New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1921-07-10
Point Raised Eighteenth
Amendment Lacks ANY
Clause Regulating Use
of Liquor as Medicine
Restricts Alcohol
In Beverages Only
Fear Arises Pending Meas
ure Faces Legal Attack
ON Constitutional Base
From The Tr1bnne's Washington Bureau


WASHINGTON, July 9.-Before the
Senate passes the pending "beer emer-
gency" bill it in all probability will be
confronted with grave question as to
It's constitutionalty. The question
grows out of the language of the
eighteenth Amendment. This amend
ment prohibits the manufacture. sale.
transportation, importation and expor-
tatlon of intoxicating liquors 'for bev-
erage purposes" 1t says nothing about
applying these prohibitions to the me-
dicinal use of liquors under prescrip
tion from physician.
The pending bill contains drastic
provisions prohibiting the medicinal
use of beer and limiting the medicinal
use of spirituous and vinous liquors.
The point is that inasmuch as the
Eighteenth Amendment applies solely
to liquor "for beverage purposes" Con-
gress has no authority to pass the
pending s-Campbell bill, which
deals largely with the medicinal use
of liquors
The matter is in the stage of inves-
tigation by Senators. Some are making
careful study of the constitutional
question, and are of the impression
that Congress is getting beyond it's
depth in the "beer emergency" bill,
and trying to do what it has no au-
thority to do.
Point Raised by Borah
The point was touched on briefly in
the Senate Judiciary Committee when
the bill was Considered there, but only
casually. Senator Borah referred to
the matter then, but not as something
to which he had given sufficient study
to warrant him in passing final opin-
ion. The committee was not allowed to
present favorable report on the bill.
What will happen is that Senators
will make a close examination of the
language of the Eighteenth Amend
ment, the Congressional debates and
the opinions of the Supreme Court, and
if they find the bill seems to be fatally
weak from a constitutional standpoint
they will raise the issue on the Senate
floor. 1t is by no means anticipated
that this or any other constitutional
question will prevent passage Of the
bill. 1t will become law. However, if
the Senate or leading Senators serious
ly raise the legal point, it will tend to
invite litigation over the measure
Court will have to pass on it eventual
ly. That court will have to say
whether, under an amendment which
applies its restrictions to liquors "for
beverage purposes" drastic legislation
can be enacted applicable to other pur-
poses, and especially medicinal pur-
poses.
Not only is there wet opposition to
the pending beer bill, but some of the
prohibitionist members Of Congress are
concerned about it on the theory that
it may be going too far and may serve
to bring about a national reaction
against prohibition.
Warming Likely to Come
1t is regarded as not at all unlikely
that the discussion over the legal and
constitutional proposition mentioned
will prove interesting and that some Of
the drys in the Senate will warn the
Senate to go slowly
The Eighteenth Amendment reads:
"The manufacture, sale, or transport
tation of Intoxicating liquors within,
the importation thereof into, or the
expectation thereof from the United
States and all territories subject to the
jurisdiction thereof for beverage pur-
poses is hereby prohibited"
One Of the restrictions of the bill
is that no more than a quart Of wine
can be prescribed for q patient in ten
days. 1t is contended that this cannot
be construed as use of wine "for
beverage purposes"
Up to this time, the discussion of the
lawful power of Congress to say what
shall be done by a physician in pre-
scribing for patient has been dis
cussed in the Senate in more or less
general fashion. But there has been no
careful dissection of the proposition of
what the Eighteenth Amendment means
in it's restrictions on liquor "for bever-
age purposes"
1t is known that when the original
Volstead act was passed there was
doubt in the judiciary committees
about just how far Congress could go
in its limitations on liquor, and there
was fear among some of the dry law
yers lest constitutional marks be over
stepped and, as a result, get the whole
act nullified in the courts.