Evening public ledger. [volume] (Philadelphia [Pa.]) 1914-1942, 1920-02-19
READERS VIEWPOINT
Letters to the Editor on
Current Topics
Prohibition and the Constitution

Prohibition and the Constitution
To th3 Editor Of the Evening PRbiic Ledger
Slr--what follows is largely suggested
by most interesting and timely edi-
torial in the EVENING PUBLIC LEDGER
of the 9Th instant entitled Legal
Quibbles Can't Kill National Prohibi-
ton" The article in the main deals
with that part Of Mr.. Roots argument
at Trenton some days ago in the Feigen-
span case, to the effect that the EIGHT
eenth amendment is bad because II
involves legislation. The writer seems
academic standpoint. but not altogether
from \ practical point OF view. II Mr..
Roots point only concerned the
mechanics of this constitutional tulmlna-
ton, one would be inclined to agree with
the editorial and also to sgree in any
event IL the amendment had been ratlned
by the people as such.
Scientifically speaking constitutions
and so amendments, should be confined
to the statement of general propositions
concerning governmental functions leav-
ing the details to be worked out by the
Legislature. III practice, however,
especially in the more modern instances
of state constitutions the method is
often the reverse. Our own state con-
stitution furnishes some illustrations,
This is doubtless because the trainers
Cas the editorial indicates is the case
here), are afraid to trust the purely
legislative end with the carrying out OF
general directions
This it seems is not necessarily fatal
to a constitutional amendment, IL
fundamentally within the power TO
amend. nor perhaps if beyond that
power if it is adopted or ratified by the
vote or other direct action OF the
people In such case, while its initiation
,,rl, Aa iyNa1 liz inv rnlllI
held good on the theory of being based
on revolution, though a bloodless one.
The Pennsylvania constitution of 1873
as regards certain forbidden changes in
partly revolutionary, and was sustained
on the ground Of the approval of the
people by vote of a large majority. We
do not have Mr.. Roots argument on
this question, but rather understand It
goes deeper than the mere question of
administrative detail in that, under
Article V, the initial business of Cong
ress is only to propose general
subject, thus leaving II If that be rati-
fed to the then Congress (almost GER
tain to be a different body from the
proposing Congress) in its purely legis-
lative capacity to apply and carry out.
Whereas. here Congress is not proposing
something affecting the powers of the
government generally but is acting par
ticularly and directly and so legisatins
in a way that is irrepealable by another
Congress, certainly as to the time when
prohibition begins.
An essential element of legislation is
that it Is subject to repeal by the same
has been no approval by the people as
such. Apparently this is not required
by Article V. Nevertheless. this may
be held to be an essential factor for an
amendment of this nature and that too
by a reasonable construction of
However this may be, what is even
more interesting, is the latter part or
the editorial. In the last paragraph the
writer senses and refers to what seems
to be the evident underlying question
that is. that the amendment involves the
appropriation and exercise Of police
powers by the Federal Government
which we're never granted to or vested
in that government by the states, put
on the contrary were reserved by them
Tke editorial writer's answer is that
the states Il take it meaning the
people" and not merely the political or
governmental organization) have con-
sented to surrender their police powers
over the lsuor traffic, through the re-
quste number OF state Legislatures
ratifying the amendment. But is not
this really the very question involved?
Have they? Can it be done in this way?
This of course can only be settled by
the supreme Court.
1t is probably one of the most, if not
the most nomentous constitutional
question that has ever arisen.
The present objective of prohibition
with which We have no quarreD is |
negligible, a side issue, considering the
fundamental questions OF government
concerned. Whether the amendment
stands or falls must depend upon the
placed on Article ', taken
in connection with certain other con-
stitutional provisions and having regard
to the possible effect upon our dual
system of government
II might be of interest to discuss here
these questions. but TO do that reasona-
bly, would involve too great trespass
upon your generosity in the matter of
space. However, this perhaps may be
added Another important amendment