Evening star. [volume] (Washington, D.C.) 1854-1972, 1931-03-08
VETS NOW BASE HOPES
ON DRY LAW REFERENDUM
Majority Vote for Repeal, However, In.
adequate-Three-FOurths of States
Will Be Needed.
BY MARK SULLIVAN.

hbiuon-a cycle 10 winch appar-
emily there is as yet no foreseeable
i end-we have reached the point
where the principal talk is about a
referendum. 1t may aid toward clari-
fication II we attempt an analysis of
this phase of the discussion.
Such an analysis should start from
where we now are. Where we now are
was made clear on the oath of last
month by the Supreme Court. The
court on that day said mo" to the
latest and most ingenious-and very
ambitious-plan for finding road out
Of prohibition by having the amend
ment declared unconstitutional.
There is no need here to explain just
what it was that the Supreme Court
reversed-the very learned and intricate
argument Git was argument rather than
decision) in which a lower court judge,
Judge Clark of the Federal Court of the
District of New Jersey, undertook to
show that the eighteenth amendment
was invalid because it was not (aS
Judge Clark argued) properly ratified
by the States.
It Is SUFFICIENT, for the purpose of
the present article, so say that the
Supreme Court. of the United States
turned down Judge Clark and his argu-
ment-did so very fatty by a decision
to which there was no dissent That
this action OF the Supreme Court ended
the matter, the best testimony is that
OF the New Jersey judge himself, who
was reversed and legally sat upon
Judge Clark, queried by a newspaper
for q comment upon the Supreme
Courts reversal of him, quoted (some-
what Sarcastically, perhaps, but for that
reason the more convincingly) line
from one of Gilbert and Sullivan'S light
operas: For we, my lords, embody the
law"
Amendment FIRMLY Upheld.
The Supreme Court, when 1t speaks,
does embody the. law. Its decision last
month embodies the law about, so to
speak, the legality, the constitutionality
OF the prohibition amendment.
The result OF the Supreme Courts
action Is that the eighteenth amend
ment is firmly in the Constitution. 1t
is there as firmly as any other para
graph, as firmly as, for example, the
paragraph prohibiting slavery. Prob
ably no more attempts will be made to
dislodge 1t by means Of court action;
probably the lawyers will give up that
road toward changing the present
status of prohibition. The lawyers have
gone as far as they can go. They have
explored every road, lane. alley or rat
hole. They have gone over the eight
zenith amendment and its relation to
the rest Of the Constitution with the
finest of legal microscopes examining
word. comma and letter.
After all that it is unimaginable that
any new legal gad9et should be discov-
cred in the future by which the pro-
nibition amendment can be found in
valid When some future historian, SO
or 100 years from now, writes the
history Of the prohibition experiment he
will almost certainly say that attempts
to dislodge prohibition from the Con-
stitution by means of the courts ended
with the reversal by the Supreme Court
of the Clark judgment on February 23,
1881. Thereafter, the future historian
will be likely to say the efforts of the
anti prohibitionistS took other forms.
The effort Just ahead of us seems likely
to make its approach along the line of
q referendum.
With the Supreme Courts reversal OF
Judge Clark's ingenious attempt to dis
lodge prohibition by the route of un-
conStitutionality and the courts-with
that behind us we know the status Of
prohibition in the courts and in the
law. The final attitude of the Supreme
Court-of all courts of the law-on pro-
hibition. is to be found in the words
of decision which the Supreme Court
handed down some IL years ago.
Root Attack Recalled.
That was the occasion when the early
and really formidable attempt was
made to have the prohibition amend
nlent declared unconstitutional. At that
time. soon after prohibition had been
adopted. several parties and interests
opposed to prohibition, including two
States-New Jersey and Rhode Island
attacked the conStitutionality of the
amendment. One of the counsel at
lacking it was Elihu Root.
The decision of the Supreme Court
upheld the amendment. That decision
became, and remains, and is likely to
remain, the last word" of the Supreme
Court land therefore. substantially of
all COURTS on the legal validity of the
eighteenth amendment. The court on
that occasion used sweeping language.
One passage in the courts decision said
that the eighteenth (prohibition)
amendment:
rs operative throughout the entire
territorial limits of the United States,
binds the legislative bodies, courts, pub
lie officers and individuals within those
limits, and of its own force inyalidates
every legislative act, whether by Con-
gress State Legislature or by terri
torial Assembly, which authorizes or
sanctions" what the amendment pro-
hibitS.
That is the language Of the court
about the legal effect of the eighteenth
amendment. The words might profit
ably be clipped and carried in the pock-
etbook of any person who expects TO
engage in parlor or smoking room argu-
ments about prohibition.
Essential Words Quoted.
It would be worth while. even though
it is trite thing to do, to repeat also
the essential words of the amendment
itself, the passage in the Constitution
which binds legislative bodies, courts,
public officers and individuals" The
essential words of the eighteenth
amendment read:
"~ The manufacture sale or trans
portation of Intoxicating liquors within
[andl the importation thereof into - 4"
the United States -" for beverage pur-
poses, is hereby prohibited"
These words, likewise. might profit
ably be clipped and carried by prospec-
tive arguers on both sides of the prin-
cipal present subject of disputation in
the United States of America. Those
words (among other effects blind"
every public officer" who respects his
oath of once and his personal integ-
rity.
Yet one more passage of few words
should be kept available for ready ref
erence by the arguers, pundits and IA
natics on both sides, especially the IA
natics. That is the passage which de-
scribes and prescribes the only method
by which the prohibition amendment
can be got out of the Constitution.
The pertinent and essential words of
this passage are: az" When ratified
by the Legislatures of three -fourths of
the several States or by conventions in
three-fourths thereof ."
BY that process did the prohibition
amendment get into the Constitution