The reason why the Introduction to the Law of Real Property is set off so distinctly from the Cases on Rights in Land is apparent when one reads the Prefatory Note to the Cases. The author feels that when a class has studied and assimilated the material contained in the Introduction, it is a question upon which opinions may differ whether it should then take up the subjects dealt with in the Cases on Rights in Land, or those presented in the Cases on Titles to Real Property, being Volume III of the Property Series. He himself seems rather inclined to think that Volume III should be taken up after the Introduction, and the mechanics of Volume II make this entirely practicable.

C. K. B.

Indirect Encroachment on Federal Authority by the Taxing Powers of the States. By Thomas Reed Powell. Reprinted from the Harvard Law Review, Volumes XXXI and XXXII, by the National Tax Association, New York City.

In this series of reprints from the Harvard Law Review Professor Thomas Reed Powell brings together the cases that have arisen under the attempt of the various states to find means for resisting, to some extent, the immunity enjoyed by interstate commerce and the instrumenalities of the Federal government from state taxation.

Like other constitutional questions, this question presents an interesting attempt to make the standard set by a Marshall decision. of the early Nineteenth century, fit into new and complex conditions. The result, as every lawyer knows, is to give the courts an opportunity of stepping gingerly from one stepping stone of fact to another, as the cases arise, until the boundary between state and federal authority is crossed.

In the matter of inter-state commerce, Professor Powell thinks a "controlling motive" has been found by the Supreme Court in “the desire to prevent the states from imposing on inter-state commerce any peculiar or unusual burden;" that is to say, "When the court has been assured that the state did not have a device which might be operated to discriminate against interstate commerce, taxation of that commerce has been allowed." In other words, discrimination, and not the nature of the commerce, is the determining factor.

As to the question involved in the taxation of Federal governmental instrumenalities, the courts have not given us so simple a norm. The question arises most prominently from the owning of United States bonds by corporations, in one capacity or another. Refusing a direct tax upon them as capital of the corporation, the courts have permitted the states to tax them through the assessment of the shares of stock of the corporations. This is meeting the situation more heriocally than logically, and both lawyers and economists will agree with Professor Powell that "It would be wholesome, if some better basis for such taxation could be found than the unsubstantial one that the property of the shareholders is distinct from that of the corporation."

But courts are not perplexed by economic theory, and on the basis of legal opportunism will probably continue to look for immediate results, rather than for economic justification.

"The conclusion to be drawn from our review and analysis of the decisions," says Professor Powell, "is that, in spite of crosscurrents and shifting winds of doctrine, the states will be permitted to continue the indirect encroachments on Federal authority that have hitherto been sustained." The rapidly increasing surveillance of the Federal Government over the railways and other means of interstate transportation; the imminence of some new corporation policy including, perhaps, federal incorporation, and the immense holdings of new federal (liberty) bonds and the cognate necessity for greatly increased taxation, may at any moment give a new tilt to this phase of the ever-recurring question of the exact equation between state and federal authority.

Books Received

Freedom of Speech in War Time. By Zechariah Chafee, Jr. Reprinted from the Harvard Law Review, Vol. XXXII, No. 8. The Harvard Law Review Association, Cambridge.

The Workmen's Compensation Laws of Virginia and West Virginia. By James F. Minor. The Michie Company, Charlottesville, Va.

Brooks Brothers,

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Volume V

JANUARY, 1920

Number 2

Is There An Eighteenth Amendment?

BY JUSTIN DUPRATT WHITE1

The statement2 which has been promulgated3 as the Eighteenth Amendment has been widely discussed in the press and periodicals. Its legal inception has been challenged because the proposing resolution was not adopted by two-thirds of all the members elected to both houses of the Congress, although by two-thirds of those present; the impossibility of the enforcement of its provisions and the illegality of concurrent legislation by the Congress and state legislatures, have been considered; it has been pronounced economically unwise, commercially unsound, subversive of liberty, of good government, of the principle of local self-government (which is nearest to the point involved), and of the theory that the constitution should be limited to the fundamental principles of government, and as violative of all settled principles of property; and the sufficiency of its ratification by the legislatures of those states which have constitutional referendum provisions has been questioned. On the other hand, it has been supported and defended against all such attacks. But little if any discussion has appeared of the fundamental and controlling proposition that the "amendment" can have no validity unless duly ratified on behalf of the people of all of the states.1

The soundness of three legal propositions must be apparent without any very deep reading of the constitution or prolonged reflection

1Of White & Case, New York City bar. 2"Sec. I.

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.'

"Sec. 2.

The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation."

"Sec. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submisson hereof to the States by the Congress.'

"By the Hon. Frank L. Polk, acting Secretary of State, on January 29, 1919. New York Times, January 30, 1919.

"The legislatures of three states have not ratified the "amendment."

on the theory of our government, namely, first, that intra-state prohibition cannot be the subject of a valid constitutional amendment in the sense in which amendments are referred to in the constitution; second, that such prohibition cannot be grafted upon the constitution without the consent of the people of all of the states; and third, that such consent cannot be given by the legislatures of the states, but must come from conventions duly convened in accordance with a specific vote of a majority of the enfranchised citizens of the states respectively.

Outside of and beyond the question as to how far, in an orderly and wise system of republican form of government, a constitution should embrace rules to govern the daily life and ordinary habits of a people should, in a measure, supplant usual statute law-is the question of what would be proper or valid amendments within the meaning of Article V of the constitution.

It will not be contended, for example, that a constitutional amendment that destroyed the union would be valid if ratified by only threefourths of the states.4b One of the declared purposes of the constitution was "to form a more perfect union," that is, more perfect than the "perpetual" union established by the Articles of Confederation. "It is difficult," said Chief Justice Chase, "to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual union, made more perfect, is not ?"'5 Nor would such an amendment so adopted be valid if it destroyed the entity and sovereignty of the states. The union is perpetual and indissoluble and the sovereignty of the states is equally so. The United States could not exist without the states, but the states might continue to exist even though disunited. "The preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National Government.

a The constitution was merely intended to regulate the general political interests of the nation, not to regulate every species of personal and private concern. The Federalist (Hamilton), 84 (Dawson's ed.).

"b"If anything can be regarded as settled in the constitutional law of any people, it must now be looked upon as placed beyond further controversy, that the Constitution of the United States is an instrument of government, agreed upon and established in the several States by the people thereof, through representatives empowered for the purpose, operative upon the people individually and collectively, and, within the sphere of its powers, upon the government of the States also. And that the Union which is perfected by means of it is indissoluble through any steps contemplated by, or admissible under, its provisions or on the principles on which it is based, and can only be overthrown by physical force effecting a revolution."

Story on the Constitution (5th ed.), vol 1, pp. 222-223n (by Cooley). "Texas v. White, 7 Wall. (U. S.) 700 (1868), at p. 725.

"Lane County v. Oregon, 7 Wall. (U. S.) 71 (1868), at p. 76.