February 15, 1933 (2)

The Senate resumed the consideration of Mr. BLAINE's motion that the Senate proceed to consider the joint resolution (S. J. Res. 211) proposing an amendment to the Constitution of the United States.

Mr. McNARY. Mr. President, I suggest the absence of a quorum.

The VICE PRESIDENT. The clerk will call the roll.

The Chief Clerk called the roll and the following Senators answered to their names: Ashurst Cutting Kendrick Sheppard Austin Dale Keyes . Shipstead Bailey Davis King Shortridge B . Bankhead Dickinson La Follette Smith Barbour Dill Lewis Smoot Barkley Fess Logan Steiwer Bingham Fletcher McGill Stephens Black . Frazier McKellar Swanson Blaine George McNary Thomas, Idaho Borah · Glass Moses Thomas, Okla. Bratton Glenn Neely Townsend Brookhart Goldsborough Norbeck Trammell Bulkley Grammer Norris Tydings Bulow Hale Nye Vandenberg Byrnes Harrison Oddie Wagner Capper Hastings Patterson Walcott Caraway Hatfield Pittman Walsh, Mass. Clark Hayden Reed Walsh, Mont. Connally Hebert Robinson, Ark. Watson Coolidge Hull Robinson, Ind. White Costigan Johnson Russell Couzens Kean Schuyler

Mr. WALSH of Montana. I desire to announce that my Capper colleague [Mr. WHEELER] is absent on account of illness. . The VICE PRESIDENT. Eighty-six Senators have answered to their names. A quorum is present. The question is upon agreeing to the motion of the Senator from Wisconsin.

· Mr. ASHURST. Let us have the yeas and nays. • The yeas and nays mre ordered, and the Chief Clerk proceeded to call the roll.

Mr. BRATTON (when his name was called). I transfer ate the joint resolution. my pair with the junior Senator from Nebraska [Mr. HowELL] to the senior Senator from Louisiana [Mr. BRoussARD] and vote " yea."

Mr. FESS (when his name was called). On this question I have a pair with the senior Senator from New York [Mr. CoPELAND l. I understand if he were present he would vote "yea." If I were permitted to vote, I would vote "nay."

Mr. NORRIS (when Mr. HowELL's name was called). I desire to announce that my colleague the junior Senator from Nebraska [Mr. HowELL] is absent on account of official business of the Senate. He has a general pair with the senior Senator from New Mexico [Mr. BRATTON]. If present, my colleague [Mr. HOWELL] WOUld vote" nay."

Mr. STEPHENS (when his name was called). On this vote I am paired with the junior Senator from Wyoming [Mr. CAREY]. If he were present and voting, he would vote •• · yea." If I were at liberty to vote, I would vote "nay."

Mr. THOMAS of Idaho (when his name was called). I have a general pair with the junior Senator from Montana [Mr. WHEELER]. Therefore I withhold my vote. If permitted to vote, I would vote "nay."

Mr. THOMAS of Oklahoma (when his name was called). On this question I have a pair with the senior Senator from Rhode Island [Mr. METCALF]. I understand if he were present he would vote " yea." If permitted to vote, I would vote" nay."

The roll call was concluded.

Mr. TYDINGS. I wish to announce that the junior Senator from North Carolina [Mr. REYNOLDS] has a pair with the junior Senator from Oklahoma [Mr. Gore]. If the junior Senator from North Carolina [Mr. REYNOLDS] were present, he would vote "yea."

Mr. FRAZIER. On this question I have a pair with the junior Senator from Louisiana [Mr. LoNG]. If permitted to vote, I would vote "nay." I understand the Senator from Louisiana [Mr. LoNG] would vote "yea."

Mr. WAGNER. I wish to announce that my colleague the senior Senator from New York [Mr. CoPELAND] is absent because of the death of his father. If present, he would vote" yea." · Mr. BINGHAM. I desire . to announce that the senior Senator from Rhode Island [Mr. METCALF] is necessarily absent. If present, he would vote "yea."

Mr. FESS. I was requested to announce that the Senator from Wyoming [Mr. Carry] is absent on _ business of the Senate.

Mr. SHEPPARD. The Senators from Louisiana [Mr. BRoussARD and Mr. LoNG] are necessarily absent. If present, they would each vote " yea."

The result was announced-yeas 58, nays 23, as follows:

YEAS-58

Ashurst Davis Kendrick Ship stead Austin Dill Keyes Shortridge Bailey Fletcher King Steiwer Bankhead Glass La Follette Swanson Barbour Glenn Lewis · Trammell Barkley Goldsborough Logan Tydings Bingham Grammer McKellar Vandenberg Black Hale McNary Wagner Blaine Harrison Moses Walcott Bratton Hastings Oddie Walsh, Mass. Bulkley Hayden Patterson Walsh, Mont. Byrnes Hebert Pittman Watson Clark Hull Reed White Coolidge Johnson Robinson, Ark. Couzens Kean Schuyler

NAYS-23

Borah Costigan McGill Russell Brookhart Cutting Neely Sheppard Bulow Dale Norbeck Smith

Dickinson Norris Smoot

Caraway George Nye Townsend Connally Hatfield Robinson, Ind.

NOT VOTING-15

Broussard Frazier Metcalf Thomas, Idaho Carey Gore Reynolds Thomas, Okla. Copeland Howell Schall Wheeler Fess Long Stephens

So Mr. BLAINE's motion was agreed to.

The VICE PRESIDENT. The Chair lays before the Senate Senate proceeded to consider the joint resolution (S. J. Res. 211) proposing an amendment to the Constitution of the United States, which had been reported from the Committee on the Judiciary with an amendment to strike out all after the resolving clause and to insert:

That the following article is hereby proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified oy the legislatures of three-fourths of the several States:

"ARTICLE-

" SECTION 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

··SEC. 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

"SEc. 3. Congress shall have concurrent power to regulate or prohibit the sale o! intoxicating liquors to be drunk on the premises where sold.

