Musings of a Patriot

Constitutional Amendment 18

The Eighteenth Amendment is a great example of constitutional law.

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.

I know that many people will argue that it is a bad amendment (generally citing the fact that it was later repealed as evidence of their claim) but I would like to explain why I argue that it is such a good example.

Congress (and the majority of states at the time) wanted to restrict the use of alcohol for recreational purposes. They had no constitutional authority to do anything like that. The proper fix for this is to pass a Constitutional amendment rather than trying to ignore or get around the Constitution and use some easier means of doing what Congress wants to do. In this case, Congress followed the correct path – perhaps they had too many senators and representatives still in Congress since the 17th amendment was passed who remembered how the government was supposed to be limited according to the Constitution.

The question of whether this was a good law is a separate matter. Should Congress decide whether people should ever be allowed to consume alcohol? No. But at least in making this bad law they followed the proper procedure to give themselves the authority to take the action they wanted to take – and to successfully pass a Constitutional amendment requires a very broad base of support. If the people choose to prohibit consumption of alcohol that’s much better than having Congress prohibit its consumption because of the influence of a vocal lobbying group.

Posted

in

by

David

Tags:

, , , ,

Comments

18 responses to “Constitutional Amendment 18”

  1. Reach Upward Avatar
    Reach Upward

    We have many people (Supreme Court justices included) that cannot accept the fact that a law can be both bad AND constitutional. This has led to myriad problems.

    Reply
  2. David Avatar
    David

    I wish that they could also understand that a law cannot be both good and unconstitutional. Where the Constitution has faults or shortcomings (for example, the inability of D.C. residents to have a voting representative in the House while bearing the full responsibilities and obligations of other U.S. citizens) the remedy is to amend the Constitution.

    Until the courts and citizens recognize the differences between bad and unconstitutional we have no hope of fixing the bad laws and ending the unconstitutional laws that already exist.

    Reply
    1. Reach Upward Avatar
      Reach Upward

      Amen.

      Reply
  3. Mackenzie Andersen Avatar
    Mackenzie Andersen

    Didn't the 18th Amendment violate the 10th Amendment which states "" 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. "

    Reply
  4. Mackenzie Andersen Avatar
    Mackenzie Andersen

    Hi! Just realized that you are the same David Miller who writes the Pursuit of Liberty Blog that I sometimes comment on.

    Reply
  5. Mackenzie Andersen Avatar
    Mackenzie Andersen

    Maybe you would be interested in participating in a free Webinar on the Constitution, organized by Pete the Carpenter of Paint Maine Red. See more details and RSVP on Paint Maine Red:http://paintmainered.ning.com/events/event/show?id=2731571%3AEvent%3A13503&xgi=bYth9I8

    Reply
  6. Mackenzie Andersen Avatar
    Mackenzie Andersen

    Re 18th Amendment- it falls into the category of government micro-managment which is the opposite of th liberty that our constitution grants. It is the imposition of a belief system on others-as right as the imposers may feel themselves to be, it violates our constitutional principles.

    Reply
  7. David Avatar
    David

    The 18th Amendment is equal to any other amendment – they are the same level of law, and because it is later than the 10th amendment it superceded the 10th in any case where they conflict.That being said they don't really conflict because Congress cannot make a Constitutional amendment. The process allows Congress to propose an amendment, but to be part of the Constitution an amendment must be ratified by 3/4 of the states.If the prohibition in the 18th amendment had simply been an act of Congress it would have been a violation of the Constitution. Like I said in the note – it was not a good law, the good thing is that they followed the prescribed course to make that law within the framework of the Constitution.

    Reply
  8. Scott Miller Avatar
    Scott Miller

    A couple points. I agree with David that at least the amendment followed the prescribed process. The dangerous thing is the power of hysteria in passing the original amendment in a veiled attempt to compel a specific social behavior as opposed to dealing with the issues of rights. Fortunately, they corrected with the 22nd. Still it could be a dangerous precedent.

    Reply
  9. Eric Richardson Avatar
    Eric Richardson

    Bad laws made the right way are better than good laws made the wrong way. Sometimes Congress thinks that because they are doing what (they they think) is right, it doesn't matter if it violates the Constitution. I agree with you. If they feel so strong about an issue that they don't have the constitutional authority to address, propose an Amendment and see if the states will agree.

