THE NATIONAL PROHIBITION LAW
HEARINGS before the SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE - SIXTY-NINTH CONGRESS
April 5 to 24, 1926
STATEMENT BY HON. WALTER E. EDGE, A SENATOR IN THE CONGRESS OF THE UNITED STATES FROM THE STATE OF NEW JERSEY
Senator EDGE. Mr. Chairman and members of the committee, I will not take the time of the committee with the presentation of either evidence or statistics for the purpose of establishing the appalling failure of prohibition. Senator Bruce has well covered that situation.
In my judgment, and I am quite sure in the judgment of a large majority of the people of this country, prohibition has not only failed to prohibit but has created an atmosphere of protest and challenge an almost defiance which demands congressional consideration.
Of course, no one defends violation of the law, no matter how unjust a law may be, but it avails us nothing to fall back on the defense that the law should and must be enforced. All law should be, but the facts are it is not enforced, and in my judgment, never can be satisfactorily enforced.
Neither is this a plea to relieve a situation simply because citizens refuse to abide by the law, but if it can be demonstrated and it can, that the law is unfair and is an unjust interpretation of the Constitution, then it is our duty to recognize such a situation.
Any law that brings in its wake such wide corruption in the public service, increased alcoholic insanity, and deaths, increased arrests for drunkenness, home barrooms, and development among young boys and young women of the use of the flask never heard of before prohibition can not be successfully defended.
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My purpose in addressing the committee is to endeavor to offer constructive suggestions which I believe will improve conditions. Certainly, they could not be worse than they are to-day.
Those who urge modification of the Volstead Act are usually classified as encouraging violation of the law. What a travesty! No more ridiculous assertion could be made.
I unhesitatingly contend that those who recognize existing evils and sincerely endeavor to correct them are contributing more toward temperance than those who stubbornly refuse to admit the facts.
Some of us are enlisted in this movement in the interest of tolerance and temperance, and all the misrepresentations that can be made will not deter us from our purpose and determination.
This is not a campaign to bring back intoxicating liquor, as is so often claimed by the fanatical dry. Intoxicating liquor is with us to-day and practically as accessible as it ever was. The difference mainly because of its illegality, is its greater destructive power, as evidenced on every hand. The sincere advocates of prohibition welcome efforts for real temperance rather than a continuation of the present bluff.
No sane man would port legislation which he believed would make conditions worse. I can not imagine such a citizen. In fact, it is difficult to believe they could be much worse than they are to-day.
Frequently we see the statement from the opposition that a modification of the Volstead Act will mark a return to the conditions prevailing before prohibition. With the saloons eliminated, the conditions before prohibition were infinitely better than to-day, and I have not heard of any legislation proposing to legalize saloons. We now have all the evils of preprohibition days plus many other evils we never imagined possible in the old days.
I confidently assert that if the Volstead Act is modified up to the point of constitutional limitation, as is universally demanded, much of the existing spirit of challenge and protest will be eliminated and violation of the law substantially reduced.
The time has arrived for Congress to cease trying to find excuses to postpone modification or to refuse to meet this Situation. The time has arrived for Congress to help find a legal way to do so.
The opposition always proceeds on the theory that give them time and they will stop the habit of indulging in intoxicating beverages. This can not be accomplished. We should recognize our problem is not to persist in the impossible, but to recognize a situation and bring about common-sense temperance through reason.
I have introduced several bills proposing modification of the Volstead Act. Since introducing those bills, I have proposed several amendments to which I will later refer.
S. 33, introduced by me, provides for the increase of the maximum of alcohol permitted in beverages from the existing under one-half of 1 per cent to 2.75 per cent.
I will not take the time of the committee to discuss this bill because since introducing it I have presented another bill which, in my judgment, better meets constitutional requirements that I fully recognize we must wrestle with.
Of course, any stated percentage as high as 2.75 per cent presents the familiar question of what is or is not intoxicating.
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Scientific witnesses take positive positions on both sides of this question. If such an amendment became a law no man can speak with definite knowledge as to the final decision of the Supreme Court.
Opinions heretofore handed down by the Supreme Court clearly indicate the question of percentage is a matter for Congress to decide, and when the Volstead Act with its under one-half of 1 per cent limitation was upheld by the Supreme Court there was nothing to indicate the court would not have likewise upheld it if the percentage had been much higher.
