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The 
 
 Eighteenth Amendment 
 
 —Its Validity 
 —Public Opinion 
 
 PROF. E. A. HARPER 
 
 Dickinson School of Law, Carlisle, Pennsylvania 
 
 THIS MOST REMARKABLE ARGUMENT IN DEFENSE OF THE EIGHTEENTH 
 AMENDMENT IN ANSWER TO THE ATTACKS OF DR. NICHOLAS 
 MURRAY BUTLER, PRESIDENT OF COLUMBIA UNIVERSITY, IS 
 A REPRINT OF AN ARTICLE BY PROF. E. A. HARPER, 
 
 OF THE DICKINSON SCHOOL OF LAW, CARLISLE 
 PA., APPEARING IN THE DICKINSON LAW 
 REVIEW FOR MAY, 1928 
 
 THE AMERICAN ISSUE PUBLISHING COMPANY. WESTERVILLE OHIO 
 
Digitized by the Internet Archive 
 in 2018 with funding from 
 Duke University Libraries 
 
 https://archive.org/details/eighteenthamendm01harp 
 
The Eighteenth Amendment 
 
 —Its Validity —Public Opinion 
 
 Professor E. A. Harper, 
 
 Dickinson School of Lazv, Carlisle, Pa. 
 
 In Symphony Hall, Boston, April 8th, 1927, 1 Dr. Nicholas 
 Murray Butler, President of Columbia University, made use of 
 this language: 
 
 “On a dark March afternoon in 1920 1 sat in the Supreme 
 Court of the United States, in the room whose walls had echoed 
 with the voices of Clay and of Calhoun, of Webster and of Benton 
 and the men of long ago, and I listened to the conclusion of a great 
 argument. 
 
 “The case at bar involved the validity of the so called Eight¬ 
 eenth Amendment to the Constitution of the United States. Was 
 that proposed amendment a valid exercise of the power conferred 
 by the fifth article of the Constitution? 
 
 “In front of an attentive court stood the tall, slim figure of an 
 acknowledged leader of the American bar, one of the most distin¬ 
 guished public servants of his generation, who was presenting the 
 argument against the validity of the amendment. He looked at 
 the clock, behind the chief justice and saw that it was within two 
 or three minutes of the hour when the court would rise, and he 
 concluded with these exact words: 
 
 “ ‘If your honors shall find a way to uphold the validity of this 
 amendment, the government of the United States as we have 
 known it will have ceased to exist. Your honors will have found 
 a legislative authority hitherto unknown to the Constitution, and 
 untrammeled by any of its limitations. Your honors will have 
 decided that two-thirds of a quorom of each house of the Con¬ 
 gress, with the support of a majority of a quorom of the Legis¬ 
 latures of 36 states, may enact any law relating to the life, the 
 liberty, or the property of its citizens, to the form and fabric of 
 the government, or to the bill of rights itself without recourse and 
 
 [3] 
 
without appeal. In that case, your honors, John Marshall need 
 never have sat upon your bench.’ 
 
 “It was a tense moment when Elihu Root closed. The argu¬ 
 ment was ended and the court rose. 
 
 “Mr. Chairman, I made a silent vow, there and then, that, if 
 the court should find a way to uphold that amendment, despite that 
 argument, I would give such strength and such time as were at my 
 command to appeal to the American people to undo that wrecking 
 of our government. 
 
 “The Eighteenth Amendment is the law, and as such we owe it 
 obedience, but we owe to the underlying principles of America an 
 appeal to the people whose Constitution, whose judiciary, and 
 whose Legislatures, they are—an appeal to undo that damage and 
 to correct that stupendous error. 
 
 “My appeal is from the judicial and legislative branches of the 
 people’s government to the people themselves to take out of that 
 Constitution a provision in the form of an amendment which is 
 not an amendment, which is substantive legislation, which is a 
 revolutionary act, which has no likeness to anything that is in the 
 Constitution, which has nothing to do with the form and structure 
 of the government or with the limitation of powers granted therein, 
 but which is an ordinary municipal law, operating directly and 
 almost irrevocably upon the whole body of our citizenship.” 
 
 It is not the purpose in this paper to discuss the value or the 
 merits of the Eighteenth Amendment, but the validity and its rela¬ 
 tion to public opinion in its adoption and ratification. And as Dr. 
 Butler’s opening statements are an epitome of Mr. Root’s argu¬ 
 ment to the Supreme Court with a few additions, the discussion 
 will be confined to the propositions contained in those statements 
 resolved in the following: 
 
 1. The amendment is revolutionary. 
 
 2. It is substantive legislation. 
 
 3. It is an addition to, and not an amendment of, the Con¬ 
 stitution. 
 
 4. It is ordinary municipal legislation. 
 
 5. It has no likeness to anything in the Constitution. 
 
 6. It was secured by a two-thirds majority of a quorom of 
 Congress and ratified by a majority of a quorum of three-fourths 
 of the legislatures, instead of two-thirds of all the members of 
 
 [4] 
 
Congress and a majority of all the members of the legislatures of 
 three-fourths of the states. 
 
