Our Changing Constitution

Prohibition Amendment. Railways, steamships, the telegraph, the telephone, automobiles, flying machines, submarines-all these developments of science, unknown in their day, would fill them

vidence 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 scienc

ngress in 1917 and proclaimed as

: 40 Stat.

red 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 Jerse

nal Prohibition ca

of the State of Rhode

The amending power ... is not a substantive power but a precautionary safeguard inserted incidentally to insure the ends set forth in that instrument

. By an amendment, the identity or purpose of the instrument is not to be changed; its defects may be cured, but "This Constitution" must remain. It would be the greatest a

1: Id., pp

ral of the State

authorized by the amending clause and as not, properly speaki

253 U.S., p

er, Levy Mayer, and ex-S

contended,[1] amon

of the sovereign powers expressly reserved to the states and the people by

t 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 for

1: Id., pp

peared as counsel in one of the test cases. His main

he constitution-making power and as such is a power quite different an

power does not include or

Constitution [the article providing for amendment] limits the power granted to

s of the grant imply

onstitution-notably Article I

onduct of private citizens under color of amendment, would be so in conflict with the funda

eporter's Summary see

ary. 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 constitutions 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 puzzli

Hawke v. Smith,

253 U.S., p

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 opini

owers and duties of the national and state governments, and intimately concerning the welfare of the whole people, the court h

asons which had actuated him per

ce may be wise-establishing a precedent now, hereafter wisely to be imitated. It wil

e 1: Id.

e 2: Id.

3: 253 U.S

rity of the Court may be found in the brief concurr

th fair certainty what construction should be given to the Eighteenth Amendment. Because of the bewilderment which it creates, a multitude of que

e 1: Id.

construction of the grant of "concurrent power" to Congress and the States, and wrote opinions setting forth

ndment had withstood attack and men's minds settle

nter. Our present concern is to ascertain as nearly as may be the true

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 h

ower. 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

ments was largely due to the tradition of constitutional immobility. The idea had grown up that the machinery of amendment provided by the Fathers was so slow and cumbersome 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 Inco

the Income Tax Amendme

triking 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 Constitution. The Supreme Court held the Act unconstitutional as exceedi

mer v. Dagenhart

venue Act of 19

ves of the states than is its assumption of jurisdiction over child labor and the use of narcotic drugs. We come back, therefore, to the proposition that the

ny fundamental differences in race, beliefs, or material interests. The traditions behind it, while strong, were of comparatively recent growth. When they entered the Union the colonies were still new and undeveloped. As men died and their sons succ

ghs all the advantages of national uniformity and efficiency. Advocates of the new order think otherwise. They argue, moreover, that the states have become too great and populous to serve as units for purposes of home rule; that their boundaries are for th

is focused on other features which seem to him of more immediate concern. And yet, did he but realize it, the constitutional as