CONSTITUTION 
 
 AND 
 
 PROHIBITION 
 
 '©y 
 
 Senator William E. Borah 
 
PRESS OF THE AMERICAN ISSUE PUBLISHING COMPANY 
 WESTERVILLE. OHIO. U S. A. 
 
THE CONSTITUTION 
 AND PROHIBITION 
 
 % Senator WILLIAM E. BORAH 
 
 Mr. BORAH. Mr. President, it has been 
 about eight years since we amended the Consti- 
 tution of the United States and incorporated in 
 it what is known as the eighteenth amendment. 
 That amendment was not adopted, as is so often 
 said, in haste or without due consideration and 
 deliberation upon the part of the people of the 
 United States. For some 50 years the subject of 
 prohibition had been under discussion throughout 
 the country, and, if I remember correctly, at the 
 time of the ratification of the amendment 33 
 States of the Union had adopted prohibition. 
 After the amendment was submitted to the States 
 for ratification, 1 believe, all except two States 
 ratified it. No amendment to the Constitution 
 has ever been adopted after so full and prolonged 
 consideration as was the eighteenth amendment. 
 Whatever its merits or demerits may be, whether 
 it should be now repealed or modified, there can 
 be little controversy over the proposition that it 
 was a deliberate act at the time it was written into 
 the Constitution of the United States. It was ' 
 perfectly clear at that time that the people in- 
 tended to promulgate a national policy and that 
 policy they inserted into their charter of gov- 
 ernment. 
 
 This amendment provides, in part, as follows : 
 
 Section i. After one year from the ratification of 
 this article the manufacture, sale, or transportation of 
 intoxicating liquors within, the importation thereof into, 
 or the exportation thereof from, the United States and 
 all territory subject to the jurisdiction thereof for bev- 
 erage purposes is hereby prohibited. 
 
 The language is specific and all-encompassing 
 — that the manufacture, or sale, or importation. 
 
 In the United States Senate 
 ylpril 14, 1926 
 
or exportation of intoxicating liquors “for bev- 
 erage purposes is hereby prohibited.'’ 
 
 This part of the Constitution has been con- 
 strued by the Supreme Court of the United 
 States ; and in the first important case which 
 went to the court involving a construction of it, 
 the court said that the first section of the amend- 
 ment, the one embodying the prohibition, is opera- 
 tive through the entire territorial limits of the 
 United States, binds all legislative bodies, courts, 
 public officers, and individuals within those limits, 
 and of its own force invalidates every legislative 
 act, whether by Congress, by a State legislature, 
 or by a Territorial assembly, which authorizes or 
 sanctions what the amendment prohibits. 
 
 The second section of the amendment — the 
 one declaring that — 
 
 The Congress and the several States shall have con- 
 current power to enforce this article by appropriate leg- 
 islation — 
 
 does not enable Congress or the several States to 
 defeat or thwart the prohibition but only to en- 
 force it by appropriate means. 
 
 Thus, Mr. President, there was written into 
 the fundamental law, into the charter under 
 which we live, an inhibition against the manu- 
 facture or sale of intoxicating liquors, and that 
 binds the Congress of the United States, the sev- 
 eral legislatures of the different States, the courts 
 of the country, and each and every particular in- 
 dividual in the country ; and so long as it remains 
 in the Constitution it is the duty of the several 
 legislatures, of the Congress, of the courts, of all 
 agencies of government, of all public officials and 
 of individuals to obey and in their respective 
 places in organized society to assist in the en- 
 forcement and upholding of the Constitution. It 
 imposes a responsibility and an obligation which 
 neither the Congress nor the State legislatures 
 can honorably shirk or in decency pass on to 
 some other body. It binds every official and 
 every citizen, and so long as it remains there it 
 
 [ 4 ] 
 
is the first duty of good citizenship to respect it 
 and seek to uphold it. 
 
 We are now, Mr. President, engaged in a 
 great campaign to find a way by which to evade 
 the Constitution of the United States without 
 apparently doing so ; to find a method or a means 
 by which we can counteract or nullify its terms 
 and conditions without specifically repealing this 
 part of the Constitution or without modifying it 
 directly. It is a campaign to sterilize the Con- 
 stitution while professing to respect it. 
 
 No one contends that those who are opposed 
 to prohibition have not the right to carry on a 
 campaign for the purpose of changing the Con- 
 stitution. Any citizen or any body of citizens 
 who believe that this is an unwise policy, that it 
 is a policy which can not be sustained, a prin- 
 ciple which can not be enforced, are not subject 
 to criticism in their efifort to remedy it by elimi- 
 nating it from the fundamental law of the land ; 
 but the point which I desire to stress at this time 
 and at all other times in the discussion of this 
 matter in which I shall take part is that so long 
 as it remains a part of the Constitution, so long 
 as it is unchanged, it is the duty of every citizen 
 loyally to support and maintain it, not only in 
 letter but in spirit. 
 
 Mr. EDGE. Mr. President, will the Senator 
 yield ? 
 
 Mr. BORAH. I yield. 
 
 Mr. EDGE. The Senator, as I followed his 
 argument, implies that the national prohibition 
 act which was passed by Congress as a method 
 of enforcing the eighteenth amendment is as 
 liberal an interpretation of the eighteenth amend- 
 ment as Congress would be justified in making. 
 Does the Senator take that position? 
 
 Mr. BORAH. I will come to that discussion 
 in a few minutes. I am going to take up the 
 proposed amendment. 
 
 Mr. EDGE. I desired to ask two or three 
 
 [ 5 ] 
 
questions in that connection. If the Senator pre- 
 fers to have me wait, I will do so. 
 
 Mr. BORAH. Yes ; if I do not cover the 
 matter, I invite the Senator to the floor for the 
 purpose of elucidating it by questions, because I 
 have no desire to avoid that proposition. It is a 
 legitimate part of the discussion, and we should 
 be perfectly willing to discuss it. 
 
