February 15, 1933 (2)

Mr. WALSH of Montana. I quite agree with the Senator that there may be such an individual, but, as a pr . practical that term. matter, does not the Senator agree that a legislature that will call a convention in all reasonable probability would vote to ratify the amendment?

Mr. BRATTON. That is a reasonable assumption.

Mr. WALSH of Montana. Exactly; and the legislature that will call a convention in all reasonable probability would ratify the amendment, and a legislature that will not call a convention would probably not ratify it; so that by submitting the question to conventions are we not really doubling the difficulties in the way of securing ratification?

Mr. BRATTON. I think not, Mr. President; with great deference to the opinion of the very able Senator from Mon­ nant. tana, I must differ with him in that respect. I think there are those who as voters in their respective States will vote against the repeal of the eighteenth amendment, but as members of the legislatures are entirely willing to submit the question to the people and let them pass judgment upon it. Indeed, as a voter at the polls in my own State, I shall vote against repeal, but as a Senator I am willing to submit the question to the country.

Mr. BARKLEY. Mr. President, will the Senator from New · Mexico yield to me?

The PRESIDING OFFICER. Does the Senator from New Mexico yield to the Senator from Kentucky?

Mr. BRATTON. Yes.

Mr. BARKLEY. Is it not true that in this "buck-passing " age a legislature would prefer to call a convention and say they were doing it on the ground that they ought to provide the most direct way possible to pass on this question whereas if they were required to vote on it themselves they might vote against ratification? They might, however, justify calling a convention on the ground that it gave the people the most direct way possible, under the Constitution, to pass on an amendment of this kind.

Mr. BRATTON. I think so. The convention system, Mr. President, has two virtues: The first is that it is the most effective way to obtain a direct reflection of public opinion. It is trite to call attention to the fact that in electing members of the legislature other issues enter, other questions become paramount; the wet and the dry issue is submerged, and to a large extent sight is lost of it. That is not true in electing delegates to a convention which has the one issue before it; but that argument is trite. Every Member of this body is familiar with it. Coupled with it is a consideration of less importance to which attention has already been directed, namely, that many of those now serving in the legislatures were not elected either as "wets" or "drys," with reference to this particular proposal, and consequently their election can not reflect public opinion in their respective districts or within their respective · States.

Mr. BARKLEY. Mr. President, will the Senator yield to me again at that point?

The PRESIDING OFFICER. Does the · Senator from New Mexico yield to the Senator from Kentucky?

Mr. BRATTON. With pleasure.

Mr. BARKLEY. I find that there is a widespread misunderstanding among the people touching the nature of the conventions referred to in the Constitution and in the party platforms. I find that many intelligent people who are familiar with the old-fashioned type of political convention, which was outlawed by the modern device of the primary for the nomination of candidates of political parties, have the idea that a political convention in . which takes place the ordinary jockeying and maneuvering and trading and trafficking for delegates or for nominations of political parties is the kind of convention that will pass upon this proposed amendment. I think we owe it to the people to emphasize the fact that the kind of convention contemplated by the Constitution, and the kind that will be contemplated by us, if we submit the proposed amendment to conventions, is more in the nature of a constitutional convention ordained by the legislature to write a new constitution for a State, a nonpolitical convention than that it has any resemblance whatever to the ordinary political convention as the average man and woman now understands

Mr. BRATTON. Yes, Mr. President. At the time the Senator from Kentucky interrupted me, I was endeavoring to say that the convention system has two virtues: First, it more directly and more accurately reflects public opinion, and, second, in this particular instance, it carries out and performs in toto a solemn promise of the party to which I and the other Senators on this side of the aisle pay allegiance. The resolution as it came from the committee presents a complete failure to carry out that promise. The justification for such action· is that there are practical considerations why we should depart from the platform coveMr. President, is it not reasonable to assume that those who wrote the platform foresaw that it would require time to call a convention, that they foresaw that the calling and the conduct of a convention would entail expense but that they thought the consideration of higher and controlling importance was to obtain a more direct expression of public opinion?

It has been argued by some that the Congress has the power to call the conventions. I do not intend to indulge in a lengthy discussion of that matter. I disagree emphatically with the suggestion that Congress has any such power.

Mr. President, there are two systems of proposing amendments to the Constitution. One is to propose them to be ratified by the legislatures of the several States and the other is to propose them for ratification by conventions held in the several States. The moment the proposition is announced that Congress can call an election in the several States for the selection of delegates there is injected into the two methods this difference: Under one the States are entirely free, while under the other there is an element of compulsion or coercion upon the States, because when we submit a proposed amendment to the legislatures that may ratify the amendment, they may reject it or they may ignore it entirely. If the States are authorized to call conventions, we have a comparable system, for each State may call a convention and ratify the amendment · , the State may call a convention and reject the amendment, or the State may ignore the proposal entirely. Thus the two systems are exactly on a parity so far as the degree of freedom of action on the part of the States is concerned.

When, however, it is said that the Congress may call an election and fix the day on which it shall be held and specify the mechanics of holding it, then we place over the States a hand of compulsion and coercion. Does anyone conceive that those who wrote the Constitution and the States that ratified it understood and contemplated that the two systems were so radically different in that important respect that one gave to the States complete and uncontrolled freedom to act or fail to act, while the other required the States to act, required the people to assemble at the polls on the day specified by the Congress and elect delegates to the convention? In that way we bring forward that important difference between the two systems. Significant it is that no such thought was advanced or expressed during the debate in the Constitutional Convention. Research fails to disclose that anyone participating in the ratification of the Constitution entertained any thought that there was such a difference.

Mr. President, the language of the Constitution itself: indicates that no such difference was contemplated. Under Article V, the Congress has power to propose amendments. That is the language of the Constitution-that the Congress has the power to propose and the States have the power to ratify. The moment the Congress has proposed an amendment, specifying whether it is submitted to legislatures or to conventions, that moment the Congress becomes functus officio. It has nothing more to do with the matter. The function of proposing the amendment has been completed. All subsequent action relates to ratification-a State function. The matter of calling an election, the matter of selecting delegates, the matter of the delegates assembling, the matter of the convention voting in the affirmative or in the negative-these matters are all component parts of the process of ratification. That is a function of the States. It has been urged that that is a Federal function. I think that is a play upon words. Assume that it is a Federal function: It is performed by the States, and they have utter freedom to determine for themselves whether or not they . will exercise it. A State may elect not to act. It may ignore. It may remain utterly indifferent to the proposal. . There is no power to require a State to act either favorably or unfavorably.

