IX - THE PROPOSED ALTERNATIVES TO THE PRESENT SYSTEM
Proposals other than for going ahead substantially as things are may be considered under four heads:
(1) To repeal the Eighteenth Amendment, (2) to repeal or modify the National Prohibition Act, leaving the Eighteenth Amendment as it is, (3) to cure proved defects in the National Prohibition Act and supplemental legislation by further legislation, to go on with the development and improvement of the organization and personnel of federal enforcement, and to await results, and (4) to revise the Eighteenth Amendment.
1 - REPEAL OF THE EIGHTEENTH AMENDMENT
Herein before we have given our reasons for the conclusion that repeal of the Eighteenth Amendment is not advisable. We are convinced that it would be a step backward, that it would not conserve the achieved benefits of national prohibition, and that it would be likely to lead to conditions quite as bad as those we are seeking to escape,
2 - REPEAL OR MODIFICATION OF THE NATIONAL PROHIBITION ACT
Repeal of the National Prohibition Act would a-mount to nullification of a constitutional provision, As the efficacy of the Eighteenth Amendment depends so much upon the action of the states, it is evident that repeal of the federal statute in effect would put things back where they were before the amendment, leaving it to each state to provide such system of prohibition, or regulation, or want of regulation, as it chose, subject to the difficulty that any system of state regulation must not be in conflict with the federal Constitution. Thus, as a practical matter, the states would be left to choose between state prohibition, state hands-off and a free traffic, or a camouflaged state regulation, not subject to attack as in conflict with the Eighteenth Amendment, and yet effectively substituting the regime which the amendment is designed to supersede. The bad features and bad possibilities involved in such a course are manifest. In our opinion it is even less to be thought of than repeal of the amendment. It would not be honest.
Many plans have been submitted for modification of the National Prohibition Act so as to permit the manufacture and sale of beer of an alcoholic content of not more than 2.75 per cent. by volume, and of licht wines. There is much evidence that beer of this content may reasonably be pronounced not intoxicating. Undoubtedly, within considerable limits. the definition of intoxicating is a legislative question. Hence, there are no serious constitutional difficulties in the way of such a modification. It has been urged strongly by the American Federation of Labor and otlier organizations, and has been presented to us with much ability. Undoubtedly the fixing of the alcoholic content of intoxicating liquor at one-hialf of one per cent. went much beyond the facts and has been a source of resentment on the part of many men who have felt that the proviso in Section 29, apparently allowing home making of wine of much higher content -while forbiddance the making of beer -was an unfair discrimination. But important as it would be to allay this resentment, we think the disadvantages of the proposal outweigh that advantage and such advantage as would be, derived from taking the making and distribution of beer out of the illicit traffic. To take the making, transportation, and sale of 2.75%, beer out of the scope of the National Prohibition Act would involve either leaving them wholly to the states, or to the states subject to national laws in aid of those preferring to exclude beer. Legislation of this kind would be hard to draw and harder to execute. But without it, states having complete prohibition would be greatly embarrassed by an illicit traffic having a legal basis beyond the state line. Also there would be nothing to prevent beer saloons in states which chose to allow them and thus the chief gains of national prohibition would be imperiled.
As to the answer that states would set up dispensary systems, it may be replied: (1) that there would be nothing to insure this, and (2) that in any event, in our opinion after study of the different systems of liquor control, no modification should be permitted which would allow either the state or federal governments as such to go into the business of malting or selling liquor in any form.
There would be need of affirmative federal legislation to prevent state dispensaries and the return of the saloon. The mere exclusion of beer of a definite content from the purview of the National Prohibition Act will not suffice.
As to the argument, which undoubtedly has much force, that relaxation of the law by allowing a nonintoxicating beer of low alcoholic content will promote temperance and relieve the strain on enforcement of the National Prohibition Act as to spirits, there are three answers:
(1) Experience before national prohibition makes it at least doubtful whether beer will replace spirits in general consumption to any degree. It must be remembered that before national prohibition increase in the per capita consumption of beer was accompanied by no decrease in the consumption of spirits.
(2) The use of illicit liquor has developed a taste for intoxicating beverages to an extent which makes it very doubtful whether a light beer would be widely accepted as a substitute therefor.
(3) If the beer made and sold is not intoxicating, it is unlikely to be a substitute for intoxicating drink in communities where enforcement gives the most difficulty, while if it is, there would be a palpable violation of the Constitution.
As to the proposed exception of light wines from the operation of the National Prohibition Act, the same considerations apply. But it should be said, also, that the anomalous provision in Section 29 of the Act, heretofore discussed, is closely related to this proposal. If that section, as construed, is to stand, it would probably achieve most of what the advocates of legal making of light wines are seeking.