    Reply
  10. Mackenzie Andersen Avatar
    Mackenzie Andersen

    I have a problem with the rationalization that the constitution can be used as an effective method to institute the social values of a faction over all of the people and that a later amendment takes precedence over an earlier one- That takes away all security in the freedoms that our constitution grants. You are suggesting that if the original constitution grants a liberty, it can be taken away by another amendment. And what about Publius's intention to protect against a tyranny of the majority as discussed in the Federalist Papers?

    Reply
  11. Mackenzie Andersen Avatar
    Mackenzie Andersen

    Can you provide the clause in the constitution or a legal statute that establishes this fact? To my point of view both the eighteenth amendment and health care reform violate my constitutional rights to life, liberty, and the pursuit of happiness- as well as freedom of religion. This is true anytime any faction tries to impose their belief system on the public as a whole. If we are a people who is constitutionally guaranteed individual liberty, then that includes the liberty to live by our own philosophical beliefs. It has come to be that some believe that conventional views and beliefs are absolute truths that can be imposed on others. Our country was formed as one country under God but it is becoming one country under the rule of man- with a bureaucratic elite that claims the authority to force all to live by the belief system of the autocracy. This is very evident in the “mandatory” nature; f “health care reform” OOPS- I forgot- It is now to be called “health insurance reform”I

    Reply
  12. David Avatar
    David

    There is no Constitutional statue, but I'll take some time and dig up some legal reference for you. Note that this rule only applies to laws that are of equal standing – in other words, a constitutional amendment can be superseded by a newer constitutional amendment, but it cannot be superseded by a lesser statute. In cases of laws with differing levels of importance or supremacy (where the Constitution is, for legal purposes, the highest authority) the law with the higher authority always trumps the law with the lower authority regardless of which law is newer.What this means in practice is that health insurance reform cannot supersede the Constitutional principles even though it is newer.

    Reply
  13. Mackenzie Andersen Avatar
    Mackenzie Andersen

    That is correct that the Constitution is the highest authority and so if a constitutional amendment violates the original constitution, I do not see how it can stand as constitutional. I would be interested to know the grounds on which the eighteenth ammendment was overturned. Obvoulsly- one cannot make a constitutional ammendment that says all must adhere to a state religion because that violates the very foundations of our constitution. I think that health care reform does as well as it limits the freedom of esoteric beliefs that are the foundation of religions and asserts a tyranny of the majority about body-mind beliefs.

    Reply
  14. David Avatar
    David

    The whole point of being able to amend the Constitution is to be able to make a law that has equal standing with the original Constitution. If you can only make a lesser law then errors in the constitution (such as the three-fifths principle in the census) could not be corrected after the fact. The 18th amendment was overturned by a later Constitutional amendment because the nation saw that they had made a mistake when they passed the 18th.

    Reply
  15. David Avatar
    David

    The fact is that the process for amending the Constitution was designed to be difficult specifically so that the people would have to be very serious about making any changes to the Constitution. We could in fact make an amendment saying that all people must adhere to a state religion. The amendment would have to be proposed and passed by 2/3 of each house of Congress or else Congress would have to call a Constitutional Convention where all states would send delegates and have that convention adopt such an amendment. After it has been adopted in one of those two ways it would then have to be ratified by 3/4 of the individual states.You do not seem to make any distinction between the 18th amendment and health care reform. The fact is that health care reform is not an amendment and thus it (theoretically) cannot violate any Constitutional principle. Tyranny of a majority is always a possibility regardless of any Constitution. The best a constitution can do is discourage such tyranny.

    Reply
  16. David Avatar
    David

    I am not suggesting that an amendment can take away a liberty granted in the Constitution – I am stating it as a fact. The Constitution stated that Congress could not impose direct taxes and the 16th Amendment took that away.The assertion that a later law of equal standing takes precedence over an earlier law is also a fact, otherwise we would be subject to the tyranny of history – being unable to change ill-formed laws of the past (such as the 18th amendment).Watch for a full post on the subject for more details (likely today).

    Reply
  17. Mackenzie Andersen Avatar
    Mackenzie Andersen

    Unconstitutionality is not limited to constitutional amendments. However once health care is institutionalized, it ill becomes entrenched by special interests and it will be very difficult to reveres. The British health care system is the third largest employer in the world- the first being the Chinese Red Army. Most of the employees are not health care professionals but bureaucrats. The size of the voting block that the employees of the system represent makes it impossible to reverse. So it might as well be a constitutional amendment since it will so radically change our freedoms in an irreversible way.

    Reply

Leave a Reply

Your email address will not be published. Required fields are marked *