 It will be conceded that all the above propositions are true 
 except the Fifth and if they cannot be justified by the history, 
 custom, rules and regulations of the Congress and the various 
 legislatures and Article V of the Constitution, then Mr. Root’s 
 reasoning is sound and the Eighteenth Amendment is invalid and 
 the Court should have so declared. 
 
 First—The amendment is revolutionary. Is there anything 
 strange and unusual about that? These United States were born 
 in a revolution, traced through fire and blood and smoke to a 
 splendid consummation. There seems to be no objection to that, 
 on the contrary everybody glories in it even though written in 
 blood. But in less than ten years from that consummated revolu¬ 
 tion there was another one, this time accomplished in peace. In 
 the winter of 1786 and 1787, the Congress of the United States 
 authorized a convention to convene in Philadelphia. The dele¬ 
 gates were commissioned to meet and propose amendments to the 
 Articles of Confederation—reconstruct the old existing Govern¬ 
 ment. Did they do it ? Did these delegates obey their mandate 
 received from the people? 
 
 Those fifty-five men ranging in age from 27, the youngest, 
 to 81, the oldest, went into that building on Chestnut Street, Phila¬ 
 delphia, turned to the first room on the left, on the first floor, 
 closed the door, locked it, appointed a sergeant at arms to keep it 
 locked, and four long months they were holding sessions as secret 
 as a Masonic Lodge. They did not take the people into their con¬ 
 fidence. And the people were wondering, surmising, speculating, 
 and even rumoring that those men were proposing a monarchy, 
 and expected to invite the youngest son of George III, who was a 
 Bishop somewhere, to be King of America. And while the 
 rumoring was going on outside, the “fifty-five” inside were formu¬ 
 lating, launching and finally prosecuted to successful culmination 
 the most profound, fundamental, and humanitarian revolution 
 ever recorded in the world’s history. They deliberately proposed 
 “scrapping” the old government and setting up an entirely new 
 one. To use Dr. Butler’s language, they proposed “wrecking” the 
 then existing government. 
 
 On September 17, of that eventful year, those delegates, after 
 
 [5] 
 
violating their mandates, adjourned, having instructed their pre¬ 
 siding officer, George Washington, to destroy all records of the 
 proceedings, send the document they had framed with a letter of 
 advice, to the Congress in New York, virtually requesting that 
 government to go and commit suicide. And strange to say, that 
 government meekly, yet reluctantly, proceeded to do it. Revolu¬ 
 tion ! There was one that was so far reaching as to astonish the 
 civilized world, and brought about peacefully quite an improve¬ 
 ment over the one a few years before. The only speech Wash¬ 
 ington made during those four summer months was when he said, 
 “if the states will not accept this new government, the next one 
 will be drawn in blood.” 
 
 Mr. Root and Dr. Butler don’t seem to have any objection to 
 a revolutionary document consisting of more than four thousand 
 words, brought about by faith breakers, and trust violators, but, 
 hold up their hands in holy horror when a little revolutionary 
 document, consisting of 44 words, amending the older, larger one, 
 is brought about, and no faith breaking, nor trust violating in 
 doing it. Neither was it brought about in secret. It was done 
 openly, both by Congress and the 46 legislatures. That much at 
 least can be said for this second, peaceful revolution. If this last 
 one is invalid because revolutionary, how much more so is the 
 Constitution itself invalid because revolutionary. 
 
 Second and Fourth—It is substantive legislation. It is ordi¬ 
 nary municipal legislation. 
 
 These two may be taken together meaning substantially the 
 same thing. Substantive and municipal legislation operate upon 
 the individual citizens as such. It has not to do with the form 
 and manner or modes of government. It is contended that be¬ 
 cause the Eighteenth Amendment is substantive municipal legis¬ 
 lation and not constitution making, therefore, it is invalid as a 
 constitutional measure. 
 
 Is there anything in the Constitution itself that operates on 
 the citizens directly or any class of citizens, that partakes of the 
 nature of municipal and substantive legislation? 
 
 Article I, Sec. 9, reads thus: “And no person holding any 
 office of profit or trust under them (United States) shall, without 
 the consent of Congress, accept of any present, emolument, office, 
 or title of any kind whatever from any king, prince, or foreign 
 
 [ 6 ] 
 
state.” Here is a class of citizens numbering hundreds of thou¬ 
 sands that this proviso operates upon directly. It is just as much 
 ordinary municipal legislation as the Eighteenth Amendment. 
 
 But it may be objected that this is not a fair example, as those 
 persons are connected with the government, and therefore are a 
 part of the structure of the government. Very well, that objec¬ 
 tion may stand and the point yielded. Article XIII of the amend¬ 
 ments provides “Neither slavery nor involuntary servitude, except 
 as a punishment for crime whereof the party shall have been duly 
 convicted, shall exist within the United States, or any place subject 
 to their jurisdiction.” There is a proviso free from limitations 
 operating in the form of a prohibition upon the citizens of the 
 United States—all of them and not any class. There is an ex¬ 
 ample of the purest substantive municipal legislation as can be 
 found. No act ever passed by Congress or legislature is more so. 
 That amendment changed no part of the form of government. 
 It pertained to no mode or manner of governmental functioning. 
 Congress never owned slaves. No Southern state ever owned 
 slaves. It is doubtful if ever a county, township, city or town 
 ever owned a slave. It was individual slave holders that were 
 affected, and them only. Mr. Root did not object to this prece¬ 
 dent. Had he been in the New York legislature there is not much 
 doubt but that he would have voted to ratify this Thirteenth 
 Amendment. 
 