So, Mr. President, I do not share the view that there in· heres in the two systems the vast difference to which refer· ence has been made. I do not believe it was contemplated or understood or believed by those who wrote the Constitu· tion. Neither do I believe that it was thought by the States ratifying the Constitution that through one system the State is free, while under the other it is not. . Congress proposes an amendment, specifying whether it shall be acted upon by legislatures or conventions. When Congress has thus proposed, Congress has fulfilled its functions under the Constitution, and the States then proceed to ratify, reject, or ignore. . As the Senator from Kentucky [Mr. BARKLEY] pointed out, a great many people throughout the country believe that the kind of a convention we are talking about . is one held without regulations, without sanction of law; that it is a mass assembly to elect the delegates to the county convention, and then on to the State convention. Obviously, anyone who has given study to the proposal will concede that the convention must be called by an act of the legislature, fixing the time and place of electing delegates thereto, specifying the qualification of voters, and all other matters relating to the details of holding and conducting the election and canvassing the returns and declaring the results thereof. It is an official convention, called under an act of the legislature. It has the sanctity of a legislative fiat upon it. It is not a mere mass assembly.

The Senator from Kentucky rendered a real service when he called attention to that misconception quite prevalent throughout the country.

Mr. President, while freely conceding that ratification by conventions will delay action, while freely conceding that it will entail expense, I think there arises above those two considerations the one of higher importance, and that is a solemn promise made to the electorate of this country that this proposal would be submitted to truly representative conventions in the several States called for that purpose; and to submit it to the legislatures is a complete departure from that promise; it is a complete failure to carry out that · Pledge. Accordingly I shall vote for the amendment proposed by the Senator from Arkansas.

Mr. DICKINSON. Mr. President, I am in opposition to the motion of the Senator from Arkansas [Mr. RoBINSON]. Every constitutional amendment that has ever been submitted has been submitted to and ratified by the legislatures of the respective States. The legislatures and their assemblage and their personnel constitute a fixed institution of their respective States. They certainly reflect the proper sentiment of their respective States on public questions.

The theory that the legislature that was elected last - November would not properly reflect the sentiment of the State with reference to any public question, it seems to me, is a misstatement of the facts. The fact is that the legislature is a fixed institution in the State. It is a method certain by which this amendment can be submitted to the States for their decision.

On the other hand, if we decide that we are going to sub· mit this amendment to conventions, suppose a State legislature should say," We are going to have a mass convention and let the people meet en masse and determine whether or not they want to ratify this amendment." Suppose, on the other hand, they should say that the respective counties shall have so many delegates at a State convention, and nothing be said with reference to how those delegates are going to be selected. Then it would simply be a contest of the old-type caucus system that we used to have in years gone by, as to who could go in there and count noses and control those county conventions. In other words, we go back to an old system that was relegated to the past when the primary system was adopted, and say that in order to get a decision on this question we ought to abandon ratification by State institutions, and accept some convention system that we have never accepted before; and in most of the States of the Union the conventions are not regulated in any way so far as delegates and representation are concerned.

In other words, we are subjecting this amendment to the will of the legislatures as to how they want to handle this matter. It seems to me we are doing that which we should not do.

In the second place, a great deal of stress is put on the fact that both the Republican platform and the Democratic platform declared for the convention system. I want to suggest something that was in the minds of those who had to do with formulating those platforms. It was speed; it was " Beer by Christmas." It was trying to get early action, thinking that they were going to have this matter determined almost instantly.

Now, as a matter of fact, it has been found that Congress can not specify how these conventions shall be held in the various States, and that it is necessary that we have action · on the part of the various State legislatures before action can be taken by conventions in the respective States. That being the case, not only is it necessary to have the legislatures meet but the conventions can not be held until after the legislatures have met and provided the method and the means by which the conventions can be held. Therefore, . instead of resulting in speed, it is going to result in delay. There is one other thing that I think should be replied to, and that is that some of the States of the Union have a 4-year term for a State senator. That means that at least half of the senators of every State in the Union have been selected in the November election just past. Therefore, there is at least a reflection of half of even a State senate where it is said they have no~ been elected with reference to this proposal in the last election. I have not been able to find a single, solitary instance where a State legislature failed to reflect the sentiment of the State in passing upon a constitutional amendment.

Mr. BINGHAM. Mr. President, will the Senator yield?

Mr. DICKINSON. I yield.

Mr. BINGHAM. The Senator was a member of Republican convention in Chicago.

Mr. DICKINSON. I was.

Mr. BINGHAM. Does the Senator recollect any effort made there to strike out the provision calling for action by conventions rather than by legislatures?

Mr. DICKINSON. There was not. I was not a member of the resolutions committee; and when the resolution was brought in on the floor of the convention, there was only one substitute offered, and that was offered by the Senator from Connecticut. Let me suggest, however--

Mr. BINGHAM. May I say to the Senator that both the substitute offered by me and that proposed by the majority of the committee contained a provision for conventions, and · in the resolutions committee no one appeared before us urging the adoption of any other method than that of ratification by conventions.

Mr. DICKINSON. I think that was probably due to the fact that the people thought they could get greater speed by adopting the convention system than by adopting the legislature system. I do not agree with that, and I do not think it is well founded. I think, also, that the convention system is involved with a lot of uncertainties and with a lot of conditions that may be questioned in the courts, and that the friends of the amendment here are going to involve the amendment in many complications that it will not be involved in if we will let it be submitted to the legislatures in the ordinary course.

If I had been a member of the resolutions committee, I should have proposed, and I know that in the negotiations leading up to the effort to formulate some proposals it was originally said that we would submit it to legislatures. It was changed. I do not know where the change took place, because I was not a member of the committee, and I knew nothing about their negotiations.

Mr. BINGHAM. Will the Senator yield there?

Mr. DICKINSON. I yield further.

Mr. BINGHAM. The Senator has suggested that the only reason was the desire for speed. I did not hear that reason suggested in the committee. The reason suggested in the committee was that we were more likely to get an expression of the views of the people themselves through conventions than through legislatures chosen for other purposes.

Mr. DICKINSON. That is what I want to answer. Let me suggest this:

Suppose we had 30 States in the Union that had already ratified by convention. Suppose we had six where we still wanted to have conventions ratify. I am wondering what the pressure would be from the various organizations, both pro and con, in those respective States; the amount of funds that would be used; the advertising that would be paid for; the efforts that would be made to misdirect those States in the effort, if you please, to get or to defeat ratification by conventions.

In other words, it seems to me we are going back to the old system of how to control a convention; what will be used in order to control it; whether or not it will be possible, if you please, to hold a convention that can be clothed with the necessary legislative limitations to prevent the use of money and the challenge that the delegates were fraudulently elected; whether or not the charge will go not only to the local conventions but also to the State conventions. I think the ramifications there are far-reaching and that the friends of this amendment should think twice before they insist on voting for and adopting the convention system of ratification.

Mr. BINGHAM. Mr. President, will the Senator yield Mr. BINGHAM. further?

Mr. DICKINSON. I yield.

Mr. BINGHAM. Does the Senator include himself among the friends of repeal?

Mr. DICKINSON. I expect to vote for submission as required by the Republican platform, in so far as it can be worked out here, so that we will prevent the return of the saloon and preserve some Federal control over manufacture and transportation.

Mr. BINGHAM. But the Senator did not answer my question.

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

Mr. DICKINSON. Will not the Senator state his question again? I want to answer the Senator from Connecti­

Mr. BINGHAM. Does the Senator consider himself as being among the friends of repeal?

