In advocating the rejection by the States of the proposed prohibition amendment to the Federal Constitution, THE CONSTITUTIONAL REVIEW has nothing whatever to say on the moral aspects of the question involved or the effectiveness of prohibitory legislation. It is not to be classed as either "wet" or "dry." There may be many of its readers who are opposed on principle to prohibitory and all other sumptuary laws. Very well, the REVIEW holds no brief for them. Probably also there are many who, equally from conviction, are in favor of national prohibition. We have no quarrel with them; but the REVIEW is not their champion either. It refuses to take sides. It is not at all concerned about the activities of the Anti-Saloon League on the one hand or of the Brewers' Association on the other hand. But there is one thing about which it is concerned, and very deeply concerned, too. And that is the fact that the Constitution of the United States is threatened with a grave danger. It is the same danger which threatened the State constitutions and finally overcame some of them, which robbed them of the respect of the people and rendered them little better than ridiculous, and so worked havoc with the State governments. It is the danger of permitting a constitution (which is a declaration of fundamental principles of government) to be converted into a congeries of laws, which embody matters of policy and expedience.

The provisions of a constitution refer to the basic principles of govern

ment and the establishment and guaranty of liberties. A statute is designed merely to regulate the conduct of individuals among themselves. A constitution embodies the chief articles of a people's belief as to the immutable foundations of just government and defines the organs by which they mean it to be executed. Statutory legislation finds its proper field in the shifting and changing conditions of the hour. A constitution, therefore, should be rigid, a statute plastic. And the moment you begin to confuse the landmarks, to degrade the constitution from its high place, to overload it with matters of mere policy or social experimentation, you weaken its vigor, put it in peril of popular contempt, and inculcate the notion that it can and should be changed and changed about, to suit the passing whim, as easily as the resolutions of an ordinary legislative body or a town council. And that way lies ruin. For let it not be thought that the prohibition amendment, if adopted, will be the only piece of statutory law to be engrafted upon the Constitution. On the contrary, once set the precedent-show how easy it is to write propaganda into the fundamental and enduring law-and we shall soon have amendments to prohibit every vice that disfigures the social organism and to promote every plan of every reformer who aspires to regenerate humanity by force of law.

We agree heartily with what is said on this point by Mr. Fabian Franklin, writing in the North American Review for February, 1918: "Apart from all

questions of self-government for the States, and all questions of personal liberty for the individual, the insertion of the prohibition amendment into the Constitution of the United States would constitute a deplorable degradation of its character. The Constitution is not perfect; it has been amended to its advantage, and will need to be amended in the future. But there is a noble simplicity about it which is an incalculable factor in its strength. It does not undertake to lay down prescriptions about the multifarious matters which belong to the domain of ordinary legislation. Its injunctions, whether positive or negative, relate to fundamentals, and are the embodiment of broad and deep political convictions. To introduce into it the decision of a special question like that of the control of drink, however strong the wave of public feeling that may seem to be behind that decision, is to lower the level and weaken the authority of the whole instrument."

Of course, there are other and strong arguments against the adoption of this amendment. One is that it would work an entire change in the relations between the Federal and State governments, since it would destroy the balance of authority between them, involve the surrender by the States of their right to regulate their own internal concerns, and in fact strike at the very root of that principle of local self-government which has been one of the most cherished possessions of all free peoples for several centuries. This is not an abstract question of political science. It is a matter of immediate

and vital concern.

Every man who uses his brain must see that any attempt to take from the people of the States the right to regulate their own personal and local concerns (unless it be absolutely necessary for the general welfare), any endeavor to standardize life and morals, without taking into careful account the immense differences, geographical, racial, industrial, and temperamental, between the different parts of the United States, to say ́ nothing of the possessions beyond the seas, must be fraught with grave danger. But this argument has been so conclusively developed by ex-President Taft in his article in the REVIEW for July, 1917, pages 76-78, and by Mr. Hackett in this number, that we need not enlarge upon it.