 As I said, the right to amend the Constitution 
 is a right which can not be denied, and no one 
 can be criticized for seeking to amend it. I de- 
 sire to say, in- passing, that the insertion of this 
 amendment in the Constitution of the United 
 States involved what to my mind was a very 
 serious governmental proposition. Whether it 
 was wise to take over from the States the great 
 body of police power which we took over from 
 the States at the time we amended the Constitu- 
 tion is a very serious problem — not only a prob- 
 lem relating to the question of prohibition, but a 
 problem relating to the fundamental principles 
 upon which our Government is organized. It 
 touches the great and vital question of local self- 
 government, and I do not wish to minimize its 
 importance in this problem of prohibition. I 
 find no fault, therefore, with those who believ- 
 ing it to have been a mistake would seek to cor- 
 rect the mistake by amending the Constitution. 
 
 Mr. WADSWORTH. Mr. President, will 
 the Senator comment upon another phase of the 
 eighteenth amendment? Is it not also extra- 
 ordinary in that its ratification amounted to the 
 insertion of a sumptuary police statute in a con- 
 stitution, thereby depriving the majority of the 
 people as represented in the House of Congress 
 of any opportunity of legislating upon a problem 
 of that kind by simple enactment of law? 
 
 Mr. BORAH. Undoubtedly, Mr. President, 
 that is one of the serious problems which are in- 
 volved in this matter ; and I think perhaps that 
 is incorporated in the other proposition which I 
 made relative to the attempt to take over and 
 
 [ 6 ] 
 
take into the Constitution a principle of police 
 power, and drawing away from the States the 
 police power which heretofore had belonged to 
 them. 
 
 But, Mr. President, those things can only be 
 changed by an amendment of the Constitution 
 itself. If it was a mistake to draw to the National 
 Government this police power, if it was a mis- 
 take to put into the Constitution of the United 
 States a principle of sumptuary law, the only 
 way in which it can possibly be met is by a pro- 
 posal either to repeal the eighteenth amendment 
 or to modify it. Indeed, Mr. President, I doubt 
 very much if modification will reach it. It seems 
 to me if we are going to deal with the question 
 which we are now discussing — the question of 
 whether it is wise to take over this police power 
 or to deal with this matter as a sumptuary prin- 
 ciple in the Constitution — we can not meet it ex- 
 cept by an elimination of the provision of the 
 Constitution itself. So long as the Constitution 
 stands one thing is more fundamental than pro- 
 hibition, and that is the enforcement and the up- 
 holding of the Constitution. It involves the ques- 
 tion of whether we are a law-abiding people. 
 
 We are discussing, these days, the question of 
 what we shall do with reference to amending 
 this provision of the Constitution ; and about the 
 first suggestion that comes to me when I suggest 
 that the situation can be met only by constitu- 
 tional amendment is that it takes too long, that 
 it will take an infinite amount of time to change 
 the Constitution of the United States, and that 
 there must be some way by which the law can be 
 so modified that we can get intoxicating liquor 
 without offending the Constitution itself. In 
 other words, the clear implication is that by ig- 
 noring not only the spirit of the Constitution 
 but the letter of the Constitution, we can pass a 
 law which will give percentages of alcohol suf- 
 ficient to enable the people to enjoy, as they 
 claim, their right to the use of intoxicating liq- 
 uor. Impatience with the law is mob rule. The 
 
 [7] 
 
man hunting his neighbor with a shotgun is sim- 
 ply impatient with the law. And those who 
 would disregard the Constitution because it takes 
 too long to amend it are appealing to the spirit 
 of the mob. 
 
 Mr. President, it is no part of the duty of a 
 citizen to ferret out means by which to escape 
 from the terms of the Constitution. It is no part 
 of good citizenship, in my judgment, when citi- 
 zens find in the Constitution a provision which 
 they do not like, to see how far they can pos- 
 sibly go toward evading it or nullifying it with- 
 out getting within the inhibition which the courts 
 may lay upon them. So long as the provision is 
 there, instead of seeking means to evade it, it is 
 the duty of the citizens of the United States to 
 find means to enforce it. If the means do not 
 exist at this time, if the law is not sufficient and 
 efficient, and if the power behind the law is not 
 sufficient to enforce it, then, instead of finding 
 means by which to evade it, it is our duty, and 
 the obligation rests upon us, to find more effec- 
 tive means by which to make the Constitution 
 effective. Change it if you will ; rewrite it again 
 if you may ; but so long as it is there, it is the 
 duty of every loyal citizen to see to its enforce- 
 ment. 
 
 Some of the propositions which have been 
 made seem to me most extraordinary. If there 
 rests upon the Federal Government one peculiar 
 exclusive and supreme duty it is to see to the en- 
 forcement and the maintenance of the Constitu- 
 tion of the United States and not leave its en- 
 forcement to the several States of the, Union. 
 The respective States of the Union are not pri- 
 marily the custodians of the integrity of the Con- 
 stitution. The custodian of that integrity is the 
 Federal Government itself. To my mind any 
 scheme or any plan which would shift to the 
 States alone the obligation or the burden of en- 
 forcing the Constitution is a most pronounced 
 evasion of the most solemn obligation which 
 
 [ 8 ] 
 
rests upon the National Government, and that is 
 to protect its own charter, protect its own life, 
 for the Constitution is its life. 
 
 The United States attorney for New York a 
 few days ago in an interview said : 
 
 Let Congress modify the Volstead Act so as to permit 
 each State to define nonintoxicating liquor, this defini- 
 tion to bind both State and Federal authority. 
 
 So modify the Volstead Act as to permit each 
 State to be the judge of how and to what extent 
 the Constitution of the United States applies in 
 this respect and what is an interpretation and 
 what is an enforcement of the Constitution of 
 the United States ? The proposal is not to amend 
 the Constitution of the United States. The pro- 
 vision which imposes upon the National Govern- 
 ment the inhibition of the sale and use of intoxi- 
 cating liquors remains ; but the proposal is to 
 modify the statute which was passed, leaving the 
 enforcement of the principle of the Constitution 
 and the protection of the integrity of the Con- 
 stitution to the respective States, while the Na- 
 tional Government itself entirely abandons that 
 obligation. 
 
 It is seriously proposed that the Federal Gov- 
 ernment shall abandon the interpretation and en- 
 forcement of its own great charter and through 
 sheer cowardly, contemptible expediency leave it 
 to 48 States with 48 different rules and stan- 
 dards to enforce and uphold it. To such des- 
 perate and despicable expediency do men resort 
 when they have not the candor to urge repeal or 
 the courage to preach open violation. 
 