 If the Eighteenth Amendment is invalid because of its being 
 ordinary, substantive, municipal legislation, then the Thirteenth 
 Amendment is invalid for the same reason. 
 
 Again, is this Thirteenth or Eighteenth Amendment the first 
 and only instances where constitution making resulted in ordinary, 
 municipal legislation? The individual states of the Union had 
 made constitutions both before and after the Federal Constitution 
 was framed. All of them have numerous commands and prohi¬ 
 bitions operating directly upon the citizens of those respective 
 states. And every command or prohibition is a law, substantive, 
 municipal. You can not have a law without a law maker. Where 
 is the advantage in drawing the fine distinction between words and 
 phrases such as “constitution maker” and “law maker.” Both 
 result in law. It avails nothing to say that, if the result of the 
 supposed Constitution making is municipal law, it is invalid and 
 
 [7] 
 
therefore is no law. The only substantial question is, who made 
 the law whether municipal in nature and form or otherwise? If 
 the people in their sovereign capacity made the law, it is a consti¬ 
 tution, fundamental, basic, supreme. If the delegated legislature 
 makes the law it is a statute, and the legislature being merely an 
 agent of the people must carry out the authority, expressed or im¬ 
 plied, committed to it. 
 
 The previous people-made law, even though part of it is 
 municipal in nature and form, resulting in a constitution, is the 
 charter from which the agent, the legislature, gets its authority. 
 If the agent exceeds that authority derived from the charter, its 
 act is a nulity and void, unless ratified by the principal. If the 
 principal enacts a law, it is answerable to no power within the 
 state. The agent may do less than the principal and may do as 
 much, if authorized; it may not do more. But who will contend 
 that the principal may not do more than the agent? If the prin¬ 
 cipal has authorized or delegated the agent to pass municipal law, 
 it inherently reserves the power to repeal that law, or pass one if 
 the agent fails to enact one. These principles are axiomatic and 
 need no proof. 
 
 Now, applying this doctrine thus enunciated to the people of 
 the nation as the principal and the Congress as the agent of the 
 principal, the people, it has equal force, and equally adaptable and 
 fitting. It is even more extensive in its operation than when ap¬ 
 plied to state powers. The national power, principal or agent, 
 acting within its proper sphere, extends downward over the state. 
 The state power, principal or agent, does not extend upward over 
 the nation. The national power, the principal, has decreed that 
 “this Constitution, and the laws of the United States which shall 
 be made in pursuance thereof, and all treaties made, or which shall 
 be made, under the authority of the United States, shall be the 
 supreme law of the land; and the judges in every state shall be 
 bound thereby, anything in the Constitution or laws of any state 
 to the contrary notwithstanding.” 
 
 The supreme power of the land, the people, has decreed and 
 placed in the Great Charter, the Constitution, the manner in which 
 it shall be amended. That Supreme power has been liberal and 
 provided two ways for bringing about amendments to the Great 
 Charter. 
 
 [ 8 ] 
 
Eleven times, the power to amend has been exercised, and 
 of the two methods provided, the same has been used every time. 
 Why single out the Eighteenth Amendment and question its 
 validity, when it was passed in the exact manner and with the 
 same exact carefulness as all the other eighteen were passed ? 
 
 Third—It is an addition to, and not an amendment of, the 
 Constitution. 
 
 In perusing the first ten amendments, we find all of them to 
 be entirely new. They do not amend anything already in the Con¬ 
 stitution. They change nothing already provided. They are mere 
 additional protections to the individual citizens. Indeed that is 
 why they were desired and proposed. It was contended that the 
 states and the Federal government had their protection and the 
 individuals had none. If this contention be true, then when they 
 are provided, why are they not additions and not “changes or 
 amendments ?” Others contended that the original document did 
 provide protections, but to clear up any doubt the ten additions 
 were sufifered to go in, and they were so intended. The seventh 
 might possibly be construed as an exception and be conceded to be 
 an amendment. The ninth and tenth are merely declaratory of 
 what might be found in the Constitution by fair inference. 
 
 In 1847, James Buchanan, as Secretary of State of Polk’s 
 Cabinet, formally proclaimed over his official signature, after 
 enumerating all the amendments, that they were the "additions to, 
 and amendments of, the Constitution of the United States.” 
 
 But what fair thinking person can object to something being 
 added to the original fundamental law of the land, if the people in 
 their sovereign capacity as law maker think it necessary to be 
 added? This is a progressive, expanding, complex age we are 
 living in. If the exigencies of the times demand something by 
 addition, the people will do it, and there is no power higher that 
 can prevent them from so doing. And by fair inference the 
 framers of the Constitution intended this to be so, when they pro¬ 
 vided a way. It is a great strain on one’s imagination to suppose 
 that those far-seeing men intended the people to be put in a straight 
 jacket and not be able to provide for a possible contingency in the 
 vast future in which they expected the Constitution to endure. 
 