In this connection I desire to refer to the original report which accompanied the Volstead Act when presented in the House of Representatives by its sponsor, Mr. Volstead, away back in 1919. Apparently there was absolutely no question in the minds of the majority of the Judiciary Committee of the House at that time as to the power of Congress to fix the alcoholic limit as they deemed wise. Let me read from this report.
[Extract from Report No. 91, Sixty-sixth Congress, first session, P. 4]
In considering this bill it has been suggested that Congress has no power to define the phrase "intoxicating liquor" contained in this amendment. This suggestion does not appear to raise any real difficulty. Congress is given power to enforce this amendment by appropriate legislation. To do that it must necessarily determine its scope and meaning. The right to define the power conferred upon it by the Constitution has been exercised by Congress ever since we had a government. Every act that it passes is, in effect, an assertion of its terms. To illustrate, Congress had defined the term "bankrupt" ... "income," ... "involuntary servitude" ... "immigration," "insurrection," "counterfeiting," ... "equal protection of the laws," ... and a number of other words and phrases contained in the Constitution.
However, as I have already indicated and as the committee are aware, I have sponsored another bill which, in my judgment, entirely removes any possible question of constitutionality.
S. 3118, introduced by me and referring to alcoholic contents, amends the Volstead Act by substituting the words "nonintoxicating in fact" for the present limitation of under one-half of 1 per cent. In other words, it copies and asserts the very words of the Constitution itself and its constitutionality therefore can not be questioned.
In connection with the introduction of this bill, I must go back a short period.
When the Volstead Act finally passed Congress and upon the, insistence primarily of representatives of the rural communities section 29 was included in the act a portion of which I will read.
The penalties provided in this act against the manufacture of liquor without a permit shall not apply to a person for manufacturing nonintoxicating cider and fruit juices exclusively for use in his home, but such cider and fruit juices shall not be sold or delivered except to persons having permits to manufacture vinegar.
Under those provisions it is, of course, clearly established that citizens could produce nonintoxicating cider and fruit juices in their homes for home consumption.
For a long time after the passage of the act the question as to the alcoholic percentage permitted under this section was under dispute. The Government took the position that the general definition of intoxicating liquors in the act of one-half of 1 per cent or over likewise applied to section 29 and that cider or fruit juices thus produced
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would be illegal if they contained one-half of 1 per cent alcohol or more.
Various test cases as to this contention reached the Federal courts. The case of Congressman Hill, of Baltimore, where he had produced in his home ciders or fruit juices or wine to an admitted strength of over one-half of I per cent was tried in the Federal court and the Congressman acquitted of any violation of the Volstead Act. Other cases have been tried in Federal courts with like result.
One of these cases was recently appealed to the Federal court of appeals in the West Virginia district, the Eisner case, and the court of appeals sustained the lower court to the effect that fruit juices and ciders could be produced under section 29 up to the point of being "intoxicating in fact" and that any violation must be established by the complainant.
Understand, the Federal Department of Justice had all this time contended one-half of 1 per cent was the maximum. This contention has been defeated. Following the publication of the Eisner case, the Department of Justice publicly announced they would accept that decision--- in other words, would not appeal it to the Supreme Court of the United States, and thus the law is now fixed permitting citizens in their homes for home consumption to legally produce all--- the wine and cider they desire to produce and the question of its being intoxicating is a matter entirely for the court to prove. This legal privilege under this decision is accorded to all the citizens of the United States who are in a position to produce beverages of this character.
To further define what constitutes "intoxicating in fact," I will read briefly from Judge Soper's charge to the jury.
Perhaps I might interpolate here that intoxication in this section of the law means what you and I ordinarily understand as average human beings by the word "drunkenness." If this wine was capable of producing drunkenness when taken in sufficient quantities--- that is to say, taken in such quantities as it was practically possible for a man to drink--- then it was intoxicating.
Remember now, malt and cereal beverages, in other words, beers and ales are under the Volstead Act still violations of the law if they contain only one-half of 1 per cent alcohol, and many convictions have been secured tinder that provision.
No one can possibly or successfully defend such a glaring discrimination.
The farmer with his grapes or apples can legally go the limit. The industrial worker with his beer can go to jail.
