to protect themselves and their posterity forever from any recurrence of those wrongs.

What is meant by a representative democracy or republican form of government is fortunately not a question about which it is necessary to speculate. The Federalist papers of Hamilton, Madison and Jay, the debates in the Constitutional Convention and in the State Conventions on the ratification of the Constitution, the writings of the contemporary political thinkers, together with the political literature of the country up to the present day, all show a thorough unanimity of understanding of the meaning of those terms. A republican form of government is a modified form of democracy in which the people govern themselves, not by direct action, as in the ancient democracies, but through representatives chosen by them and subject to limitations placed upon them by written constitutions. It recognizes the people as the sole source of all sovereignty acting for convenience through their chosen representatives.

As was said by George Washington: "The power under the Constitution will always be in the people. It is intrusted, for certain defined purposes and for a certain limited period, to representatives of their own choosing."

Destroy the representative feature in our system of government and you destroy the government itself.

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That the Federal Government is a Government of delegated powers is a principle so universally acknowledged that any extended discussion of it must necessarily seem

trite. The mere reading of the Constitution is evidence enough that the Government of the United States has its authority in powers enumerated in the Constitution as having been transferred by the people for the purposes of the Union from their State branches, be they legislative, executive or judicial, to similar branches of the Federal Government; the Federal Government so formed, being an enlarged replica of the State Governments, similarly divided in its three branches, and supreme in such matters as are delegated to it either expressly or by implication, but exercising no other powers; the residue of all the powers of sovereignty being reserved by the people for exercise through their several State Governments.

In this dual system of Government it is apparent that whether the powers are delegated to the National Government or retained in the State Government, they are in any event to be exercised through the medium of representatives of the people acting for them either in Washington or at their State Capitol. That there might be no mistake about this matter there was inserted in the body of the Constitution as a specific guarantee, Article IV, Section 4, "The United States shall guarantee to every State in this Union a republican form of Government.'

The Eighteenth Amendment as construed in Rhode Island versus Palmer expressly violates that guarantee, is therefore void as against a non-assenting State which was a party to that guarantee, and if forcibly carried out within its territory, is revolution.

Let us analyze this proposition. Before the adoption of the Eighteenth Amendment by the other States, the people of Connecticut in their sovereign capacity, acting through their State representatives, regulated a matter of internal concern, namely, the buying and selling and handling of intoxicating beverages within the State of Connecticut. So long as this traffic was confined within the State, its regulation was subject to the will of the people of Connecticut and to no other people or governmental agency whatever. Through their representatives duly elected to their legislature they might restrict that traffic or forbid it altogether; they might adopt Statewide prohibition at one session of the legislature and might repeal it at the next. Here was representative government such as was recognized and guaranteed by Article IV, Section 4 of the Constitution, on which guarantee the people of Connecticut relied when they ratified the original Constitution.

Now, in adopting the Constitution, Connecticut became a member of the Union fully cognizant of the provisions of Article V, providing for future amendments, which, if ratified by three fourths of the States, would become a part of the Constitution and the supreme law of the land, anything in the Constitution or laws of any State to the contrary notwithstanding; but also relying on the express guarantee contained in Article IV, Section 4. In other words, the people of Connecticut signified their willingness to become a part of the Union and to become bound by the Constitution and by such amendments as might be sub

sequently made thereto with the consent of three fourths of the other States despite their own non-assent, upon the express guarantee that no such amendment should ever deprive them of their right of representation, the right which the Colonists had but recently vindicated in their war with the mother country.

The Eighteenth Amendment under the interpretation given it by the Volstead Act and the Supreme Court violates that guarantee as far as Connecticut is concerned because the right which her people had to regulate the subject matter through their representatives, has been denied. If the amendment had read, "Congress shall have power to limit, regulate, and prohibit the manufacture, sale or transportation of intoxicating liquors," Connecticut would have been bound, despite her refusal to ratify the amendment, since her people would not by reason of such an amendment be deprived of their representation regarding the subject matter. Their voice would be heard through their representatives in Congress rather than through their representatives in the State Legislature, but their voice would be heard nevertheless, and heard in a body which would have legislative power over the subject. But the amendment does not say that. It does not transfer the representative function from the citizen's State legislator to his national legislator, but it says to him, "You have no say whatever in this matter and your representatives are forbidden to legislate on that subject anywhere." It deprives him of representation. It violates the solemn guarantee that no matter what amendments may be made he

shall never be deprived of the privileges of a republican form of govern

ment.

substitution of another act permitting light wines and beers, they would have secured merely an un

The amendment as drawn and as construed by the Supreme Court not only leads us far afield from the conception of a republican form of government, but followed to its logical conclusions, and the conclusions set forth by one of its most distinguished defenders in the United States today (W. G. McAdoo, in his speech before the Ohio State Bar Association at Toledo, January 29, 1927) brings us up halt against a stone wall of governmental absurdity.

Mr. McAdoo argues that Congress having acted once and having enacted a statute of enforcement to carry out the intent of the Eighteenth Amendment, that body is now powerless to amend the Volstead Act so as to permit the sale and transportation of light wines and beer. He says:

"I believe that if an attempt were made to repeal the Volstead Act and to substitute therefor an unconstitutional statute, or no statute at all, the Supreme Court would be constitutionally bound to hold that the attempted repeal was void and of no effect, and that the Volstead Act would still remain the law of the land. . . . Since Congress has passed a valid and constitutional enforcement act, thereby performing the affirmative duty imposed by the Eighteenth Amendment, any act by Congress in breach of this duty would be unconstitutional. . . . If the opponents of prohibition were successful in having the Volstead Act repealed by the

stitutionality would cause the Volstead Act to remain in full force and effect. effect. . . ."

