Evening star., 1930-12-17


| day. A notice on the door stated it
| had been taken over by state Banking
| Department. The last statement of the
| oank showed capital Of $15,0 900, resources
of S468, ,838. % and deposits Of $3e6,514.
mitted to the States alone. They also
provided for two forms of approving
any changes in the frame of govern
ment they had set up The compul-
sorry use of the heretofore untried
method of approving or ratifying in
conventions the transfer Of additional
, powers from the States to the United
States is consistent with both the his
tory of our institutions and the prin-
ciples Of political science. Only more
| perfect realization OF this fact will per-
| NIT our country to be 'trustfully or
ganized,' as that expressive phrase Is
used in Progressor BurgeSs'S preamble
to his book, Political Science and Con-
stitutional Law
Cites "Due Process" Clause.
'It will be observed that in the course
ton of the specific subject matter of
the eighteenth amendment such spe-
ciflc subject matter not being germane
TO the broad principles both counsel and
the court have endeavored to lay down
In pondering the questions involved we
have wondered why the eighteenth
| amendment has not been tested in re-
lation to the due process clause Of the
fifth amendment. We should think that
such a test might be based on the fol-
lowing reasoning: The eighteenth
amendment does not and could not,
unless it expressly SO declared, abrogate
the due process clause of the fifth
amendment. Any action hereunder
| must be regarded in the light of what
| is reasonable. Baltimore r. r. CO. VS..
Interstate ss, cOmmerce s,s nc Commission ,d
vanced school Of constitutional thinkers
consider this 'reasonableness' from the
point of view Of the efficacy of the
remedy prescribed for any particular
| evil. Frankfurter, Realism in Consti-
tutional Law
Thus. in two cases in the United
| States Supreme Court, vaccination and
sterilization have been found to be
eficacious in preventing the spread of
smallpox and idiocy, and have therefore
been sustained against attack under the
| due process clause Of the fourteenth
amendment applicable to the States)
| jacobson vs. Massachusetts 1905), 1877
U. g., IL; Buck vs.. Bell 192D, 274
u. S.. 2l7.
Equally, we think, the eficacy Of the
| eighteenth amendment and its efforc-
| ing legislation in preventing the spread
of intemperance should be the criterion
in deciding upon its validity Under the
due process clause of the fifth amend
ment (applicable to the United States) i.
We see no difference between irnprov-
ing the health and or morals Of peo-
pie by the application of serum or the
| knife and improving their health and
or morals by closing their mouths to
drink. To determine this efficacy We
Ia s.ta
| to which the activities OF Hercules In
the Augean stables are childBplay. We
do not believe 1t can be done, except
by the method of testimony offered in
open court, with cross-examination,
| stsnographic records and the other
| safeguards Of judicial procedure. 1t
| manifestly cannot be done on the
| hustings or in the market place in the
atmosphere of personal abuse therein
| engendered. We do not consider, either,
that 1t can be done in the halls Of leg
| islative bodies or in the chambers Of
executive commissions, where proceed
| ings are subject to political criticism
| and where witnesses are bound to be
the result of a more or less arbitrary
selection
I'VE hope, therefore, that this ques-
| ton will be presented to scme court
some day. When 1t Is, We humbly sug-
gest that all concerned prepare them
selves for the investigation by carefully
reading chapter of volume 2 Of Lecky's
great book, Democracy and Liberty
1880. They will find therein an urex-
celled philosophical and practical dis
| cussion Of ths difficulties inherent In
the attempt to legislate on intoxicating
drink, as exemplified in the history of
all the countries that have made such
Attempts"
Quotes 1866 Argument.
At the beginning Of his decision Judge
Clark quoted from the speech In Con-
gress Of Senator Dixon OF Connecticut,
70 show that Dixon voiced the same
oDJections raised in the Sprague case in
opposing legislative ratification of the
fourteenth amendment. And an echo Of
Senator Dixon's argument was found
BY judge Clark in this passage from
PRESIDENT Johnson's message to Congress
| on June %. 1866:
Nor have the sovereign people of the
Natlon been afforded en- opportunity of
| expressing their views upon the irnoor.
ant quest ong witch the amendment in.
Vo'VeT. Crave d0rbts ther f~rc, fnsy
nata"ell" end irstlv arise as to yl1ethe
the acton OF CONGRESS- js in hsrh,nt,v
! " tn the e7'1'i~1sntS Of the phou'a. and
whether State La s'ntures. elected with
out reference tn su"h an issue. should be
CaHen uopn pV Congress tn decide reA
soect'ng til" ratification of the propcssd
| amendment"
Judge Clark cited more than 100
authorities IN support Of his decision.
and in so doing pictured the politicAi
influences which LED to the framing Of
our Constitution and which had their
roots in the government Of the ancient
cities Of Greece.
Throughout he laid particular en-.
phasis on the superiority Of the con.
yef1tion method OF ratification over the
| legislative. He rea7oned that A the
delegates TO conventions were not afs
| fected by polisicai or selfish conaidera.
tiof1s, thev we're better fltted than leg
! is'alors, who so often we-e dependent
| upon Eo'isical leaders for their c1ntin-
uan"e In public life He found that
the convention tT1eth7d also made for
greater mechanical and psychological
/ eficiency
The ANAL sentence of Judge Clark's
decision reads:
I'VE hold the adoption Of the eigft.
eenth Amendment 10 be invalid, and
the motion % quAAh the iIaaietEnent a
accordingly granted"