Mr. DICKINSON. No; I am not among the friends of repeal. _

Mr. BINGHAM. That is what I wanted to hear the Sena­ and so forth. tor say.

Mr. DICKINSON. I am not for direct repeal.

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

Mr. DICKINSON. I yield.

Mr. HASTINGS. I would like to ask the Senator from Connecticut a question.

Mr. BINGHAM. I have not the floor.

Mr. DICKINSON. I yield for that purpose.

Mr. HASTINGS. May I inquire of the Senator from Connecticut, referring to the Republican platform, whether or not he proposes to vote for section 3 of the pending joint resolution?

Mr. BINGHAM. I do not. I propose to vote for the amendment to strike it out, and I have so stated, from the day after that on which the Republican platform was adopted.

Mr. DICKINSON. Mr. President, one further comment I want to make on the question of what attention was given to this particular phase of the question in the campaign. We heard a great deal about conventions and legislatures and various types of ratification prior to the time when we went to the convention. I think I know something about the sentiment that was developed during the campaign, and during the campaign I never heard the question asked or answered as to whether or not we were going to submit the question of repeal of the eighteenth amendment to conventions or to State legislatures.

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

Mr. DICKINSON. I yield.

Mr. HEBERT. Is it not reasonable to assume that the opinions of everybody were pretty well known on that point? Both parties had agreed about how they should proceed, so the conclusion was, Why argue about it? Was not that the reason why there was no discussion of it during the campaign?

Mr. DICKINSON. If it was taken for granted that it was going to happen, I should think it would have been good advertising at least to have said to the country what we had pledged ourselves to do, and as to how we were going to do it. But I never heard the question discussed once in a single, solitary address during the entire campaign.

Mr. HEBERT. If the Senator will yield further, what advantage would there have been to either political party, since both were agreed on the proposition?

Mr. DICKINSON. We might have gathered in a few more of the stragglers. There seems to be some opposition - here, and it comes from both sides of the Chamber. So undoubtedly there was no unanimous conclusion with reference to what was going to happen.

Mr. BINGHAM. Mr. President, will the Senator yield again?

Mr. DICKINSON. I yield. The Senator's sympathies are not with those who wish to see repeal, so be probably is not familiar with the fact that some of the great organizations which have been working JO hard to secure repeal have made it an essential part of their program to work for submission to conventions, and they made a very strong point of it, not only last year but the year before and the year before that. Therefore, when the question came before the committees on resolutions of the two conventions, they urged the adoption of a provision calling for submission to conventions, and when both political parties accepted the convention principle there was no further need, as the Senator from Rhode Island has said, of discussing it at all.

Mr. DICKINSON. Let me further suggest that, since that has happened, and since the November 8 election, I am informed that even the friends of repeal have reached the conclusion that they would rather have the matter submitted to the legislatures, because they think the results of the recent election were so favorable to their cause that they do not want to run the chance of having conventions, and having the various State ratifications set aside or contested in court,

Mr. BINGHAM. There the Senator from Iowa is speaking in behalf of the friends of repeal?

Mr. DICKINSON. Oh, no.

Mr. BINGHAM. Although he admits himself he is not a friend of repeal.

Mr. DICKINSON. No; I am simply reflecting what I understand to be the attitude of the friends of repeal, since the results of the November 8 election are known, but I will say to the Senator that the results of the election on November 8 were not satisfactory to me at all anyWhere along the line, even in Connecticut.

Mr. BINGHAM. I thank the Senator.

Mr. FESS. Mr. President--

The PRESIDING OFFICER (Mr. PATTERSON in the chair). Does the Senator from Iowa yield to the Senator from Ohio?

Mr. DICKINSON. I yield.

Mr. FESS. I think I can throw a little light on why the convention system was proposed in the Republican convention. For 18 months at least there had been considerable agitation over the question of whether the Republican platform should yield to the pressure to resubmit the eighteenth amendment to the people of the States. The argument was heard everywhere that at least there ought not to be a refusal to let the people vote on it if they wanted to, and the argument also was urged that if we voted to send the question back to the people, that would not necessarily commit anyone at the convention to vote a certain way when he went back to his State.

I recognize that while that argument has been used, it is not very forcible. The Constitution provides for two methods of amending the Constitution, and the convention method is one of them, and when I vote to send the matter to the people for ratification, if three-fourths of the Congress shall favor it, I see the inconsistency of saying that I am voting to let the people determine the question, and yet not showing my o.wn conviction. I think that is an inconsistent position to take, although there is no doubt but that that is in the minds of a lot of people, who think that this is only a referendum; which I do not admit. That idea, however, rather prevailed in many sections.

Then this question arose, if the idea is to let the people vote on the question, it ought to be submitted in such a way that the vote by the people in the States should be recorded in a body selected specifically on that one issue, so that if a convention were called in Ohio to act upon the ratification of the proposal submitted, if the delegates were selected specifically with that one thing in view, we would come nearer to getting a cross section of the public opinion of the State than if the action were taken by the legislature. I recognize that there is force in that contention.

I agree with the Senator, however, that it would entail additional expense that is unnecessary; secondly, that the convention would have to be called by the same legislature that would likely pass upon the ratification, and we would be taking two bites when the thing might be settled in one. I think I ought to say that that was the thing that was determining in suggesting the convention rather than the legislatures.

Mr. DICKINSON. I thank the Senator from Ohio.

Mr. BINGHAM. Mr. President, will the Senator yield to me to make a remark in connection with what the Senator from Ohio has just said?

Mr. DICKINSON. I yield.

Mr. BINGHAM. The Senator reminds me that during the Mr. BINGHAM. debates on the adoption of the eighteenth amendment, it was repeatedly stated in Congress, so I have heard-! was not here at the time, being in France-! think by the Senator from Texas himself, by the Senator from Arizona, and other friends of the measure, that a vote for the resolution was not to be considered as a vote in favor of the amendment, but was to be considered as favoring a means of permitting the people to say whether they wanted the amendment adopted or not. I think that is correct.

Mr. FESS. If the Senator will permit, that statement was often made. I was in the other House at the time, and it was made there very frequently. However, I did not think that was very forcible, because there are two methods by which the Constitution might be amended, and it is hardly consistent to say that when we vote for it here, we will not vote for it when we go back home.

Mr. BINGHAM. May I say to the Senator, on the question of legislatures and conventions, that I myself have given a great deal of thought to that matter, being desirous of getting the eighteenth amendment repealed at the earliest possible date, and with the least possible expense. But it has been brought to my attention that in many States the members of legislatures are elected year after year, and hold a kind of hereditary seat in the legislature, due to their ability, their representative character, and their distinction in their communities, that most of them have a record of having voted dry always, that it would be extremely difficult for them to change their votes, even to meet changed public opinion, that they would greatly regret doing it; but that a convention set up by the legislature in the same manner in which the legislature is chosen would consist of people who had not voted on the thing previously, and who would be free to vote as they believed their constituents wanted them to vote without regard to anything else. Therefore, I have finally come to the conclusion that the conventions of the great political parties were right in calling for the convention method, and that we would get a better expression of opinion with regard to the public thought in the States from conventions than we would from the legislatures.