"SEc. 4. This article shall be inoperative unless lt shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress."

Mr. ROBINSON of Arkansas. Mr. President, I desire to submit the following amendment and ask that it be read, printed, and lie on the table.

The VICE PRESIDENT. It will be read for the information of the Senate.

The CHIEF CLERK. On page 3, line 2, strike out the words "the legislatures of" and insert the words "conventions in," and on page 3, line 16, strike out the words "the legislatures of" and insert the words" conventions in."

The VICE PRESIDENT. The amendment will be printed and lie on the table.

Mr. ROBINSON of Arkansas. Mr. President, I submit another amendment and ask that it be read, printed, and lie on the table.

The VICE PRESIDENT. The amendment will be read for the information of the Senate.

The CHIEF CLERK. The Senator from Arkansas offers the following amendment:

That the following article is hereby proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by conventions in three-fourths of the several States.

"ARTICLE -

"SECTION 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

"SEc. 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission thereof to the States by the Congress."

The VICE PRESIDENT. The amendment will be printed and lie on the table.

Mr. BLAINE obtained the floor.

Mr. FESS. Mr. President, I submit an amendment and ask that it may be read and printed.

The VICE PRESIDENT. Does the Senator from Wisconsin yield for that purpose?

Mr. BLAINE. I yield.

The VICE PRESIDENT. Let the amendment be read.

The CHIEF CLERK. On page 3, at the end of line 13, it is proposed to strike out the period and insert a comma and the following words:

And;or to employ such other methods deemed necessary to carry into effect the purposes of this resolution.

The VICE PRESIDENT. The amendment will be printed, and lie on the table.

Mr. BLAINE. Mr. President, I desire to address myself to the resolution in explanation of the action of the committee, but before doing so I first want to submit a request for unanimous consent. I ask unanimous consent that no Senator shall speak upon Senate Joint Resolution 211, proposing an amendment to the Constitution of the United States or any amendment thereto or any motion relating 1 to any amendment or to the joint resolution itself more than once or for longer than 20 minutes on the joint resolution • or longer than 15 minutes on any amendment or any motion in relation thereto.

The VICE PRESIDENT. Is there objection to the request of the Senator from Wisconsin?

Mr. BROOKHART. Mr. President, I have had to sit in this Chamber and listen to arguments of the Senator from Wisconsin on this question for hours, and I shall have to object to his request.

The VICE PRESIDENT. Objection is made.

Mr. BLAINE. Mr. President, as I advised the Senator from Iowa yesterday, I have scarcely consumed any time I debating the prohibition question while I have been a Member of the Senate. I want to say, Mr. President, that it is my desire to continue the consideration of this joint resolution until we can obtain a vote on it sometime to-day. I am reliably informed, or at least I have been informed by a great many Members of the Senate, that we can obtain a vote upon the resolution within a reasonable time, and so I hope the Senate will retain a quorum and remain in session until we can obtain a final vote on the resolution and dispose of it.

Mr. President, speaking in behalf of the report of the committee I shall be very brief. The committee in submitting this joint resolution--

Mr. BINGHAM. Mr. President, before the Senator begins will he not--.

The VICE PRESIDENT. Does the Senator from Wisconsin yield to the Senator from Connecticut?

Mr. BLAINE. I yield.

Mr. BINGHAM. Will not the Senator suggest a unanimous-consent agreement limiting the debate on the part of each Senator to one hour? Perhaps such a request might be granted.

Mr. BLAINE. I think perhaps, Mr. President, that that would be too long a time.

Mr. President, the question before us has had the consideration of the two major political parties. At their national conventions last year they resolved very emphatically upon the question of amending the eighteenth amendment. The Republican Party, referring to an amendment to the eighteenth amendment, resolved:

Such _ an amendment should be promptly submitted to the States by Congress, to be acted upon by State conventions called for that sole purpose.

The Republican platform asked for a prompt submission of the question.

The Democratic Party in convention assembled resolvedwill read just a brief portion of their platform declaration: We advocate the repeal of the eighteenth amendment. To effect such repeal we demand that the Congress immediately propose a constitutional amendment to truly representative conventions in the States called to act solely on that proposal.

I read these two party declarations for the purpose of calling the attention of the Senate to the fact that both the great political parties resolved for immediate action upon this question. Moreover, Mr. President, I think--

Mr. ROBINSON of Arkansas. Mr. President, will the Senator yield?

The VICE PRESIDENT. Does the Senator from Wisconsin yield to the Senator from Arkansas?

Mr. BLAINE. I yield.

Mr. ROBINSON of Arkansas. The Senator has just read the two clauses in the political platforms of the Democratic and the Republican Parties which call for the submission of a proposed constitutional amendment for ratification by conventions. I wish to point out to him now that an amendment is pending designed to make the joint resolution conform to the platforms of both parties, and I should like to ask the Senator from Wisconsin, who has worked so long and diligently on the pending joint resolution, why it was that the committee reporting it disregarded the declaration of both political parties in favor of ratification by conventions?

Mr. BLAINE. Mr. President, during the course of my brief remarks I will undertake to set forth the committee's position on that question. I read a portion of the two platforms merely for the purpose of pointing out that both political parties resolved for immediate action upon repeal. That was the only purpose I had.

Each of the two parties took perhaps a different attitude respecting the substance of an amendment providing for the repeal of the eighteenth amendment, but before proceeding to discuss that proposition I come now to answer the question submitted by the Senator from Arkansas. I think I accurately state the op i nion of the committee when I point out that it must be perfectly obvious to those of us at least who have attended national conventions or any political party conventions that resolutions are adopted the purpose of which is to set forth the party's stand upon certain fundamental questions; and the fundamental question involved in this issue is whether or not the eighteenth amendment shall be repealed. The question of the mode of repeal is not the essence of the question at all; it merely came goes to the method by which the Congress may submit the would question for ratification; and in the consideration of that turmoil proposition the committee felt that consideration was not take given by the conventions primarily to the question of the and mode of repeal but rather to the substantive elimination of all of the eighteenth amendment from the Constitution.

