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08 - What Prohibition Has Done to America by Fabian Franklin · What Prohibition Has Done to America

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  Speaker 1: Chapter eight of What Prohibition Has Done to America. This
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  Speaker 1: is a LibriVox recording. All LibriVox recordings are in the
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  Speaker 1: public domain. For more information or to volunteer, please visit
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  Speaker 1: LibriVox dot org. What Prohibition Has Done to America by
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  Speaker 1: Fabian Franklin, Chapter eight one half of one percent. The
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  Speaker 1: Eighteenth Amendment forbids the manufacture, sale, or transportation of intoxicating
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  Speaker 1: liquors within the importation thereof in two or the exportation
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  Speaker 1: thereof from the United States and all territory subject to
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  Speaker 1: the jurisdiction thereof for beverage purposes. The Volsted Act declares
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  Speaker 1: that the phrase intoxicating liquor, as used in the Act quote,
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  Speaker 1: shall be construed to include all liquors containing one half
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  Speaker 1: of one percentum or more of alcohol by volume, which
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  Speaker 1: are fit for use for beverage purposes. Since everybody knows
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  Speaker 1: that a drink containing one half of one percent of
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  Speaker 1: alcohol is not, in fact an intoxicating drink, a vast
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  Speaker 1: amount of indignation has been aroused among opponents of national
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  Speaker 1: prohibition by this stretching of the letter of the Amendment.
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  Speaker 1: I have to confess that I cannot get excited over
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  Speaker 1: this particular phrase of the Volsted legislation. There is, to
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  Speaker 1: be sure, something offensive about persons who profess to be
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  Speaker 1: peculiarly the exponents of high morality being willing to attain
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  Speaker 1: a practical end by inserting in a law a definition
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  Speaker 1: which declares a thing to be what in fact it
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  Speaker 1: is not. But the offense is rather one of form
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  Speaker 1: than of really important substance. The Supreme Court has decided
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  Speaker 1: that Congress did not exceed its powers in making this
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  Speaker 1: definition of quote intoxicating liquor. And while this does not
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  Speaker 1: absolve the makers of the law of the offense against
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  Speaker 1: strict truthfulness, it may rightly be regarded as evidence that
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  Speaker 1: the transgression was not of the sort that constituted a
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  Speaker 1: substantial usurpation the assumption by Congress of a power beyond
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  Speaker 1: the limits of the grant conferred upon it by the
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  Speaker 1: Eighteenth Amendment. If Congress chose to declare one half of
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  Speaker 1: one percent as its notion of the kind of liquor
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  Speaker 1: beyond which there would occur a transgression of the eighteenth
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  Speaker 1: Article of the Amendment of the Constitution, says the Supreme Court.
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  Speaker 1: In effect, it may do so in the exercise of
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  Speaker 1: the power granted to it, quote to enforce this article
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  Speaker 1: by appropriate legislation end quote. Not that little effort has
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  Speaker 1: been expended by lawyers and legislators state and national upon
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  Speaker 1: the idea of bringing about a raising of the permitted
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  Speaker 1: percentage to two point seven five. That figure appears to
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  Speaker 1: represent quite accurately the point at which, as a matter
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  Speaker 1: of fact, an alcoholic liquor becomes, in any real and
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  Speaker 1: practical sense, in the slightest degree intoxicating. But except for
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  Speaker 1: the purpose of making something like a breach in the
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  Speaker 1: outer wall of the Great Prohibition Fortress, the purpose of
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  Speaker 1: showing that the control of the prohibitionist forces over Congress
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  Speaker 1: or a state legislature is not absolutely unlimited, this game
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  Speaker 1: is not worth the candle to fight hard and long
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  Speaker 1: merely to get a concession like this, which is in
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  Speaker 1: substance no concession. To get permission to drink beer that
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  Speaker 1: is not beer and wine that is not wine is
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  Speaker 1: surely not an undertaking worth the expenditure of any great
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  Speaker 1: amount of civic energy. A source of comfort was, however,
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  Speaker 1: furnished to the advocates of a liberalizing of the prohibition
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  Speaker 1: regime by the very fact that the Supreme Court did
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  Speaker 1: sanction so manifest a stretching of the meaning of words
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  Speaker 1: as is involved in a law which declares any beverage
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  Speaker 1: containing as much as one half of one per cent
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  Speaker 1: of alcohol to be an intoxicating liquor. If a liquor
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  Speaker 1: that is not intoxicating can, by congressional definition be made intoxicating,
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  Speaker 1: it was pointed out, then by the same token, a
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  Speaker 1: liquor that is intoxicating can by congressional definition be made
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  Speaker 1: non intoxicating. Accordingly, it has been held by many if
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  Speaker 1: Congress were to substitute ten per cent, say for one
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  Speaker 1: half of one per cent in the Volstead Act, by
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  Speaker 1: which means beer and light wines would be legitimated, the
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  Speaker 1: Supreme Court would uphold the law, and a great relief
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  Speaker 1: from the present oppressive conditions would, by this very simple
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  Speaker 1: means be accomplished. What the Supreme Court would actually say
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  Speaker 1: of such a law, I am far from bold enough
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  Speaker 1: to attempt to say that the law would not be
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  Speaker 1: an execution of the attent of the Eighteenth Amendment is
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  Speaker 1: plain enough, and it would be a much more substantial
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  Speaker 1: transgression against its purpose than is the one half of
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  Speaker 1: one percent enactment. Nevertheless, it is quite possible that the
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  Speaker 1: Supreme Court would decide that this deviation to the right
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  Speaker 1: of the zero mark is as much within the discretion
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  Speaker 1: of Congress as was the Volstad definition to the left. Certainly,
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  Speaker 1: the possibility at least exists that this would be so.
