A VERY bad form of referendum proposal is the one to be presented to the voters of New York State on November 2. This particular referendum proposes, in effect, to ask the Congress of the United States to permit the forty-eight separate States to construe, interpret, and enforce a provision of the National Constitution, namely, the Eighteenth Amendment. It is utterly futile and in its effect would be utterly disappointing to both wets and drys. As Justice Cram said the other day in upholding the abstract right of the Legislture to offer such a referendum to the people of the State:

The question is vital because the Congress could not Constitutionally do that which those voting in the affirmative would by such vote suggest that it should do. Congress cannot abdicate its power to define . . . what shall be deemed an intoxicating beverage and confer upon the States the right to define for purposes of enforcement through Federal tribunals what shall and shall not be deemed a violation of the Eighteenth Amendment.

No matter whether a Congress were wet or dry, it would not and should not abrogate its power over a provision of the National Constitution and leave to forty-eight States the chaotic construction and interpretation and enforcement. One State might fix the maximum alcoholic content under the Eighteenth Amendment at one-half of one per cent, another at four per cent, another at eight per cent, and another at twelve or fourteen per cent so as to include light wines among the non-intoxicating beverages. The result would be anarchy. As Webster said in his reply to Hayne’s somewhat similar demand for the State of South Carolina in the matter of the tariff about 1830:

The doctrine is not only unconstitutional but impracticable. Under its operation the tariff would be void in South Carolina, but in Pennsylvania or Kentucky, where protection has been in favor, it would be enforced.
There would thus be four-and-twenty interpreters of constitutional law, each with the power to decide for itself, and none with authority to bind anybody else, and the Constitution would be reduced to a collection of topics for everlasting controversy.

It is no answer to say that the standard set up by the separate States must be a standard non-intoxicating in fact, as implied in the language of the proposed referendum. Who would determine what is intoxicating? The State itself. The National Congress would abdicate, under the terms of the referendum, and leave the ruling to the separate States. There might be an appeal from the standard of any one of the States to the Supreme Court of the United States. But that would seem to be futile. The Supreme Court seems to have made it clear again and again that it does not regard itself as a legislative body, but that it looks to Congress for the rule and the penalty. If Congress refrains from establishing a rule or a penalty, there would seem nothing left for the Supreme Court to do but to accept what each State regards as appropriate legislation for its own area, whether the State legislation follows the rule of one-half of one per cent or of ten per cent alcoholic content. If the Supreme Court actually did seek to establish a legislative rule as to what is or is not intoxicating at the lower margin of alcoholic content, it would take upOn itself a matter of infinite controversy. What is intoxicating in fact? An alcoholic content close to the margin may affect the same person constitutionally to-day and unconstitutionally tomorrow.

The essential and significant thing about this New York referendum proposal is that it would, if accepted by Congress, definitely bar that body from laying down a rule of enforcement and transfer this power to the States. Under this plan, neither the Supreme Court nor Congress can save the Eighteenth Amendment from practical nullification. The proposal differs from the position taken by Robert Y. Hayne, of South Carolina, in his famous debates with Daniel Webster in the Senate of the United States between January 19 and January 27, 1830, only in that it requests Congress to put the stamp of approval upon the nullification. Hayne took it for granted that a State could nullify what it did not like, what it regarded as improper and unconstitutional. This New York referendum, in effect, asks Congress to refrain from action and permit each State, if it pleases, to nullify in practice the Eighteenth Amendment.

Source: The Outlook, 27 October 1926