Moreover, it must be obvious to everyone that the con­ call, ventions, either in the committee on resolutions or on the until convention floor, gave practically no consideration to the problem of the expenditures involved in case the conven­ fication tion method was chosen as the mode of ratification. I call of the attention of the Senate to the fact that we have been we struggling along during all the present session and during a great portion of the last session of the Congress endeavoring So to save a few dollars here and a few dollars there, a few come hundred dollars or a few thousand dollars and as many million dollars as we could save in public expenditures in order to balance the Budget. Now we must face the fact that the convention system · is going to be an expensive method for ratification. Take, for instance, in a so-called wet State where it is obvious that the legislature would section. immediately upon the presentation to it for ratification of the proposed constitutional amendment . adopt a resolution vides to ratify the amendment. There is no necessity, in my opinion, to put those States to the expense of holding a convention.

The holding of a convention means a campaign. It means first, however, that the legislature must provide for holding an election at which delegates would be elected to attend mittee the convention to pass upon the proposed constitutional amendment. That means a preliminary campaign in which is both sides, no doubt, would participate, during which campaign enormous sums of money would necessarily be pass expended because of the particular character of this question and the zeal that is exhibited on the wet side and the dry side alike.

Then would come the holding of an election to select delegates in every precinct of the United States, or in those treated States that would provide for a convention and would set up the legal machinery for the purpose of holding it. There would be enormous expense in the conduct of that election. that I presume for my own State that the expenditure would run to into hundreds of thousands of dollars. So as the committee viewed the proposition they thought the States ought not to be compelled to expend those enormous sums of regulate money, when we have a constitutional and an available not system for ratification of any proposed constitutional amendment.

Moreover, the committee took the view that a legislature modity which would authorize the holding of a convention and consignee. provide machinery by which the delegates were to be elected and a convention held would in all probability ratify the amendment.

Furthermore, it was the view of the committee that this case question has been thoroughly discussed throughout the Co. country. In every hamlet and every city it has been so was thoroughly discussed that I doubt if at the election held in over 1932 there was a single polling place in the United States the where the prohibition question was not injected respecting it was the election of members to the respective legislatures.

It has been suggested-and the suggestion was discussed order by the subcommittee and also by the whole committee-­ Clark that the Federal Government might pay the cost of holding Mr. an election for the purpose of electing delegates to the conventions in the respective States. I think it was the con­ ing sensus of opinion of the committee that there was no consti­ Mr. tutional authority for the Federal Government to set up because machinery generally throughout the United States for the the conduct of this election. However that may be, it must be gated obvious to everyone that because of certain factors that merce; enter in, the Congress of the United States in all probability point never would set up that machinery, even though the Con­ commerce. gress may have the power.

Those are the considerations that were weighed by the the committee; and due to those considerations the committee the to the conclusion that ratification by the legislatures mean saving all of the expenditure and all of the and all of the disorganization that necessarily would place in a campaign between the wets and the drys, struggles to elect delegates to the respective conventions, which ought to be avoided in these times, if possible. So, since the legislatures in about 41 or 42 States, as I reare in session now, and all of them will be in session after the 4th of March, it is my opinion that if a joint resolution were passed by this Congress providing for ratiby State legislatures, from the practical standpoint one who does not believe in the eighteenth amendment, would be assured of an earlier repeal of the eighteenth amendment.

much on that proposition, Mr. President. Then we to the next controversial question.

Section 1 is a straight, outright repeal of the eighteenth amendment. Section 1, if it is incorporated in the joint resolution, submitted by the Congress, and ratified by the necessary States, will entirely eliminate the eighteenth amendment from the Constitution. I need not discuss that Then we have suggested and offered section 2, which provides follows:

The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors in violation of the laws thereof is hereby prohibited.

Mr. President, in agreeing to that section I think the comwas unanimous that the language used would effectuate the purpose that is obviously designed by section 2. It claimed, however, and I think with some degree of assurance for the future, that Congress now has the power to laws to protect the so-called dry States in regulation of interstate commerce over intoxicating liquors. A great many laws on that subject have been enacted.

I will not review those laws in detail. First, however, we had what is known as the Wilson law. That law was in the case of Rhodes v. Iowa (170 U. s. 412); but the Supreme Court in that case gave rather a restricted construction of the language used by the Congress, and held under the Wilson Act the interstate character attached the liquor until it had actually been delivered to the consignee. In other words, the court held that the interstate-commerce clause-that is, the power of Congress to interstate commerce-attached to that commodity only before it entered the State but after it entered the State so long as it was in process of transportation either by rail, by express, or by any other method, until the comor the intoxicating liquor was in fact delivered to the Then came an amendment to the Wilson Act, known as the Webb-Kenyon Act. The Webb-Kenyon Act was interpreted by the Supreme Court of the United States in the of Clark Distilling Co. v. Western Maryland Railway (242 U. S. 311). The language of the Webb-Kenyon Act designed to give the state in effect power of regulation intoxicating liquor from the time it · actually entered confines of the State; and the Supreme Court held that following the doctrine laid down in the case of Rhodes against Iowa, and necessarily must follow that doctrine in to sustain the decision it was making in the case of against Maryland Railway Co.

WAGNER. Mr. President, will the Senator yield? Mr. BLAINE. I see my able friend from New York shakhis head. I yield to him.

WAGNER. I do not want to enter into a controversy, it really is not very important, but I do not think

Senator meant to say that by this act Congress delegated the States the power to regulate interstate com­

Congress itself regulated interstate commerce to the of removing all immunities of liquor in interstate Mr. BLAINE. I thank the Senator. I think he has given correct statement of the doctrine. My understanding of question was identically the same-that it was the action of the Congress of the United States in regulating intoxicating liquor that protected the dry State within the terms of the law passed by the Congress.