 Mr. President, as a matter of fact, the great 
 Civil War was fought over that principle. To my 
 mind it is treason ; it is a deliberate evasion of 
 the Constitution, a nullifying and an annihilating 
 of the charter under which we live. It is dis- 
 loyalty to the first principle of a Federal Union 
 and a violation of the oath which every Federal 
 officer takes when he takes office. 
 
 [ 9 ] 
 
Why, suppose the State of New York fixes a 
 percentage of alcoholic content such as to be in- 
 toxicating. Shall the Congress of the United 
 States and the officials of the United States, the 
 custodians of the Constitution, acquiesce in the 
 proposition and connive at its disregard of the 
 Constitution? Shall we leave it to the State of 
 New York or to the State of Idaho or to the 
 State of California to say when and how and to 
 what extent the Constitution of the United 
 States shall be applied and enforced? It would 
 make 48 standards. You might have a standard 
 of 7 per cent in New York, and if so, they could 
 ship their product to every State of the Union. 
 
 You might have a standard of 2 per cent in 
 the State of Louisiana, and yet New York could 
 send her 7 per cent product into the State of 
 Louisiana against the standard which they have 
 established there. We would have 48 different 
 standards, no one guarding or protecting or en- 
 forcing or maintaining the Constitution, but 48 
 different States applying their different rules. 
 
 A few days ago there came to me a resolution 
 passed by a committee of one of the dominant 
 parties of the country in a near-by State, and 
 the resolution reads : 
 
 Resolved, That the county committee (of the State 
 and county) recommend to the Congress of the United 
 States that the so-called Volstead liquor law be amended 
 so as to permit light wines and beer. 
 
 Of course, the constituency for which they 
 were politically speaking understands that “light 
 wines and beer” mean intoxicating liquor. All 
 this disturbance and all this debate are not for 
 the purpose of securing nonintoxicating liquor. 
 The people who are insisting upon this change 
 are not insisting upon the change for the pur- 
 pose of getting more nonintoxicating liquor. 
 What they understand is that they are to secure 
 intoxicating liquor ; that wines and beer such as 
 will give them their intoxicating drinks are to be 
 allowed. We have a great political party, one of 
 
 [ 10 ] 
 
the dominant parties in the country, actually 
 passing resolutions petitioning the Congress of 
 the United States to violate or connive at the 
 violation of the Constitution of the United 
 States, and doing it for sheer political expedi- 
 ency. 
 
 Why not say to the people who are asking for 
 light wines and beer, “You can not secure in- 
 toxicating liquors which you desir.e until you 
 amend the fundamental law under which you 
 live”? 
 
 If this question is to be presented to the peo- 
 ple, let us present it in such a way that it will 
 raise the real issue, and either give or deny to 
 them that for which they are asking, to wit, in- 
 toxicating liquor. The Legislature of the State 
 of New York is now in the course of passing a 
 referendum law, as I understand it, and so far 
 as that is concerned, New York is simply in the 
 lead. Other States will be asked to follow. In 
 the referendum which they are to send out, if 
 they pass the law, will be this question : 
 
 Should the Congress of the United States modify the 
 Federal act to enforce the eighteenth amendment to the 
 Constitution of the United States so that the same shall 
 not prohibit the manufacture, sale, transportation, im- 
 portation, or exportation of beverages which are not in 
 fact intoxicating, as determined in accordance with the 
 laws of the respective States? 
 
 That would delegate or leave to the respective 
 States the power and authority to say whether a 
 particular beverage was intoxicating. If the 
 State fixes a percentage which makes it intoxi- 
 cating, what is the Government of the United 
 States to do? The Government of the United 
 States is to remain silent. The keeper of the 
 Constitution, the sole power to enforce it through- 
 out the Union, is to remain silent and connive at 
 the violation of it from day to day and from 
 year to year. That goes on through all the 48 
 States of the Union. It means legal chaos, it 
 means constitutional anarchy, it means the break- 
 
 [ 11 ] 
 
down of constitutional government. That refer- 
 endum challenges the sincerity if not the loyalty 
 of the great State of New York. 
 
 The great debate which took place prior to the 
 Civil War was over that one great question, 
 whether the States should determine what laws 
 should be enforced and what should not, under 
 the Constitution of the United States. 
 
 Mr. BRUCE. Mr. President — 
 
 The PRESIDING OFFICER (Mr. Oddie in 
 the chair). Does the Senator from Idaho yield 
 to the Senator from Maryland? 
 
 Mr. BORAH. I yield. 
 
 Mr. BRUCE. The Senator will remember, 
 however, that when the South asked that the 
 fugitive slave law be enforced, legislatures 
 throughout the free States connived, in just the 
 manner the Senator from Idaho has reprobated 
 so strongly, for the purpose of defeating the 
 rights of the South under that law, and passed 
 personal liberty laws. Judges and juries, too, 
 refused to put the law into execution. 
 
 Mr. BORAH. Does the Senator want to plow 
 through that mire of disgrace and degradation 
 again ? Does he appeal to a defiance of the Con- 
 stitution as a precedent? 
 
 Mr. BRUCE. I am glad to hear the Senator 
 say it was a period of disgrace and degradation. 
 As far as I know, the Senator is the only mem- 
 ber of the Republican party who has ever made 
 such a confession. 
 
 Mr. BORAH. I presume some might doubt 
 my Republicanism, but I do not intend anyone 
 shall challenge my devotion to the Constitution. 
 
 Mr. BRUCE. As I look at it, his Republi- 
 canism is about the only blemish on the character 
 of the Senator. 
 
 Mr. BORAH. The Senator would not contend 
 for a moment that the Northern States which un- 
 
 [ 12 ] 
 
dertook by legislation to nullify the provisions 
 of the Constitution which gave the Southern 
 States the right to follow their slaves were ap- 
 plying constitutional principles, would he? They 
 were simply evading, nullifying, and destroying 
 the Constitution itself. 
 
 • Mr. BRUCE. Yes; but I mention it as an- 
 other illustration of the fact that when laws un- 
 dertake to fly in the face of nature they will not 
 be observed. 
 
