Menu
Scott Schaeffer, The Legislative Rise and Populist Fall of the Eighteenth Amendment: Chicago and the Failure of Prohibition, 26 J.L & Pol. 385 (2011).
Arguing that the Eighteenth Amendment was the catalyst for an era of bloated and ineffective government, even before the New Deal. Discussing the history of the rise of prohibition that underlies the Amendment and its subsequent enforcement at the state and federal levels. Seeking to fill gaps in the historical literature by looking to primary sources to understand the rise of Prohibition.
John O. McGinnis & Michael B. Rappaport, Originalism and the Good Constitution, 98 Geo. L.J. 1693 (2009).
Noting that the passage of the Eighteenth Amendment and its subsequent repeal is evidence that Article V is not too strict to permit other substantive changes via the amendment process. Arguing that the Eighteenth Amendment was an example of the amendment process overcoming vested interests, insofar as prohibition was favored by women and they were not yet fully represented in Congress.
Arguing Section 5 of the Fourteenth Amendment was impermissibly truncated in City of Boerne v. Flores and including a section on the first judicial interpretation of the Eighteenth Amendment’s enforcement clause, which articulated a means-ends standard.
Arguing that understanding the Eighteenth Amendment’s enforcement power is important to construing the enforcement powers in other constitutional provisions insofar as it gave Congress and the states concurrent enforcement power. Noting that it is hard to believe the states would have been entitled to deference over Congress if they had interpreted the Amendment differently.
Richard F. Hamm, Southerners and the Shaping of the 18th Amendment, 1914-1917, 1 Ga. J.S. Legal Hist. 81 (1991).
Discussing the history of the primary southern players who shaped the prohibition movement and the Eighteenth Amendment. Providing a thorough account of the politics underlying the Amendment’s formation and passage.
Edward P. Buford, The So-Called Eighteenth Amendment to the Constitution of the United States, 14 Va. L. Rev. 432 (1927).
Arguing that the Eighteenth Amendment was not an amendment, but an act of legislation, and therefore should be considered void. Discussing the difference between legislative powers and Article V powers. Speaking to the Founders’ original intention of Article V.
Discussing the novel phrase “concurrent power” as it appears in the Eighteenth Amendment. Noting that no court has interpreted what it means to have concurrent power and that justices at the time were bewildered by it. Providing an analysis of the divergent meanings of “concurrent power” textually and rooted in the Amendment’s legislative history.
Have we missed an article? Please let us know of any additional scholarship that should be included in the Interactive Constitution.