Constitutional history -- United States; United States -- Politics and government; United States. Constitution. 18th Amendment
We do not forget the question of the Court, the question which none
of the lawyers could answer, “In what way do counsel believe that the
Eighteenth Amendment _could_ be made CONSTITUTIONALLY?”
We do know the answer to that question. The Americans, in the
“conventions” we just left, wrote the answer in the Fifth Article in
the words which are the most important words in the Article and one
of our greatest securities to human liberty, “by conventions in three
fourths thereof.”
The “conventions” which mentioned themselves, the “conventions,” in
the Fifth Article, are the same “conventions” which demanded that the
declaration be made that every power, not granted in that Constitution
to the government at Washington, remained where it had been. As the
state governments had been incompetent to make the First Article or the
Eighteenth Amendment, they remained incompetent to make either of them.
If we needed any assurance that the Supreme Court still retains the
accurate conceptions of these early Americans, we find it in one of the
most significant facts in the whole remarkable story of the last five
years.
We do not need to recall how every lawyer dwells continuously upon
the fact that the Fifth Article _is_ a “_grant_” of power to make new
Articles. We do not need to refresh our mind with the recollection that
the Root brief referred to the Fifth Article over fifty times as a
“_grant_” of such power. We know that every argument in every brief was
based on the stated assumption that the Fifth Article _was_ a “_grant_”
and that it made the legislatures of state citizens attorneys in fact
for the citizens of America, who elect none of the members of those
legislatures.
Did this monumental error of all the lawyers have any effect upon the
accurate knowledge of the Supreme Court? Did this insistence upon
the absurd assumption that the Fifth Article _is_ a “_grant_,” in
which “conventions” _grant_ something to themselves and to the state
governments, lead the Court into the error of calling it a “grant?”
Read the conclusions of the Court, as they were stated by Judge Van
Devanter. The opening sentence of that statement sweeps aside every
assumption that the Fifth Article _is_ a “_grant_.” Can our knowledge,
brought right from the old “conventions,” be put more completely than
in the one statement: “Power to amend the Constitution was RESERVED by
Article V.”
Public-domain text, read in full here on John Shaqi.
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