Mr. HEBERT. Mr. President, will the Senator permit me to add one statement to what the Senator from Connecticut has just said?

Mr. DICKINSON. I yield.

Mr. HEBERT. It seems clear to me that in the choice of delegates to a convention there would be but one issue involved, whether or not a candidate was for or against the amendment, and immediately the delegates had been chosen, every one in all the States would know what the fate of the amendment was to be in that State. That can seldom be true of the election of men to a legislature, because there · are so many other issues involved. There are always local questions to be considered in the choice of representatives to a State legislature. Those issues would never arise in the choice of delegates to a convention to pass on a constitutional amendment.

Mr. BINGHAM. Mr. President--

Mr. DICKINSON. Mr. President, I want to reply to the Senator from Rhode Island before I yield further. I would rather trust a legislature that is selected in a campaign where there are discussed the various problems that confront the average State legislature, as a reflection of the cross-currents of a State on a moral issue like prohibition, than to have a group of men selected under the heat of a driving campaign, which might be the reflection of the sentiments of the State for the moment, during the heat of the campaign; but, after the matter had settled down and the people saw the result of their action, they might say," Well, I admit that I was enthusiastic, but I was wrong." Therefore in the legislature we would have the reaction of the men who were not driven into their position by an intensive campaign, such as a convention would bring about. To me that would be the vicious result of submitting the matter to - conventions.

Now I yield further to the Senator from Connecticut. Mr. President, may I say to the Senator that it seems to me that his remark would be true of an issue which had come up suddenly and had been discussed under pressure for a number of months. But it is my observation that when we are considering this issue, which has been before the American people now ever since 1918 or 1919, during which time we have seen distinguished clergymen, distinguished heads of universities, distinguished leaders of public opinion, change their views over from proprohibition to antiprohibition, there would not be the danger which the Senator fears of an intensive campaign, leading to an expression of public opinion not in conformity with the wishes of the people.

If I may add just one more word, with the permission of the Senator, he said a few moments ago that a convention, after it had been chosen, would be subject to tremendous pressure, perhaps money might be used to purchase delegates or to influence delegates. It seems to me, if the Senator will bear with me, that that is much more likely with a legislature than with a convention, chosen, as the Senator from Rhode Island has stated, where every candidate to the convention would be known to be either for repeal or against repeal. After a man was chosen he could not be bought away from it or he would lose all the respect of his community.

Mr. DICKINSON. Mr. President, I wish I had as much faith in all convention delegates who are selected on a particular issue as the Senator from Connecticut has. But I have known delegates to change their minds, and they have been responsible delegates to responsible conventions.

I want to state further that my fear is not so much of what will happen after the delegates are chosen; my fear is of the type of advertising and the propaganda that will be put into the various localities in the selection of the delegates, the holding of the precinct caucuses, and the county conventions. That is where the things I have in mind will be brought to bear.

I want to suggest one thing further, that there is probably no subject that a public man is compelled to meet that has suffered as many attacks and defeats as has the prohibition question. We used to have the old system under which a town would go dry one year and go wet the next year.

I want to suggest that liquor has never known how to obey the law. It has never yet obeyed the law. I doubt if we will be any better off when we take such action as we are contemplating in this amendment. But there is a demand for resubmission and I would like to see it put in form so we can vote for a type of resubmission that I think safeguards the moral principles which are involved in the question.

Mr. HASTINGS. Mr. President, the Senator from New Mexico [Mr. BRATTON] in almost the last sentence of his have a convention method. address upon the subject impressed upon us the importance of the Democratic and Republican platforms upon this sub- ject. That is somewhat embarrassing to me. I like always, if it is possible for me to do so, to go along with my party platform. But when I am satisfied, as I am in this instance, that my party was wrong in writing such a provision into the platform, I can not bring myself to the point of following it merely because it is written there.

I have had advocates of straight repeal writing to me calling my attention to the fact that this is a part of the Republican platform. I think now I ought to call their attention to the fact that some Republican Senators here do not propose to follow the Republican platform upon this subject, notably, the Senator from Connecticut [Mr. BINGHAM], who has stated frankly, and stated, he says, before the election, that he does not propose to follow the Republican platform with respect to the third section of the pending joint resolution. I know of no reason why I should be more closely bound by the provisions of the platform than my good Republican colleague from Connecticut [Mr. BINGHAM].

Mr. BINGHAM. Mr. President--

The PRESIDING OFFICER. Does the Senator from Delaware yield to the Senator from Connecticut?

Mr. HASTINGS. Certainly.

Mr. BINGHAM. The Senator from Delaware was a member of the committee that wrote the platform in the form in which it was adopted, was he not?

Mr. HASTINGS. Yes; I was, and I made what I believe to be under normal conditions an effective argument before that committee upon the subject, but, like some Members of the Senate, the committee made up their minds before they heard the argument, and there was nothing I could do to persuade them.

After I left the committee I had the privilege of calling instance? upon two men, both of whom are residents of my State, and both of whom have done more to steer the country to the point of having anything written in the platform with respect to the . eighteenth amendment than any other men that I know. I went to them and argued with them as friends of repeal of the eighteenth amendment, the straight repeal of the eighteenth amendment. I begged of them not to urge upon the delegates, with what influence they hadand they had a lot-that we place any such provision in the platform. I called their attention to the fact that they were making two hurdles to jump where there was no necessity for jumping more than one.

I called their attention to the fact that it would be necessary, as has been stated several times to-day here, that we must first get action of the State legislature setting up the machinery for the convention. In order to get that done it would be necessary to pass an act of the legislature and get it approved by the governor, just like any other act of the legislature. On the other hand, if we submitted the resolution directly to the legislature itself, then we need not consult the governor at all. In that event all we would have to do would be to get a majority of the two Houses.

I made that argument to them and pointed out the difficulties that confronted them and then for the first time I discovered that there was in their minds the determination and the thought that all this could be arranged by the Congress and that there could be but one election on the same day all over the country upon this subject.

I can readily understand, with people having that idea in mind, that they would urge upon both national conventions the adoption of the convention method rather than the legislative method. It would be a very much simpler thing and those who believe that that could be done might very well advocate it. My own judgment is that on neither side, either in the Democratic convention or in the Republican convention, did those who were advocating this plan know exactly what they were doing with respect to it. From the very beginning they had had the idea that in order to get a vote of the people of the Nation upon the subject, in order to get a majority vote of the people of the Nation, we must Years ago, before many people were interested in the question of the repeal of the eighteenth amendment, they began associating the convention method with propaganda to repeal the eighteenth amendment. They started out having that idea in the beginning and having enlarged their views as they went along, they reached the national convention last summer with that idea in their minds without knowing the actual facts. I am saying that about two men who were largely responsible for the propaganda, neither of them knowing how it was to be done and both of them be 4 lieving it was perfectly possible for Congress to make some provision with respect to it.

