Constitutional Law. Former Jeopardy. Eighteenth Amendment

Fraus legis – defrauding or evading the application of law – is a phenomenon well-known to students of private law, but its application in public law, including constitutional law, remains largely unconsidered. To consider whether a transaction, or, it is submitted, an enactment, is an instance of fraus legis, an interpreter must have regard to the substance and not merely the form of an enactment. In 2018 Parliament resolved to amend section 25 of the Constitution of the Republic of South Africa, 1996 (the Constitution) to allow government to expropriate property without being required to pay compensation. While the public and legal debate has since before that time been concerned with "expropriation without compensation", the draft Constitution Eighteenth Amendment Bill, 2019 provides instead for expropriation where "the amount of compensation is nil". By the admission of Parliament's legal services unit, this is a distinction without a difference. But compensation and expropriation are legally and conceptually married, and as a result, it would be impermissible to expropriate without compensation – instead, nil compensation will be "paid". How does this current legal affair comport with the substance over form principle, and is fraus legis at play? This article considers the application of the fraus legis phenomenon to public law, utilising the contemporary case study of the Constitution Eighteenth Amendment Bill.

Constitutional Law: Concurrent Power under the Eighteenth Amendment

Michigan Law Review ◽

10.2307/1276901 ◽

1921 ◽

Vol 19 (4) ◽

pp. 435

Keyword(s):

Constitutional Law ◽

Eighteenth Amendment

Constitutional Law: Concurrent Power under the Eighteenth Amendment

California Law Review ◽

10.2307/3473896 ◽

1921 ◽

Vol 10 (1) ◽

pp. 70

Author(s):

L. L. T.

Keyword(s):

Constitutional Law ◽

Eighteenth Amendment

Constitutional Law: Validity of the Eighteenth Amendment

Michigan Law Review ◽

10.2307/1280598 ◽

1931 ◽

Vol 29 (6) ◽

pp. 777

Keyword(s):

Constitutional Law ◽

Eighteenth Amendment

Constitutional Law: The Eighteenth Amendment: Referendum

California Law Review ◽

10.2307/3473716 ◽

1920 ◽

Vol 8 (3) ◽

pp. 185

Author(s):

H. S. J.

Keyword(s):

Constitutional Law ◽

Eighteenth Amendment

Constitutional Law in 1933–34

American Political Science Review ◽

10.2307/1947165 ◽

1935 ◽

Vol 29 (1) ◽

pp. 36-59

Author(s):

Robert E. Cushman

Keyword(s):

South Carolina ◽

Federal Government ◽

Constitutional Law ◽

The State ◽

Police Power ◽

Market Place ◽

Excise Taxes ◽

The Status ◽

Eighteenth Amendment ◽

Federal Taxation

Following the repeal of the Eighteenth Amendment, the state of Ohio authorized by statute the creation of a state liquor monopoly, purchased $4,500,000 worth of liquor, and perfected plans for the retailing of it through 187 stores owned and managed by the state. In Ohio v. Helvering, the state sought an injunction to restrain the commissioner of internal revenue from collecting from the state the customary federal excise taxes upon the sale of intoxicating liquors. It alleged the immunity of the state and its instrumentalities from federal taxation and further claimed that the federal taxing statutes were not intended by Congress to apply to the states. The court, speaking through Mr. Justice Sutherland, upheld the collection of the tax, reaffirming the doctrine laid down in 1905 in the South Carolina Dispensary Case. The immunity from federal taxation enjoyed by the states extends only to those agencies and functions which are governmental in character and not to those which are proprietary. “When a state enters the market place seeking customers, it divests itself of its quasi-sovereignty pro tanto, and takes on the character of a trader, so far, at least, as the taxing power of the federal government is concerned.” The Court rejected as “altogether fanciful” the argument that the passage of the Eighteenth Amendment and its later repeal had so altered the status of the liquor traffic that its conduct by the state has become an exercise of the state's police power, and hence a governmental operation immune from federal taxation.

Constitutional Law: Appropriate Legislation to Enforce the Eighteenth Amendment

Michigan Law Review ◽

10.2307/1279413 ◽

1927 ◽

Vol 25 (7) ◽

pp. 796

Keyword(s):

Constitutional Law ◽

Eighteenth Amendment

Constitutional Law: Eighteenth Amendment: Double Jeopardy

Michigan Law Review ◽

10.2307/1276756 ◽

1921 ◽

Vol 19 (6) ◽

pp. 647 ◽

Cited By ~ 1

Keyword(s):

Constitutional Law ◽

Double Jeopardy ◽

Eighteenth Amendment

Constitutional Law: Validity of Eighteenth Amendment

Michigan Law Review ◽

10.2307/1278044 ◽

1920 ◽

Vol 18 (7) ◽

pp. 700

Keyword(s):

Constitutional Law ◽

Eighteenth Amendment