Then, following the Webb-Kenyon Act, was the Reed "bone dry" amendment. · That went somewhat further. I need not discuss that. That amendment was sustained by the Supreme Court in the case of United States v. Hill (248 u. s. 420).

In the case of Clark against Maryland Railway Co. there was a divided opinion. There has been a divided opinion in respect to the earlier cases, and that division of opinion seems to have come down to a very late day. So, to assure the so-called dry States against the importation of intoxicating liquor into those States, it is proposed to write permanently into the Constitution a prohibition along that line.

Mr. President, the pending proposal will give the States that guarantee. When our Government was organized and the Constitution of the United States adopted, the States surrendered control over and regulation of interstate commerce. This proposal is restoring to the States, in effect, the right to regulate commerce respecting a single commodity-namely, intoxicating liquor. In other words, the State is not surrendering any power that it possesses, but rather, by reason of this provision, in effect acquires powers that it has not at this time.

The committee felt that since the Congress had acted and had definitely legislated upon this question, while that legislation had been sustained by the Supreme Court, yet it was sustained by a divided court, and that we could well afford to guarantee to the so-called dry States the protection designed by section 2.

I am opposed to the dry States interfering with the so-called wet States in connection with this question of intoxicating liquors; and so, by the same token, I am willing to grant to the dry States full measure of protection, and thus prohibit the wet States from interfering in their internal affairs respecting the control of intoxicating liquors.

Now, Mr. President, I think I have set forth briefly, perhaps inadequately, the view of the committee as expressed in this joint resolution.

Mr. WALSH of · Massachusetts. Mr. President, will the Senator yield?

Mr. BLAINE. I yield.

Mr. WALSH of Massachusetts. I notice that the Senator keeps using the phrase," The view of the committee." Has the Senator a different personal view from the committee?

Mr. BLAINE. I have not on that proposition.

Mr. WALSH of Massachusetts. Has the Senator on any of the propositions connected with this matter?

Mr. BLAINE. I have. I will come to the next proposition thereto. presently.

Mr. WALSH of Massachusetts. Therefore the Senator, at some stage in his speech, is going to distinguish between the committee's views and his own views?

Mr. BLAINE. I am.

Mr. President, when I say that I am expressing the views of the committee I am doing so because I have been directed by the committee to report this joint resolution, and I am endeavoring to express what I believe to be the view of the committee as a constituent part of the Senate of the United States and not expressing the individual views of the members of the committee. I want that distinctly understood. I do not speak for the individual members of the committee.

Mr. WALSH of Massachusetts. Were there record votes in the committee on these various propositions?

Mr. BLAINE. There were.

Mr. WALSH of Massachusetts. Will the Senator put them in the RECORD at this juncture?

Mr. BLAINE. I think I have them. Let me :finish the third proposition and then I will put them in the RECORD, if I have the record.

Mr. WALSH of Massachusetts. All votes of the committee on the various aspects of this proposal.

Mr. BLAINE. I shall.

Now coming to the third section, it reads as follows:

Congress shall have concurrent power to regulate or prohibit the sale of intoxicating liquors to be drunk on the premises where sold.

The committee, in considering that proposition, in my opinion, . n, indulges in language that will effectuate the purpose designed. The purpose designed by that section is to give Congress the power to prevent the restoration of the saloon.

As I say, I am not expressing the viewpoint of individual Members of the Senate, nor am I expressing my viewpoint. I am endeavoring to express the viewpoint of the committee as a committee, rather than individual viewpoints. I apologize for repeating that statement; but I want to call attention to the party platforms on this proposition, which the committee had before it, and which the committee had a right to consider, and did consider.

The Republican platform on this particular question resolved as follows-! will read only the paragraph that has particular reference to the saloon:

We, therefore, believe that the people should have an opportunity to pass upon a proposed amendment the provision of which, while retaining 1n the Federal Government power to preserve the gains already made in dealing with the evils inherent in the liquor traffic, shall allow States to deal with the problem as their citizens may determine, but subject always to the power of the Federal Government to protect those States where prohibition may exist and safeguard our citizens everywhere from the return o! the saloon and attendant abuses.

Mr. President, that section, of course, carries into effect the purposes or designs of the resolution.

Now, turning to the Democratic platform upon the same subject, reading only that which has reference to this question, I find the following:

We urge the enactment of such measures by the several States as will actually promote temperance, effectively prevent the return of the saloon, and bring the liquor traffic into the open under complete supervision and control by the States.

The difference between the Republican platform and the Democratic platform on this question of preventing the return of the saloon is merely a question of procedure. They both propose to prevent the return of the saloon. There is no question about that. The Republican platform proposes to do it by leaving in Congress some power, if you please, because after the eighteenth amendment is repealed the Congress will have no police powers respecting this question of intoxicating liquors. So, as I view it, the Republican platform proposes to repose the power not only in the States, but also in the Congress, to prevent the return of the saloon, and to regulate the alleged abuses and evils in reference

Mr. WAGNER. Mr. President, will the Senator yield to

Mr. BLAINE. I yield.

Mr. WAGNER. I could not quite comprehend what the Senator meant when he said" some power." When we analyze the provision in detail is it not a fact that we find that it confers all power? In the analysis I hope to make as to the legal phase of the matter, I think I can show that it confers almost all the power that now exists as a result of the adoption of the eighteenth amendment. There is very little difference.

Mr. BLAINE. I submit that the Senator's statement is correct in so far as that power relates to intoxicating liquors to be drunk on the premises where sold. That obviously means the saloon, does it not? That is, it means a public drinking place; it may be a saloon, it may be a hotel, it may be a restaurant. I am not undertaking to analyze the minds of those who adopted the platform. I am just trying to make this point, that the Republican platform proposes to prevent the return of the saloon by retaining in Congress power which it now has under the eighteenth amendment on that question, and that single question.

Mr. WALSH of Massachusetts. Mr. President, will the Senator yield to me?

Mr. BLAINE. I yield.