What they sought to do by the convention method was not only to get an individual opinion on this question from everybody, with nothing else on their minds, but they sought also to have a majority in the State control the convention in that State. In other words, here was a question to be propounded to the populace as a whole, to all those who could vote.

It was not intended by those persons and it is not even now intended by the persons advocating the convention method that there should be adopted the plan that is adopted in most States for selecting in various districts the members of the legislature. What they propose and what they hope to carry through is that the populace in the cities, most of which are wet, shall be arrayed against those in the country, most of whom are dry, and in order that they may get a majority of the wets on one side they propose that the subject shall be submitted in that form. Their purpose can not be accomplished in this way unless they control the legislature in the first instance, so that if they be able to control the legislature in the first place, why should they want any convention at all? Why should not they put their resolution through the legislature in the first In my own State, for instance, here is what happens. The city of Wilmington has half the population of the State. The city has one-half of the representatives in the legislature. If the legislature of my State begins to set up the machinery for a convention under this resolution, what will they do? If they want to make certain that the State goes wet they will submit it to the popular vote. If they want the State to remain dry, the chances are they will not submit it at all. If they do submit it, they will submit it under a plan so that the delegates will be selected from the indi- . vidual legislative districts as now.

If I were as enthusiastic about the repeal of the eighteenth amendment as is the Senator from Connecticut [Mr. BINGHAM], I should even then insist that my people and the people with whom I was advising are making a mistake in adopting the convention method, and that the quicker and more expeditious plan is the legislative method.

I may say to the Senator from Connecticut, and I say it to the Senator from Ohio [Mr. FEss] too, that as far as I am concerned, I do not feel that a vote upon this subject controls my vote in my State when I come to vote for delegates to the convention or to the legislature. When the people of my State have shown, as in my judgment they · did show in the last election, that they want an opportunity to pass upon this question, then it is my duty, regardless of what I think about it, to give them that opportunity.

I go farther than that. I do not propose to be bound yield to me? here by the Republican platform with respect to the matter. I propose to submit to my people as nearly the kind of resolution as I think ought to be submitted to them. But if I can not get that kind of a resolution adopted by the Congress, then I propose to vote for whatever is submitted in order that they may pass upon the question.

At the same time, when it comes to casting my individual vote in my State, it depends very much on the kind of resolution that is submitted as to whether I shall favor it or whether I shall not favor it. I warn those who are anxious that some modification be made of the eighteenth amendment, that they should not carry their convictions to the extreme and insist upon a clear clean-cut repeal of the eighteenth amendment. I agree with them that the situation has become such that something ought to be done. The eighteenth amendment ought to be modified in some form. But when they come to consider what the people of the country want, and remember that it must be approved by three-fourths of the States of the Nation, I warn them that in presenting to the people of the country a straight repeal and nothing but a repeal, with the possibility of the saloon returning in every State that is now wet, they are taking a great chance of arousing the sentiment of the people to the point where they may decline to modify the eighteenth amendment in any form.

Mr. FESS. Mr. President--.

The PRESIDING OFFICER. Does the Senator from Delaware yield to the Senator from Ohio?

Mr. HASTINGS. I yield.

Mr. FESS. The Senator has touched the very subject to which I meant to call attention a while ago, and that is the process of the amendment requiring two steps. The first one is in the Congress. The second one is in ratification by the States. It has been contended all over the country, including my own State, that a Congressman or a Senator can consistently vote for an amendment which requires a two-thirds vote in order that it be sent to the States, and at the same time let it be understood that he is not committing himself to the theory of the amendment, because he would not support it when it goes back to his State.

Does not the Senator have some embarrassment when he takes that position, that voting here in the Senate we are not committing ourselves back to the State on the ground that it is merely giving the people of the State a right to vote on the matter? Is that embarrassing to the Senator?

Mr. HASTINGS. Mr. President, it will take me but a moment to answer the Senator, but I shall gladly undertake to do so. I take it that when the Constitution provided that the Congress shall by two-thirds vote submit a proposed amendment to the Constitution it was intended that the Members of the Congress should themselves use some judgment of their own and not depend entirely upon the will of even a majority of the people of their own State.

In other words, the proposed amendment must be a reasonable proposition which a Senator or Member of the other House believes ought to be submitted to the people; but I do not at all agree that I can afford to stand here, when other Members of the Senate-it may be two-thirds of the Members of the Senate-maintain that a joint resolution proposing to amend the Federal Constitution should be submitted to the States of the Nation, and put my individual opinion against theirs, unless I should be satisfied that the people of my own State do not want to go to the trouble and go through the necessary procedure to pass upon the question. In other words, there is a combination of two considerations, first to use one's own judgment to determine whether there is such a sentiment of the people of the Nation as to make evident that they want the particular proposition submitted to them; and, second, to be satisfied that the people of one's own State want it submitted. Then, if those two conditions are met, it matters not at all what one's own individual opinion may be with respect to the proposed amendment, it becomes his duty to submit it so that the people of the Nation may pass upon it.

Mr. FESS. Mr. President, will the Senator from Delaware

The PRESIDING OFFICER. Does the Senator from Delaware yield to the Senator from Ohio?

Mr. HASTINGS. I yield.

Mr. FESS. I think the Senator has answered my question, but he goes farther than I feel free to go. In other words, the second section of the joint resolution that is now before us is designed to permit the Federal authority to assist the States that want to be dry to remain dry. I am in favor of that. The third section is intended to give authority to the Federal Government to prevent the return of the saloon to the extent of regulating or prohibiting the drinking of liquor on the premises where the sale is made. I have offered an amendment to the effect that the authority proposed to be conferred on the Federal Government by the third uection shall be enlarged, so that it shall not be limited simply to the regulation of the drinking where the sale is made but shall include any means that Congress may deem necessary to carry into effect the provision against the return of the saloon.

Now, here is the question: I could vote for the joint resolution, amended as I have suggested, not only on the ground that it proposes to give the people of the States the right to say whether or not they want to change the eighteenth amendment, for probably there is justification for doing that; but, as I now see it, I can not vote for straight repeal, because if I should do that it would mean to me utter chaos in the handling of this problem, and I would be doing a thing that my whole conscience would revolt against. I can not take the position the Senator has just announced, that it would not be imparting chaos into the handling of the liquor problem to vote for straight repeal and leave it simply to the people of the States to determine what they shall do. I can not go that far.

Mr. HASTINGS. Mr. President, I should like to say in reply to the remarks of the Senator from Ohio that it seems to me the situation would be entirely different if the Republicans at the last election had succeeded in winning upon the kind of platform such as was submitted to them; but the truth is, unfortunately from my point of view, that the Democrats won, and in the Democratic platform there was the provision for the straight-out repeal.

