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They Cannot Flourish, Any More Than a Nation, Half Slave, Half Fr
For a Hermit-Thrush. Verse
JOSEPH JASTROW 668
VIRGIL S. GIBSON 691
C. E. MONTAGUE 695
MOLLY ANDERSON HALEY
The Index for Volume CXV, November, 1927, to April, 1928, inclusive, will be sent free of charge, on request
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THE EIGHTEENTH AMENDMENT IS VOID
"A Nation Ceases to be Republican When the Will of the
HENRY ALAN JOHNSTON
THEN a thing just will not work, no matter how much tinkering you may do adjusting this and changing that, whether it be a mechanical device, a chemical formula or a political theory, it is time to ask yourself whether there is not some fundamental defect in its inception.
Prohibition does not work; and today, after eight years of the experiment, the country is busy talking about its effects, weighing its results pro and con, arguing about changes either to make it tighter or looser, passing resolutions about law enforcement in the abstract, discussing the availability of Presidential candidates, as though the personal views of a President could affect the problem one way or another, and engaging in a scratching of heads like children who are stumped with a riddle, when, as a matter of fact, there is no political solution to the problem. It is fundamentally defective in its inception, and the only agency provided by our scheme of government which can now cure
this defect is the Supreme Court of the United States. Either that Court has failed to see the defect, or else, it is waiting patiently for some one to raise the issue. And until that issue is definitely brought before the Supreme Court and decided, we might debate the moral, physical, social, economic and political aspects of prohibition from one end of the country to the other for the next fifty years, and we shall be no nearer a solution than we are to-day. The amendment, if valid, has created a governmental impasse. It has deprived Congress of legislative power on that subject.
In March, 1920, less than two. months after the Eighteenth Amendment became effective, its validity was attacked in the Supreme Court in the case of Rhode Island versus Palmer. This was a test case. Eminent counsel appeared on both sides. Voluminous briefs were filed, and the Court listened to argument for five days. In June, it announced its decision; a decision unique in the annals of American jurisprudence. It
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was the first case in the entire history of the Supreme Court where that tribunal disposed of a question involving the original construction of a provision of the Constitution without giving any exposition whatever of the reasoning by which it reached its conclusions. By a judicial wave of the hand, as though it were a magistrate's court, it ignored the arguments and briefs of counsel, the interest and expectancy of the citizenship of the country, the revolutionary effects on the habits of the people, the vast amount of property involved, and the important consideration of the powers and duties of the National and State Governments, and merely announced the ultimate conclusion that, as it had been adopted in accordance with the provisions of Article V of the Constitution prescribing the procedure for necessary amendments, "the amendment, by lawful proposal and ratification, has become a part of the Constitution, and must be respected and given effect the same as other provisions of that instrument."
That decision was not only wrong in principle and legally unsustainable, but it constitutes the most dangerous and far-reaching attack against representative government in America since the Stamp Act of 1765. It not only violates the fundamental principle of representative government which is the keystone of the Republic, but it also violates the express guarantee embodied in the Constitution explicitly in Article IV, Section 4, that "The United States shall guarantee to every State in this Union, a republican form of government." This is a guarantee
running to each and every State in this Union. It is a guarantee which cannot be waived for any State by the combined action of all the other States in the Union. It is a guarantee which runs to the States of Connecticut and Rhode Island as specifically as if they had been mentioned by name; and only they themselves may waive that guarantee so far as it affects their sovereign rights. It is of the essence of the compactotherwise the people of Rhode Island or Connecticut might by the action of three fourths of the States, have thrust upon them a monarchial form of government or a dictatorship or some other form hostile to the republican theory. Such a thing can be accomplished only by revolution. It cannot be done by Constitutional amendment.
Rhode Island and Connecticut have not ratified the amendment, although attempts have been made at each session of their legislatures to persuade them to do so. Whether or not their ratification would amount to a waiver of their guarantee is a question which it is not now necessary to discuss. Certainly, until they shall have ratified the amendment they stand among all the other States in the enviable position of having refused to sell their birthright, and of having the legal status of plaintiffs who have had their guaranteed constitutional rights invaded by Congress and the legislatures of the other States. This point was not raised in the case of Rhode Island versus Palmer and, up to the present time, has not been raised either in the Supreme Court or in any of the numerous discussions which have taken place regarding
prohibition. The subject has been so beclouded by fanaticism, loose thinking and a general confusion in the people's minds regarding the political and the moral aspects of the question, that there is perhaps some excuse for the failure to penetrate this mass of extraneous matter and to get at the one and only vital issue involved. That issue is representative government, and the drinking of alcohol has no more to do with the case than the drinking of tea had to do with the controversy raised by the Stamp Act of 1765. The issue of representative government would be as surely involved if the amendment had forbidden gambling, child labor, divorce, cigarette smoking or the teaching of evolution in the public schools. Whether or not these things are evils which should be prohibited do not enter into the discussion at all. The point is that any amendment which deprives the people of a State of the right to a representative form of government concerning the particular subject matter involved, is a violation of the one and only constitutional guarantee which was made to the people of the several States when the original instrument was presented to them for their ratification. The Eighteenth Amendment does this, and is therefore void as to Connecticut and Rhode Island. And thus being incapable of national application is void in its inception.
I summon you then from the contemplation of the dram-shop, the drunkard and the gutter to a consideration of the Constitution and the fundamental ideals of this Republic.
The two most distinguishing characteristics of the Constitution are,
first, that the government so created is one of delegated powers; and second, that its basic theory is representative democracy, a retention of the principle of self-government, but exercised, for convenience, through representatives chosen directly or indirectly by the people, the powers of government residing always in the people as the ultimate
The Government thus formed by the original thirteen sovereign States lying along the Atlantic seaboard has, in the intervening one hundred and forty years, vindicated the sagacity and political foresight of its framers and proved itself adequate for an extended union of forty-eight States embracing half the continent, with territories and possessions in the four quarters of the globe. "No constitution," said Jefferson, "was ever before so calculated as ours for extensive empire and selfgovernment."
To quote Jefferson again: "It seems not to have occurred to the ancients that where the citizens cannot meet to transact their business in person, they alone have the right to choose the people who shall transact it, and that in this way a representative or popular government may be exercised over any extent of territory. The full experiment of a government democratical but representative is reserved for us." This is from a letter to Isaac R. Tiffany, August 26, 1816.
The memory of the tyrannies which resulted from the denial by England of the Colonists' right to representation was fresh in the minds of the patriots who formed this government and they were determined