Mr. WALSH of Massachusetts. Is not the difference between the two party platforms in substance this, That the Democratic Party platform declares for the states and the States alone determining the manner in which intoxicating liquors shall be manufactured, sold, and distributed, while the Republican Party platform holds . to control over the method of sale in part by the Federal Government and in part by the State governments?

Mr. BLAINE. Mr. President, I hope the Senator will not understand that I am endeavoring to defend either platform on that question.

Mr. WALSH of Massachusetts. Is not that the distinction?

Mr. BLAINE. I am simply endeavoring to present that opinion of the committee. which the committee took under consideration when it drafted the particular language I am discussing. I am, in a way, a referee in this matter. I did not support either the Republican platform or the Democratic platform. I have no partisan viewpoint in the matter.

Mr. WALSH of Massachusetts. This clause which the committee reports supports the Republican platform and not the Democratic platform.

Mr. BLAINE. I have not yet approached an analysis of the Democratic platform on this subject, as the committee views it, and given my opinion of it, though I want to do that. I think it is only fair I should do that before I conclude.

Mr. WALSH of Massachusetts. The Senator does not want to make his concluding statement at this time?

Mr. BLAINE. Oh, no.

Mr. WAGNER and Mr. FESS addressed the Chair.

The VICE PRESIDENT. Does the Senator from Wisconsin yield; and if so, to whom?

Mr. BLAINE. I do not want to get into a controversy as between Democrats and Republicans. I am quite indifferent as to what their attitude was on the question.

Mr. WAGNER. Mr. President, will the Senator yield to me?

Mr. BLAINE. I yield.

Mr. WAGNER. I have not thus far, nor will I. discuss with the Senator any political considerations. I am -concerned with the legal effect of the proposal the Senator is now discussing.

I understood the Senator to say specifically that section 3 limits the power of Congress to deal with a specific subject. But I am sure the Senator has followed the history of the legislation in relation to the eighteenth amendment and knows that Congress, according to the interpretation or sanction by the United States Supreme Court is permitted to deal with subjects which do not relate exactly to the powers or go beyond the powers specifically delegated by the Constitution, and permit the adoption of measures which have for their purpose hedging in the particular powers, so that they may be more effectively enforced.

If I may state a specific case-

Mr. BLAINE. Mr. President. I think the Senator is perfectly clear on that. I agree with him as to his abstract proposition.

Mr. WAGNER. I wanted to give a concrete example, to show just what I mean. It will take only a second.

The eighteenth amendment authorized Congress to deal only with intoxicants to be used for beverage purposes, and everyone assumed, of course, that that was a limitation upon Congress to deal only with intoxicants to be used for beverage purposes. But in order to carry out the power thus delegated, Congress dealt with liquor used for medical purposes, and in one instance absolutely prohibited the use of malt liquor for medical purposes, although specifically no such power was given Congress; and that was upheld by the courts.

Mr. BLAINE. Of course, there is no disagreement between the Senator and myself upon the application of that general principle. Our difference is this: Under the -eighteenth amendment Congress was given power over the subject of intoxicating liquors, without any restrictions whatever. The grant embraced all power, power over transportation, importation, manufacture, and sale of intoxicating liquors for beverage purposes. There is no doubt about that. Under section 3 the subject is - intoxicating liquors to be drunk on the premises where sold. I doubt very much whether the general principle set down by the very able lawyer. counselor, and Senator from New York is applicable to the broad extent to which he would undertake to apply that principle.

However that may be, it was the view of the committee that section 3 related only to the question of the saloon. that is, the public drinking place; that the Federal Government would have concurrent power with the States to regulate or prohibit the sale of intoxicating liquors to be drunk on the premises where sold. That was the conclusion and

Mr. FESS. Mr. President, will the Senator yield to me?

Mr. BLAINE. I yield.

Mr. FESS. Section 3 is the one section about which I am concerned, and it is to that section that I offered an amendment a while ago.

Conceding that there is a desire to avoid a return of the old drinking place-and everybody seems to want to do that-I thought we could not go further than to legislate so as to forbid the product being drunk where it is sold, on the premises. As far as it goes, that seems to me one of the effective methods proposed to prevent the return of the saloon, if that can be prevented. But, in the discussion of this matter for months before the conventions met, a lot <>f methods were proposed. One was that the object might be accomplished by a State or National dispensary system, if that were thought wise. Others thought that it might be arrived at by a system of licensing. Others thought it might be accomplished through the exercise of the taxing power.

I wondered whether the Senator would not agree to broaden the authority, so that Congress would not be limited to just this one thing, forbidding the drinking of the product where it is bought, but might be willing to extend broad power so that whatever might be necessary to prevent the return of the saloon Congress would have the authority to enact, if we thought it was wise. The amendment I offered was designed to broaden this authority.

Mr. BLAINE. Mr. President, as the Senator in charge of the joint resolution, I have no authority to modify the amendment proposed by the committee, and I want to state that the committee, in drafting the resolution, undertook to employ language sufficiently broad to do that which was obviously designed to be done, and the committee thought that section 3 would give Congress power over intoxicating liquors drunk on the premises where sold, and that it would give such implied powers as are necessary in such premises. For instance, under this power, Congress could pass a law divorcing the sale of hard liquor, spirituous liquor, from the sale of malt and vinous liquors, or divorcing the sale of hard liquors from the sale of milder liquors; that is, providing that hard liquor should not be drunk on the premises where sold, and permitting wine and beer to be drunk on the premises where sold, for instance, at a hotel, at a restaurant, in a public garden, or, for that matter, in any public place. The Congress would have the power to pass legislation respecting that question generally.

Mr. FESS. Mr. President, if the Senator will permit, I voted against taking U1J the joint resolution, and the Senator might infer that I am opposed to anything being done. I voted against it simply because I thought this was not the time to act. But if we could get the broad power in section 3 to do what the Senator admits we all want to do, I should vote for the resolution when we come to a vote. But if all power is denied, of course I shall vote against it.

Mr. SHORTRIDGE. Mr. President, will the Senator yield to me?

Mr. BLAINE. I yield.