The Democrats having won by such a huge majority, does not everyone feel justified, under circumstances like that, in submitting, if he has to, some proposal, even if it be a straight repeal? If we can not get what we want here, are we not bound to submit something to the people of the Nation who have spoken so loudly and so positively, assuming, if you please, that they were speaking upon that point as they were upon other pronouncements in the Democratic platform? If the Republicans had won I would not feel I could then vote for a straight-out repeal, and the only proposal I would be willing to submit to the people would be one embracing the substance of the promise contained in the Republican platform. I repeat, however, that ' is not the verdict of the people; the verdict of the people, . so far as we know it upon this subject, is that they want a straight repeal. If they insist upon Congress giving them a straight repeal, let us find out in the end whether or not there be threefourths of the people of the various States of the Nation who agree with that. If they do, they will get what they want.

The PRESIDING OFFICER. The question is on the amendment of the Senator from Arkansas [Mr. RoBINSON] to the amendment reported by the committee.

Mr. BLAINE and Mr. ASHURST asked for the yeas and nays, and they were ordered.

Mr. BRATTON. I make the point of no quorum.

The PRESIDING OFFICER. The clerk will call the roll. The Chief Clerk called the roll, and the following Senators answered to their names: Ashurst Clark Hastings Patterson Austin Connally Hatfield Pittman Bailey Costigan Hayden Robinso~ Ark. Bankhead Couzens Hebert Robinson, Ind. Barbour Dale Kean Russell Barkley Davis Keyes Schuyler Bingham Dickinson King Sheppard Black Dill La Follette Shortridge Blaine Fess Lewis Smith Borah Frazier Logan Steiwer Bratton George McGill Stephens Brookhart Glass McKellar Trammell Bulkley Golds'borough McNary Vandenberg Byrnes Gore Neely Wagner Capper Hale Norris Walcott Caraway Harrison Nye White

The -PRESIDING OFFICER (Mr. FESs in the chair). Sixty-four Senators having answered to their names, a quorum is present. The question is on the amendment offered by the Senator from Arkansas to the committee amendment, on which the yeas and nays have been ordered.

Mr. BLAINE. I ask that the amendment to the amendment be stated.

Mr. BINGHAM. Let the amendment to the amendment be read.

The PRESIDING OFFICER. The amendment to the amendment will be stated.

The CHIEF CLERK. The Senator from Arkansas offers the following amendment to the committee amendment: 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 PRESIDING OFFICER. The question is on the amendment of the Senator from Arkansas [Mr. RoBINSON] to the amendment reported by the committee, on which the yeas and nays have been ordered. The clerk will call the roll.

The Chief Clerk proceeded to call the roll.

Mr. BRATTON (when his name was called). I have a pair with the junior Senator from Nebraska [Mr. HowELL], who is absent on official business of the Senate. I transfer that pair to the senior Senator from Louisiana TMr. BRoussARD] and will vote. I vote "yea."

Mr. DICKINSON (when his name was called). On this question I have a pair with the Senator from Maryland [Mr. TYDINGS]. If he were present and voting, he would vote "yea," and if I were at liberty to vote I should vote " nay." I withhold my vote.

The PRESIDING OFFICER (when Mr. FEss's name was called) . The present occupant of the chair has a pair with Bingham the senior Senator from New York [Mr. CoPELAND], and therefore withholds his vote.

Mr. NORRIS (When Mr. HOWELL's name was called). l desire to announce that the junior Senator from Nebraska [Mr. HowELL] is absent on business of the Senate. He is paired with the Senator from New Mexico [Mr. BRATTON].

Mr. McNARY (when his name was called). On this question I have a pair with the senior Senator from California [Mr. JoHNsoN]. If he were present, he would vote "yea," and if I were at liberty to vote I should vote "nay."

Mr. BINGHAM (when Mr. METCALF's name was called). The senior Senator from Rhode Island fMr. METCALF] is necessarily absent. If he were present, he would vote" yea," Cutting

Mr. NYE (when his name was called). On this question I have a pair with the senior Senator from Massachusetts Fletcher [Mr. WALSH]. If he were present, he would vote" yea," and if I were at liberty to vote I should vote "nay."

Mr. SHEPPARD (when the name of Mr. THoMAs of Oklahoma was called) . The Senator from Oklahoma [Mr. THoMAs] is unavoidably absent. If present, he would vote "nay." He is paired with the Senator from Rhode Island [Mr. METCALF.]

The roll call was concluded.

Mr. STEPHENS. On this question I have a pair with the Senator from Wyoming [Mr. Carry]. If at liberty to vote, I should vote " yea.”

Mr. NORRIS (after having voted in the negative). On this question I have a pair with the Senator from Florida [Mr. FLETCHER]. I am unable to get a transfer, so I shall have to withdraw my vote. If at liberty to vote, I should vote in the negative, and the Senator from Florida would vote in the affirmative.

Mr. LA FOLLETTE. On this question I have a pair with the junior Senator from North Carolina [Mr. REYNoLDs]. In his absence I withhold my vote. If I were at liberty to vote, I should vote nay.”

Mr. ROBINSON of Arkansas (after having voted in the affirmative). I have a general pair with the Senator . from Pennsylvania [Mr. REED]. That Senator has not voted. I transfer my pair with him to the Senator from Massachusetts [Mr. CooLIDGE], and will let my vote stand.

Mr. McKELLAR (after having voted in the affirmative). I have a general pair with the junior Senator from Delaware [Mr. TowNSEND J. It seems that he has not voted. I transfer my pair with him to the Senator from South Dakota [Mr. BULow J, and will allow my vote to stand.

Mr. SMITH (after having voted in the affirmative) . I transfer my pair with the Senator from Indiana [Mr. WATSON] to the Senator from Minnesota [Mr. SHIPSTEAD], and will let my vote stand.

Mr. FESS. I desire to announce that the Senator from New Hampshire [Mr. MosEs] is paired with the Senator from Montana [Mr. WALSH]. If present, the Senator from New Hampshire would vote "yea," and the Senator from Montana would vote" nay."

I also desire to announce the following general pairs:

The Senator from Rhode Island [Mr. METCALF] with the Senator from Oklahoma [Mr. THoMAs];

The Senator from Idaho [Mr. THOMAs] with the Senator from Montana [Mr. WHEELER]; and

The Senator from Illinois [Mr. GLENN] with the Senator from Virginia [Mr. SwANSON].

I have also been requested to announce that the Senator from Pennsylvania [Mr. REED], if present, would vote " “nay.” He is unavoidably absent.

Mr r GLASS. I desire to announce the necessary absence of my colleague the Senator from Virginia [Mr. SwANSON]. If present, he would vote " yea."

The result was announced-yeas 45, nays 15, as follows:

YEAB--45

Ashurst Clark Hull Robinson, Ark. Austin Connally Kean Russell Bailey Costigan Kendrick Schuyler Bankhead Couzens Keyes Shortridge Barbour Davis King Smith Barkley George Lewis Trammell

Glass Logan Vandenberg

Black Goldsborough McKellar Wagner Bratton Gore Neely Walcott Bulkley Harrison Oddie Byrnes Hayden Patterson Caraway Hebert Pittman

NAYB-15

Blaine Dale Hastings Sheppard Borah Dlll Hatfield Steiwer Brookhart Frazier McGill White Capper Hale Robinson, Ind.

