dealing with the question of the proper construction of the grant of
"concurrent power" to Congress and the States, and wrote opinions
setting forth the grounds of their dissent. Both Justices, however,
concurred in affirming the validity of the amendment.

Thus the legal battle was fought and lost. The amendment had withstood
attack and men's minds settled back to the practical question of its
enforcement.

Upon that question, however difficult and interesting, we do not here
enter. Our present concern is to ascertain as nearly as may be the true
place of the amendment in the development of American constitutional
law.

That it affords startling evidence of a radical departure from the views
of the founders of the Republic is beyond question. Such a blow at the
prerogatives of the states, such a step toward centralization, would
have been thought impossible by the men of 1787. It would be a mistake,
however, to view the departure as having originated with this amendment.
Rather is the amendment to be regarded as merely a spectacular
manifestation of a change which was already well under way.

In the early days of the Republic the dominating purpose was the
protection of state prerogatives, so far as that was compatible with the
common safety. The first eleven amendments of the Federal Constitution
were all limitations upon federal power. Not until the people of the
various states had been drawn together and taught to think in terms of
the nation by a great Civil War was there any amendment which enlarged
the powers of the National Government. The three post-war amendments
(Nos. XIII, XIV, and XV) marked a distinct expansion of federal power
but one that seemed to find its justification, as it found its origin,
in the necessity for effectuating the purposes of the war and protecting
the newly enfranchised Negroes.

A long period of seeming inactivity, more than forty years, elapsed
before another constitutional amendment was adopted.[1] The inaction,
however, was apparent rather than real. As matter of fact, a change was
all the time going on. In a very real sense the Constitution was being
altered almost from year to year. That the alterations did not take the
shape of formal written amendments was largely due to the tradition of
constitutional immobility. The idea had grown up that the machinery of
amendment provided by the Fathers was so slow and cumbersome that it was
impossible as a practical matter to secure