The Pamphlet Collection of Sir Robert Stout: Volume 36
if we would reach the evil effectively.
It is evident, in the first place, that the intense thirst or appetite of the country will lead to the manufacture and transportation of alcohol for the purpose of its gratification. If the production is suppressed everywhere else in the whole country, still in a single one of the smallest States where the manufacture might be allowed (and the temptation to permit the manufacture in small and isolated localities would be greatly increased in the proportion that the concentration of page 25 the business made is existence profitable to the State for purposes of taxation and otherwise), the materials being transported, as they would be, from other States, the entire supply of all kinds of distilled spirits for the whole country could easily be furnished. The manufacture might be localized, but it would still exist, and all the efforts of State legislation elsewhere would thus be substantially thwarted.
Again, supposing that every State and Territory in the country should suppress the manufacture, and importation from abroad should continue, the evil would remain the same; and we should only have transferred the manufacture, with the immense capital engaged in it, to a foreign country to which we should first export our corn, and rye, and wheat to be returned in the form of imported liquors to the dry throats of American consumers. Thus we should retain the evil after depriving ourselves of the revenues derived from it. Now, since State legislation can not interfere with the manufacture outside its own limits, nor perhaps within its own limits for exportation to other States, and as commerce, alike domestic and foreign, is controlled by the General Government, it is apparent that any legal enactment which goes to the root of the matter must be national in its scope and character. So far as the exportation to other countries is concerned, while I do not say that it could not be still carried on without great evil to our own people, aside from the waste of material and the perversion of capital and labor from useful purposes, yet to continue to poison mankind at large with what we had prohibited to ourselves would be like peddling off to our neighbors the contaminated and fatal garments which we might have had left after the small-pox or yellow fever had run through our own family.
As a means of suppression, the power to arrest the article in transitu is hardly less important than that to prevent the manufacture and sale; but this power can never be effectively exercised so long as the United States protects the transportation of ardent spirits to the same extent as other forms of property from one part of the country to another. Experience has demonstrated the impossibility of prevention when there is a chance to procure and while all the innumerable avenues of transportation are open.
Again, the power to control the manufacture and sale and use of distilled alcoholic liquors is to be found under the head of the police power of government, as it is called, which is vested primarily in the several States; and in order that this power be exercised by the nation at large, except in the District of Columbia and the Territories, the Constitution must first be amended so as to give the national Government the right to co-operate with the States in the enforcement of that power for the restriction of this traffic. There is no valid objection to the enlargement or change of national jurisdiction in this respect, as will appear from an inspection of the Constitution as it now stands. The power already exists over the internal police of the States so far as to protect alcohol as property for all purposes for which it can be manufactured and transported. The Constitution now interferes with the internal police of every State which may desire to banish liquor from its borders for the public good, by protecting every other State which sees fit to encourage the traffic in the production and transportation of this substance as a commodity of legitimate page 26 commerce, and compels each State to allow its importation in bulk from foreign countries and other States, and when once within the territorial limits of a State, you can no more prevent its distribution through the dram-shop than you can arrest the progress of the storm by a geographical line. So it is that the Constitution already does interfere in the most potent and specific manner with the internal police of the States upon this all-important subject.
Thus it appears, first, that the evil can only be effectually reached by national legislation, and, second, that such legislation must be of a constitutional character. It further appears that this is the assertion of no new power over the internal police of the States. It is only a modification for the general welfare of a power already possessed by the national Government, which is now being exercised to the destruction of the efforts of the States to extirpate a prolific source of pauperism, crime, and death. The Constitution of the United States, as it now is and has been from the beginning, is a law for the unrestricted manufacture, sale, importation, exportation, and internal transportation of intoxicating liquors. It is the great legal fortress of intemperance in this country to-day. It is not a blank upon this subject. It is not even a mere license law. But by its recognition of alcohol as property, which may be made and used and carried and protected for all purposes in the national domain; by its protection of alcohol as an imported article in the ports and in the Territories of the nation, and by its practical nullification of State laws, enabling the citizens of one State to erect a public bar protected by the supreme law of the land along every inch of the boundaries of a sister State which may be struggling to suppress the evil, by smuggling strong liquors with impunity across the boundaries of States, and even carrying them everywhere under the Stars and Stripes, protected if need be by the Army of the Union, in these ways the Constitution of the United States is now the great almighty obstacle in the way of the temperance reform in this country.