This bill, S. 3118, has been introduced to remedy this situation. As stated, it simply substitutes the term "nonintoxicating in fact" for the term "one half of 1 per cent." It removes the present indefensible discrimination.
The effect of this bill if it became a law would legalize the manufacture, sale, and use of all beverages whether wine, cider, cereal, or malt to the point of being intoxicating in fact.
I have presented an amendment to the bill which prohibits the drinking of any such beverages in any plate where sold. This is for the obvious purpose of preventing a return of the old-time legalized saloon.
I have further provided an amendment that it shall in no way apply to States where State laws provide a lower percentage. In other words, if Now York State wishes the maximum as provided by this
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Federal act, they could have it. If Kansas prefers to remain with a maximum of one-half of 1 per cent or no alcohol at all, they can have it, but they can not force their will upon other States.
I clearly realize when the other side takes the stand they will oppose modification as they have always done, mainly on three major counts:
1. That any modification is unconstitutional.
2. That even if it were not, the return of light wines and beers, so called, would not satisfy those who want hard spirits.
3. That legalizing their manufacture would mean the return of the saloons.
As to the constitutionality, as I have said, there is absolutely nothing to discuss. The very words used in the bill are the words of the Constitution. The Constitution prohibits intoxicating liquors. This bill likewise prohibits intoxicating liquors. If this bill is unconstitutional, then the eighteenth amendment itself is unconstitutional, which, of course, would be a ridiculous assertion.
The object of this bill, in a few words, is to legalize a right which has been denied by section 29 of the Volstead Act. That's all. No more; no less. Personally, I have the strong conviction we have no moral right to deny the people what the Constitution clearly permits and especially in view of the court's interpretation of section 29, which I have already explained allowing this very same privilege to certain classes. Certain there can be no question as to the fairness and justification of making the privilege general.
I can anticipate two further objections being raised by the opposition.
1. That this provides for manufacture of nonintoxicating beverages outside of homes where section 29 confines it to homes.
In my judgement, confining it to homes has been one of the great evils of the Volstead Act. Under the fourth amendment officers can not enter a home for the purpose of ascertaining whether such beverages are intoxicating or otherwise, but of course, the Government can always enter a public place manufacturing beverages and have every right and opportunity to confine such an activity within the law.
2. That striking out any stated alcoholic limit will result in confusion.
We could not possibly have greater confusion that we have with the existing law. The one-half of 1 per cent inaugurated the confusion. This confusion has been augmented by the court decisions as to section 29, but to advance as an objection that the question of what is or what is not intoxicating is thus left to the courts is no valid objection, as after all is said and done, violations of most law is and should be properly left to the courts.
As to light beverages not satisfying, to my knowledge, no one, has ever claimed legalizing light wines and beers would entirely solve the problem. Its proponents have simply advanced the conviction that it would help in that direction. This country was not a whisky-consuming country before prohibition. This contention is borne out by statements of representatives of the Anti-Saloon League itself. Senator Dill, of Washington, in a radio speech made in February stated "92 per cent of saloon business in the United States before
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prohibition was beer business." This same admission has been made by many other accredited representatives of the drys. In fact, was made in my own State by Mr. Edward B. Dunford, an official of the Antisaloon League last December, I think. This, of course, is direct evidence that our citizens largely preferred malt and cereal beverages. These people to-day are not able to obtain such beverages with a percentage of one-half of 1 per cent or over without becoming criminals while much stronger wine and cider are legalized. The natural result is, of course, a great reduction in this consumption and a corresponding increase in drinking illicit synthetic gin and other poisonous concoctions.
Therefore it must be obvious to legalize light wine and beer to constitutional limits would greatly decrease the bootleggers trade, and that is one of the reasons all efforts for modification are being opposed by the bootleggers' fraternity. Surely this is an accomplishment in the interest of temperance. The Antisaloon League, in the stubborn position they assume, are aiding the prosperity of this industry.
The claim that it would bring back saloons is, of course, advanced along to weaken modification. Legal saloons will never return to this country, whether the law prohibits them or otherwise. Public opinion would never permit it.
In addition, as I have already stated, I have presented an amendment which prohibits the consuming of beverages upon the premises where sold.