 In all deliberative bodies, motions are amended by addition, 
 subtraction or substitution. Suppose the Congress should pro- 
 
 [9] 
 
pose to change the Eighteenth Amendment by an amendment. In 
 doing so, it is proposed to substitute legalizing the traffic in intoxi¬ 
 cating liquors in place of prohibiting the traffic in all the territories 
 of the United States; and this, were it adopted by two-thirds of 
 both houses and ratified by three-fourths of the State legislatures, 
 would any one, or could any one, rightfully contend that this 
 would not be a legal and correct procedure? It certainly could 
 not. And yet it would be an addition to the Constitution, and 
 something new and different. The Eighteenth Amendment would 
 then be a legalization instead of a prohibition. 
 
 Who will deny the right of the people of the United States 
 to amend the Constitution prohibiting great, ponderous air¬ 
 planes and ships, carrying hundreds of passengers and many tons 
 of freight, from passing over densely populated sections of the 
 country? Who will deny the right of the people of authorizing 
 the construction of a terminus of an eight or ten-way tube for 
 trains and autos connecting Europe and America, or even prohibit¬ 
 ing such construction ? These certainly would be something new 
 and vastly different from anything that is in the original Consti¬ 
 tution and something the framers never dreamed of. Can any one 
 suppose that those framers ever intended that the people should be 
 hampered in their means of self protection, or of self advance¬ 
 ment? Most assuredly we can not think so. 
 
 Should the Congress enact a law under the police power pro¬ 
 hibiting such acts, then some high-priced lawyer would be arguing 
 before the Supreme Court that such an act of Congress would be 
 contravening the Fourteenth Amendment of the Constitution deny¬ 
 ing the equal protection of the laws, the due process of law, or the 
 equal privileges and immunities of the law. If Congress should 
 refuse to act. the people could go over the head of Congress and 
 amend. If Congress should enact, then the people could annul. 
 
 Fifth—There is nothing like it in the Constitution. This we 
 deny. The Thirteenth Amendment is something like the Eight¬ 
 eenth. But this objection is largely answered in number three. 
 The Thirteenth Amendment is prohibitive in its nature, operating 
 on the individual. The Eighteenth is prohibitive in nature, oper¬ 
 ating on the individual. 
 
 The subject of slavery was a very delicate subject for the 
 Convention of 1787 to act upon. What was done about it was by 
 
 [ 10 ] 
 
way of a compromise. It was loaded with dynamite. If touched 
 off, it would have wrecked everything. There were those who 
 would have prohibited it in the whole country. There were those 
 who would have extended it everywhere and for all time. It was 
 only a circumstance of luck or fortune, or something that pre¬ 
 vented drastic action one way or the other in the convention. Had 
 slavery been prohibited everywhere, or had it been legalized every¬ 
 where, in either case, there would have been in the original Consti¬ 
 tution something to which the Eighteenth Amendment could be 
 likened. But circumstance, luck or fortune postponed it till it 
 came finally in the form of an addition to the Constitution in 1865. 
 
 Once more it is contended that even though the Thirteenth, 
 Fourteenth and Fifteenth Amendments are something new and 
 different and unlike anything in the Constitution, they were the 
 natural result and outcome of a great civil war, and, therefore, 
 were necessary, as if that were the only good and valid excuse for 
 passing amendments But is it not infinitely better and more de¬ 
 sirable to accomplish the same results or like results by peaceful 
 methods than obtain them by war or as a result of war? Especi¬ 
 ally is this so when the objectionable thing is the cause of the war 
 directly or indirectly. We believe the great majority of the 
 American people think thus, and will use every peaceful means 
 within their power to attain these desirable results rather than re¬ 
 sort to war. 
 
 The Thirteenth, Fourteenth and Fifteenth Amendments were 
 secured after 1,000,000 men were either sent to their premature 
 graves or maimed for life, $4,000,000,000 shot away in smoke and 
 the country set back forty years. The Eighteenth Amendment 
 was secured by preaching, lecturing, praying and voting through 
 many years—coming gradually and with little noise. We have 
 learned how to do things since ’61 to ’65. 
 
 It is sometimes argued that even though the first ten amend¬ 
 ments might be considered as additions, they may also be consid¬ 
 ered as practically a part of the original Constitution. Dr. Butler 
 so contends. But how is this? There were 224 amendments 
 proposed by the various States in their debates on ratification. Out 
 of the 224, only seventeen were seriously considered by Congress. 
 Of the seventeen, only twelve were finally adopted and sent to the 
 States for ratification. Of the twelve, ten were ratified. Just 
 
 [ 11 ] 
 
which of the 224, or of the seventeen, or the twelve, can be said to 
 be “practically” a part of the original Constitution? Evidently, 
 only those that finally happened to be adopted and ratified, some 
 say. But this conclusion is too far fetched. 
 
 The Eleventh and Twelfth Amendments can, by fair argu¬ 
 ment, he considered as properly and really amendments and not 
 additions. They actually change something already in the original. 
 The Thirteenth is something added. The Fourteenth, Fifteenth, 
 Sixteenth, Seventeenth and Nineteenth change—amend something 
 already in the Constitution. 
 