 Mr. BORAH. Very well, Mr. President ; 
 the Senator and I will not argue that. But let 
 us go back to the fundamental law and submit 
 that question to the people of the United States 
 and see what they say about it. If they take it 
 out, every man should live up to it with that out, 
 just as now we should live up to it with it in. 
 
 Mr. BRUCE. All I meant to say was that 
 slavery became, in the course of time, an offense 
 to the moral instincts of the free States of the 
 Union and of the world, and of course constitu- 
 tional restraints proved as utterly futile for the 
 purpose of keeping down the bitter hostility ex- 
 cited by the institution of slavery as the eight- 
 eenth amendment has proved in keeping down 
 the natural desire of men for a form of rational 
 enjoyment, within proper limits. 
 
 Mr. CARAWAY. Mr. President, will the 
 Senator from Idaho permit me to ask a question’ 
 
 Mr. BORAH. Yes. 
 
 Mr. CARAWAY. If we should carry out the 
 theory that the States should be the interpreters 
 of the Constitution, you could repeal or modify 
 the peonage law and reestablish slavery, could 
 you not? 
 
 Mr. BORAH. I suppose you could. 
 
 Mr. CARAWAY. If any State should wish 
 to do it; if the States should be the guardians of 
 the Constitution. 
 
 [ 13 ] 
 
Mr. BORAH. Mr. President, suppose some 
 one in New York or New Jersey or Idaho should 
 make a proposal with reference to determining 
 for itself, as a State, whether or not it would 
 obey the fifteenth amendment, or determining 
 for itself how far it would be bound by the four- 
 teenth amendment, or determining for itself how 
 far it would be bound by the seventeenth amend- 
 ment. 
 
 What would these gentlemen who are now pro- 
 posing that the States shall pass upon the ques- 
 tion as to the extent to which they will be bound 
 by the eighteenth amendment say to such a pro- 
 posal? Or suppose the fifth article of the Con- 
 stution of the United States were involved, 
 where the property rights, the vested interests, 
 of the great property-holding people of the 
 United States are protected ; and suppose the 
 Legislature of New York, or a mass meeting in 
 New York, should pass a resolution that the 
 State of New York would determine for itself 
 how far it would be bound by that provision. 
 The Department of Justice here in Washington 
 would have the members of that mass meeting 
 in prison in 48 hours as communists and revolu- 
 tionists. And if any of their ancestors had come 
 here since the American Revolution they would 
 likely seek to deport them as communists. 
 
 Mr. BRUCE. Mr. President, will the Sena- 
 tor permit me to ask another question? 
 
 Mr. BORAH. I yield. 
 
 Mr. BRUCE. Did not the South after the 
 Civil War determine for itself, without regard 
 to the Fourteenth and fifteenth amendments to 
 the Federal Constitution, whether it would or 
 would not have an ignorant negro suffrage riv- 
 eted upon its neck? Did not every southern man 
 of every station in life exercise every power that 
 lay in him to stay the consequences of that fright- 
 ful curse? 
 
 Mr. BORAH. Mr. President, so far as I 
 
 [ 14 ] 
 
know every law passed by the Southern States 
 and now in force with reference to negro en- 
 franchisement, or the right of the Negro to vote, 
 has been sustained by the Supreme Court of the 
 United States as constitutional. 
 
 Mr. BRUCE. Another illustration were those 
 amendments of the utter vanity of passing laws 
 that violate the primal instincts of human nature. 
 What good did they do, so far as any practical 
 consequences were concerned? Outraged human 
 nature claimed its rights, and there is nothing 
 which I regard with more satisfaction than the 
 fact that when I was a boy, living in a remote 
 countryside, all the white citizens of that com- 
 munity were banded together like brothers for 
 the purpose of nullifying those amendments to 
 the Federal Constitution, and defeating the will 
 of Congress when it endeavored to enforce them ; 
 and, thank God, they defeated it. 
 
 Mr. BORAH. Mr. President, the Senator is 
 preaching the doctrine of communism here in the 
 Senate of the United States. 
 
 Mr. BRUCE. Oh, no. 
 
 Mr. BORAH. Yes, the Senator is; he is 
 preaching anarchy. 
 
 Mr. BRUCE. It is not the Senator from 
 Maryland, but the Senator from Idaho, who 
 wishes us to recognize the Soviet Government. 
 
 Mr. BORAH. I do ; and I think it might serve 
 as a good example for us, ‘the way we are pro- 
 posing to do things in this country at this time. 
 I think we could learn lessons from them if such 
 doctrine as I hear now is to prevail. But do I 
 understand the able Senator from Maryland to 
 contend that the Southern States are now, in vio- 
 lation of the Constitution and in violation of the 
 Supreme Court decisions, disfranchising the ne- 
 groes of the South ? 
 
 Mr. BRUCE. I mean to say that the South 
 has solved its own suffrage problems in its own 
 
way, and it has solved them so wisely, despite 
 constitution and statutory inhibitions, that the 
 whole country has acquiesced in its conduct. 
 
 Mr. BORAH. The Senator did not answer 
 my question. Does the Senator contend that the 
 solution which he speaks of is a solution in con- 
 travention and in violation of the Constitution of 
 the United States and the decisions of the Su- 
 preme Court of the United States? 
 
 Mr. BRUCE. What is the use of asking me 
 to say something that everybody knows? The 
 southern people had to take their choice between 
 constitutional abstractions and civilization, and 
 they selected civilization. 
 
 Mr. MOSES. Oh, no, Mr. President, if the 
 Senator from Idaho will permit me. The south- 
 ern people had another choice. The implications 
 of the Constitution are that a certain vote may 
 be suppressed, but if suppressed, there is a con- 
 stitutional price to be paid for it. It is a great 
 and high privilege to suppress millions of votes, 
 and why does not southern chivalry come to the 
 front and pay the price which the Constitution 
 mentions ? 
 
 Mr. BRUCE. I recollect that one of the mal- 
 efactors who gave the South the greatest trouble 
 after the Civil War was a Moses of South Caro- 
 lina. 
 
 Mr. MOSES. He did not come there ; he was 
 raised there. He was not a carpetbagger. 
 
 Mr. BRUCE. Surely that State was incapable 
 of producing such fruit as that. 
 
 Mr. MOSES. He was not a carpetbagger ; he 
 was indigenous. 
 