Speaking of saloons, I am not going to take the time to-day to reiterate what has been so many times proven, that while, of course, we have no legal saloons, we must have more places where illicit liquor is sold than we had saloons in former days or we would not have increased arrests for drunkenness. If you modify the Volstead Act there will naturally be less reason for the existence of these hovels and dives.
Under this bill people could have what they seem to be demanding;--- light wines and beers--- up to the point of proven intoxication. That is, of course, all they could have through any possible amendment of the Volstead Act.
If we specify alcoholic contents as first suggested, the attempt to pass the act would, of course, lead to endless controversy. That point at least is removed by the act presented and the question is left to the courts.
No one can in these days successfully defend the Volstead Act under one half of 1 per cent limitation on the argument originally advanced-that it would help enforcement of the law. It has had just the opposite effect. It was a great error of judgment when it was adopted. It was just as much a moral repudiation of the Constitution as permitting hard liquor would be in the other direction. My bill removes all such discriminations.
I do not propose expressing any extended opinion as to what this bill would contribute in bringing about better enforcement of the law. If the figures presented by our extreme dry friends as to beer consumption are correct, then if the public is able to legally secure a 1 beer or a light wine, with which they were apparently satisfied in old days, the tremendous demand for bootleggers' hard liquor must be appreciably decreased.
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Again, you accomplish something else which to me is vital and fundamental. You demonstrate to the citizens that Congress has done all it possibly can under the Constitution, and you thus minimize the protests now so apparent.
As District Attorney Buckner recently stated in a speech in New York, "We are too conservative to enforce the law and too ignorant of the facts to modify it."
There has been studied effort upon the part of those who oppose any modification to minimize the newspaper polls taken in all parts of the country. It is not my purpose to discuss them at this time further than to draw the attention of the committee to the plan for a national referendum which I have introduced in the Senate to which the Senator from Idaho, Mr. Borah, has suggested additional queries.
Frankly, I believe the country would indorse a referendum along these lines. If the committee will give consideration to this legislation, I will at a later time be glad to come before you and discuss it in more detail. Certainly that type of legislation is something on which both wets and drys could or should unite. The drys unhesitatingly claim that public sentiment has not changed. We claim it has. Of course, if the drys were in the slightest degree as confident as they assert they would be leading rather than opposing a referendum.
In my judgment, this problem will never be settled by Congress unless first initiated by the folks at home. I am sure from a political standpoint it is unnecessary for me to elaborate on that statement. That's why I am convinced a national referendum would be appropriate at this time. I trust it can be brought about.
Senator REED of Missouri. Senator, do you concede that public sentiment ever passed this legislation-this constitutional amendment?
Senator EDGE. I say it is so asserted; I have never conceded it; no.
I have one other ill before your committee which I will very briefly refer to as witnesses are here necessity much better than I can do.
That is S. 34, a bill the title of which is as follows:
To amend the national prohibition act, as supplemented, in respect to the Issuance by physicians of prescriptions for intoxicating liquors.
Section 7 of the Volstead Act provides in part:
Not more than a pint of spirituous liquor to be taken internally shall be prescribed for use by the same person within any period of 10 days and no prescription shall be filled more than once.
Perhaps one of the most indefensible provisions of the Volstead Act as is the determination of Congress to write prescriptions for the medical fraternity of the country. Through the provisions of the act in this particular, which limits the use of alcohol to 1 pint in 10 days, Congress has in effect deliberately insulted the physicians of the country and maintained the insult for six years. In other words, because a small percentage of doctors would probably have broken any law in this particular, as do a percentage of society in many other particulars, the entire profession was put under the ban. How much better it would have been if the 99 per cent honest doctors had been trusted and the 1 per cent put under supervision. The American Medical Association have protested against the insinuations and inferences which must be drawn from this determination to control their use of alcohol for medicine.
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At the last annual meeting I am informed the board of governors unanimously requested that this ban be removed, and at the same time, of course, asking that every possible effort be made to control those who would violate the law.
I introduced S. 34 to meet this situation. After consultation with representatives of the American Medical Association I have introduced an amendment to S. 34, which is now before your committee. I will not go into the details concerning it. It has been prepared very carefully for the very purpose I have outlined. Surely in this determination to control the personal habits of the country Congress must recognize the unfairness to the medical fraternity. Later representatives of the American Medical Society will appear before the committee in support of this amended bill.
