questions of such importance. It drew criticism from some of the members of the Court itself. Chief Justice White said:[2]

I profoundly regret that in a case of this magnitude, affecting as it does an amendment to the Const.i.tution dealing with the powers and duties of the national and state governments, and intimately concerning the welfare of the whole people, the court has deemed it proper to state only ultimate conclusions without an exposition of the reasoning by which they have been reached.

and proceeded to announce the reasons which had actuated him personally. Justice McKenna said:[3]

The court declares conclusions only, without giving any reasons for them. The instance may be wise-establishing a precedent now, hereafter wisely to be imitated. It will undoubtedly decrease the literature of the court if it does not increase lucidity.

[Footnote 1: Id., p. 386.]

[Footnote 2: Id., p. 388.]

[Footnote 3: 253 U.S., p. 393.]

Perhaps a hint as to the reasons actuating the majority of the Court may be found in the brief concurring memorandum of Mr. Justice McReynolds. He said:[1]

I do not dissent from the disposition of these causes as ordered by the Court, but confine my concurrence to that. It is impossible now to say with fair certainty what construction should be given to the Eighteenth Amendment. Because of the bewilderment which it creates, a mult.i.tude of questions will inevitably arise and demand solution here. In the circ.u.mstances, I prefer to remain free to consider these questions when they arrive.

[Footnote 1: Id., p. 392.]

Justices McKenna and Clarke dissented from portions of the decision dealing with the question of the proper construction of the grant of "concurrent power" to Congress and the States, and wrote opinions setting forth the grounds of their dissent. Both Justices, however, concurred in affirming the validity of the amendment.

Thus the legal battle was fought and lost. The amendment had withstood attack and men's minds settled back to the practical question of its enforcement.

Upon that question, however difficult and interesting, we do not here enter. Our present concern is to ascertain as nearly as may be the true place of the amendment in the development of American const.i.tutional law.

That it affords startling evidence of a radical departure from the views of the founders of the Republic is beyond question. Such a blow at the prerogatives of the states, such a step toward centralization, would have been thought impossible by the men of 1787. It would be a mistake, however, to view the departure as having originated with this amendment. Rather is the amendment to be regarded as merely a spectacular manifestation of a change which was already well under way.

In the early days of the Republic the dominating purpose was the protection of state prerogatives, so far as that was compatible with the common safety. The first eleven amendments of the Federal Const.i.tution were all limitations upon federal power. Not until the people of the various states had been drawn together and taught to think in terms of the nation by a great Civil War was there any amendment which enlarged the powers of the National Government. The three post-war amendments (Nos. XIII, XIV, and XV) marked a distinct expansion of federal power but one that seemed to find its justification, as it found its origin, in the necessity for effectuating the purposes of the war and protecting the newly enfranchised Negroes.

A long period of seeming inactivity, more than forty years, elapsed before another const.i.tutional amendment was adopted.[1] The inaction, however, was apparent rather than real. As matter of fact, a change was all the time going on. In a very real sense the Const.i.tution was being altered almost from year to year. That the alterations did not take the shape of formal written amendments was largely due to the tradition of const.i.tutional immobility. The idea had grown up that the machinery of amendment provided by the Fathers was so slow and c.u.mbersome that it was impossible as a practical matter to secure a change by that method except under stress of war or great popular excitement. That idea is now exploded. We of to-day know better, having seen the Income Tax Amendment (No. XVI), the Election of Senators by Popular Vote Amendment (No. XVII), the Prohibition Amendment (No. XVIII), and the Woman Suffrage Amendment (No. XIX) go through within a period of seven years. For generations, however, the tradition of const.i.tutional immobility held sway and the forces of change worked through channels that seemed easier and less obstructed.

[Footnote 1: No. XVI, the Income Tax Amendment, ratified in 1913.]

The princ.i.p.al channel has been congressional legislation. Congress has found ways of reaching by indirection objects which could not be approached directly. Under the express grants of power contained in the Const.i.tution statutes have been enacted which were really designed to accomplish some ulterior object. A striking example is found in the child labor laws, discussed more at length in a subsequent chapter. Congress at first sought to regulate child labor by a statute enacted ostensibly as a regulation of commerce under the Commerce Clause of the Const.i.tution. The Supreme Court held the Act unconst.i.tutional as exceeding the commerce power of Congress and invading the powers reserved to the states.[1] Thereupon Congress practically reenacted it, coupled with a provision for a prohibitive tax on the profits of concerns employing child labor, as part of a revenue act enacted under the const.i.tutional grant of power to lay taxes.[2]

[Footnote 1: Hammer v. Dagenhart, 247 U.S., 251.]

[Footnote 2: Revenue Act of 1918, t.i.tle XII.]

The a.s.sumption by the National Government of jurisdiction over the manufacture and sale of intoxicating liquors is no more of an encroachment on the prerogatives of the states than is its a.s.sumption of jurisdiction over child labor and the use of narcotic drugs. We come back, therefore, to the proposition that the Prohibition Amendment is to be regarded less as a departure in American fundamental law than as a spectacular manifestation of a change already well under way.