Evening star. [volume] (Washington, D.C.) 1854-1972, 1930-02-09
Both Mandate and Permission.

In the course of his argument in the
House on Friday relative to prohibition,
Representative Beck of Pennsylvania
declared, in effect, that the eighteenth
amendment, though a part of the Con-
stitution, is not necessarily mandatory,
which Congress has the power to act
for enforcement. His view to this eff
feet is not entirely novel. 1t has been
advanced in one form or another previ-
ously by other debaters on this and
other questions affected by constitu-
tional prescription.
"A clear distinction must be made"
says Mr.. Beck, between the clauses Of
the Constitution that in themselves are
a mandate to Congress, on the one
hand, and q mere delegation to Con-
greSs OF a power to do a thing" He
cites, for example, the failure of Con-
gress to adopt reapportionment on the
basis Of the census of 1920. He cites
also the neglect of Congress for a hun
dred years Of the power given by the
Constitution to regulate commerce. He
says:
Congress Is given the power to Dor
row money, but 1t need not borrow 1t;
70 regulate commerce, but 1t need not
regulate it; to establish O uniform rule
OF naturalization and uniform laws on
the subject of bankruptcy, but it need
not pass such q rule; to promote the
progress Of science and useful arts, by
m Nfc ~ .frtSk k.,,k a.
pass them. Failure to do so Is not q
violation Of the Constitution, but OBJ
Viously, II they pass laws in execution
OF delegated power, they must not be
inconsistent with the Constitution.
The speaker in this case has, perhaps
with the discretion of q special pleader,
failed to differentiate between merely
permissive provisions of the Constitu-
ton and those which establish prin.
ciples. For instance, Article XIII pro.
hibits slavery and involuntary servitude
save as punishment for crime, and gives
Congress power to enforce the article
by appropriate legislation. The lack of
enforcement legislation would not null
lily the prohibition. So also in the case
Of Article XVII, setting forth the
method Of electIng Senators, which does
not require legislation to carry 1t into
effect. Likewise. Article XIX, the equal
suffrage amendment, though accom-
panied by the empowering clause, grants
the right to vote without disqualifica-
ton for sex, which Is valid in full force
without legislation.
The use of the words 1.-THE Congress
and the several States shall have con-
current power to enforce this article
by appropriate legislation" which forms
part of Article XVIII, could have been
omitted from the amendment without
weakening or destroying the principle
Of the prohibition of the manufacture,
sale or transportation of intoxicating
liquors. II the Volstead act were re-
pealed tomorrow or next year prohibi-
ton as q principle would still be in
effect, though perhaps not effective.
In one sense all of the articles and
sections and clauses of the Constitution
are permissive, whether mandatory or
not. They establish the basic structure
of law, or organization and of admin.
istration in the United States. The
eighteenth amendment Is part of that
structure. Congress might have been
negligent Of its power for q decade fol-
lowing the ratification Of the amend
ment, leaving the principle standing In
the Constitution without any attempt
at enforcement. 1t chose, however, to
be prompt with the enactment of q
statute providing for the enforcement
Of the principle Of prohibition. The
repeal Of that statute would not nullify
the principle, nor would it transfer to
the States the power of enforcement,
as Mr.. Beck suggests, for the States,
it is obvious from the plain intent of
the eighteenth amendment, can act
in enforcement only concurrently and
in harmony with the National Legis-
lature.
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