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
choice of evils; and it is not easy to decide between them. On the one
hand, we have the disrespect of the Constitution involved in the
enactment by Congress of a law which it knows to be less than a
fulfilment of the Constitution's mandate. On the other hand we have
the disrespect of the law involved in its daily violation by millions
of citizens who break it without the slightest compunction or sense of
guilt, and in the deliberate failure of the Government to so much as
take cognizance of the most numerous class of those violations. In
favor of the former course--the passing of a wine-and-beer law--it may
at least be said that the offense, whether it be great or small, is
committed once for all by a single action of Congress, which, if left
undisturbed, would probably before long be generally accepted as
taking the place of the Amendment itself. A law permitting wine and
beer but forbidding stronger drinks would have so much more public
sentiment behind it than the present law that it would probably be
decently enforced, and not very widely resisted; and though such a law
would be justly objected to as not an honest fulfilment of the
Eighteenth Amendment, it would, I believe, in its practical effect, be
far less demoralizing than the existing statute, the Volstead act.
Accordingly, while I cannot view the enactment of such a law with
unalloyed satisfaction, I think that, in the situation into which we
have been pu