The Project Gutenberg eBook, What Prohibition Has Done to America, by
Fabian Franklin
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Title: What Prohibition Has Done to America
Author: Fabian Franklin
Posting Date: November 19, 2010 [eBook #17417]
Release Date: December 30, 2005
Language: English
Character set encoding: ISO-646-US (US-ASCII)
***START OF THE PROJECT GUTENBERG EBOOK WHAT PROHIBITION HAS DONE TO
AMERICA***
This eBook was produced by J. Henry Phillips.
What Prohibition Has Done to America
by Fabian Franklin
Copyright 1922, Harcourt, Brace & Co., New York.
Table of Contents
Chapter I - Perverting the Constitution
Chapter II - Creating a Nation of Lawbreakers
Chapter III - Destroying Our Federal System
Chapter IV - How the Amendment Was Put Through
Chapter V - The Law Makers and the Law
Chapter VI - The Law Enforcers and the Law
Chapter VII - Nature of the Prohibitionist Tyranny
Chapter VIII - One-Half of One Percent
Chapter IX - Prohibition and Liberty
Chapter X - Prohibition and Socialism
Chapter XI - Is There Any Way Out?
CHAPTER I
PERVERTING THE CONSTITUTION
THE object of a Constitution like that of the United States is to
establish certain fundamentals of government in such a way that they
cannot be altered or destroyed by the mere will of a majority of the
people, or by the ordinary processes of legislation. The framers of
the Constitution saw the necessity of making a distinction between
these fundamentals and the ordinary subjects of law-making, and
accordingly they, and the people who gave their approval to the
Constitution, deliberately arrogated to themselves the power to
shackle future majorities in regard to the essentials of the system of
government which they brought into being. They did this with a clear
consciousness of the object which they had in view--the stability of
the new government and the protection of certain fundamental rights
and liberties. But they did not for a moment entertain the idea of
imposing upon future generations, through the extraordinary sanctions
of the Constitution, their views upon any special subject of ordinary
legislation. Such a proceeding would have seemed to them far more
monstrous, and far less excusable, than that tyranny of George III and
his Parliament which had given rise to the American Revolution.
Until the adoption of the Eighteenth Amendment, the Constitution of
the United States retained the character which properly belongs to the
organic law of a great Federal Republic. The matters with which it
dealt were of three kinds, and three only--the division of powers as
between the Federal and the State governments, the structure of the
Federal government itself, and the safeguarding of the fundamental
rights of American citizens. These were things that it was felt
essential to remove from the vicissitudes attendant upon the temper of
the majority at given time. There was not to be any doubt from year to
year as to the limits of Federal power on the one hand and State power
on the other; nor as to the structure of the Federal government and
the respective functions of the legislative, executive, and judicial
departments of that government; nor as to the preservation of certain
fundamental rights pertaining to life, liberty and property.
That these things, once laid down in the organic law of the country,
should not be subject to disturbance except by the extraordinary and
difficult process of amendment prescribed by the Constitution was the
dictate of the highest political wisdom; and it was only because of
the manifest wisdom upon which it was based that the Constitution, in
spite of many trials and drawbacks, commanded, during nearly a century
and a half of momentous history, the respect and devotion of
generation after generation of American citizens. Although the
Constitution of the United States has been pronounced by an
illustrious British statesman the most wonderful work ever struck off
at a given time by the brain and purpose of man, it would be not only
folly, but superstition, to regard it as perfect. It has been amended
in the past, and will need to be amended in the future. The Income Tax
Amendment enlarged the power of the Federal government in the field of
taxation, and to that extent encroached upon a domain theretofore
reserved to the States. The amendment which referred the election of
Senators to popular vote, instead of having them chosen by the State
Legislatures, altered a feature of the mechanism originally laid down
for the setting up of the Federal government. The amendments that were
adopted as a consequence of the Civil War were designed to put an end
to slavery and to guarantee to the negroes the fundamental rights of
freemen. With the exception of the amendments adopted almost
immediately after the framing of the Constitution itself, and
therefore usually regarded as almost forming part of the original
instrument, the amendments just referred to are the only ones that had
been adopted prior to the Eighteenth; and it happens that these
amendments--the Sixteenth, the Seventeenth, and the group comprising
the Thirteenth, Fourteenth and Fifteenth--deal respectively with the
three kinds of things with which the Constitution was originally, and
is legitimately, concerned: the division of powers between the Federal
and the State governments, the structure of the Federal government
itself, the safeguarding of the fundamental rights of American
citizens.
