Appeal from the District Court of the United States for the District of Vermont.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
The appellant was convicted by a jury of a violation of the National Prohibition Act, as amended by the Jones Law (section 12, title 27, U.S. Code [27 USCA § 12]). On this appeal, he seeks only to review the validity of the adoption of the Eighteenth Amendment to the Constitution, which provides:
"Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
"Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
"Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress."
Article 5 of the Constitution provides the method of proposing and ratifying amendments to the Constitution. It reads:
"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."
The Tenth Amendment of the Constitution provides:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
It is argued that, after ratification of the Tenth Amendment, no amendment giving the national government additional power over the people or their rights can be adopted save by the people in convention. The Eighteenth Amendment was ratified by the Legislatures of three-fourths of the several states.
The fifth article of the Constitution contemplated, by its phrase, two modes of ratification: (1) By the Legislatures of threefourths of the several states, and (2) by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress. But it is argued that Congress never selected the one appropriate to the nature of the amendment promulgated by it. And it is said that, when the framers of the Constitution focused their work on future amendments of the document, they were confronted by its dual function as a chart to guide the new supergovernment.
Some of the personal rights obtained from the British crown, as well as the governmental powers possessed by the colonies, or states, as successors of the crown, had to be surrendered by them and bestowed upon the federal government to enable it to function nationally and internationally. As early as McCulloch v. Maryland, 4 Wheat. 316, 403, 4 L. Ed. 579, the Supreme Court pointed out that the Constitution of the United States was ordained by the people, and, when duly ratified, it became the Constitution of the people of the United States, and that the states surrendered to the general government powers specifically conferred upon the nation; that the ...