What Prohibition Has Done to America

by Fabian Franklin
Copyright 1922,  Harcourt, Brace & Co., New York. 

CHAPTER VIII

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.