really wishes to do so, can put the country into the position where
Prohibition will either draw the line above the beer-and-wine point or
go out altogether. For if it were to pass an act repealing the
Volstead law, and in a separate act, passed practically at the same
time but after the repealing act, enact a ten per cent. prohibition
law (or some similar percentage) what would be the result? Certainly
there is nothing unconstitutional in repealing the Volstead act. There
would have been nothing unconstitutional in a failure of Congress to
pass any act enforcing the Eighteenth Amendment. The Supreme Court can
put out of action a law that Congress has passed, on the ground of
unconstitutionality; but it cannot put into action a law that Congress
has not passed. And a law repealed is the same as a law that has not
been passed. Thus if Congress really wished to legitimate beer and
wine, it could do so; leaving it to the Supreme Court to declare
whether a law prohibiting strong alcoholic drinks was or was not more
of an enforcement of the Eighteenth Amendment than no law at all--for
the only alternative the Court would have before it would be that law
or nothing! I do not say that I favor this procedure; for it would
certainly not be an honest fulfilment of the requirements of the
Eighteenth Amendment. To have a law which professes to carry out an
injunction of the Constitution but which does not do so is a thing to
be deplored. But is it more to be deplored than to have a law which in
its terms does carry out the injunction of the Constitution but which
in its actual operation does no such thing? A law to the violation of
which in a vast class of instances--the millions of instances of home
brew--the Government deliberately shuts its eyes? A law the violation
of which in the class of instances in which the Government does
seriously undertake to enforce it--bootlegging, smuggling and
moonshining--is condoned, aided and abetted by hundreds of thousands
of our best citizens? It is, as I have said in an early chapter, a