Citizen or subject?

by Francis X. Hennessy

As we are not concerned with the meaning of the second section of the Amendment or with the validity of the Volstead Act (passed by Congress under the grant of said section) except as the validity of the Act depends upon the validity of the Amendment, we shall make no mention of either.

The Court announced its decision, in all the litigations, on June 7, 1920. Somewhat to the amazement of the country, but (in our humble opinion even at the time) very wisely, the Court refused to write any opinion whatever. Nothing could more certainly settle that the Court determined no question except the specific questions presented by those who challenged validity. That we may be certain that the Court neither heard nor considered nor passed upon the real and the invincible challenge to the existence of the supposed new national Article, we will let the Court, in its own words, state exactly just what were the four propositions, advanced against validity, and state the simple fact that it negatived each of those four propositions. Thus, in an impressive manner, we shall acquire our own knowledge that the fifth conclusion, which later we shall state, is but the conclusion of fact that nothing, in the four propositions negatived, impairs the validity of the supposed Article.

Mr. Justice Van Devanter announced the conclusions of the Court.

Power to amend the Constitution was reserved by Article V, which reads:...

(As we have been in the conventions which made it, we know it.)

The text of the Eighteenth Amendment, proposed by Congress in 1917 and proclaimed as ratified in 1919, 40 Stat. 1050, 1941, is as follows:...

(The text of the first two sections is quoted on page 465 herein.)

We are here concerned with seven cases involving the validity of that Amendment and of certain general features of the National Prohibition Law, known as the Volstead Act, c. 83, 41 Stat. 305, which was adopted to enforce the Amendment. The relief sought in each case is an injunction against the execution of that act.... The cases have been elaborately argued at the bar and in printed briefs; and the arguments have been attentively considered, with the result that we reach and announce the following conclusions on the questions involved:

1. The adoption by both houses of Congress, each by a two thirds vote, of a joint resolution proposing an amendment to the Constitution sufficiently shows that the proposal was deemed necessary by all who voted for it. An express declaration that they regarded it as necessary is not essential. None of the resolutions whereby prior amendments were proposed contained such a declaration.

2. The two thirds vote in each house which is required in proposing an amendment is a vote of two thirds of the members present—assuming the presence of a quorum—and not a vote of two thirds of the entire membership, present and absent. Missouri Pacific Ry. Co. v. Kansas, 248 U. S. 276.