Most people would agree that any unnecessary meddling with the fundamental law of the land is ill-advised if not dangerous. And the prohibition amendment is precisely that—an unnecessary meddling with the Constitution. If the several states are incompetent to deal with the liquor problem, if it must be dealt with as a national problem, Congress already has the power to solve it. power to solve it. This is demonstrated by Prof. Long in his article in the REVIEW for January, 1918, at page 12, where it is said: "Even if it be desired to control the matter by a national law, Congress already has power to enact the necessary legislation. Through its control of interstate commerce and the postal service, and by the exercise of the taxing power if necessary, Congress can put an end to the liquor traffic just as it has sup

pressed lotteries and oleomargarine disguised as butter, and regulated the trade in foods and drugs. The prohibition of the transportation of liquor in interstate commerce or by mail, and the refusal to carry liquor advertisements or orders or newspapers containing such advertisements in the mails, and also the imposition of a prohibitive tax on the manufacture and sale of liquor, would soon put an end to the business." If there are certain States which now have their own prohibitory laws (backed by a sincere and preponderant public opinion), and if it is believed that those laws cannot be made perfectly effective without Federal restraint exercised upon the people of certain other States, that assistance may be sought and obtained from Congress, without mutilating the fair structure of the Constitution. But that is not the animus which lies back of the proposed amendment. Quite frankly, it is the desire of certain individual citizens, organized in purely voluntary groups, to make use of the one irresistible force (the Constitution of the United States) to impose their system of dealing with the liquor traffic upon the people of certain States which have always hitherto refused to adopt it, precisely because it has not been and would not be supported by a sincere and preponderant public opinion. This is clearly perceived; and already it has begun to bring about the natural result, mutterings of an ugly and bitter sectional feeling, regional recriminations, a dangerous abrasion of old

toward the disintegration of a Union which was cemented by the SpanishAmerican war, and which will be made still more solid, if unwise measures do not prevail, by the unity of national defense against the military autocracy that has been threatening in Europe. Tinkering with the Constitution is a delicate business at any time. In wartime it has all the mischief of starting a backfire. One Russia at present is enough."

But if prohibition is to be enforced by Federal law, what is the difference between enforcing it by congressional enactment and enforcing it by constitutional amendment? The answer is that the former method would admit of revision, amendment, or even of eventual repeal if that should be deemed wise or necessary; the latter not. For, if prohibition is once written into the Constitution, it will never come out again. None of the seventeen amendments has ever been repealed; none ever will be. So we are to yield to the impulse of a wave of moral emotionalism, and, discarding other sane and perfectly adequate measures, we are to impose certain prohibitions as to personal habits and behavior upon all the unborn generations of American citizens down to the death-day of the nation. Is that what we want?

It is not even certain that the amendment was legally submitted to the States. The fifth article of the Constitution provides that Congress may propose amendments "whenever twothirds of both houses shall deem it necessary." According to the natural import of the words, "two-thirds" of

a house of Congress means two-thirds of the members of that house. A practice has grown up of considering twothirds of those present and voting as sufficient, but there are many students of constitutional law who think this practice indefensible and a violation of the meaning of the Constitution. The joint resolution proposing this amendment received 282 affirmative votes in the House of Representatives. That number constituted a two-thirds majority of those voting on the question, but not a two-thirds majority of the members of the House. In the Senate, the resolution was passed by 65 votes to 20, a majority which satisfied the requirement of the Constitution. But a second vote in the Senate was necessary because the resolution had been amended in the House. The vote by which this amendment was accepted or concurred in was 47 to 8. In other words, all those voting in the Senate the second time, both affirmative and negative, did not make up a two-thirds majority of the Senate.