One of the gravest indictments against the Eighteenth Amendment is
that it has struck a deadly blow at the heart of our Federal system,
the principle of local self-government. How sound that indictment is,
how profound the injury which National Prohibition inflicted upon the
States as self-governing entities, will be considered in a subsequent
chapter. At this point we are concerned with an objection even more
vital and more conclusive.
Upon the question of centralization or decentralization, of Federal
power or State autonomy, there is room for rational difference of
opinion. But upon the question whether a regulation prescribing the
personal habits of individuals forms a proper part of the Constitution
of a great nation there is no room whatever for rational difference of
opinion. Whether Prohibition is right or wrong, wise or unwise, all
sides are agreed that it is a denial of personal liberty.
Prohibitionists maintain that the denial is justified, like other
restraints upon personal liberty to which we all assent;
anti-prohibitionists maintain that this denial of personal liberty is
of a vitally different nature from those to which we all assent. That
it is a denial of personal liberty is undisputed; and the point with
which we are at this moment concerned is that to entrench a denial of
liberty behind the mighty ramparts of our Constitution is to do
precisely the opposite of what our Constitution--or any Constitution
like ours--is designed to do. The Constitution withdraws certain
things from the control of the majority for the time being--withdraws
them from the province of ordinary legislation--for the purpose of
safeguarding liberty, the Eighteenth Amendment seizes upon the
mechanism designed for this purpose, and perverts it to the
diametrically opposite end, that of safeguarding the denial of
liberty.
All history teaches that liberty is in danger from the tyranny of
majorities as well as from that of oligarchies and monarchies;
accordingly the Constitution says: No mere majority, no ordinary
legislative procedure, shall be competent to deprive the people of the
liberty that is hereby guaranteed to them. But the Eighteenth
Amendment says: No mere majority, no mere legislative procedure, shall
be competent to restore to the people the liberty that is hereby taken
away from them. Thus, quite apart from all questions as to the merits
of Prohibition in itself, the Eighteenth Amendment is a Constitutional
monstrosity. That this has not been more generally and more keenly
recognized is little to the credit of the American people, and still
less to the credit of the American press and of those who should be
the leaders of public opinion. One circumstance may, however, be cited
which tends to extenuate in some degree this glaring failure of
political sense and judgment. There have long been Prohibition
enactments in many of our State Constitutions, and this has made
familiar and commonplace the idea of Prohibition as part of a
Constitution. But our State Constitutions are not Constitutions in
anything like the same sense as that which attaches to the
Constitution of the United States. Most of our State Constitutions can
be altered with little more difficulty than ordinary laws; the process
merely takes a little more time, and offers no serious obstacle to any
object earnestly desired by a substantial majority of the people of
the State.
