The New York herald., 1920-01-11
QUESTIONS RIGHT
OF LEGISLATURES
TO BARTER POWERS
Herald Reader Discusses a
New Phase of the Eigh-
teenth Amendment
70 THE EDITOR OF THE ED~ALp.-

To THE EDITOR OF THE fU@ALD:-
In reading the very suggestive opinions
which have from time to time been ex-
pressed through the columns OF the
HERALD concerning the newly adopted 18th
Amendment to the Constitution OF the
United States. I have been impressed by
IA thought which feel sure must have
occurred to the minds Of many. but which
also believe to oe worthy of fuller de-
velopment. To put the thought In the
form of a query What, if any, are the
limitations imposed upon the power of
amendment which was conferred by the
Fifth Article of the Constitution as ORR
ginally written?''
AS most persons know, this article
prescribes that amendments shall be pro-
posed in either one of two ways
!. By Congress; whenever two-thirds Of
both, houses shall deem it necessary
3 By convention. called for the pur-
pose of proposing amendments, on the
application of the Legislatures of two
thirds OF the several States
And in either case, such amendments
shall be valid to all intents and purposes
as part of the Constitution, when rati-
fled either by
(a) The Legislatures OF .three-fourths of
the several States;
(b) By conventions in thrce-fourths
thereof;
accordingly as the one or the other
the Congress.
Unless we are prepared to admit that
lany fad or doctrine whatever. no matter
how absurd or pernicious. may by the
process above indicated, become an un-
Ialterable part of the supreme law of the
land, it seems to be obvious, that al
though the builders of the Constitution
considered il unnecessary to define the
limits of the power to amend, some limi-
ltations are, nevertheless plainly implied.
To confine the discussion to the particular
method of adoption which was pursued in
the case before us. an implied Limitation
seems to. be that the poposed amendment
shall not be such a one as transcends the
power of a State Legislature to ratify.
What that ratfying power is can be
determined only by reference to the Con-
stitution OF the State whose Legislature
has attempted to ratify, in order to as
certain whether the attempted ratifica-
ton transgresses any right reserved bv
the State Constitution to the people.
Assuming that a sound construction OF
the 18th Amendment would concede all the
legal effect claimed for it by it's pro-
ponents, a ratification by the Legislatures
of the several States. if valid, would
amount TO surrender by those public
servants TO the federal government Of an
important portion OF the police power
hitherto jealously retained by the States
Can any mere Legislature anywhere do
this? Or, If so. can any mere majority
of State Legislatures impose their legis-
lative will to such an end upon the peo-
pie of other States who will otherwise?
IN the State from which 1 write the
earliest constitution-that of 177S-pro-
vided-
THAT the people of this State have the
sole, exclusive and inherent right OF gov
erning and regulating the internal noiice OF
the same.
While these words were not literally
tons of 1890 and 1874. still. expressions
amply broad enough to include them are
contained in these later instruments
whose bills of rights, both conclude with
this solemn declaration
And TO guard against transgressons
or the high powers which we have dele
gated WE DECLARE that everything In
this article is excepted out of the general
powers OF government and shall forevs"
remain inviolate"
Unquestionably the Legislature OF this
state could constitutionally enact pro
hibition law'-bone dry or less so. 1t has
done IT. Every so-called license law is
in a true sense a prohibition law To
say, however. that a Legislature can
irrevocably delegate to different au-
thority the power which permits ii to
enact such law is quite another PROPOSE
ton. What one Legislature does it's mas
ters. the people, can undo. Not so, when
powers or liberties have been bartered
away and altogether lost through their
betrayal by the cowardly and unfaithfr'
hands to which they were entrusted.
New York City. January l. 1920. H