The Pamphlet Collection of Sir Robert Stout: Volume 36
The Second Section Expressly Guards
The Second Section Expressly Guards,
and in some respects increases, the jurisdiction of the States as it now exists over the subject-matter, and negatives any license of the traffic by implication until the ratification of the proposed amendment. True, there could be no real license implied by the proposal of this amendment to the States, but it might be construed as a denial by Congress of the right of the States to regulate or suppress the traffic to the extent which they are now conceded to possess that power. It further contains a concession by Congress of power to the States and Territories to suppress the manufacture, transportation, and sale of all liquors, and to exclude them from State and territorial limits, which they have never yet exercised to my knowledge. Whether this would have the force of law as against existing constitutional rights may not be a serious question, but it would probably prevent any interference by legislation on the part of Congress with any action on the part of the States or Territories, unless it should clearly be required by the Constitution as it now exists. Whatever powers the National Government now possesses, such as the right to abrogate or regulate the traffic in the District of Columbia and in the Territories, and to make its exclusion forever from the Territories a part of their fundamental law, and to impose such a condition as inseparable to their admission as States, are expressly reserved. At the same time all the rights which any one engaged in the traffic now has under State laws are carefully preserved to him so long as his State shall not see fit to interfere with him; at least until the first section takes effect, and that does not interfere with fermented liquors at all.
The amendment carefully preserves the police power of the State over the whole subject by providing that Congress shall enforce it only in case of needful legislation. It is designed to leave the whole matter, concurrently with the General Government, still in the power of the States respectively, contemplating no interference with local machinery and methods unless it should become imperatively necessary; and it is not probable that much active interference by the National Government would ever be required. As, in the vindication of the great rights of the American citizen, legislation, the courts, their processes, and the ministerial officers of the States are generally sufficient to protect, so in this matter the fact that the broad ægis of the Constitution protected the American people from the curse of this traffic would secure the ample enforcement of its beneficent provisions by local authorities throughout the land.
Nor can there be any valid objection to this legislation based upon the doctrine of