The sun., 1919-01-17

test case that may come up as an In
cldent Of the enforcement Of any law
enacted under the authority bestowed
by this amendment. At what per
centage or at what fraction Of one
per cent. of alcohol should a liquor
intended for beverage purposes be
held to be Intoxicating? This Is a
practical question of enforcement ;
and with other practical questions of
prohibition--on which, as Is shown
by the experience of every State. from
Maine down the list, that has ever
undertaken 1.-THE enforcement or
non-enforcement Of a prohibitory law
depends.
This brings US to the second and by
far the graver question. The amend
ment which Is now fact establishing
the principle Of Federal prohibition
will not enforce itself. 1t can be
enforced only by the enactment of
specific legislation, defining matters
which the amendment itself leaves in
doubt, and providing measures which
shall afford the legislative application
Of the general principle which the
amendment establishes. Who are to
be the legislators to enact the laws
that shall regulate the conduct of our
citizens In this respect and punish
offenders against the principle Of
prohibition? The joint resolution
not only failed to make this vital
point clear; 1t actually provided for
limltless confusion of responsibility
and a possibly multiplying conflict Of
authority. Here Is the second Sec
ton Of the amendment which yester-
day was Incorporated In the Federal
Constitution:
The Congress and the several States
shall have concurrent poper to enforce
this article by appropriate legislation"
Concurrent power as between the
Federal Senate and the Federal House
OF Representatives is an Ineligible
expression. So Is concurrent power
as between the two branches of any
State Legislature; the Senate and the
Assembly of New York, for example.
But II any constitutional jurist or
jurlsconsult has ever given a satisfac-'
tory explanation of concurrent power
Of enactment rs between the Congress
of the United States and the Legis-
lature Of the State of New York, we
have failed to observe it.
Whit does the concurrent power"
of enforcement mean in this case?
Does 1t mean that If Congress passes
n certain liquor law the State must
leglslate in similar way? That in
depreciation would be nonsensical, for
there would be In that case no more
of concurrent power on the part of
the State than belongs to the com.
posltor In the Government Printing
Office who sets up the language Of the
law which Congress has enacted. We
are aware Of no constitutional prin-
ciple on which Washington can COM
pei New York to legislate with regard
to any matter.
Does 1t mean that If Washington
makes one set of liquor laws and Al
bany makes another and n different
code the Federal legislation shall pre-
vail? In that case there Is no con.
current power at Albany as the
declares there must be.
Does 1t mean that If Washington
enacts one law and Albany fails to
concur, or If Albany passes its law
and Washington fails to concur, there
shall be failure Of legislation alto
gether; as happens when the Senate
passes a bill or n resolution and the
House does not concur? In that cnse
the attempt at concurrence between
the nation and the State would null
lily the principle of the amendment
so far as that particular State was
Does 1t mean that law enacted
by Washington shall have force only
where the States have not otherwise
provided? That Interpretation of the
amendment is scarcely conceivable.
The more this Section . is studied
the more difficult appears the prob
lem which 1t presents. There are
even some good constitutional lawyers
in Congress and elsewhere who be-
lieve that second amendment, clari-
flying the first and removing the I'M
fortunate mlxup of non-relnted au-
Is required to locate def
nitely and delimlt intelllglbly the
powers Of definition and enforcement
which the amendment so strangely
and there are many who fear
Or hope. according to the angle of
their vision, that this section will not
high judicial scrutiny.
Precious Stones.