 Mr. BORAH. If I may say just a word in 
 explanation, at the risk, I suppose, of being criti- 
 cized, I have always thought that the enfran- 
 chisement of the negro, at the time it took place, 
 was a mistake. It was unjust to the white and 
 unjust to the colored man. 
 
Mr. BRUCE. Of course, the Senator has. 
 
 Mr. BORAH. I have said here on the floor 
 of the Senate I thought it was a mistake to take 
 a race which had been in slavery for 300 years, 
 and overnight put upon them the burdens and 
 obligations of discharging political duties in a 
 great representative Republic, an almost impos- 
 sible proposition. It required something of the 
 negro that no race in history could have ade- 
 quately met. He would have been better off to 
 have worked out through time and education his 
 franchise. But I do not agree with the Senator 
 that at the present time the Southern States are 
 doing these things in violation of the Supreme 
 Court decisions. They have worked out a solu- 
 tion within the Constitution and within the de- 
 cisions of the Supreme Court of the United 
 States. 
 
 Mr. McKELLAR. That is precisely what 
 we have done in Tennessee. 
 
 Mr. BRUCE. I think the less we say on the 
 subject the better. 
 
 Mr. BORAH. I think so. 
 
 Mr. BRUCE. But I will say that it cost us a 
 considerable amount of blood and tears to bring 
 the rest of this country to the conclusion that the 
 Senator from Idaho has reached. 
 
 Mr. BORAH. The Senator from Idaho has 
 reached just one conclusion, and I put it plainly 
 and I challenge the Senator from Maryland to 
 controvert it — that so long as the Constitution of 
 the United States remains as it is, it is the duty 
 of every loyal citizen to help enforce it. 
 
 Mr. BROUSSARD. Mr. President, will the 
 Senator yield to me for a question? 
 
 Mr. BORAH. I yield. 
 
 Mr. BROUSSARD. Does the Senator hold 
 that the Congress of the United States may fix a 
 higher percentage than one-half of 1 per cent of 
 alcoholic content? 
 
Mr. BORAH. 1 hold that the issue which we 
 are now seeking to meet is not a percentage 
 within nonintoxicating percentages. What is 
 being sought is to give a percentage which will 
 give these people an intoxicating drink. 
 
 Mr. BROUSSARD. Does the Senator con- 
 tend that the fixing of 1 per cent would be a vio- 
 lation of the spirit or the letter of the eighteenth 
 amendment ? 
 
 Mr. BORAH. I am not sufficiently familiar 
 with drinks to know, but what I say is that if 
 we fix the percentage, it does not make any dif- 
 ference what it is, so that the beverage is still 
 nonintoxicating, we will have the liquor question 
 here just as prominently and persistently and 
 pronouncedly as ever before. What the Sena- 
 tor’s constituency, if he is speaking for the wets, 
 is asking for is an intoxicating drink. They are 
 not asking for a percentage that will add a little 
 more flavor to a drink. They want something 
 which will be intoxicating, and that is what they 
 are fighting for. Does the Senator contend that 
 the people who oppose the present Volstead Act 
 would be satisfied if it were changed so as to 
 give a nonintoxicating drink? 
 
 Mr. BROUSSARD. I hope the Senator will 
 permit me to say just a word. The Senator has 
 started out by saying that he is not acquainted 
 with liquors, and then he goes on to assume what 
 those who advocate modification want. My pur- 
 pose in rising was to ask a question. Does not 
 the Senator believe that those who believe that 
 one-half of 1 per cent is not justified under a 
 proper interpretation of the eighteenth amend- 
 ment are entitled to fix such a percentage by law 
 and have the Supreme Court of the United 
 States pass upon that law, just as they passed 
 upon the fourteenth and fifteenth amendments 
 to the Constitution? 
 
 Mr. BORAH. I will answer that, and I trust 
 that my answer will not seem to be offensive, but 
 
if we fix the percentage and make it such that it 
 will not give intoxicating liquors to the people 
 who are asking for a change, it will not solve the 
 question at all. What we are seeking to do, as 
 I understand it, is to readjust the situation so as 
 to satisfy, if possible, the country against per- 
 sistent insistence upon a change of the prohibi- 
 tion law. If we fix it at a percentage which does 
 not give intoxicating liquor, it will solve nothing. 
 On the other hand, if we do fix it at a percentage 
 which will give intoxicating drinks, we will have 
 violated the Constitution. 
 
 Mr. BROUSSARD. During the war 3.75 per 
 cent beer was declared nonintoxicating by the 
 Supreme Court of the United States. Would 
 the Senator believe that that is not a reasonable 
 interpretation of the limitation placed upon Con- 
 gress to define intoxicating liquor and to fix 3.75 
 per cent? 
 
 Mr. BORAH. Suppose we fix it at 3.75 per 
 cent ; if it is nonintoxicating and found to be 
 such in practice as well as in theory, we will have 
 solved nothing. 
 
 Mr. BROUSSARD. We have not tried it. 
 We have not tried 3.75 per cent beer. The peo- 
 ple were satisfied with 3.75 per cent beer during 
 the war. 
 
 Mr. BORAH. Oh, no. 
 
 Mr. BRUCE. Mr. President, will the Senator 
 yield to me? 
 
 The VICE PRESIDENT. Does the Senator 
 from Idaho yield to the Senator from Maryland? 
 
 Mr. BORAH. I yield. 
 
 Mr. BRUCE. I am going to try to take up 
 the matter in a little less controversial spirit. 
 The proposition that the Senator seems to be 
 emphasizing is the proposition brought for- 
 ward by Mr. Buckner. Of course, so far as we 
 are concerned, we are not responsible for any 
 proposition brought forward by Mr. Buckner. 
 
 [ 19 ] 
 
The bills which are actually pending before the 
 Committee on the Judiciary are bills which pro- 
 vide for 2.75 per cent and for beer that does not 
 exceed the intoxicating point. So far as I know, 
 the proposition or the question as to what shall 
 be an intoxicating beverage and what shall not 
 be an intoxicating beverage is not proposed to 
 be remanded, so far as we are concerned, to the 
 States at all. Surely the Senator would not un- 
 dertake to say that 2.75 per cent beer is an in- 
 toxicating thing? 
 