In other words, according to Mr. McAdoo, the Eighteenth Amendment has put a decided crimp in the legislative branch of our Government. Congress is hamstrung. It can act once, but it cannot repeal its act. The Amendment is like one of those little basket-weave trick affairs that children play with, which they can put their finger into but cannot pull it out.

Mr. McAdoo goes further and turns his attention to State statutes of enforcement and says: "I submit that where a state has once performed its constitutional duty of enacting a law to enforce the Eighteenth Amendment and later undertakes to repeal that act, the repeal if unaccompanied by the substitution of another constitutional and efficacious enforcement statute, is unconstitutional and void for the same reasons that I advanced in considering the effect of a possible repeal by Congress of the Volstead Act.

He argues that the repeal by the State of New York in 1923 of its prohibition enforcement laws, and that recently by the State of Montana, are void.

passe. His reasoning has entrapped him into the conclusion, which he announces in all seriousness, that should the vast majority of the people of the country petition their representatives to enact legislation which would permit the legal sale of light wines and beer, Congress would be compelled to say to the sovereign people of the Republic: "We cannot represent you in this matter. You lost your representation so far as that subject is concerned in January 1920. Our hands are tied."

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It is apparent that in championing the Eighteenth Amendment Mr. McAdoo has unwittingly stumbled upon the one argument which condemns it, for it must be borne in mind that in considering the violation of a Constitutional guarantee the extent of the encroachment is not material, for obviously, if the guarantee can be ignored to any extent whatever in one instance, a repetition of similar instances can, by a process of erosion, finally result in a denial of the guarantee as effectually as if the accumulated violations were attempted in the first instance. It will not do, therefore, to say that as the representative form of government guaranteed to the States has, so far as its general form is concerned, and as to all other matters, been retained despite the denial of representation regarding this one subject, the constitutional guarantee has not actually been violated, for this would be equivalent to announcing the doctrine that step by step the people of the States might be deprived of every attribute of a republican form of government, and a despotic, auto

cratic or other form of government could thus be imposed upon them despite the specific constitutional guarantee to the contrary.

In the discussion of a Constitutional question therefore, it is always pertinent to inquire as to how far a particular interpretation and precedent may lead us from the purposes, the genius and the character of the original charter of Government. Obviously, the Federal Government being one of delegated powers, the States may by amendment after amendment gradually delegate to the Federal Government all of the governmental functions which were formerly reserved to the States and thus gradually wipe out every vestige of State sovereignty. In fact, the modern tendency is strongly in that direction. The Twentieth Amendment proposed by a joint resolution of both Houses in 1924, and which has not so far been ratified by the Legislatures of the requisite three fourths of the States, provides that "Congress shall have power to limit, regulate and prohibit the labor of persons under eighteen years of age." Whether or not such an amendment is desirable. has nothing to do with the right of three fourths of the States to make it a binding part of the Constitution. This they can do without a doubt. And should the Twentieth Amendment be ratified, it would empower Congress to enact a valid law absolutely forbidding the employment anywhere in the United States of any person under eighteen years of age.

So, with the subject of marriage and divorce. There are many people who feel that uniform divorce laws

applying all over the United States would be an improvement over the present condition where each State has its own laws on the subject, and a citizen of one State is permitted to establish a statutory residence in another State for the sole purpose of evading the laws of his actual domicile; and a valid amendment might be added to the Constitution empowering Congress to pass all laws relating to the subjects of marriage and divorce; and under that grant of power Congress might enact a law prohibiting divorce for any reason whatever anywhere in the United States, as is the case to-day in South Carolina. This would be a valid exercise of the power granted to Congress under such an amendment. The people would have registered their will through their elected representatives in Congress, the legislative body authorized under the Constitution to deal with that subject.

Whatever be the wisdom of such concentration of powers in the National Government, it is certainly within the realm of Constitutional amendments for the States to divest themselves of these functions and empower the National Government to deal with those subjects by general legislation.

Gambling is certainly a vice which causes as much misery and suffering as almost any other vice of which we can think. Anti-gambling statutes of great rigor have been enacted by many of the States, prohibiting their citizens from engaging in this passion in any manner whatever. It is conceivable that by a Constitutional amendment Congress might be empowered to limit, regulate and pro

hibit gambling in all its forms in all the territory subject to the jurisdiction of the United States, thus effecting a further relinquishment of the police powers of the individual States; and three fourths of the States can effect an amendment on that subject which will be binding on the other one fourth, without a doubt. Illustrations might be multiplied; but to the most casual reader, the distinction between such amendments, from a Constitutional standpoint, and the so-called Eighteenth Amendment must be apparent. The Eighteenth Amendment was not a delegation of power to the National Government empowering it to limit, regulate and prohibit the trade in intoxicating beverages, thus transferring a power from the States to the National Government. It was an attempt, by means of following the strict letter and form provided in the Constitution for creating necessary amendments, to abolish a power which previously existed in the States, and, instead of transferring the power to deal with the subject matter to Congress, to extinguish the power of dealing with it altogether; not a readjustment of government, but a denial of government.

To return to our illustrations cited above, although it is conceded that three fourths of the States may bind the other States to transfer to Congress all jurisdiction over marriage and divorce, they may not, nor may all the other States combined, adopt a valid amendment to the Constitution in the form of a prohibition which will deprive the people of any one of the sovereign States of the right to have some say regarding