There were other arguments of a more technical character. Article V of
the Constitution provides that the Congress shall propose amendments
"whenever two-thirds of both Houses shall deem it necessary." It was
urged that this required the affirmative vote of two-thirds of the
entire membership of both Houses, and that two-thirds of a quorum was
not sufficient. It was also urged that the proposal was fatally
defective because it did not on its face declare that both Houses deemed
the amendment necessary. It was also argued that the amendment had not
been effectively ratified in certain of the states where it had been
approved by the state legislature (notably Ohio) because under the
constitutions of those states it was subject to a referendum to the
people before becoming effective. The Supreme Court of Ohio had so
decided[1] and a referendum had actually been held in that state,
resulting in a rejection of the amendment by popular vote. Various
arguments were also advanced based on the puzzling phraseology of
Section 2 of the amendment that "the Congress and the several States
shall have _concurrent power_ to enforce this article by appropriate
legislation." The eminent constitutional lawyer, W.D. Guthrie, addressed
himself particularly to this phase of the controversy.[2] It was urged
with much force that the effect of these words was to save the rights of
the states, in respect of intrastate matters, by requiring their
concurrence in any legislation of Congress regulating such matters.

[Footnote 1: See _Hawke v. Smith_, 253 U.S., 221.]

[Footnote 2: 253 U.S., pp. 368-380.]

All the arguments advanced were alike unavailing. The nine members of
the Supreme Court were unanimous in sustaining the validity of the
amendment, holding that it "by lawful proposal and ratification, has