NOT VOTING-36

Broussard Glenn Norbeck Swanson Bulow Grammer Norris Thomas, Idaho Carey Howell Nye Thomas, Okla. Coolidge Johnson Reed Townsend Copeland La Follette Reynolds Tydings

Long Schall Walsh, Mass.

Dickinson McNary Ship stead Walsh, Mont. Fess Metcalf Smoot Watson

Moses Stephens Wheeler

. So . the amendment of Mr. RoBINSON of Arkansas was agreed to. · Mr. ROBINSON of Arkansas. Mr. President, I now offer the amendment which is at the clerk's desk.

The PRESIDING OFFICER. The amendment will be stated.

The CHIEF CLERK. The next amendment offered by the Senator from Arkansas is, on page 3, to strike out section numbered 2, being lines 7, 8, 9, and 10. . The PRESIDING OFFICER. The question is on the amendment offered by the Senator from Arkansas.

Mr. BORAH. Mr. President, as I understand, this is the question of striking out section 2, which provides for the protection of the so-called dry States. I should like to be heard on that amendment.

I look upon this provision of the amendment as vital. It does not seem to me that we can afford to strip the amendment of all effort to protect the dry States. Indeed, if I . understand the two platforms, that is a part of- the pledge of the platforms. While perhaps that is not controlling, it has been emphasized to-day to a considerable extent, and perhaps some would feel that they should be bound by it. I do not cite it, however, as binding myself.

Mr. President, it has been said that the Webb-Kenyon Act is a sufficient protection to the dry States. The WebbKenyon Act was sustained by the Supreme Court of the . United States by a divided court. The President of the United States-President Taft, who was afterwards Chief Justice-vetoed it on the ground that it was unconstitutional. The Attorney General of the United States rendered an opinion to the effect that it was unconstitutional. Elihu Root, when in the Senate, argued that it was unconstitu­ - tional. Mr. Justice sutherland, who is now upon the Supreme Bench, argued before the Senate that it was unconstitutional. Therefore, Mr. President, we are turning the dry States over for protection to a law which is still of doubtful constitutionality and which, as it was upheld by a divided court, might very well be held unconstitutional upon a re-presentation of it. Secondly, we are asking the dry States to rely upon the Congress of the United States to maintain indefinitely the Webb-Kenyon law.

It will be recalled that at the time the decision of the Supreme Court was made with reference to the WebbKenyon Act immediately thereafter there began a campaign upon the part of those interested in the liquor traffic to secure one of two things-either a repeal of the WebbKenyon Act by act of Congress or a reconsideration in the court. Thus, at the time of the adoption of the eighteenth amendment, that was an unsettled problem. It had not become, and never has become--except in the sense that now, since the adoption of the eighteenth amendment, it has not been contested as it otherwise would have been-it never has become a settled policy of the Government or a settled policy of the Congress and, it seems to me, could not be accepted as a sufficient protection to the dry States. Mr. President, I want to go back a little in the discussion of this matter to the history of the fight of the dry States to remain dry and be protected.

We hear a great deal in these days about the eighteenth amendment destroying the police powers of the States. I venture to say that anyone who has taken the trouble to familiarize himself with the destruction of the police powers of the States relative to the liquor question will have to conclude that the police powers had been destroyed prior to the adoption of the eighteenth amendment, taken away from the States prior to that time through the decisions of the Supreme Court of the United States and the constant and persistent attack of the liquor interests upon the rights of the States to be dry and to exercise their police powers to the end that they might be dry.

In 1847 there came before the Supreme Court for the first time the question of the right of the States, in the exercise of their police power, to control the sale of intoxicating liquor.

I want Senators to bear in mind that for 75 years the States sought in every possible way to preserve the right to control the liquor interests within their respective borders, and I venture to say that had they been able to do so, the eighteenth amendment would never have been heard of.

The principle of local self -government is justly popular with the American people. It is interwoven with the memories which go back to the days when the great tenets of free government were being first tested in the wilderness of America. The New England town meeting and the burgesses of Virginia were the universities from which graduated a body of men who, in vision and courage, in dignity and poise, in constructive leadership, have never been excelled in the formative period of any nation. In these early gatherings where all questions of public concern were considered and debated, the people acquired an interest in public affairs, a vigilance for the public good, which enabled them to meet with rare judgment the great responsibilities placed upon them after a successful revolution.

When our fathers met to frame the Constitution, they guarded with conscientious care this right of local selfgovernment. Local government for local affairs, a National Government for national affairs, was the great rule among those to whom was entrusted the making of our national charter. They adhered to it with unbroken fidelity and with an unwavering consistency.

It will be a sad day for this Republic when that principle is forgotten or ignored in the administration of this Government. I believe in this principle. I want to see it preserved . The advocates of repeal insist that they are seeking to reestablish local self-government, State rights, in the matter of the control of intoxicating liquors. What I wish to say is that we have never had local self-government and State rights in reference to the liquor traffic except for a short time. The most persistent and successful opponents of these great principles have been those engaged in the liquor business. They disregarded the most fundamental principles of State rights and local self-government. Long before the eighteenth amendment was adopted they had practically destroyed or rendered futile these principles. If, therefore, local self-government or State rights are to be restored as to the problem now before us, we must do something more than repeal the eighteenth amendment. To repeal the eighteenth amendment and nothing more would be to leave these vital principles of government to become the plaything of the liquor traffic.

I want at this time to recall to you the long fight, the unsuccessful fight, which the temperance and prohibition people made for the preservation of local self-government, of State rights, as to the control of intoxicating liquors. I want to recall how in every conceivable way some of those engaged in the manufacture and sale of intoxicating liquors sought to break down and destroy these principles and to rob the people in their respective States of their protection. I have seen the laws of the dry States thwarted and defied, the policies adopted by the people trampled upon and disregarded by the same interests which now plead for State rights and for the right of every community to have its own policy with reference to intoxicating liquor. I have seen saloons in wet States established within 10 feet of the State line of dry States. A living conspiracy financed and supported by interests outside of the dry States violated, evaded, and nullified the laws within the dry States. We had no appeal from that source at that time for State rights. We had no well-financed association seeking to uphold the rights of the citizen and to bring about respect for the policies of the States.

I want first to refer to the decision of the Supreme Court in 1847 in what were known as the License cases. New Hampshire, Massachusetts, and Rhode Island, I believe it was-:-I know New Hampshire and Massachusetts-had passed what they called license laws, that is to say, laws that provided that no one could engage in the sale of intoxicating liquors within those States who had not secured a license and complied with certa i n terms and conditions under the statute. The case went to the Supreme Court of the United States, when Chief Justice Taney was presiding over the court, and the Chief Justice wrote the leading opm1on in the case. He took the position that while a shipment of liquor into a State came within the purview of the commerce clause of the Constitution, and therefore . would ordinarily be under the control of the National Government, nevertheless, when the Congress had not acted, when it had not assumed to control the matter, it was within the power of the State, in the exercise of its police powers, to control the sale of intoxicating liquors. Therefore, Chief Justice than in the main opinion, upheld the licensing laws of the States involved on the theory that the police powers of the States should remain in force and effect unless Congress had actually taken charge of the subject and legislated upon it.