Mr. SHORTRIDGE. In aid of the thought exp:ressed by the Senator from Wisconsin, and answering some suggestion of the Senator from Ohio, I would like to have appear in the RECORD the last subdivision, subdivision 18, of section 8, again? of Article I of the Constitution of the United states, which reads:

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States or in any department or officer thereof.

. So that, without going into detail, here is a conferring power to make any law necessary to carry into effect the foregoing or any other power.

. Mr. BLAINE. Mr. President, I was proceeding along the line of endeavoring to point out the attitude of the committee. I have endeavored to point out how the committee was attempting to meet the situation as the political parties had resolved. ·

Under section 3, in the absence of any Federal law respecting liquor that is to be drunk on the premises where sold, every State, of course, could legislate upon that question, and that legislation would be supreme. If the Congress of the United States legislated upon that question, yet the states would have, of course, power to legislate along the same lines.

Mr. SHORTRIDGE. Which would be supreme?

Mr. BLAINE. I do not want to get into a discussion of that matter. That is a field in which we can get into all kinds of misunderstanding.

Mr. WAGNER. Mr. President——

· The PRESIDING OFFICER (Mr. FEss in the chair) . Does the Senator from Wisconsin yield to the Senator from New York?

Mr. BLAINE. I yield.

Mr. WAGNER. Suppose there is a conflict between the Federal law and the State law, what happens, in the opinion of the Senator?

Mr. BLAINE. In my opinion, the Federal law would pre- . vail, of course, as it does under the eighteenth amendment.

Mr. WAGNER. So the word "concurrent" is meaningless?

Mr. BLAINE. That was to assure that there would be power in the States and power in the Congress. That is the only purpose in using the words " concurrent power." I doubt if it is necessary language, but the committee thought it was. I appreciate the Senator's technical position on the matter. I think it has all been discussed and very well threshed out by the Supreme Court in the national prohibition cases and in other cases interpreting the eighteenth amendment. It is unnecessary, of course, to discuss that question in connection with this matter. It is admitted that the Congress would have the power to legislate, to prohibit, to regulate liquor to be drunk on the premises where sold. The States would have that power, of course. Mr. President, the Democratic Party resolved to carry out the intent of section 3 of the committee report. It said:

We urge the enactment of such measures by the several States as will actually promote temperance, effectively prevent the return of the saloon, and bring the liquor traffic into the open under complete supervision and control by the States.

There is no difference as between the two political platforms as to the purpose they designed to accomplish. The only difference is in the method of accomplishment. The Republican platform demands reservation in the Congress, the Democratic platform proposing to do the same thing solely through State legislatures.

I submit, without intending to be controversial, that I know of no way by which the Congress of the United States could carry out the design of either party except by giving the Congress some power in the premises. Certainly the Congress will have no power over the legislatures in the absence of this authority to tell the legislatures of the several States that they must enact laws to outlaw the saloon. Therefore it was the view of the committee that section 3 would carry out the designed purpose of the declarations of the two political parties.

Mr. President, I do not agree with either of the parties upon that proposition. .

Mr. WAGNER. Mr: President, wiD the Senator yield

The PRESIDING OFFICER. Does the Senator from Wisconsin yield to the Senator from New York?

Mr. BLAINE. I yield.

Mr. WAGNER. I was unable to comprehend the Senator's statement when he said the Democratic platform could not be carried out without lodging some power in Congress to deal with the liquor question.

Mr. BLAINE. I said it could not be carried out through the Congress unless some power was lodged in the Congress. The Democratic proposal could be carried out only · by the respective States.

Mr. WAGNER. That is true.

Mr. BLAINE. Mr. President, my own personal viewpoint upon section 3 is that it is contrary to section 2 of the resolution. I am now endeavoring to give my personal views. The purpose of section 2 is to restore to the States by constitutional amendment absolute control in effect over interstate commerce affecting intoxicating liquors which enter the confines of the States. The State under section 2 may enact certain laws on intoxicating liquors, and section 2 at once gives such laws effect. Thus the States are granted larger power in effect and are given greater protection, while under section 3 the proposal is to take away from the States the powers that the States would have in the absence of the eighteenth amendment. My view therefore is that section 3 is inconsistent with section 2, and the two sections are incompatible, and that section 3 ought to be taken out of the resolution. I made myself clear before the subcommittee and before the full committee, and made a reservation to that effect.

I have now concluded my remarks so far as they relate to the purpose and design of the committee. I have undertaken to set forth my viewpoint respecting section 3 of the resolution. Now, I want to conclude respecting ·. my own personal viewPoint and attitude upon the whole question. The eighteenth amendment is an inflexible police regulation which might be appropriate in a municipal ordinance in those sections of our country where the people desire a bone-dry local regime. The eighteenth amendment does not give to the Congress a general grant of power to regulate. It is strictly a prohibition, a mandate. It is specifically a prohibitive provision of the Constitution.

Surely, Mr. President, it was never designed that our Constitution would be a compilation of local ordinances regulating the lives, the customs, and the habits of our people. But that is exactly the character of the eighteenth amendment. It has no place in the Constitution. Its inflexibility was demonstrated in the Congress when it was undertaken to pass a revenue act providing for a tax upon beer. The inflexibility of the eighteenth amendment was emphasized before the subcommittee and the full Committee on the Judiciary of the Senate when it had under consideration that · revenue proposal, which had been passed by the House, respecting the question of its constitutionality. I submit, Mr. President, that it took some time, some study, some consideration before the committee could recommend amendments to the proposal in order to bring it within the eighteenth amendment and yet to accomplish the purpose designed by the House of Representatives and as has been resolved upon time and time again by political parties in · many of the States of our Union. Therefore, as I said, in · my opinion the eighteenth amendment has no place in the Constitution.

Paraphrasing President Lincoln, on saving the Union, it · is my paramount object in this struggle to take prohibition out of the Constitution.

If I could take prohibition out of the Constitution by providing for ratification by conventions, I would do it. If i could take prohibition out of the Constitution by providing for ratification by the legislatures, I would do it.