In conclusion, and in view of the fact that so much studied effort has been made to depreciate the value of the newspaper polls, I want to insert in the record just three or four official polls that have come to my personal attention. One from the house of representatives of a sovereign State, Rhode Island, praying for the passage of S. 33, introduced by me, or legislation with the same purpose.
One from the House of Assembly of the State of New Jersey praying for a national referendum.
Again, a senate joint resolution passed by both houses of the Legislature of the State of Nevada, praying for the calling of a constitutional convention for the purpose of amending the eighteenth amendment because of the failure of constitutional prohibition.
The municipal governing body of the city of Cleveland, Ohio, recently passed a resolution praying for modification of the Volstead Act, and some judge prevented its transmission to Congress. One might assume the first amendment was not as important as the eighteenth. In fact to-day defenders of prohibition are ready to set aside any, part of the Constitution in a vain effort to enforce the eighteenth amendment.
Similar action on the part of other municipal governing bodies has followed from various sections of the country. These are from duly elected representatives of the people and can not be lightly brushed aside. When one considers how this question has been paraded as a moral issue, and all opposed were encouraging violation of the law, it is remarkable any legislative body would thus go on record.
Mr. Chairman, I sincerely trust this committee will not fall back on the worn-out claim that any modification of the Volstead Act is unconstitutional. I am not a lawyer, but I have not the slightest fear as to the constitutionality of S. 3118.
Anyhow, I want to leave as a final thought the fact that no man be he a lawyer or layman, can speak for the Supreme Court of the United States. We never will be able to secure a decision as to whether we can or can not liberalize the Volstead Act until an act is referred to that tribunal for review. You can not justly take the position the set is unconstitutional. I will willingly meet arguments on the question of advisability. That is a very pro proper argument with any legislation, but let us leave to the Supreme Court the function which is wholly theirs.
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State of Rhode Island, in General Assembly, January session, A. D. 1926. Resolution of the house of representatives recommending to Congress the passage of legislation to amend the national prohibition act, as supplemented, in respect of the definition of intoxicating liquor, provided that said bill shall be amended by adding thereto a referendum clause requiring that said legislation shall be referred to the people for vote thereon.
Whereas there is now pending in Congress Senate bill No. 33, entitled "A bill to amend the national prohibition act, as supplemented, in respect of the definition of intoxicating liquor:" Therefore be it
Resolved, That the House of Representatives respectfully requests the Senators and Representatives of Rhode Island in the Congress of the United States to give their ardent support to said Senate bill No. 33, or legislation with a like purpose, provided that said bill shall be amended by adding thereto a referendum clause requiring that said legislation shall be referred to the people for vote thereon, and to use their efforts to secure the early passage of this legislation by the Senate and House of Representatives of the United States; and be it further
Resolved, That copies of this resolution be transmitted by the recording clerk of the House of Representatives to the Senators and Representatives of Rhode Island in Congress.
HOUSE or ASSEMBLY, CLERK'S OFFICE,
Trenton, N. J.
RESOLUTION ADOPTED BY THE HOUSE OF ASSEMBLY, MARCH 23, 1926
Resolved, That this house of assembly commend our United States Senators for their efforts to have Congress ascertain the facts as to the existing conditions in this country under prohibition and to secure a national referendum upon this subject of prohibition; and be it further
Resolved, That the clerk of the assembly be, and hereby is, directed to forward forthwith a true and official copy of this resolution to our United States Senators.
I certify that this is a true and official copy of the resolution adopted by tile House of Assembly March 23, 1926.
Ralph W. Chandless,
Speaker of the House.
FREDRICK A. BRODESSER,
Clerk of the Assembly.
[Senate Joint Resolution No. 6-Senator Scott]
Senate Joint Resolution No. 7, making application to the Congress of the United States to call a convention for proposing an amendment to Article XVIII of the amendments to the Constitution of the United States
Whereas both by popular vote and legislative action the people of the State of Nevada are on record as favoring prohibition; and
Whereas experience has demonstrated that the attempt to abolish recognized abuses of the liquor traffic by the radical means of constitutional prohibition has generally failed of its purpose; and
Whereas the Congress is now powerless to enact a law upon the subject, except under such constitutional limitations as to make its remedial value extremely doubtful; and
Whereas the Constitution of the United States requires the Congress to call a constitutional convention upon application of the legislature of two-thirds of the States: Now, therefore, be it
Resolved by the Senate and Assembly of the State of Nevada, That the Legislature of the State of Nevada make, and that said legislature hereby does make, application to the Congress of the United States to call a convention for proposing an amendment to Article XVIII of the amendments to the Constitution of the United States, and that the Congress propose the method of ratification thereof; be it further
Resolved, That copies of this resolution, duly authenticated, be transmitted without delay by the Secretary of the State of Nevada to the Congress of the United States, and also to the legislatures of the several States.
