Evening star. [volume] (Washington, D.C.) 1854-1972, 1930-12-26
Tenth Amendment Held
Safeguard of Rights

10 the GolCOr OF Inc 6Jhrs
As understand the decision Of Judge
Clark, though have had no time to
study it, he holds, In substance, that
amendments to the Federal Constitution
pursuant to the authority contained in
article 5, to be valid, must be to alter
some provision Of the Constitution In q
manner pertinent thereto, or If 1t be
new and additional matter, such matter
must be germane to the Constitution as
it is, and not matter that is new and
wholly unrelated to any provision there
Of. This view Is predicated upon the
tenth amendment, providing that "the
powers not delegated to the United
States by the Constitution nor prohib-
tied by it to the States are reserved 10
the States respectively, or to the people"
being a limitation upon the power of
amendment granted by article 5, or, in
other words, that it forbids any amend
ment to the Constitution that would
take from State without It's consent
the powers reserved by it in said amend
ment. There can be little question that
the reservations Of this amendment are
to the States individually and not to
them collectively.
For example, there was left to the
States a vast reservoir of rights and
powers, known as police powers, which
the Supreme Court of the United States
said In Butchers Union Co. VS.. Crescent
City Co. Oil U. S.. 746), commonly re-
ferred to as the Slaughterhouse Case
are essential to their local self-govern-
ment and the successful working of our
federative system, and which were I'M
affected by the thirteenth and four
tenth amendments, which grew out Of
the Civil War.
To give but a single Illustration, the
Southern States have laws forbidding
mtscegenation, which they regard, and
properly so, as vital to their racial and
social integrity, and to their civilization.
Would any one be so bold and reckless
as to assert that three-fourths of the
States can, by ratifying an amendment to
the Federal Constitution, take from the
Southern States without their consent
and against their will the right to enact
such laws? This is one of the rights
they reserved to themselves In the tenth
amendment, and which existed, It was
claimed, under the Constitution as origi-
nally ordained, but which was put be-
yond question by the tenth amendment,
out OF caution born Of the fear and ap-
prehenSion of the people that these
rights were not sufficiently safeguarded
in the original document. These fears
were not entirely without foundation,
and 1t may be that one, among other
causes, was the proviSo In article that
no State, without its consent, shall be
deprived of its equal suffrage in the
Senate" This express mention and ex-
ception of single right Of the State of
which 1t could not be deprived without
its consent raised a serious question re-
Specting its other rights 1t had not ex-
al
gated to the Federal Government, under
the well known rule Of construction that
the expression Of one thing in law ex-
cludeS all other things. To give a
homely illustration of the issue involved
suppose A, B and G give to D, as their
agent, certain definite powers to repre-
sent them in given matter, with the
understanding that any two of them
might authorize change in DIS powers
either in extension or in limitation there
Of. Would any lawyer of even the most
superficial knowledge contend that under
such an agreement A and B alone could
extend the powers of D to subjects not
within or contemplated by the original
agreement so as to bind G without his
consent and against his will?
That is exactly what the eighteenth
amendment did. It took from Rhode
Island, for example, which refused to
TaLlIy the anSnOmenC, Without It's con-
sent and against its win, the right to
regulate the liquor traffic, which was
one of its rights reserved in the tenth
amendment. Many illustrations could
be given to show that if the power to
amend Is without limitation, as asserted
by the proponents of the eighteenth
amendment, the concerted action be-
tween three-fourthS of the States could
strip the Others of every veStige of their
rights and reduce them to the status of
mere geographical expressions.
For the perpetuation of our kstitu-
tons, and consistent with the best in
terests of the people and of the States,
there is but one way by which new and
additional matter involving further sur
render of the reserved rights of the
States can properly be made a part of
the Federal Constitution, and that Is by
constitutional convention, called for
the express purpose, in which all the
States are represented and are parties
to the proposed change, for otherwise,
and by any other method, q State may
be deprived of its reserved rights and
powers without its consent, of which
they were so jealous in the past, but
now appear to be, unfortunately, so in
different. Any view of this question
other than the foregoing would nullify
the tenth amendment and it would be
meaningless.
ALEXANDER SIDNEY LANIER.