 Mr. BORAH. Surely the Senator from 
 Maryland would not undertake to say that if it 
 is not intoxicating that the people for whom he 
 speaks would be satisfied? 
 
 Mr. BRUCE. I would. In point of fact, I 
 can speak 
 
 Mr. BORAH. I am not speaking now par- 
 ticularly of legal constituents, but I am speak- 
 ing of the people who are insisting that they 
 have the right to have intoxicating liquor. 
 
 Mr. BRUCE. Because the people of Mary- 
 land, for illustration, are asking for 2.75 per 
 cent beer, it does not follow that they are ask- 
 ing for an intoxicating beverage. The ordinary 
 alcoholic content of beer made in the city of 
 Baltimore before the adoption of the eighteenth 
 amendment was 3 to 3.5 per cent. The Senator 
 will probably be surprised when I tell him, be- 
 cause it is obvious that he is a highly temper- 
 ate man 
 
 Mr. BORAH. I am, I trust. 
 
 Mr. BRUCE. So am I — that it was the prac- 
 tice of the brewers in Baltimore City to give a 
 gratuitous allowance each day of 16 glasses 
 of beer to each and every driver of a brewery 
 wagon, so slightly intoxicating was the mer- 
 chantable beer that was sold at that time. A 
 man simply had almost to drown himself — he 
 had to submerge himself practically in a sea of 
 
 [ 20 ] 
 
beer — to intoxicate himself on 2.75 per cent 
 beer. 
 
 Mr. BORAH. That is according to how long 
 he has been at the business. 
 
 Mr. BRUCE. The general idea is that the 
 longer he has been at it the more thoroughly 
 inured he becomes. But the Senator. I think, is 
 mistaken when he ignores the fact that a very 
 large measure of relief, as the opponents of the 
 Volstead Act see it, would be given by a modi- 
 fication of the Volstead Act allowing 2.75 per 
 cent beer. Light wine is a different matter. I 
 have never had much to say about light wines. 
 I am not really sufficiently informed on the 
 subject to know what percentage of alcoholic 
 content we could define in wine that would 
 justify any wine being called a light wine; but 
 so far as beer is concerned there is no reason 
 in the world, if we are influenced simply by 
 considerations of intoxication, why the Amer- 
 ican population should not be allowed the priv- 
 ilege of drinking beer. The very rich and well- 
 to-do will obtain their wine anyhow ; you need 
 not trouble yourself about that. 
 
 Mr. BORAH. I am going to trouble myself 
 about it. So long as this Constitution remains 
 as it is I am going to trouble myself about it. 
 I look upon the rich and influential who violate 
 the Constitution as the most dangerous people 
 in the whole community. 
 
 Mr. BRUCE. They will take care of it in 
 one way or another, and it does not make any 
 difference how much you concern yourself 
 about it or what abstract propositions you may 
 bring forward with respect to it, they will have 
 it, just as liberal men will have their Sundays 
 without any extreme, puritanical, blue restric- 
 tions. Just as they will have all sorts of things 
 without regard to merely teasing, unreasoning 
 restrictions. 
 
 I am not going to interrupt the Senator any 
 
 [ 21 ] 
 
more, but I wish to direct his attention to the 
 fact that there is nothing in 2.75 per cent beer, 
 if we are right, that is inconsistent at all with 
 the provisions of the eighteenth amendment, 
 which are simply aimed at intoxicating bev- 
 erages. 
 
 Mr. BORAH. In other words, I understand 
 that all this great drive, this universal hubbub 
 throughout the United States, this uproar in 
 the market place, these hearings, and this great 
 fight that is going on, are to get a little more 
 non-intoxicating beverage, more of the same 
 kind of stuff which you now reject. 
 
 Mr. BRUCE. The Senator knows, so far as 
 I am concerned, that his remark is not ap- 
 plicable to me, because nobody knows better 
 than he does that I have proposed an amend- 
 ment to the eighteenth amendment to the Fed- 
 eral Constitution. 
 
 Mr. BORAH. Exactly. I commend the 
 Senator for his courage and his intelligence in 
 meeting the issue. 
 
 Mr. BRUCE. I do not think that 2.75 per 
 cent beer would afford to the rational instincts 
 of the people of this country the full measure 
 of relief to which they are entitled. 
 
 Mr. BORAH. That is what I thought. 
 [Laughter.] A Daniel come to judgment! 
 
 Mr. BRUCE. And I hope I am going to 
 be a Daniel that will come to such a stern judg- 
 ment as to sweep away all the unnatural and 
 artificial restrictions of prohibition. 
 
 Mr. BORAH. That is what I am talking 
 about. The Senator wants to sweep away the 
 inhibition against intoxicating liquors. 
 
 Mr. BRUCE. In the ordinary course of con- 
 stitutional procedure. We have to take the 
 first step in every relation of life. Now, that 
 2.75 per cent is the first step. If the people of 
 
the United States are not willing to go any 
 further, they will go no further. 
 
 Mr. BORAH. Of course we realize that 
 that is the first step, and it is to weaken the 
 law and break down the morale of the situa- 
 tion and then we will have 4 per cent and 5 per_ 
 cent, and the next thing we will repeal the 
 Constitution. 
 
 Mr. BRUCE. It may be that 2.75 per cent 
 beer would afford such a measure of relief to 
 natural human instincts that public opinion 
 would then come to the aid of the law and we 
 would not have this disgraceful spectacle of 
 the law weekly, daily, hourly, momentarily vio- 
 lated in the United States. 
 
 Mr. BORAH. In other words, all that 
 stands between the people of the United States 
 and obedience to the law is the difference be- 
 tween 1.75 per cent beer and 3.75 per cent beer. 
 
 Mr. BRUCE. No; the difference is the dif- 
 ference between rational municipal ordinances 
 and irrational municipal ordinances which vio- 
 late one of the elementary impulses of human 
 nature. 
 
 Mr. BORAH. The difference, with all due 
 respect to the able Senator from Maryland, is 
 the difference between -the Constitution as it is 
 and the Constitution repealed. If the Senator 
 wants to repeal the Constitution of the United 
 States he has a perfect right to start that cam- 
 paign. No one is justified in criticizing that. 
 The Constitution was made and will be unmade 
 by the people of the United States. If it is not 
 satisfactory to us, let us change it. But what 
 I contend is that all this maneuvering with ref- 
 erence to percentages, and so forth, is to evade 
 the Constitution of the United States, to un- 
 dermine and destroy the morale of its enforce- 
 ment, and not for the purpose of solving the 
 question within the provisions of the Consti- 
 tution. 
 