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Now, Mr. Chairman, if I may be permitted, I should like to present to your committee Mr. Julien Codman, of Boston, Mass., and to ask that he may have the privilege of taking charge of examination of witnesses.
Senator REEDOf Missouri. Senator Edge, I should like to ask a question right there. Do I understand that somebody representing the city of Cleveland, Ohio, passed a resolution asking the modification of the Volstead Act, and that they were prevented from sending it to the Congress by the action of the judge of some court there?
Senator EDGE. I have been so informed, that some legal restraining order was issued preventing it. I am not advised just what the action was that was taken to prevent the resolution being sent to the Congress.
Senator REED of Missouri. Do you know what court it was?
Senator EDGE. No; I do not.
Senator REED of Missouri. I was wondering if it was a Federal judge.
Senator EDGE. It was generally published in the press at the time, that the governing body of the city of Cleveland, by a vote, as I recall it, of 2 to 1, passed a resolution to that effect, and before it could in the ordinary course be transmitted to Congress some one applied for some legal restraining order, which was granted, and to the best of my information at least the actual and official certified copy never reached Congress.
Senator MEANS (presiding). Senator Edge, under what authority do you contend that the Congress has the power or legal right to create or cause to be taken a referendum such as you propose in your bill?
Senator EDGE. Mr. Chairman, that, I recognize, is subject to a difference of opinion, and probably to grave doubt. I do not imagine, speaking merely from the layman's standpoint, that we have any power to force on the States a referendum. My own judgment would be that any resolution would simply act as a request on the part of the Congress for such action to be taken in order that the national legislators might receive information which they need for the purpose of basing their judgment in considering prospective legislation- that we would state that such information would be acceptable.
As to the Congress's right to require the States to put any question or questions on the official ballot, I might say that I know of no legal Method by which we could do that. But it strikes me, just as a practical matter, that if the Congress should pass such a resolution, asking for a referendum, and more especially in view of the fact that some States are now acting on their own initiative and seeking a referendum, that a large majority of the States would recognize that this is information sought by the Congress and which it ought to have. And, of course, it is a simple matter for any legislature to provide for such a referendum.
Senator MEANS. We receive our power from an instrument that we call the Constitution, and that is all the power that the Congress has. There must be some statement therein which you construe, I take it, as giving that power to ask for such a referendum, and I should like to know what statement in the Constitution giving us any such power you refer to.
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Senator EDGE. Well, I tried to cover my view on that. We think undoubtedly that inasmuch as this subcommittee has now met to secure information that outside of our own knowledge it is important to have such data on which to base action. And I would analyze the situation in this way, that the same power of the Constitution would certainly permit us to ask for a national referendum.
Senator MEANS. Is not the proper procedure on the part of those advocates of such a measure, to appeal to the several States themselves in the same manner that you have appealed to the Congress, they having the power and authority, and the willingness if you think such exists. But there is no power in the Congress to pass such an act.
Senator EDGE. I think it would have, simply as to its moral effect upon the authorities of the States, as being considered of much more importance if the Congress were to pass some such legislation or resolution.
Senator HARRELD. Is it not true that under our system of Government the nearest approach that we have to a referendum of the people is by issues sharply drawn between the respective parties? And is it not true that the only way in which this question could be submitted to the people is by one party or the other advocating it as an issue and the other party opposing it?
Senator EDGE. Senator Harreld, my personal view of this issue is that it is impossible to separate it from many other important issues that come up in any ordinary election, either congressional or national. We all recognize the fact that the two major political parties have a division on this question, as is evidenced right it here this morning by the appearance of Senator Bruce and myself, and as is evidence by many other appearances before you.