Mr. President, that remained the decision of the Supreme Court of the United States from 1847 to 1888. During that time the States began to build up pretty general control of the liquor traffic under the decision of the Supreme Court. But as the States began to take control and limit the power of the liquor interests in shipping liquor into the States, and· more and more States came to adopt measures of that kind, the contest was renewed in the Supreme Court of the United States, and those engaged in the liquor traffic again sought the decision of the court upon that question. While it is not directly on the point, I will ask Senators to bear in mind ' that for that length of time the Supreme Court of the ' United States sustained the Taney decision, which makes i me rather uneasy about leaving the Webb-Kenyon Act to . the protection of the Supreme Court of the United States, because in 1888 they wiped out the Taney decision and estab­ • lished a new doctrine.

In 1886 the State of Iowa passed a law not permitting i common carriers to bring intoxicating liquors into the State without first being furnished with a certificate that the con­ ' signee was authorized to sell intoxicating liquors in the county where the liquors were going. The law would have [ been valid under the Taney decision, because Congress had ! never legislated upon the subject, and Iowa was exercising the power which had been allowed to New Hampshire and I other States under the Taney decision. But the Supreme ' Court undertook to distinguish-it seldom overrules, it gen­ ' erally distinguishes-between the two cases; that is, the · case which was before it and the Taney decision. At any rate, this decision in the case of Bowman v. Railway Company <125 U. S.) , was the first step toward the doctrine that when Congress has failed to legislate touching a matter of interstate commerce, it is presumed that Congress intends the matter to remain free and uncontrolled by legislation.

It was conceded that Congress had not legislated; the State had legislated, the State was seeking in the exercise of its police powers to control that wh~ch was inimical to • its health, to its peace, and to its proper development, all of 1 which was conceded by the court.

The court said that the Congress had not acted; but, not­ · withstanding the fact that it had not legislated, it must be presumed that Congress wanted the matter to remain with- · out any legislation. This situation: Congress did not act, did not legislate; the State could not act, could not legislate, and the liquor traffic was free and uncontrolled by either Congress or the State. That was the result of the decision in the Bowman case.

Those engaged in the liquor business were not satisfied with the decision. All the time - those who are now asking us to turn back to the States the control of the liquor traffic were seeking to break down the power of the States to control the liquor traffic.

The State of Iowa passed a prohibition law prohibiting the manufacture or sale of intoxicating liquors, except under certain specifications made. The Supreme Court in the case of Leisy v. Harding 035 U. S. 100) held the law unconstitutional, in so far as it applied to the sale by the importer in the original package or keg. The Supreme Court took up the License cases, and finally and specifically overruled the Taney decision, or distinguished it to such an extent that there was nothing left of it.

The States therefore were powerless to protect themselves against the importation of liquor into the States. There never was any real chance for the dry States to enforce their laws after the decision which was made in the case of Leisy against Harding.

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

Mr. BORAH. I yield.

Mr. ROBINSON of Arkansas. In so far as I am concerned, I shall modify the amendment I have offered and ask a vote to strike out section 3. I shall not insist on a vote to strike out section 2, which contains the following language: ·

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.

I shall modify the amendment in that particular.

Mr. BORAH. Mr. President, then I shall not occupy the time of the Senate except for about 5 or 10 minutes to explain the contention which I was making.

Mr. VANDENBERG. Mr. President, will the Senator' yield?

Mr. BORAH. I yield.

Mr. VANDENBERG. Will it not be a fact, however-if I may address myself to the Senator from Arkansas-that he will subsequently offer the straight repeal substitute, which will leave as the only issue before the Senate whether or not the particular section to whicb the Senator from Idaho addresses himself shall remain?

Mr. ROBINSON of Arkansas. No; my idea now is that I will modify my amendment so as to require a vote on striking out section 3, which is the provision giving Congress concurrent power to "regulate or prohibit the sale of intoxicating liquors to be drunk on the premises where sold," leaving section 2 in the joint resolution. That will simplify the controversy.

Mr. BORAH. Mr. President, does the Senator understand that there is anyone else who will offer the amendment? Is the Senator from New York intending to offer the amendment?

Mr. WAGNER. Oh, no.

Mr. ROBINSON of Arkansas. 'Ib.e Senator from New York is in accord with the suggestion I have made, and all Senators on this side with whom I have had opportunity of discussing it at all are in accord with my proposed modification of the amendment.

Mr. NORRIS. Mr. President, as I understand the parliamentary situation, the motion is to strike out section 2. The Senator ought to withdraw his motion, then.

Mr. ROBINSON of Arkansas. No; the amendment is in the nature of a substitute for the entire resolution. But I will modify the motion, so that it will be a motion to strike out section 3. That will make it very simple.

Mr. BORAH. Mr. President, then I shall take but a few minutes more.

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

Mr. BORAH. I yield.

Mr. WAGNER. In view of the inquiry made, I may say to the Senator that I have made a study of the history of these decisions to which he has been referring, and it is on account of those decisions, so far as I am concerned, that if the dry States want additional assurance that they will be protected I shall have no objection.

Mr. ROBINSON of Arkansas. Mr. President, I had that thought myself. I do not wish to ask the Senate to put itself in the position of denying any measure of protection to dry territory.

Mr. BORAH. Very well, Mr. President, then I will conclude in a few minutes. I simply want to round out the particular case about which I was talking.

All the cases I have cited-the Bowman case, the LeisyRardin case, and other cases-were decided by a divided court.

In the Bowman case this language is found in the dissent· ing opinion:

If, as the court now decides, the Constitution gives the right to transport intoxicating liquors into Iowa from another State, and if that right carries with it as one of its essential ingredients authority in the consignee to sell or exchange sue~ articles. after they are brought in and while in his possession m the anginal packages, it is manifest that the regulations forbidding s~es of intoxicating liquors within the State for other than medi?inal, mechanical, culinary, or sacramental purposes • • • will be of little practical value.

Again, in the dissenting opinion, it is said:

Suppose the people of a State believe upon reasonable grounds that the general use of intoxicating liquors is dangerous to the public peace, the public health, and the public morals, what authority has Congress or the judiciary to review their judgment upon that subject and compel them to submit to a condition of a quorum. things which they regard as destructive of their happiness and the peace and good order of society?

In the dissenting opinion in the Leisy case we find the following language:

Call them [the laws] by whatever name. If they are necessary to the well-being and independence of all communities, they remain among the reserved rights of the States, no expressed grant of them to the General Government having been either proper or apparently embraced in the Constitution.

Again the court says:

Without attempting to define what are the peculiar subjects or limits of this power [the police power], it may safely be affirmed that every law for the restraint and punishment of crime for the preservation of the public peace, health, and morals must come within this category.