 [23] 
 
Mr. BRUCE. But, may I ask the Senator 
 from Idaho, if it is legally competent for us to 
 enact a statute allowing 2.75 per cent beer with- 
 out violating the provisions of the eighteenth 
 amendment, is there any reason why that 
 should not be done? 
 
 Mr. BORAH. Oh, no; but it will not solve 
 anything. It will not settle anything, if it is 
 not intoxicating. Your fight will go on. 
 
 Mr. BRUCE. There is where I do not agree 
 with the Senator. 
 
 Mr. BORAH. The Senator just said that he 
 has not much to say about light wines. 
 
 Mr. BRUCE. And I have not. 
 
 Mr. BORAH. But there are thousands and 
 hundred of thousands and millions of people in 
 the United States who have something to say 
 about light wines. Will they be satisfied with 
 that beer? They would be offended if you 
 offered them beer. 
 
 Mr. BRUCE. I confess my ignorance of 
 that subject. I do not know exactly, techni- 
 cally speaking, what constitutes a light wine 
 and a heavier wine. I do not know. I know, 
 as I said before, that whether we like it or dis- 
 like it, the affluent portion of the American 
 population are going to have their wine— Con- 
 stitution or no Constitution, statute or no 
 statute. That has been demonstrated. 
 
 Mr. BORAH. I beg the Senator to permit 
 me to proceed. The Senator has stated the 
 issue. Let us argue it. The Senator has stated 
 that the issue is that they propose to have 
 what they want with reference to intoxicating 
 liquor — 
 
 Mr. BRUCE. They do. 
 
 Mr. BORAH. Regardless of the Constitu- 
 tion of the United States or the statutes? 
 
 Mr. BRUCE. They do. 
 
 [24] 
 
Mr. BORAH. If that be true, and I have 
 no doubt that is just what the Senator 
 thinks 
 
 Mr. BRUCE. I do. 
 
 Mr. BORAH. If that be true, is not the 
 orderly thing to do, so long as we profess to 
 live under a constitutional government, to 
 amend the Constitution in the manner provided 
 by the Constitution itself, and rewrite the char- 
 ter under which we live? Can the Senator con- 
 ceive anything more degrading, demoralizing 
 and undermining to the good citizenship of the 
 people than to have a solemn pledge in the 
 Constitution of the United States and to have 
 great Senators stand upon the floor of the 
 United States Senate and say the people are 
 going to have what they want regardless of 
 whether it is constitutional or not? 
 
 Mr. BRUCE. I can conceive of nothing 
 more deplorable, nothing more tragic, nothing 
 more scandalous, but I take human nature as 
 it is. In other words, I look at this question 
 exactly as the free-soiler looked at the insti- 
 tution of slavery. 
 
 Mr. BORAH. Of course, and when Wen- 
 dell Phillips spoke with reference to that prop- 
 osition he said, “To hell with the Constitu- 
 tion.” 
 
 Mr. BRUCE. Yes ; he did. 
 
 Mr. BORAH. But there came along the 
 man who, disregarding Wendell Phillips, found 
 a way to solve that great question by amend- 
 ing the Constitution of the United States and 
 effectuating the change which he desired under 
 the Constitution and not in violation of it. 
 
 Mr. BRUCE. How did he find it? He 
 found it by tracing his way through fire and 
 smoke and flame and blood. 
 
 Mr. BORAH. I am one of those who be- 
 
 [ 25 ] 
 
lieve that the Constitution of the United 
 States is of sufficient value, if it is necessary, 
 to trace our way through blood and fire in order 
 to maintain it as it is. [Applause on the floor 
 and in the galleries.] 
 
 Mr. BRUCE. So do I when a great ques- 
 tion like slavery is involved ; so do I when a 
 great issue like that of national sovereignty is 
 involved ; but not when nothing more is in- 
 volved than the question as to whether a man 
 shall or shall not be allowed to enjoy what' I 
 conceive to be a perfectly legitimate measure 
 of human indulgence. 
 
 Mr. BORAH. Yes. Well, Mr. President, 
 there is scarcely any vice that human nature 
 may indulge that the particular person who in- 
 dulges it does not resent the fact that the law 
 prohibits or inhibits him from doing so. 
 
 Mr. BRUCE. That is not so. There is no 
 uprising against punishment for forgery or 
 against punishment for false pretenses, and, 
 above all, there is none against punishment for 
 murder or for rape or for arson. 
 
 Mr. BORAH. But every man who commits 
 forgery feels toward the law just exactly as 
 the Senator does toward prohibition. 
 
 Mr. BRUCE. He does, but his neighbors 
 do not. The difference in this case is not only 
 that the man who takes 
 
 Mr. BORAH. I am not sure that the Sen- 
 ator’s neighbors do. That is what I want to 
 find out. 
 
 Mr. BRUCE. I have previously stated to 
 the Senator that many of my neighbors regard 
 with great leniency the violation of the Vol- 
 stead Act, because, as they conceive it, that 
 act has no true moral sanction behind it. It 
 endeavors to pronounce something as being 
 criminal per se that is not so. 
 
 Mr. BORAH. Mr. President, there are hun- 
 
 [ 26 ] 
 
dreds and thousands and millions of people in 
 the United States, as good people as live, who 
 are devoted to law and order, who believe in 
 obedience to law, who take the very opposite 
 view from that of the able Senator from Mary- 
 land. They believe that while we are making 
 a fight to maintain those provisions of the 
 Constitution which protect property it is just 
 as necessary to make a fight for the mainte- 
 nance of the provisions which protect human 
 values and the home. 
 
 Mr. BRUCE. That is simply because they 
 are misguided enthusiasts who are incapable 
 of drawing the true line of distinction between 
 what is real criminality and what is merely 
 artificial criminality. 
 
 Mr. BORAH. That doctrine will not do in 
 this country. 
 
 Mr. EDGE rose. 
 
