l 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 d