ONE-HALF OF ONE PER CENT.
THE Eighteenth Amendment forbids "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."
The Volstead act declares that the phrase "intoxicating liquor," as
used in the act, "shall be construed to include 'all liquors'
containing one-half of one percentum or more of alcohol by volume
which are fit for use for beverage purposes."
Since everybody knows that a drink containing one-half of one per
cent. of alcohol is not in fact an intoxicating drink, a vast amount
of indignation has been aroused, among opponents of National
Prohibition, by this stretching of the letter of the Amendment. I have
to confess that r cannot get excited over this particular phase of the
Volstead legislation. There is, to be sure, something offensive about
persons who profess to be peculiarly the exponents of high morality
being willing to attain a practical end by inserting in a law a
definition which declares a thing to be what in fact it is not; but
the offense is rather one of form than of really important substance.
The Supreme Court has decided that Congress did not exceed its powers
in making this definition of "intoxicating liquor"; and, while this
does not absolve the makers of the law of the offense against strict
truthfulness, it may rightly be regarded as evidence that the
transgression was not of the sort that constituted a substantial
usurpation--the assumption by Congress of a power lying beyond the
limits of the grant conferred upon it by the Eighteenth Amendment. If
Congress chooses to declare one-half of one per cent. as its notion of
the kind of liquor beyond which there would occur a transgression of
the Eighteenth Article of the Amendments to the Constitution, says the
Supreme Court in effect, it may do so in the exercise of the power
granted to it "to enforce this Article by appropriate legislation."
Not a little effort has been expended by lawyers and
legislators--State and national --upon the idea of bringing about a
raising of the permitted percentage to 2.75. That figure appears to
represent quite accurately the point at which, as a matter of fact, an
alcoholic liquor becomes--in any real and practical sense--in the
slightest degree intoxicating. But, except for the purpose of making
something like a breach in the outer wall of the great Prohibition
fortress--the purpose of showing that the control of the
Prohibitionist forces over Congress or a State Legislature is not
absolutely unlimited--this game is not worth the candle.
To fight hard and long merely to get a concession like this, which is
in substance no concession--to get permission to drink beer that is
not beer and wine that is not wine--is surely not an undertaking worth
the expenditure of any great amount of civic energy. A source of
comfort was, however, furnished to advocates of a liberalizing of the
Prohibition regime by the very fact that the Supreme Court did
sanction so manifest a stretching of the meaning of words as is
involved in a law which declares any beverage containing as much as
one-half of one per cent. of alcohol to be an "intoxicating liquor."
If a liquor that is not intoxicating can by Congressional definition
be made intoxicating, it was pointed out, then by the same token a
liquor that is intoxicating can by Congressional definition be made
non-intoxicating. Accordingly, it has been held by many, if Congress
were to substitute ten per cent., say, for one-half of one per cent.,
in the Volstead act, by which means beer and light wines would be
legitimated, the Supreme Court would uphold the law and a great relief
from the present oppressive conditions would by this very simple means
be accomplished. What the Supreme Court would actually say of such a
law I am far from bold enough to attempt to say. That the law would
not be an execution of the intent of the Eighteenth Amendment is plain
enough; and it would be a much more substantial transgression against
its purpose than is the one-half of one per cent. enactment.
Nevertheless it is quite possible that the Supreme Court would decide
that this deviation to the right of the zero mark is as much within
the discretion of Congress as was the Volstead deviation to the left.
Certainly the possibility at least exists that this would be so. But
whether this be so or not, it is quite plain that Congress, if it
really wishes to do so, can put the country into the position where
Prohibition will either draw the line above the beer-and-wine point or
go out altogether. For if it were to pass an act repealing the
Volstead law, and in a separate act, passed practically at the same
time but after the repealing act, enact a ten per cent. prohibition
law (or some similar percentage) what would be the result? Certainly
there is nothing unconstitutional in repealing the Volstead act. There
would have been nothing unconstitutional in a failure of Congress to
pass any act enforcing the Eighteenth Amendment. The Supreme Court can
put out of action a law that Congress has passed, on the ground of
unconstitutionality; but it cannot put into action a law that Congress
has not passed. And a law repealed is the same as a law that has not
been passed. Thus if Congress really wished to legitimate beer and
wine, it could do so; leaving it to the Supreme Court to declare
whether a law prohibiting strong alcoholic drinks was or was not more
of an enforcement of the Eighteenth Amendment than no law at all--for
the only alternative the Court would have before it would be that law
or nothing! I do not say that I favor this procedure; for it would
certainly not be an honest fulfilment of the requirements of the
Eighteenth Amendment. To have a law which professes to carry out an
injunction of the Constitution but which does not do so is a thing to
be deplored. But is it more to be deplored than to have a law which in
its terms does carry out the injunction of the Constitution but which
in its actual operation does no such thing? A law to the violation of
which in a vast class of instances--the millions of instances of home
brew--the Government deliberately shuts its eyes? A law the violation
of which in the class of instances in which the Government does
seriously undertake to enforce it--bootlegging, smuggling and
moonshining--is condoned, aided and abetted by hundreds of thousands
of our best citizens? It is, as I have said in an early chapter, a
choice of evils; and it is not easy to decide between them. On the one
hand, we have the disrespect of the Constitution involved in the
enactment by Congress of a law which it knows to be less than a
fulfilment of the Constitution's mandate. On the other hand we have
the disrespect of the law involved in its daily violation by millions
of citizens who break it without the slightest compunction or sense of
guilt, and in the deliberate failure of the Government to so much as
take cognizance of the most numerous class of those violations. In
favor of the former course--the passing of a wine-and-beer law--it may
at least be said that the offense, whether it be great or small, is
committed once for all by a single action of Congress, which, if left
undisturbed, would probably before long be generally accepted as
taking the place of the Amendment itself. A law permitting wine and
beer but forbidding stronger drinks would have so much more public
sentiment behind it than the present law that it would probably be
decently enforced, and not very widely resisted; and though such a law
would be justly objected to as not an honest fulfilment of the
Eighteenth Amendment, it would, I believe, in its practical effect, be
far less demoralizing than the existing statute, the Volstead act.
Accordingly, while I cannot view the enactment of such a law with
unalloyed satisfaction, I think that, in the situation into which we
have been put by the Eighteenth Amendment, the proposal of a
wine-and-beer law to displace the Volstead law deserves the support of
good citizens as a practical measure which would effect a great
improvement on the present state of things.