id
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 And a law repealed is the same as a law that has not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