 Sixth—It was secured by a two-thirds majority of a quorum 
 •of the Congress and a majority of a quorum of the legislatures, 
 instead of a majority of all the members elected. 
 
 This was the chief contention of Mr. Root before the Su¬ 
 preme Court. In the light of the history, custom, rules and regu¬ 
 lations of legislative bodies in America, it is difficult to understand 
 how Mr. Root could in good faith make such an argument. In 
 doing it he proves too much. According to his premise, he makes 
 the Constitution itself invalid and some of the other amendments 
 null and void. Those things which he values so highly and cher¬ 
 ishes as a precious heritage in his heart, he condemns by his rea¬ 
 soning. 
 
 Let us look at this matter from an historical standpoint and 
 ■see if it will stand the light of day from Mr. Root’s viewpoint. 
 
 When the Constitutional Convention adjourned and walked 
 out of that room on the first floor of the building on Chestnut 
 Street, Philadelphia, the legislature of Pennsylvania was in ses¬ 
 sion in the room directly overhead. The results of the convention 
 were made known to the upstairs body. It was received with 
 ominous silence. Directly two parties arose—those for and those 
 against the Constitution. The proponents were in the majority. 
 The minority members concluded that the best way to defeat a 
 ratification was to absent themselves from the sessions of the leg¬ 
 islature and prevent a call for a convention of the people’s dele¬ 
 gates. This they did, but the majority, with the assistance of a 
 mob of Philadelphia citizens, broke into the lodging of two mem¬ 
 bers of the minority party and kidnapped them, carried them to the 
 State House, thrust them through the door of the assembly room, 
 locked the door, and the Speaker counted an exact quorum. 2 The 
 
 [ 12 ] 
 
legislature called a convention by the vote of that quorum—seven¬ 
 teen members being absent. On the authority of that call, Penn¬ 
 sylvania, the second largest State, was the second to ratify the 
 Constitution. In the light of subsequent events, the reader may 
 well ask hiniself the question, “after all have not the people of 
 these United States got a ‘kidnapped Constitution’ ?” 
 
 Pennsylvania, geographically situated between the Northern 
 and Southern States, having vital interests in both sections, was 
 easily the key to the whole problem of ratification. 
 
 All eyes in all the States were turned toward her. If the 
 Constitution failed in that State then everybody conceded that it 
 was doomed. 
 
 But Pennsylvania “found a way” to do it, and it was done. 
 However, the call being made by violent, criminal and illegal 
 methods, the ratification was invalid and null and void. 
 
 Who will have the hardihood to deny that the second most 
 powerful State in America had a far reaching influence on the 
 actions of other States yet to ratify? 
 
 Mr. James M. Beck, ex-Solicitor General of the United 
 States, says that had not Pennsylvania promptly ratified the Con¬ 
 stitution and set the example, it is probable that Massachusetts, the 
 third largest State, would not have ratified, and if neither had 
 ratified, Virginia and New York would not have done so. 3 
 
 Mr. Beck is only voicing the belief of the people of those 
 States at the time and most Constitutional writers since. 
 
 The delegates to the Massachusetts Convention were in a 
 large majority opposed to ratification. The final vote was 187 to 
 168. A change of ten votes would have been fatal. Those ten 
 votes held the balance of power and were originally opposed to the 
 Constitution. What influence brought them over? Many an¬ 
 swers have been sponsored. But after all has been said, it is a 
 great strain on one’s credulity not to believe that those ten men 
 would have remained steadfast with their convictions had Penn¬ 
 sylvania rejected the Constitution. Thus Massachusetts, the third 
 largest State in the Union, ratified through an unholy influence 
 exerted upon her, and that influence tainted with illegality. 
 
 New Hampshire is in the same category with Massachusetts. 
 Her delegates were overwhelmingly opposed to ratification and 
 with definite instructions to oppose the Constitution. Its conven- 
 
 [13 1 
 
tion was adjourned to a later date to allow delegates to confer 
 with their constituents. Finally, the majority was eleven votes in 
 favor. A change of six votes would have defeated ratification. 
 Who is so temerious to deny that the action of Pennsylvania and 
 Massachusetts converted those six voters and brought them over to 
 the Constitution. Three States ratified the Constitution—the 
 first, invalid and void; the second, poisoned by the first; and the 
 third, contaminated by both. 
 
 But that is not the worst of the story. Let us go to Virginia. 
 Here was a long bitter struggle with giants contending for and 
 against. A large majority of the delegates were opposed to rati¬ 
 fication. Many were instructed to vote against the Constitution. 
 The resolution before the Convention at first included a “condi¬ 
 tion.” By a close vote, the condition was stricken out, but un¬ 
 fortunately it had a “sleeper” in it in the form of a reservation 
 thus, “the powers granted under the Constitution being derived 
 from the people of the United States may be ‘resumed’ by them 
 whensoever the same shall be perverted to their injury and oppres¬ 
 sion.” The vote was 89 to 79 for the resolution with the “sleeper” 
 in it. Madison said the reservation was not a “condition.” Mason, 
 Henry, Monroe and others said it was. The Virginia Resolutions 
 of 1798, written by Madison, advocating nullification, by inference 
 affirmed the “reservation as a condition.” The ordinance of se¬ 
 cession of Virginia, 4 May 17, 1861, reaffirmed it as a “condition,” 
 and through all the intervening years, the people of Virginia so 
 held. 
 