At any election the party platforms, the local issues, and many other matters will necessarily enter into the decision of the electorate, and we can not prevent it. But we want a straight-out national expression on a question entirely separate and specifically defined, covering the various phases of this subject, either by an amendment to the constitutional amendment, or a modification of the Volstead Act, or both, in my judgment. The only way we can get that national expression, through a consideration of the matter separate and apart from other issues, is by having a bill providing for separate action along that line.
Senator MEANS. I can find no authority whatsoever for any such action is the reason I have raised the question right at the beginning of these hearings. I can find no authority whatsoever which would authorize us to recommend such a measure as you contemplate by the bill you have introduced, and I wanted you to point out by what authority you think we could do such a thing.
Senator EDGE. 1 will not attempt to enter into a legal discussion of it, but I think
Senator MEANS (interposing). Will some of the others who are here present that question to us, or do you know about that?
Senator EDGE. I shall be very glad to have it presented. However, until you raised it I had not really thought very much about it, and for the simple reason that it did not appear to me it would be illegal for the Congress to ask for an expression of opinion on the subject. I can not imagine that that would be improper. But, bowing to
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your superior legal knowledge, of course I can not discuss the question from a legal standpoint
Senator REED of Missouri. The idea seems to be pretty clear that we can not prevent a man from drinking what he wants to drink, but that we can suppress an expression of his thoughts.
Senator MEANS. There is nothing to prevent anybody from petitioning the Congress and expressing his thoughts. But there is no power that I know of under the Constitution which would authorize the Congress to hold a referendum of this kind. Whether it is desirable or not there may be a difference of opinion, and I am not of course discussing it from that standpoint, but am mentioning it now merely from the standpoint of eliciting your view as to our power to do what is requested in this bill.
Senator REED of Missouri. Is there any doubt that the Congress can at any time undertake any means it wants to ascertain the will of the American people so long as it does not undertake to force the American people to express an opinion, but just permits them to express an opinion if they so desire. That is what I am talking about now.
Senator MEANS. 1 have not been able to find any authority reposed in the Congress to take a referendum, and I am seeking to find out what is the view of those who pro propose this legislation. I should like to know what provision. of the Constitution you gentlemen have in mind in asking for a referendum and what you bad in mind when you offered the resolution. I speak of it now, early in our hearings, so that some one during the course of the hearings will attempt to enlighten at least one member of the committee on the subject.
Senator EDGE. Just as a closing word, might I suggest this: It might be justifiable at times to establish a precedent when it is to ascertain facts which would be, at least to me, as important as these facts we ask for would be. If the Supreme Court should see fit to declare it unconstitutional, then, of course, that is another thing.
Senator HARRELD. Suppose one State would take action in one way, and another State in another way, and still other States take no action at all.
Senator EDGE. We have made various efforts in the way of legislation to do various things, and at times the Supreme Court of the United States has declared that we were not warranted in what we attempted to do, and at other times has decided that we were warranted. In my judgment, and I should not like to discuss it from a legal standpoint, it would be a good thing if you can find any possible method by which it can be done.
Senator MEANS. Is Senator Edwards here, and does he desire to present to the subcommittee his views as to some of the bills before the committee.
Senator EDGE. Senator Edwards does not seem to be present for the moment.
Senator MEANS. Do you know whether Senator Edwards desires to address the committee?
Senator EDGE. No; I do not.
A BYSTANDER. He will be here to-morrow?
Senator MEANS. He desires to speak to-morrow?
The BYSTANDER. Yes, sir.
39 * * * * * THE NATIONAL PROHIBITION LAW * * * * *
Senator MEANS. In order to facilitate the presentation of their side of the case Senator Edge and others interested in the bills before us have asked that Mr. Codman be permitted to call witnesses. You may proceed, Mr. Codman, if you now wish to call witnesses, or you may appear ear yourself at this time if you so desire.
Mr. Codman . Will you permit me to address the committee?
Senator MEANS. Certainly.
Senator HARRELD. I suggest that Mr. Codman state who be represents.
Mr. CODMAN. I will do that.
Senator MEANS. In order that I may not have to repeat the request as each witness is brought before us, Mr. Codman, please state whom you represent, where you live, and what organization you represent, if any.
Mr. CODMAN. I will do so.
Senator MEANS. You may proceed.