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About Tony Rubolotta
Tony Rubolotta works in the technology industry.
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Tony Rubolotta

Amendment XVIII Revisited
December 2, 2010

Though the 18th Amendment to the Constitution was later repealed by the 21st Amendment, there is something to learn from this Constitutional excursion that transcends the failed attempt to ban alcoholic beverages. Unfortunately, most discussion of this amendment centers on the false "you can't legislate morality" debate and ignores a more subtle and important lesson to be learned. Americans and politicians in 1917 understood something Americans in later years did not, an ignorance that politicians today gleefully exploit.

First the amendment itself. The meat is Section 1 which reads "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."

Americans in 1917 knew their Constitution and fully understood what was meant by enumerated powers. Whether the ban on alcoholic beverages had popular support was not the issue and even the politicians understood that. Whether or not the federal (or State) government had the Constitutional authority was the issue. The obvious conclusion was it did not have the authority. There is no enumerated power given to the federal government to ban or regulate any product or service, hence one was needed and that could only be done through the amendment process.

Article I, Section 8, the so-called enumerated powers, is very specific about what the federal government can do and is the ultimate expression of what the Founders meant by limited government. The preamble of the Constitution is not a license to go beyond those limited powers but only an expression of intent. When Americans rightly or wrongly jumped on the prohibition bandwagon between 1917 and 1919, they understood that the power had to be granted. Not even the commerce clause could be stretched that far.

There have been many transgressions by the federal government that have enjoyed popular support. The FDA, Social Security, Medicare and the ADA just happen to be a few that have absolutely no Constitutional authority despite their popularity. Yet most Americans who lived at the time those came into being simply accepted what the federal government did as if it had the authority in those particular cases. Those who objected were trampled by court decisions finding legal "penumbras" and other such judicial interpretive fakery. The favorite court instrument appears to be the "commerce clause" which has been stretched so far beyond its original intent that it should have been named the "elastic clause".

Of course we have those justices that advocate the "living Constitution" which fully implies they have the power to animate that document any way they see fit. We also have Executive Orders, more appropriately called presidential diktats that go far beyond what is required to enforce the laws of the land. Obama's many czars and their assumed powers emanate from unconstitutional Executive Orders.

Obamacare may be the slap in the face many Americans needed to alert them to what Americans knew in 1917. You don't do that without Constitutional authority, and even the politicians of the time understood that. Nonetheless, politicians today have a totally different attitude. They may take an oath to uphold and defend the Constitution, but they clearly place the burden of the Constitutional test on the citizen. So why not pass legislation without reading it? So what if it is unconstitutional? That's the citizens' problem and they have to prove it in court. It's an attitude shared by most Democrats and many Republicans.

To paraphrase Madison, I can't lay my finger on that specific power in the Constitution that allows the federal government to ban the manufacture and use of tungsten filament light bulbs, or CAFE standards, or compulsory retirement plans, or funding a media outlet, or the Endangered Species Act, or any other number of popular (or unpopular) laws that it does not have the power to make. And, for as much as I am against drug use, there is no Constitutional authority for the federal government to pass any law concerning drugs. That, and some of the other items I have mentioned are powers reserved to the States, provided their constitutions permit those powers, or to the people who will exercise those powers by the decisions they make.

Americans in 2010 would do well to learn what Americans knew in 1917, even if we laugh at the decision they made at the time. If Americans today want their government to "take care of them", a few Constitutional amendments would be in order.

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