 Ten men in that convention had positive instructions to vote 
 against ratification. Those ten voted contrary to instructions. 
 Ten men violated a sacred trust. The ten faith breakers and trust 
 violators converted a defeat into a victory for the Constitution 
 with the “sleeper” tacked on. That reservation from the stand¬ 
 point of law was a condition. A conditional ratification is no 
 ratification, and the Virginia act was invalid and null and void. 
 
 So much for Virginia, what about New York? The resolu¬ 
 tion in this State for ratification had the same “sleeper” in it as 
 Virginia with this difference. The word “re-assumed” was used 
 in the place of “resumed.” “Condition” was also in it. By a 
 large majority, “condition” was stricken out. Rhode Island used 
 the same language as did New York. 
 
 [14] 
 
Madison wrote a letter to the Poughkeepsie Convention, giv¬ 
 ing as his opinion that “reassumed” was not a condition, and the 
 effect was “reassumed” 5 stayed in. 
 
 But a stronger case of invalidity can be made out against the 
 New York ratification. There were 57 members present on the 
 day of the vote. Four members were absent—total 61 elected. 
 The vote stood 30 for and 27 against. Thirty-one was a majority 
 of all the members. Thirty being only a majority of a quorum the 
 vote was illegal, and therefore, the act of ratification was invalid 
 and null and void. 
 
 Rhode Island is an exact parallel to New York. The Consti¬ 
 tution there was finally ratified by a majority of two votes, two 
 members being absent. The vote in favor was only one-half of 
 all the members elected and not a majority, therefore, the act of 
 Rhode Island was invalid and void. 6 
 
 Pennsylvania, call for convention invalid—majority of a 
 quorum and that quorum kidnapped; Virginia, ratification invalid 
 —bad faith and conditional; New York, ratification invalid—ma¬ 
 jority of a quorum, besides conditional; Rhode Island, ratification 
 invalid—-majority of a quorum! 
 
 Thus to this unhappy and dreary revelation Mr. Root’s rea¬ 
 soning leads us, sanctioned by Dr. Nicholas Murray Butler, of 
 Columbia University. 
 
 Yet it may be argued, leaving out all these invalid ratifica¬ 
 tions, we still have nine valid ratifications, enough to make the 
 Constitution legal, valid and effective. The bad acts of the four 
 States would not have changed the result. That will depend upon 
 the question whether or not the four illegal and invalid acts poison 
 the whole proceeding. 
 
 For argument’s sake, the point will be conceded that the final 
 result would not have been changed by the four illegal State acts. 
 But we have proved the contention that the history of legislative 
 bodies in the United States, customs, precedent, rules and regula¬ 
 tions of procedure sanction the effectiveness of votes of majorities, 
 of quorums and this is the object of this discussion. 
 
 But this argument is not ended yet. We have somewhat 
 more to do with that Thirteenth Amendment. If Mr. Root’s 
 reasoning had prevailed, which, thanks to a unanimous decision of 
 the nine judges of our Supreme Court, it did not, and the same 
 
 [15] 
 
reasoning had been directed or still might be directed against the 
 Thirteenth Amendment, there might have been, and still might be, 
 consequences so astounding as to stagger all human imagination. 
 We shudder at the thoughts of it. 
 
 On Sept. 22, 1862, President Lincoln issued his Emancipation 
 Proclamation. On Jan. 1st, 1863, it went into effect freeing 
 4,000,000 human beings. Mr. Lincoln always had his doubts 
 whether that proclamation or the results of it, would be permanent 
 after the necessity was removed. To allay all doubt, he studiously 
 set himself to the task of influencing Congress to propose an 
 amendment to the Constitution, thus placing the seal on what he 
 had done as a military necessity. In Dec., 1863, a resolution was 
 introduced in the House to that effect. In Jan., 1864, a like reso¬ 
 lution was introduced in the Senate. On April 8th, following, the 
 Senate voted. The vote was favorable to the resolution 38 to 6, 
 more than a two-thirds majority by far. But in the House there 
 was no such good fortune. It failed by 93 to 65. Mr. Ashley, of 
 Ohio, changed his vote from yes to no, and moved a reconsidera¬ 
 tion. On Jan. 28th, 1865, on reconsideration the House voted 
 again, this time 119 to 56, and the resolution was declared passed 
 amid a great demonstration of members and spectators. There 
 were 183 members of the House; 175 were present. Eight Demo¬ 
 crats were absent purposely to let it carry. They were unwilling to 
 vote for, but would not vote against it. There were just 3 votes 
 short of the two-thirds majority of all the members of the House. 7 
 Thus, by Mr. Root’s reasoning, the Thirteenth Amendment, being 
 passed by two-thirds of a quorum and not two-thirds of all the 
 members of the House, is invalid and null and void; the liberty of 
 multiplied millions of human beings in America, in this Spring¬ 
 time of the Twentieth Century, is shrouded in doubt and gloom 
 and in imminent jeopardy. 
 
