<SPAN name="chap08"></SPAN>
<h2>CHAPTER VIII </h2>
<h2>ONE-HALF OF ONE PER CENT. </h2>
<p>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."</p>
<p>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.</p>
<p>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.</p>
<p>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.<br/>
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