Evening star. [volume] (Washington, D.C.) 1854-1972, 1931-01-14
Amendment Legality
Question for Majority
70 the Editor Of The star:

NC AOullu III a 4Ope VI dStud1 AANaANa-
ton through court decision, but rather
in the maintenance of minority senti-
ment of resistance to the law in the
hope of interfering with its enforce
ment. However, If one begs the whole
question at issue by assuming that
precedent and tradition are the only
valid and safe guides in the develop
ment of democracy, many of these con-
tentions cannot be gainsaid. Such a
basis of contention, moreover, I'M
doubtedly appeals to the mass of the
legal profession, for obviously that is
the side upon which its bread is but
tered-the sine qua non of its daily
routine
But suppose that the tenth amend
ment (legalistic interpretation rather
than the eighteenth is found ill-suited
to modern conditions in its bearing
on the doctrine of dual sovereignty.
On just what fundamental principles of
democracy can it be commended that the
obvious infringement of the later con-
amendment upon the APP.
plicability of the earlier provision rem
derS the later one invalid? Did we
fossilize ourselves when We got through
with the first 10 amendments?
Did Thomas jefferson hold that con-
changes must be unanimous
when he wrote: when any one State
in the American Union refuses obedi-
ence to the confederation to which they
have Joined themselves, the rest have
the natural right to compel 1t to do
obedience? He did not even hold that
the disciplinary right need be consid-
cred constitutional, but rather that it is
Why argue, then. about con-
TlraPndnnfc IN rxyiaa
truly fundamental, extraconstitutional
principles are involved? Does the rule
of the majority maintain its validity
because it Is a constitutional right or
because it is natural concomitant of
own Justification as a
means OF keeping the peace and making
possible the organization of modern So
ciety?
Judge Clark's recent opinion ex-
presses, it seems pretty generally agreed,
not what our Constitution is, but rather
a feeling that it ought to be what it is
not. Perhaps he is right; but this is a
question, not for the courts and the
legal profession, but for the people to
decide through the representative sys-
tenn the Constitution sets up. After
all, constitution has no validity of its
own. The tenth amendment, it would
seem, fully recognizes, in its reservation
OF residual powers ito the people," that
as against the will of the people to
change it, the Constitution is but a
scrap of paper. Obviously people
could hardly limit themselves in what
they may do to their own government.
The point is that they must do it (not
the courts) and do it Systematically, if
government of, by and for the people is
TO be maintained.
The people of one generation cannot
define the wisdom of another certainly
not as to the relation of geography to
government. Local." as applied to
government, is a wholly relative term,
whose significance is dependent entire
ly upon circumstances; and the legalis-
tic fiction of imnutability in the geog-
raphy of sovereignty is a dangerous.
essentially an anarchistic, doctrine. AS
conditions change the scope of govern
ment must also change What, after
all, is so sacred or essential about the
geography of State line that it should
become fetish any more than a coun-
ty line?
1t is new conditions, not old theories,
which confront us in the problems of
this day and age of science and ma
and since Judge Clarks opin-
ion raises the question of the advisa-
ollity of national constitutional con-
Vention to deal with these problems.
specifically with the tenth amendment,
The writer would like to revive, through
the columns of The Star, the sugges-
ton made by David j. Lewis in his re-
cent successful congressional campaign
in Western, Maryland for such a COM
vention. 1t is a far saner undertaking
than any of the unwise propaganda be-
ing so generally offered, as to National
or State referenda. 1t is representa-
ton, not referenda, that makes democ-
racy feasible.
There Is something sinister in the
turn from legitimate argument to po-
lit1cal coercion in the North and ca
lolery in the South in the effort to
build up popular" majority opposed
TO national liquor control. In the
North it takes the form of the drawing
Of false analogies with the struggles of
the Revolution and the Rebellion. Such
a ruse is developed in the attempt to
the right of bare majority in
single State to upset the control of
conditions nationally by flooding itself
and vicinity with liquor-for obviously,
not even the system of control at the
Canadian border could be duplicated in
the control of interstate traffic. That
theory got a much longer trial than ma
t1onal prohibition has had, involving
The Wilson and Webb Kenyon acts and
in the Reed bone dry law
all tried under conditions much more
favorable for control of interstate traf-
nc than those of today. The situation
S, indeed, threat of return to a ma
tlonal policy of protection for the liquor
traffic through the confusion of juris-
diction brought about by that obsession
Known as the doctrine of dual SOW
ereignty. Such a policy closely parallels
,he protection of the slave trade by the
fugitive slave laws-an attempt to place
commercial rights" above human well
ARE.
In the South the effort has been to
ALLEVIATE Southern thought from its
honest convictions by dragging in
who'll" irrelevant and imaginary issues
which play on the hatreds arising from
he conflict over slavery. In the cam
oaign of 1928 this took the form of
'eading prejudicial review of the Civil
Var into the Congressional Record for
distribution under frank It's latest de-
'elopment imagineS a national interdict
against State laws controlling miscege-
lation. If, however, such laws are, in
Iced, essential to racial and social in
egrity, is it to be supposed that a sin
lie State could maintain such integrity
Inder modern conditions, solely by vir-
lie of its own laws? And is there a
itizen' who would be so bold and reck-
eSs as to assert that three-fourths of
he States could not, by ratifying an
to the Federal Constitution,
axe from the individual American his
PERSONAL liberty tor marry whom he
)leaSeS? Why then if the Southern
states also consider that restriction of
he individual in his personal liberty to
rink what he pleases is vital to the
ocial integrity and civilization of the
Jation--why undertake to assert that a
ARE majority in a single State can pre-
ent the whole Nation from passing
UGH a law? Or when the Nation de-
Tres to establish humane labor condi-
ions throughout the land shall a sim