 What about the Fourteenth Amendment? Does this one 
 stand on any better footing than the Thirteenth? This amend¬ 
 ment affects not only the liberty, btu the lives and property of all 
 the citizens of the United States, black or white. When this 
 amendment was proposed in the Senate, discussed, and voted on, 
 the result was 33 ayes and 11 noes. The Senate consisted of 50 
 members. Forty-four voted. Six were absent or not voting. Of 
 those voting, it carried by a three-fourths majority. It failed to 
 
 [ 16 ] 
 
carry a two-thirds majority of all the members elected by one-third 
 of one vote, and therefore, was invalid and null and void. 8 
 
 But, someone says, you are quibbling, you can’t split a vote 
 and the fraction is unimportant and trivial. The point will be 
 yielded for it is not needed, for a very good reason, and here it is. 
 
 On June 13, 1866, the House took up the resolution as it 
 came from the Senate in the above condition. After a brief dis¬ 
 cussion, the vote was taken, resulting in ayes 120, noes 32, far 
 more than the necessary two-thirds majority of those voting. One 
 hundred and fifty-two votes were cast. Yet there were 193 mem¬ 
 bers of the House elected. Forty-one members were absent or 
 not voting. Thus, while the resolution carried by a large majority 
 of a quorum, still it lacked eight and two-thirds votes of being a 
 two-thirds majority of the whole House, therefore, it was invalid 
 and null and void. 
 
 Is there any one in these United States who can believe that 
 the “tall, slim, acknowledged leader of the American bar,” the hero 
 of Dr. Nichloas Murray Butler, or the doctor himself, were either 
 of them, ignorant of these facts of history or Constitutional legis¬ 
 lation? Both of them are to be presumed to be great students, 
 profound students of American history. Mr. Root is a corpora¬ 
 tion lawyer as well as a constitutional lawyer, and many times has 
 stood before that same Supreme Court, and advocated the causes 
 of rich clients for the rights accruing under the Fourteenth 
 Amendment; contending against the encroachments of the “equal 
 protection of the laws,” the “due process of law” clause, the 
 “privileges and immunities” clause, and rightly so. But how 
 could he do it, though, knowing it was secured in a manner not 
 legal, and one which he subsequently condemned when arguing 
 against the Eighteenth Amendment. 
 
 If he was right when arguing for the Fourteenth Amend¬ 
 ment, he was wrong when arguing against the Eighteenth. He 
 can not blow hot and cold at the same time. From his own mouth, 
 he condemns himself. 
 
 How about the Fifteenth Amendment! Does this one stand 
 on any better footing than the last two? In Feb., 1868, after all 
 the late seceeding States, except Georgia, Mississippi and Texas, 
 had been restored to representation in Congress, and the members 
 had taken their seats, the resolution proposing the Fifteenth 
 
Amendment was taken up. In the Senate, the vote stood 39 for, 
 and 13 against. There were 66 members elected. Only 52 voted 
 with the above result, making a three-quarter majority of the votes 
 cast. It required 44 votes to make a'two-third majority of all the 
 members. Thus, the vote cast was 5 short of the two-third ma¬ 
 jority contended for. The House vote was 145 ayes and 44 noes, 
 total 189, making 19 more than a two-third majority of those 
 voting. But there were 230 of the House elected. Forty-one 
 were absent or not voting. Two-thirds of 230 makes 153 1-3. 
 So the vote cast was actually 8 1-3 votes short of the two-third 
 majority of the whole House; 3 1-3 votes more than the Senate 
 cast. Both House and Senate lacking the necessary two-thircl 
 majority of all the members of each branch respectively, as con¬ 
 tended for, the Fifteenth Amendment as adopted is invalid, and 
 therefore, null and void. 9 
 
 Had Mr. Root, in concluding his argument, said, “Your 
 Honors, I have but two or three minutes remaining, and in all 
 fairness before closing, I am bound to say to you that this Eight¬ 
 eenth Amendment is invalid and cannot stand. The Civil War 
 amendments are void for the same reason. In fact, your Honors, 
 the whole Constitution itself and all the amendments under it are 
 without law. They are without authority. Those fifty-five 
 drafters of this document did not do that which they were author¬ 
 ized to do, they broke faith with the people and set up another 
 government which the people had not known. They were faith 
 breakers and trust violators. And even though the people might 
 have ratified that which they did, they did not do it in a valid and 
 legal manner. 
 
 The first bad and illegal step, such as was taken by the legis¬ 
 lature of Pennsylvania, in using violent, criminal and unlawful 
 methods, corrupted the whole proceeding of ratification, and you 
 must hold that this so-called government is no government; the 
 President is an usurper; the Congress are usurpers, they must 
 abdicate; and you, your Honors, must vacate this bench and go 
 home, and we will go back to the only honest-to-goodness govern¬ 
 ment there is, and that is under the old Articles of Confederation.’’ 
 
 Had he made this speech, he would have gotten just as far 
 and won over just as many of the Court as with the one he did 
 make—and that was NONE. 
 
