The comparative ease and dispatch with which it was put through argue alike the skill and vigor of its sponsors and the strength of the sentiment behind them. Legal warfare over the amendment did not end, however, with its ratification by the legislatures of the requisite number of states. Passions had been aroused. Vast property interests were menaced. Moreover, in the minds of students of government the amendment stirred misgivings which were quite independent of the sentimental and material considerations involved. Eminent counsel were retained and a determined effort was made to defeat or nullify the amendment in the courts. To this end suits were begun in various jurisdictions to test its validity and enjoin the enforcement of the Volstead Act, which sought to carry it into effect. Two sovereign states (Rhode Island and New Jersey) joined in the attack and through their respective Attorneys General brought original suits in the United States Supreme Court to have the amendment declared invalid. Seven test cases were argued together in the Supreme Court, five days in all being devoted to the argument. It will be of interest to note some of the reasons advanced against the validity of the amendment, as they are summarized in the official report.[1]
[Footnote 1: National Prohibition cases, 253 U.S., 350.]
The Attorney General of the State of Rhode Island argued[1] that:
The amendment is an invasion of the sovereignty of the complaining state and her people, not contemplated by the amending clause of the Constitution. The amending power … is not a substantive power but a precautionary safeguard inserted incidentally to insure the ends set forth in that instrument against errors and oversights committed in its formation. Amendments, as the term indeed implies, are to be limited to the correction of such errors….
It is "This Constitution" that may be amended. "This Constitution" is not a code of transient laws but a framework of government and an embodiment of fundamental principles. By an amendment, the identity or purpose of the instrument is not to be changed; its defects may be cured, but "This Constitution" must remain. It would be the greatest absurdity to contend that there was a purpose to create a limited government and at the same time to confer upon that government a power to do away with its own limitations.
[Footnote 1: Id., pp. 354-356.]
The Attorney General of the State of New Jersey:[1]
attacked the amendment as an invasion of state sovereignty not authorized by the amending clause and as not, properly speaking, an amendment, but legislation, revolutionary in character.
[Footnote 1: 253 U.S., pp. 356-357.]
The eminent Chicago lawyer, Levy Mayer, and ex-Solicitor General William
Marshall Bullitt, contended,[1] among other things, that