Evening star., 1930-12-17
LEGISLATURES ERRED IN PASSING
ON 18th AMENDMENT, SAYS JUDGE

the experience Of the United States had
SHOWN tnat IN constitutional questions
1t was sometimes right and necessary
to have regard to the actual conditions
and needs OF the Nation; that constit,-
tional questions were in so far politics Al
that where legal considerations were
nearly balanced, the view ought to be
preferred which an enlightened regard
Tor the welfare of the Nation suggested,
Vol. I, PIP. 510-511
Views of Justice Holmes.
And, finally, our own Justice
holmes: when we are dealing
with words that also are a constituent
act, like the Constitution OF the United
Stetes, we must realize that they have
ceIled into life being the DEVELOPMENT
OF which could not have been foreseen
completely by the most gifted of It's be-.
eettsrS. 1t was enough for them to real
ize or to hope that they had created an
organism; it has taken q century
and has cost their successors much
SWEET and blood to prove that they
c-eatei a Nation. The case before US
must be considered in the light OF our
whole experience, and not merely in
that CT whet was said hundred We,
ago. N1lscouri VS.. Holland Q920), 252
U. 8. 416, 433.
Political science can give only one
answer to the question presented by
the alternative methods Of ratification
prescribed by article S. If the amend.
ment to be considered Is one designed to
transfer TO the United States powers
heretofore reserved to the States, or, if
there are any such, to the people, that
answer must be in favor of the COM
vention method. This follows from the
character OF such amendments and
from the character of the delegates to
and deliberations in a constitutional
convention, rs compared with the cor
character Of the personnel
CT State Legs 'atures and their del.bera-
tions. We hope that the fundamental
nature OF transfer of additional power
to the Federal Government has been
made sufficiently plain by the previous
exposition OF our Federal system, with
its shibboleths of local self government
and popular sovereignty"
numerous cases were cited by Judge
Clark to support his assertion that a
convention, either because of directly
instructed or abler delegates, is a bet
ter vehicle for expression of public
opinion than a State Legislature. He
lnstanced provisions in the Constitu-
tons Of the States of Missouri and
Florida expressly forbidding the Legis-
latureS to adopt any amendment or
change In the Federal Constitution. He
held that this represented the trend of
thought, not only of a generation or
two ego, when they were adopted, but
the underlying thought of the trainers
Of the Constitution.
Then he resumed:
We are quite willing to stand fiat
1o3tedly on our thesis that the scien-
tlflc approach to this problem of Govern
ment requires an approval and ratifi-
cation OF certain amendments by and
IN convention, and that the language
or Article I can be taken as modifieci
by the principles of political science
before stated. For the doubling, how.
ever, we are prepared to call to our
9 sss stance two more purely legalistic
doctrines. One of them was evolved
by Judge Jameson with respect to the
of amendments. ut applies
a tortiori. and with even greater force
70 their ratification.) We state 1t as
repeated and amplifled by Prof. Dodd:
Method of Amendment.
Judge Jameson has said as to the
legislative method of proposing amend.
nents: 1T ought to be confined. it is
believed, to changes which are few.
SIMPLE. independent and of COMPARE
lively small Importance. For q general
revision OF constitution, or even for
single propositions involving radical
changes as to the policy of which the
popular mind has not been informed
by. prior. discussion, the employment of
TINS MODE is impracticable, or of doubt
ful expediency." With reference to this
latter point, 1t may be argued however,
tnat II constitution specifically pro-
Vides two methods Of alteration. the
Language employed with reference to
tne proposal Of amendments by the legis-
iative method may, when read with
tnat concerning the convention method
oiten be construed as an implied pro-
vision by the legislative method. Leay-
Ing aside the constitutional question
IT would seem clearly preferable that
wnen possible, complete revision or
even alterations Of q very thorough
character should be made by conven-
tions expressly chosen for that nur-
pose. Legislatures will usually have
their time taken up with othsr mat
ters and be unable to devote SUFFICIENT
time to this subject, and the election
OF body for the one purpose concen-
trates public attention upon questions
OF constitutional character. The con-
do
better work than the legislature be-
cause its attention will be confined to
the one task Of framing a constitu-
ton; Moreover, it has as a rule been
possible TO obtain for membership in
conventions higher grade of men than
may usually be found in the ordinary
legislative bodies, and this constitutes
a practical reason of very great i'm
portance for not weak ming the func-
tons OF conventions. .'-Dodd, The Re-
vision and Amendment of State Con-
stitutions, PIP. 261, 262.
Nature Of Proposal.
The second follows from the nature
OF the congressional act Of proposal.
Only one writer that we have found has
Attempted any distinction between the
functions of Congress in fixing the con.
tent OF an amendment and in proposing
the same for approval Burgess, Poll
tical science and Constitutional Law,
p. l4e.
I'm the case Of Hollinksworth vs.
OF Virginia contendcd that the eleventh
amendment had not been properly
adopted, because 1t had never bsen
submitted to the President for his ap-
provs', as required by article l. sec.
tion Z, Of the Constitution. The United
States Supreme Court, in a six-line
op' MON, declared the amendment the
action of Congress in formulating and
I'm nGnsnts to the Consti-
tuition was not legislative. Whatever
onn msy think of the loic OF this d.
cision with respect to the content of
an amendment, the Supreme Courts
estimation of the nature Of the single
act of submission to one or another
body f1ust be correct, At anv rate
lative capacity 1t follows, we think,
that the nature Of It's function is ad-
That being so it falls
within the ordinary principles which
gov -rn the judicial review of admin
istrativa action.
The purpose OF the enending clause,
az we have tried to develop It In this
opinion. would be violated bv the