Evening star., 1947-07-31

I1OUC llCdlGIt vi 6oNlot co14iNAA4S ~A
describe It's use as in accordance
with American tradition or family
customs.
Apparently the Senators who are
advocating such legislation are not
aware of the decision of the Su-
preme Court of the United States,
in an opinion rendered by Justice
Brandeis on November 8, 1895,
which held in effect that the So
called commerce clause of the con-
stitution no longer applied to the
liquor traffic and that the only
source of Federal power today Is
the Twenty-first Amendment.
This decision aroused consider
able comment at the time because
it was so wide-sweeping. The case
involved the imposition Of an import
fee by the State of California on
the sale of beer in that State by
dealers outside the State-a fee
not imposed on dealers inside the
State. The court said this would
plainly have been unconstitutional
under the commerce clause but that
the Twenty first Amendment super
seded that clause.
States Rights Supreme.
Many people have believed that
when the Eighteenth Amendment
was repealed. the situation reverted
to that which existed prior to It's
adoption and that Federal power
over the transportation of intox-
icating liquors is now much the
same as 1t was before. namely
simple exercise of the right to regu-
late commerce and to prohibit or to
regulate the flow Of any article Of
commerce.
Actually, however, the rights of
the States on liquor trade have been
declared supreme by the Twenty
first Amendment. They can set up
monopolies inside their States and
make any regulations they wish
with respect to the liquor traffic
and be untouched by the Federal
power. Thus, as many of the States
5oday have their own stores and their
own system of advertising and sale
and distribution, it would appear
that the Federal Government can
not by any legislation interfere
with or curtail such sale. Indeed,
the power of Congress to regulate
the manufacture and sale Of intoxi-
eating beverages which was specifl-
cally granted to the Federal Gov
ernment by the people when they
ratified the Eighteenth Amendment
was specifically taken back by the
people in the first section OF the
Tventy-f1rst Amendment.
The Twenty first Amendment
says:
"The Transportation or importa-
ton into any State. territory, or pos
session Of the United States for de-
livery or use therein of intoxicating
liquors. in violation of the laws
thereof, is hereby prohibited"
Sole Federal Power.
The sole Federal power, therefore,
it is contended, relates to such as
sistance as the States may require
in keeping out of their jurisdiction
products which they do not want.
There is no corresponding power OF
Congress to keep out of these States
the products they do want and do
sell
The effort to curtail sales of intoX-
icating beverages by enacting legis-
lation dealing with misleading" ad-
vertisements implies that Congress.
under the power to regulate COM
merce, can also regulate advertise
ments that sell goods in interstate
commerce. This might we'll be true
of any other classification of pro-
ducts except those specifically dealt
with by a particular article OF the
Constitution.
Thus, in the so-called "Youngs
Market" case. In 1886, the contention
of one party was that the rules of
the Twenty-first Amendment did
not apply because they ran counter
to the Fourteenth Amendment,
which declares that all businesses
have equal protection under the
law. Justice Brandeis, however, In
handing down the decision, wrote
that "a classification recognized by
the Twenty-first Amendment can
not be deemed forbidden by the
Fourteenth.
Hence, since the power granted to
the States to handle the liquor traf-
fic is absolute, it will be contended
that neither the pure food laws nor
the Federal Trade Commission Act,
which are derived from the COM
merce-clause powers, can supersede
the powers Of the States granted to
them by the Twenty-f1rst Amend
ment.
There seems to be only one consti-
tutional way by which the LIQUOR
traffic, whether In sales or manufac-
ture, can be regulated and that isI
by adoption Of a substitute 1or OF
~ fta Twenty .frSt