 [ 18] 
 
Public Opinion:— 
 
 How does the public sentiment, in regard to the adoption and 
 ratification of the Eighteenth Amendment, compare with the same 
 as to the other amendments and the Constitution itself ? This can 
 be answered only by studying the statistics as shown in the records, 
 all amendments having been secured by the same procedure. 
 
 The Constitution itself became effective, and the Government 
 under it was functioning many months before North Carolina and 
 Rhode Island ratified. In fact, these States at first defeated rati¬ 
 fication, and finally came in under necessity—they were only mak¬ 
 ing the best of a bad situation. Hence, the Constitution received 
 the support of only 84.59% of all the States—15.41% denied it 
 support. The first ten amendments lacked the support of three 
 States out of 14; Connecticut, Massachusetts and Georgia regard¬ 
 ing them so lightly as to ignore them altogether, at least there is 
 no record of any action—only 78.58% ratified, 21.42% refused. 10 
 
 The Eleventh Amendment was ratified by 11 out of 15 States, 
 or 73.26% for, and 26.74% refusing. The Twelfth was acted 
 upon favorably by 13 out of 17 States, or 76.48% for, and 23.52% 
 against. 11 Nine States failed to support the Thirteenth and 27 
 ratified, making 75.07% for, and 24.93% against. 12 Six ratified 
 subsequently, after it went into effect. Six States failed to ratify 
 the Fourteenth. Thirty supported, making 83.38% for. and 
 16.62% against. 13 
 
 Out of 37 States, eight failed to ratify the Fifteenth Amend¬ 
 ment, or 78.16% for, and 21.84% against. 14 Ten States out of 48 
 refused to ratify the Sixteenth, or 80% for, and 20% against. 
 Twelve out of 48 States opposed the Seventeenth, or 75% for, 
 and 25% against. 15 Eleven States thus far have refused the Nine¬ 
 teenth, or 77.91% for, and 22.09% against. 16 Of the 48 States, 
 all but two have ratified the Eighteenth Amendment, or 95.98% 
 for, and only 4.02% against. 
 
 In view of these statistics, this last amendment was more in 
 accord with public sentiment than the Constitution itself by 
 11.39%: more than the Bill of Rights (first 10 amendments) by 
 17.4%; more than the Eleventh Amendment by 22.72%; more 
 than the Twelfth by 19.5%; it outdid the Thirteenth by 20.91%; 
 the Fourteenth was distanced by tbe Eighteenth by 12.6%; the 
 
 [19] 
 
Fifteenth by 17.82%; the Sixteenth by 15.98%; the Seventeenth 
 by 20.98% ; and the Nineteenth by 18.07%. 
 
 Before National Prohibition came, 33 States had laws of 
 their own, and either by State wide action or local option voted 
 2,235 counties of the whole country dry, leaving only 305 where 
 liquor was legal. As to Congressional and legislative action on 
 the Eighteenth Amendment, the vote in both branches of Congress 
 stood 347 for, and 148 against. In the 48 State legislatures, 5,079 
 voted to ratify and 1,265 voted against. Thus, we find, when 
 compared with the ratifications of the Constitution, and all the 
 other amendments, or when compared with the adverse vote in 
 Congress and the legislatures in the aggregate, the Eighteenth 
 Amendment makes a far better showing with the public than any 
 other like action in the history of our country. Its validity, in the 
 light of history, customs, precedent, rules and regulations of our 
 deliberative bodies, stands unimpeached and impregnable before 
 the whole world. And from the beginning of its journey to the 
 end, having to run the gauntlet of a two-third majority of two 
 Houses of Congress, and majorities of 96 branches of State legis¬ 
 latures, and having successfully run both of the former over¬ 
 whelmingly, and having run 93 of the latter, and failed in only 
 three, for one branch of the 47th State ratified; the Eighteenth 
 Amendment may rightfully be said to have been sanctioned by the 
 sound of Public Opinion of America. 
 
NOTES 
 
 1. Debate with Senator Borah. 
 
 2. Beck—The Constitution of the United States, p. 182. 
 
 3. Ibid—The Constitution of the United States, p. 191. 
 
 4. A. H. Stephens—“War Between the States, p. 376. 
 
 5. Documentary History of the United States, p. 190. 
 
 6. Documentary History of the United States, p. 311. 
 
 7. Blaine, Twenty Years in Congress. 
 
 8. Blaine, Twenty Years in Congress, p. 212. 
 
 9. Blaine, on page 304, Twenty Years in Congress, Mr. 
 Blaine gives the vote on this amendment. On page 417, he gives 
 the names of all the Senators and all the members of the House. 
 He gives the date when they were admitted (seceding members) 
 to their seats. Their being seated antedates the vote on the 
 amendment by many months. 1 counted the members and the 
 numbers are as given. If they are wrong, Mr. Blaine is at fault. 
 Editor. 
 
 10. Carnegie Endowment for International Peace, p. 43. 
 
 11. Constitution Society—Constitution of U. S., p. 27. 
 
 12. Carnegie Endowment for International Peace, p. 47. 
 
 13. Ibid, page 47. 
 
 14. Ibid, page 49. 
 
 15. Ibid, page 49. 
 
 16. Ibid, page 50. 
 
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