 Mr. BORAH. I yield to the Senator from 
 New Jersey. 
 
 Mr. EDGE. I will wait until the Senator 
 from Idaho shall have finished his remarks. 
 
 Mr. BORAH. Let us go back for a moment 
 to what I think is the most serious proposition 
 here. I regard all this discussion of percent- 
 ages of the alcoholic content of liquor as evad- 
 ing the question, not intentionally, perhaps, 
 upon the part of all those who discuss it. 
 Every Senator here knows from the letters 
 which he receives every day that the thing 
 which many people are asking is not a change 
 of percentage still keeping the liquor non-in- 
 toxicating, but what they are writing Senators 
 about now, what they are passing resolutions 
 about, what they are petitioning about is for 
 intoxicating beverages. 
 
 It is the duty of the Senate of the United 
 States, if it has not lost all capacity for leader- 
 ship, to say to these people. “You want intoxi- 
 
 [ 27 ] 
 
eating beverages. We say to you that you can 
 not get them under the Constitution, which we 
 have sworn to support, until you, hy the or- 
 derly processes pointed out by the Constitu- 
 tion, rewrite that instrument.” 
 
 Mr. BRUCE. Mr. President 
 
 Mr. BORAH. Just a moment. I want to 
 speak for a few moments. 
 
 Mr. BRUCE. Of course. 
 
 Mr. BORAH. It is our duty to do that, as 
 men whose business it is to uphold the Consti- 
 tution, who have sworn to support the Consti- 
 tution and who ought to have some capacity 
 for leadership when the Constitution, of the 
 United States is involved. We should say to 
 those who are advocating a change, “What you 
 want is intoxicating liquors, but that is what 
 you can not have until you take out of the Con- 
 stitution that which the people of the United 
 States put into the Constitution.” That is what 
 I am contending for here today. Let the peo- 
 ple understand that this proposed change of 
 the Volstead Act would settle nothing; it 
 would solve no problem. It would leave liquor 
 here haunting the corridors of the Capitol, and 
 these people would be petitioning Congress 
 next year just the same as they are doing this 
 year. What these people are interested in is 
 doing what the Constitution does not permit 
 them to do. 
 
 Mr. BRUCE and Mr. EDGE addressed the 
 Chair. 
 
 The VICE PRESIDENT. Does the Sena- 
 tor from Idaho yield, and, if so, to whom? 
 
 Mr. EDGE. I thought the Senator from 
 Idaho had concluded his remarks. 
 
 Mr. BRUCE. Mr. President, the Senator 
 from Idaho knows that I have offered an 
 amendment to the Constitution involving a 
 combination of the Quebec plan of government 
 
 [ 28 ] 
 
supervision and control and local option ; in 
 other words, I am pursuing the very pathway 
 that he thinks that I and those associated with 
 me should pursue. Now I will ask the Senator 
 from Idaho, Does that constitutional amend- 
 ment meet with his approval or not? 
 
 Mr. BORAH. Distinctly not. I do not 
 want this Government to become a saloon 
 keeper. If that must go on, let it be by indi- 
 viduals. But, as I said a moment ago, I do 
 not want to discuss indefinitely and exclu- 
 sively the question of percentages. 
 
 I wish to refer again, for the consideration 
 of the Senate, to the great referendum which 
 the people are going to hold in the state of 
 New York. They are going to petition the 
 Congress of the United States by the voice of 
 the people of New York to do what? To vio- 
 late the Constitution of the United States. Do 
 the people of a great Commonwealth such as 
 New York, with its distinguished leaders of 
 the past and its distinguished leaders of the 
 present, its great educators, its great lawyers, 
 its great jurists, and its great religionists, pro- 
 pose to come down here with a solemn refer- 
 endum to the effect that the Congress of the 
 United States shall disregard the Constitution 
 of the United States? They propose to peti- 
 tion us to leave the enforcement of the Con- 
 stitution to the States — a shameless proposi- 
 tion. 
 
 Is it not infinitely better, more in accord with 
 good citizenship and with representative gov- 
 ernment, that they submit to the people of the 
 State of New York the question of petitioning 
 Congress to submit to the States for ratifica- 
 tion an amendment which will take out the 
 eighteenth amendment from the Constitu- 
 tion? Can you meet the question any other 
 way? Is there any other orderly and decent 
 way to proceed? Can you solve the problem 
 
 [ 29 ] 
 
by any other method or any other process? 
 I ask, Mr. President, is it honest, is it candid 
 leadership, is it in accord with the principles 
 of the great Republican and Democratic par- 
 ties to seek to evade the question by asking 
 us to violate the Constitution of the United 
 States, to disregard it? Let us be candid 
 enough to speak to the people in constitutional 
 language, in language befitting public men in 
 a government of law. 
 
 Mr. President, the liquor problem can not 
 be disposed of by amendments which do noth- 
 ing more than add an additional flavor to the 
 drink. It can not be put at rest by changing 
 the percentage if that percentage fails to give 
 intoxicants. The contest is not over percent- 
 ages. It involves deeper and more searching 
 questions. After you have made your changes 
 as proposed, if you remain within the provi- 
 sions of the Constitution, your liquor problem 
 will still be here, unsettled, undetermined, 
 haunting the corridors of Congress and tor- 
 menting public opinion, insistent of attention 
 and rapacious in its demands. Deep convic- 
 tions are found on either side of this question. 
 Great governmental, as well as great moral, 
 problems are involved and percentages will 
 not meet the situation. 
 
 But what I arose to say at this time is that 
 whether prohibition stays or goes, rises or 
 falls, the Constitution should be maintained 
 and supported as it is written by all law-abid- 
 ing people until it is changed in the manner 
 pointed out by the Constitution. Obedience 
 to the law is the rock foundation upon which 
 our whole structure rests. To disregard it is 
 to strike at the life of the Nation. And while 
 disrespect for law applies to all laws, statutes, 
 and enacted laws, there is a more sacred im- 
 port to that rule of conduct when the Constitu- 
 tion itself is involved. It is the law of the 
 land, the charter of our Government, approved 
 
by the people, defining and guaranteeing the 
 rights of the citizen, prescribing the duties, 
 functions, and limitations of government, and 
 to disregard it is to spell the end of order and 
 representative government.