"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 Constitution.

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

Elihu Root, preëminent as a constitutional 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 Constitution is a continuance of the constitution-making power and as such is a power quite different and altogether distinct from the law-making power under the Constitution.

(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 Constitution [the article providing for amendment] limits the power granted to the function of constitution-making as distinguished from ordinary law-making.

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

(e) That other parts of the Constitution—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 Constitution 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 Constitution 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 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 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 constitutional 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 Constitution, 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 constitutional 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 Constitution 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 multitude of questions will inevitably arise and demand solution here. In the circumstances, 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 constitutional 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