Constitutional history -- United States; United States -- Politics and government; United States. Constitution. 18th Amendment
Even though this knowledge, which we bring straight from the
“conventions” which made the Fifth Article, be not shared at all by
the lawyers of 1920, we are aware that it is also the knowledge of the
Supreme Court. That is why Marshall long ago pointed out that, when
individual welfare required that government should be granted some
_national_ powers or powers to interfere with individual freedom, “the
necessity of deriving such powers from the people themselves was felt
and acknowledged by all.” That is why in 1907 the Supreme Court again
declared “the powers the people have given to the General Government
are named in the Constitution, and all not there named, ... are
reserved _to the people_ and can be exercised only _by them_, or upon
further grant _from them_.” As the First Section of the new Amendment
is the exercise and the Second Section is the grant of one of those
reserved powers, and as the Fifth Article provides the CONSTITUTIONAL
mode of procedure in which it can be exercised or granted by those,
who alone have it, “the people” of the Tenth Amendment and the
“conventions” of the Fifth Article, it is very natural to read in
the same Supreme Court, in the National Prohibition Cases, that the
ability to make the Eighteenth Amendment “is within the power to amend
_reserved_ by Article V.”
When the Supreme Court of Marshall’s day knew that state “legislatures”
could not make Articles like the First Article and the Eighteenth
Amendment, when the Supreme Court of 1907 still knew that only the
“people” or “conventions” could make Articles _of that kind_, when
the Supreme Court of our own day knows that the Fifth Article deals
only with “_reserved_” power, we Americans feel that we are to remain
free men and citizens. We have come from the “conventions” with our
own accurate knowledge that the power to make the new Amendment or any
other Article like the First Article “is within the power to amend
RESERVED by Article V.” But, for the very reason that our knowledge
is accurate, we know that the power to make _such_ Articles was _not_
reserved to the state legislatures, who did not have it, but _was_
reserved to the “conventions,” who did have it and who were exercising
it (in making the First Article) at the very moment when they made the
Fifth Article.
Public-domain text, read in full here on John Shaqi.
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