If I could take prohibition out of the Constitution by restricting the power of the Congress respecting the regulation of commerce as to intoxicating liquors, ! - would do it.

If I could take prohibition out of the Constitution by giving to the Congress the power to regulate or prohibit the use of intoxicating liquors to be drunk on the premises where sold, I would do it.

If I could take prohibition out of the Constitution by taking out or l e aving in sections 2 and 3 of the proposed amendment. or e i ther of them, I would do it.

What I do about taking prohibition out of the Constitution, I do because I believe it will help to ratify a repeal of the eighteenth amendment.

What I forbear, I forbear because I do not believe it will help to take prohibition out of the Constitution.

I shall do less whenever I shall believe that doing less will help to take prohibition out of the Constitution, and I shall do more whenever I shall believe that doing more will help to take prohibition out of the Constitution.

Therefore I shall vote for an absolute repeal of the eighteenth amendment and the ratification thereof by conventions, if that is the mode of ratification proposed by Congress by which prohibition may be removed from the Constitution. I shall vote for a repeal of the eighteenth amendment, with ratification by the legislatures, if that is the mode of ratification proposed by Congress by which prohibition may be removed from the Constitution.

I shall vote for a repeal of the eighteenth amendment if sections 2 and 3 remain in the proposed amendment. I shall vote for the repeal of the eighteenth amendment if sections 2 and 3, or either of them, are stricken out of the proposed amendment.

My object is to take the eighteenth amendment out of the Constitution.

Mr. BRATTON. Mr. President, some days ago I offered an amendment to the pending joint resolution and bad it printed. I now send it forward and offer it to the committee text of the joint resolution.

The PRESIDING OFFICER. Does the Senator from New Mexico desire the amendment read?

Mr. BRATTON. I do.

The PRESIDING OFFICER. The clerk will read the amendment.

The CHIEF CLERK. On page 3, line 2, it is proposed to strike out the words "the legislatures of" and to insert in lieu thereof the words conventions in."

The PRESIDING OFFICER. The Chair will state that a similar amendment has already been offered by the Senator from Arkansas.

Mr. WA.LSH of Massachusetts. Mr. President, I desire to ask the Senator from New Mexico a question. Is the amendment now proposed by the Senator from New Mexico similar to the amendment offered by the Senator from Arkansas?

Mr. BRATTON. I did not know that the Senator from Arkansas had proposed such an amendment but this is the amendment which I offered in the committee.

Mr. WALSH of Massachusetts. At the outset of the discussion this morning the Senator from Arkansas, the leader on this side, offered two amendments which I assume he offered representing the views of the minority, and one of them was similar to the amendment just proposed by the Senator from New Mexico.

The PRESIDING OFFICER. The Chair is informed that the amendments proposed by the Senator from Arkansas were not formally offered, but that they were merely presented and read for the information of the Senate.

Mr. WAGNER obtained the floor.

Mr. GLASS. Mr. President-

The PRESIDING OFFICER. Does the . Senator from New York yield to the Senator from Virginia?

Mr. WAGNER. I yield.

Mr. GLASS. I merely want to announce that unless I shall change my purpose, it is my intention to offer Senate Joint Resolution 202 as a substitute for the joint resolution submitted by the Senator from Wisconsin, however it may be amended.

Mr. WAGNER. Mr. President, I am thoroughly in accord with the arguments presented by the Senator from Wisconsin [Mr. BLAINE], but I hope. perhaps, to amplify them somewhat, particularly as to an analysis of the legal aspect of section 3 of the joint resolution.

Mr. President, the pending joint resolution tendered to the Senate and the country is called a proposal to repeal the eighteenth amendment, and because artfully it employs the word "repeal" in its first section, it pretends to fulfill the wish overwhelmingly expressed by the American people at the last election. But I submit that the pending resolution does not in fact repeal the inherently false philosophy of the eighteenth amendment. It does not correct the central error of national prohibition. It does not restore to the States responsibility for their local liquor problems. It does not withdraw the Federal Government from the field of local police regulation into which it has trespassed. It utterly flouts the will of the majority as registered in the election last November. ·

Year after year an unremitting battle had been waged, an unending campaign of debate, before we reached the present pass where the Congress of the United States is ready to resubmit the policy of the eighteenth amendment for the approval or rejection of the American people. And now, that we have reached the final phase of the struggle, so far as I am concerned, at least, I do not propose to accept a sham and hollow victory.

I have many times declared and I now repeat that the question which has troubled the American people since the eighteenth amendment was added to the Constitution was not at all concerned with liquor. It was a question of government; how to restore the constitutional balance of power and authority in our Federal system which had been upset by national prohibition. That equilibrium which prior to the eighteenth amendment was one of the functional marvels of our system of government is not restored by the pending resolution. On the contrary, it perpetuates the lack of balance, the absence of symmetry, the confusion and overlapping of Federal and local authoriL.f.

Before analyzing the provisions of Senate Joint Resolution 211 it is pertinent to examine the platform declarations of the two principal parties with reference to the eighteenth amendment. In order to refresh the recollections of the Members of the Senate I shall read two brief extracts from the Republican and Democratic platforms of 1932.

The Republican platform declared:

We do not favor a submission limited to the issue of retention or repeal • • •. We, therefore, believe that the people should have an opportunity to pass upon a proposed amendment, the provision of which, while retaining 1n the Federal Government power to preserve the gains already made in dealing wi t h the evils inherent 1n the liquor traffic , shall allow the States to deal with the problem as their citizens may determine, but subject always to the power of the Federal Government to protect those States where prohibition may exist an~ safeguard our citizens everywhere from the return of the saloon and attendant abuses. Such an amendment should promptly be submitted to the States by Congress, to be acted upon by State conventions called for that sole purpose 1n accordance with the provisions of Article V of the Constitution and adequately safeguarded so as to be truly representative.