Other plans for legislation, leaving the Eighteenth Amendment as it stands, propose state option as to prohibition, evasion of the intent of the amendment by allowing beverage liquor under the exemption of medicinal liquor, evasion. by Congressional definition of intoxicating liquor so as to exclude liquor which is in f act intoxicating, and statutory exemption of all home manufacture for home use.
These proposals involve pro tanto nullification of the Eighteenth Amendment. The proposal as to state option is open to the objections to the repeal of the Eighteenth Amendment already considered, with the added objection that it would in substance leave it to the states, to determine whether a general provision of the federal Constittition should obtain within their borders. Evasion of the federal Constitution by specious definitions of " intoxicating " or of "medicinal liquors " or by specious revisions for the procuring of medicinal liquor, undermining by legal action respect for the fundamental law, is quite as destructive of respect for law as the things sought to be avoided. As to home manufacture, the difficulties in differentiating between manuf acture for domestic and for commercial purposes and of detecting commercial manufacture in homes, would make such a system as hard to maintain as the present one.
3 DEVELOPMENT AND IMPROVEMENT OF ORGANIZATION AND PERSONNEL
In a number of particulars it must be pronounced that there has not been the kind of test of enforceability of national prohibition which would have been desirable. As has been said, enforcement started out with the idea that a federal law would largely command observance, and hence no adequate provision was made for a task of such magnitude as federal Government agencies which I u
d to be. It began by using methods effective in four generations of onstitution. The assumption was that any strain upon these methods would be taken care of by the concurrent enforcing jurisdiction of the states. Thus the mechanics of enforcement fell short of the requirements of the task in three respects: (1) the organization, personnel, and training of the agents of enforcement; (2 the federal rosecuting organization and organization of the federal courts; (3) the means of insuring concurrent or cooperative action by the states.
At the outset, the best part of the enforcement organization was made up of those who had been in the Internal Revenue service, or some like service, before prohibition. But development of methods
of manufacture of alcohol speedily outgrew the experience and training of storekeeper-gaugers brought u'p under the old method of distilling. The development of illicit distilling soon quite outstripped the experience of those who had had to do with preprohibition moonshining. Organized smuff ling quickly outgrew the experience and equipment of those who had been trained under the old conditions in the customs service. The organization, mode of selection and recruiting, personnel management and personnel, and the mode of training in the services char(yed with or having to do with enforcement of national prohibition, as they were at first, were not equal to the demands of these rapid developments of organized law-breaking.
t is worth while to repeat that ohancres in the fundamental organization, fluctuating personnel, low salaries, methods of appointment -rind recruiting ill adapted to the work to be done, and lack of adequate training led to bad results at the start of enforceinent the effects of which are still manifest in some quarters.
Again it was only perceived Gradually that there was need of special activity in coordinating the federal services directly and indirectly engaged in enforcing prohibition and of special effort to bring about coordination between them. Past experience with otlier laws had not indicated the need of such things. It was not until after the Senate investigation of 1926 had opened people's eves to the extent of law-breaking 'and corruption that serious efforts There made in this direction. In the past few years, a great deal has been achieved toward coordination of and cooperation between the several administrative agencies. In the meantime organized law-breaking had grown str n and much mischief had resulted.
In view of this bad startgf the defective organization, unsatisfactory personnel. and insu cient equipment, and of the'want of coordination anionz the azencies concerned, it is no wonder that there was a steady declin@e in the enforcement of prohibition from 1921 to 1927. Unfortunately, this steady decline gave an impetus to the illicit traffic which makes it hard for any organization and personnel to cope with it.
It may be urged that the bad features of enforcement, or nonenforcement, which obtain today may be obviated with the lapse of time and certain improvements in t1re machinery of enforcement, through improved enforcement personnel, divorce of enforcement from politics, provision of more men, more money, and better equipment for the enforcing agencies, and certain amendments of the statutes and of the administrative regulations.
On the other hand 7 it may be urged that the primary difficulties in the way of enforcement lie deeper than these thin(ys. The statute has been in force for a decade with large majoriteles in Concyress pledged to give effect to it and militant organizations pushing to that end. There has been more sustained pressure to enforce this law than on the whole has been true of any other federal statute, although this pressure in the last four or five ears has met with increasing resistance as the sentiment against prohibition has developed. No other federal law has had such elaborate state and federal enforcing machinery put behind it. That a main source of difficulty is in the attitude of at least a -N-erv hir(re nuinber of respectable citizens in all communit-les,, wi(l of @a iludoritv of the