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  Speaker 1: But whether this be so or not, it is quite
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  Speaker 1: plain that Congress, if it really wishes to do so,
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  Speaker 1: can put the country into the position where prohibition will
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  Speaker 1: either draw the line above the beer and wine point
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  Speaker 1: or go out altogether. For if it were to pass
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  Speaker 1: an act rep repealing evol Stead in law, and in
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  Speaker 1: a separate act passed practically at the same time, but
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  Speaker 1: after the repealing act enact a ten percent prohibition law
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  Speaker 1: or some similar percentage, what would be the result. Certainly,
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  Speaker 1: there is nothing unconstitutional in repealing the evol Stead Act.
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  Speaker 1: There would have been nothing unconstitutional in a failure of
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  Speaker 1: Congress to pass any act enforcing the Eighteenth Amendment. The
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  Speaker 1: Supreme Court can put out of action a law that
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  Speaker 1: Congress has passed on the ground of unconstitutionality, but it
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  Speaker 1: cannot put into action a law that Congress has not passed.
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  Speaker 1: And a law repealed is the same as a law
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  Speaker 1: that has not been passed. Thus, if Congress really wished
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  Speaker 1: to legitimate beer and wine, it could do so, leaving
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  Speaker 1: it to the Supreme Court to declare whether a law
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  Speaker 1: prohibiting strong alcoholic drinks was or was not more of
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  Speaker 1: an enforcement of the Eighteenth Amendment than no law at all,
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  Speaker 1: For the only alternative the Court would have before it
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  Speaker 1: would be that law or nothing. I do not say
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  Speaker 1: that I favor this procedure, for it would certainly not
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  Speaker 1: be an honest fulfillment of the requirements of the Eighteenth Amendment.
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  Speaker 1: To have a law which professes to carry out an
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  Speaker 1: injunction of the Constitution, but which does not do so,
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  Speaker 1: is a thing to be deplored. But is it more
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  Speaker 1: to be deplored than to have a law which, in
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  Speaker 1: its terms does carry out the injunction of the Constitution,
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  Speaker 1: but which in its actual operation does no such thing.
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  Speaker 1: A law to the violation of which, in a vast
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  Speaker 1: class of instances, the millions of instances of home brew,
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  Speaker 1: the government deliberately shuts its eyes, a law, the violation
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  Speaker 1: of which, in the class of instances in which the
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  Speaker 1: government does seriously undertake to enforce it, bootlegging, smuggling, and moonshining,
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  Speaker 1: is condoned, aided, and abetted by hundreds of thousands of
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  Speaker 1: our best citizens. It is, as I have said in
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  Speaker 1: an earlier chapter, a choice of evils, and it is
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  Speaker 1: not easy to decide between them. On the one hand,
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  Speaker 1: we have the disrespect of the Constitution involved in the
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  Speaker 1: enactment by Congress of a law which it knows to
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  Speaker 1: be less than a fulfillment of the Constitution's mandate. On
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  Speaker 1: the other hand, we have the disrespect of the law
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  Speaker 1: involved in its daily violation by millions of citizens who
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  Speaker 1: break it without the slightest compunction or sense of guilt,
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  Speaker 1: and in the deliberate failure of the government to so
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  Speaker 1: much as take cognizance of the most numerous class of
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  Speaker 1: those violations. In favor of the former course, the passing
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  Speaker 1: of a wine and beer law, it may at least
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  Speaker 1: be said that the offense, whether it be great or small,
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  Speaker 1: is committed once for all by a single action of Congress, which,
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  Speaker 1: if left undisturbed, would probably before long be generally accepted
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  Speaker 1: as taking the place of the amendment itself. A law
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  Speaker 1: permitting wine and beer but forbidding stronger drinks, would have
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  Speaker 1: so much more public sentiment behind it than the present law,
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  Speaker 1: that it would probably be decently enforced and not very
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  Speaker 1: widely resisted. And though such a law would be justly
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  Speaker 1: objected to as not an honest fulfillment of the Eighteenth Amendment,
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  Speaker 1: it would, I believe, in its practical effect, be far
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  Speaker 1: less demoralizing than the existing statute, the Volsteed Act. Accordingly,
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  Speaker 1: while I cannot view the enactment of such a law
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  Speaker 1: with unalloyed satisfaction, I think that, in the situation into
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  Speaker 1: which we have been put by the Eighteenth Amendment, the
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  Speaker 1: proposal of a wine and beer law to displace the
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  Speaker 1: Volsteed Law deserves the support of good citizens as a
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  Speaker 1: practical measure which would effect a great improvement on the
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  Speaker 1: present state of things. End of Chapter eight