I shall not dwell on the Republican platform declaration, because, while it is difficult to argue that the pending joint resolution does not conform to the Republican platform, the people overwhelmingly rejected that platform as a sham, a pretense, and a straddle.

The Democratic platform declared:

We advocate the repeal of the eighteenth amendment. To effect such repeal we demand that Congress immediately propose a. constitutional amendment to truly representative conventions in the States called to act solely on that proposal We urge the enactment of such measures by the several States as will actually promote temperance, effectively prevent the return of the saloon, and bring the liquor traffic into the open under complete supervision by the States.

I know quite well that in and out of this Chamber are those who regard platform planks with cynical indifference, who discount their effect on public opinion; but may I recall to you, Mr. President, that these were no ordinary, run-ofthe-mill party planks. The attention of the entire country was riveted upon each of the conventions, eagerly awaiting the formulation of its prohibition views. These declarations :were thoroughly debated and the proceedings were broadcast through press and radio to the entire country. Throughout the campaign they were minutely discussed by spokesmen of both parties. If there be any who contend that the American people did not thoroughly comprehend problem. the issue so sharply joined on prohibition, they must ascribe to the voters a degree of incompetence which would make of democracy a farce and a byword. I do not hold that view. I credit the American people with full and ripe understanding of the prohibition issue. And upon that issue they expressed their preference by giving an overwhelming victory to the Democratic candidates.

If there be any meaning in representative government-if the people of the United States are in truth sovereign-then the will unequivocally expressed by them ought to prevail in this body. · In substance and form, Senate Joint Resolution 211 is a repudiation of the public demand. Instead of ratification by conventions as promised in both platforms, it proposes ratification by legislatures. This, however, is relatively a minor objection when compared to the nullification · of the entire program of repeal which is attempted in section 3 of the resolutiOn. Section 3 provides:

Congress shall have concurrent power to regulate or prohibit the sale of intoxicating liquors to be drunk on the premises where sold.

Should this language ever be incorporated into the Constitution, we would inaugurate another experiment, " noble in purpose" but mischievous and destructive in effect. I say " noble in motive," because the apparent intention of the advocates of this resolution is to outlaw the saloon. I am in sympathy with that purpose; but the suggested method of accomplishing it-the proposal that it shall continue to be the responsibility of the Federal Government-is all wrong. It flies in the face of reason and experience. If the Federal Government failed to discharge that responsibility under the all-embracing prohibition of the eighteenth amendment, what folly is it which prompts anyone to believe that it can discharge it under the milder language of the pending resolution?

Mr. WALSH of Montana. Mr. President--

The PRESIDING OFFICER. Does the Senator from New York yield to the Senator from Montana?

Mr. WAGNER. I yield.

Mr. WALSH of Montana. Does the Senator feel he speaks the sentiments of the people of New York when he says he is in sympathy with the proposal to outlaw the saloon?

Mr. WAGNER. Yes.

Mr. WALSH of Montana. And does the Senator think that the State of New York will adopt appropriate legislation to that end?

Mr. WAGNER. I do.

Mr. President, in addition to these general objections to the resolution, I desire to set for t h seven specific objections. First. The inevitable consequence of section 3 will be that the liquor question will continue to bedevil national politics. It is unquestionably true that part of the force back of the movement for repeal was the desire to bring to an end the intrusion of that problem into the national sphere, which had served in many ways to confuse public consideration of truly national problems. Section 3 of the pending resolution perpetuates that condition.

Second. The power of Congress "to regulate or prohibit," which is conferred by section 3, is described as " concurrent power." In other words, we shall have two authorities, Federal and State, simultaneously possessed of jurisdiction over the same area of regulation. The zone which each is to occupy is undefined. It is the kind of provision which unavoidably leads to confusion, conflict, and litigation. Ultimately, of course, the history of " concurrent power " under this new amendment would not differ from that of " concurrent " power under the eighteenth amendment. Instead of "concurrent," the power of Congress will be dominant and absolute over the States. No other result is possible. Two sovereignties in conflict can not both prevail. In this instance, as in every other instance, it will be the national and not the State authority which will be supreme; and that is the ironical result of an amendment designed to restore to the States control of their liquor

Mr. WALSH of Montana. Mr. President, will the Senator suffer a further interruption?

The PRESIDING OFFICER. Does the Senator from New York yield further to the Senator from Montana?

Mr. WAGNER. Yes.

Mr. WALSH of Montana. The Senator is entirely familiar with legislation by the States and legislation by municipalities covering the same subject, is he not?

Mr. WAGNER. Covering the same subject?

Mr. WALSH of Montana. Yes.

Mr. WAGNER. I am not familiar with legislation of that type. The State delegates power to a municipality. A municipality, of course, is only a corporation of the State, and thus acts and governs by delegated power.

:Mr. WALSH of Montana. Let me point the Senator to such an instance. In the State of Montana there is a State law prohibiting the keeping within the limits of any city of more than 100 pounds of explosives at any one time. Some cities think that is not sufficient protection, and they make it a crime to keep more than 50 pounds at any one time within the city limits. Which would the Senator say was predominant?

Mr. WAGNER. The State would be predominant because the authority of the municipality can not exceed that of the State. In prescribing the amount of explosives that might be kept at any one time, such power could not be exercised by the municipality unless it had been delegated by the State.

Mr. WALSH of Montana. Neither the one nor the other in that case is dominant. If a man has 75 pounds of explosives within the city limits he can not be prosecuted under the State law but he can be prosecuted under the city law. So the two, having concurrent jurisdiction, stand together without any interference at all.

Mr. WAGNER. There is not any concurrent jurisdiction, with all due respect to the Senator, in the case of the States and the Federal Government. The Senator is so great a student of law that I realize I am saying something very trite when I say that the Federal Government acts only upon delegated power, and has only such powers as the States have delegated to it. In the case of the municipality and the State, the municipality acts only upon delegated power; and any power it exercises, such as the Senator has described, is exercised only by the will of the State. Therefore, there can not be the question of concurrent authority.