Nor is this all. The joint resolution declares that the proposed amendment shall not become a part of the Constitution unless ratified by the requisite majority of the States within seven years after its submission. This limitation is clearly unconstitutional and may vitiate the whole process of submission, although Senator Borah seems to have been the only member of either house who saw the fault and called attention to it. The argument is extremely simple; it requires no previous training in constitutional law to follow it. The fifth article of the Constitution provides that it may be amended. But it

may be amended only on compliance with certain conditions. These conditions are specified. The first is that two-thirds of both houses of Congress shall deem it necessary either to propose amendments or to call a convention for that purpose. The second condition is that the proposed amendment shall be ratified by the legislatures of threefourths of the States or by conventions in three-fourths of the States. The other conditions (as to prohibiting the importation of slaves and as to depriving a State of its equal suffrage in the Senate) do not affect the matter in hand. There are no other conditions. Therefore, the Constitution intends that no other conditions shall be imposed. But Congress, in the joint resolution in question, has attempted to impose another condition, namely, that the amendment shall be ratified within seven years. In other words, Congress has attempted to amend the amending clause of the Constitution. It has no power to do so.

What are we to think of the second section of the proposed amendment, which provides that "the Congress and the several States shall have concurrent power to enforce this article by appropriate legislation"? That it is absurd, impracticable, directly contrary to the spirit of the Constitution and to its whole purpose as conceived by the founders of the Republic, and likely to result in far-reaching and disastrous consequences. The New York Times has well said: "What is concurrent legislation? The Federal powers and the State powers are exclusive, barring the twilight zone. On a sub

ject on which a State has the power to legislate until Congress legislates, the State law, when Congress does legislate, is either overridden or is valid only in so far as it is not inconsistent with the Federal law. The most fantastic dreams of constitution-tinkerers never imagined any Witches' Night of innovation like this. The United States abdicates sovereignty. It sets up fortynine co-equal powers, forty-nine concurrent (or dissenting) confederate authorities to enforce an amendment for whose existence the drys on the House Judiciary Committee may have thought that Congress might show no intemperate zeal. The interstate, the State-Federal bickerings and collisions, the clash of courts, the inequalities and injustices which this curious scheme implies and involves, are obvious. Not for its inevitable sequela, but for its essential folly is it most to be reprehended. So far as it goes, and for the august necessities of prohibition, it denationalizes the nation. It deposes the

United States and scatters the supremacy of its government." Yet it is exactly to the sequela of this innovation that attention ought to be directed. The New York Sun, quoting Senator Cummins as saying that the section mentioned is "superfluous and redundant," and denouncing what it not inaptly describes as "the camouflage in the prohibition amendment," observes: "The most important question, it appears to us, is not what the introduction of the superfluous and redundant language may do for the cause of prohibition, but what it may do to the Constitution and to our system of institutions. This superfluous and re

dundant clause is not going to disappear from the Constitution as soon as it has accomplished its dishonest purpose and the prohibition amendment is ratified. Concurrent power of the Congress and of the State legislatures to legislate is going to remain in the Constitution as a declared principle and as a precedent to invite and facilitate further experiments in revolutionizing our form of government, and to muddleto what extent of confusion and disaster we can only conjecture-the perfectly clear and proper distinction between Federal power and State power in legislation. We can conceive no more dangerous source of future trouble than will be supplied by the deliberate introduction into the text of the Constitution of this fraudulent and absurd clause."

The legislatures of nine States have already given formal ratification to the proposed amendment, Mississippi, Virginia, Kentucky, South Carolina, North Dakota, Montana, Texas, Delaware, and South Dakota, in the order named, and the legislature of Maryland has virtually, though not formally, taken the same action.

The Constitution of Tennessee (Art. 2, sec. 32) and the Constitution of Florida (Art. 16, sec. 19) contain the following provision: "No convention or legislature of this State shall act upon any amendment of the Constitution of the United States, proposed by Congress to the several States, unless such convention or legislature shall have been elected after such amendment is submitted." The object is, of course, to obtain for the legislature