Accordingly our State Constitutions are full of a multitude of details
which really belong in the ordinary domain of statute law; and nobody
looks upon them as embodying that fundamental and organic law upon
whose integrity and authority depends the life and safety of our
institutions. The Constitution of the United States, on the other
hand, is a true Constitution--concerned only with fundamentals, and
guarded against change in a manner suited to the preservation of
fundamentals. To put into it a regulation of personal habits, to
buttress such a regulation by its safeguards, is an atrocity for which
no characterization can be too severe. And it is something more than
an atrocity; the Eighteenth Amendment is not only a perversion but
also a degradation of the Constitution. In what precedes, the emphasis
has been placed on the perversion of what was designed as a safeguard
of liberty into a safeguard of the denial of liberty. But even if no
issue of liberty entered into the case, an amendment that embodied a
mere police regulation would be a degradation of the Constitution. In
the earlier days of our history --indeed up to a comparatively recent
time--if any one had suggested such a thing as a Prohibition
amendment to the Federal Constitution, he would have been met not with
indignation but with ridicule. It would not have been the monstrosity,
but the absurdity, of such a proposal, that would have been first in
the thought of almost any intelligent American to whom it might have
been presented. He would have felt that such a feature was as utterly
out of place in the Constitution of the United States as would be a
statute regulating the height of houses or the length of women's
skirts. It might be as meritorious as you please in itself, but it
didn't belong in the Constitution. If the Constitution is to command
the kind of respect which shall make it the steadfast bulwark of our
institutions, the guaranty of our union and our welfare, it must
preserve the character that befits such an instrument. The Eighteenth
Amendment, if it were not odious as a perversion of the power of the
Constitution, would be contemptible as an offense against its dignity.
CHAPTER II
CREATING A NATION OF LAW-BREAKERS
IN his baccalaureate address as President of Yale University, in June,
1922, Dr. Angell felt called upon to say that in this country "the
violation of law has never been so general nor so widely condoned as
at present," and to add these impressive words of appeal to the young
graduates:
This is a fact which strikes at the very heart of our system of
government, and the young man entering upon his active career must
decide whether he too will condone and even abet such disregard of
law, or whether he will set his face firmly against such a course.
It is safe to say that there has never been a time in the history of
our country when the President of a great university could have found
it necessary to address the young Americans before him in any such
language. There has never been a time when deliberate disregard of law
was habitual among the classes which represent culture, achievement,
and wealth--the classes among whom respect for law is usually
regarded as constant and instinctive. That such disregard now prevails
is an assertion for which President Angell did not find it necessary
to point to any evidence. It is universally admitted. Friends of
Prohibition and enemies of Prohibition, at odds on everything else,
are in entire agreement upon this. It is high time that thinking
people went beyond the mere recognition of this fact and entered into
a serious examination of the cause to which it is to be ascribed.
Perhaps I should say the causes, for of course more causes than one
enter into the matter. But I say the cause, for the reason that there
is one cause which transcends all others, both in underlying
importance and in the permanence of its nature. That cause does not
reside in any special extravagances that there may be in the Volstead
act. The cardinal grievance against which the unprecedented contempt
for law among high-minded and law-abiding people is directed is not
the Volstead act but the Eighteenth Amendment. The enactment of that
Amendment was a monstrosity so gross that no thinking American thirty
years ago would have regarded it as a possibility. It is not only a
crime against the Constitution of the United States, and not only a
crime against the whole spirit of our Federal system, but a crime
against the first principles of rational government. The object of the
Constitution of the United States is to imbed in the organic law of
the country certain principles, and certain arrangements for the
distribution of power, which shall be binding in a peculiar way upon
generation after generation of the American people. Once so imbedded,
it may prove to be impossible by anything short of a revolution to get
them out, even though a very great majority of the people should
desire to do so.
If laws regulating the ordinary personal conduct of individuals are to
be entrenched in this way, one of the first conditions of respect for
law necessarily falls to the ground. That practical maxim which is
always appealed to, and rightly appealed to, in behalf of an unpopular
law--the maxim that if the law is bad the way to get it repealed is to
obey it and enforce it--loses its validity. If a majority cannot
repeal the law--if it is perfectly conceivable, and even probable,
that generation after generation may pass without the will of the
majority having a chance to be put into effect--then it is idle to
expect intelligent freemen to bow down in meek submission to its
prescriptions. Apart from the question of distribution of governmental
powers, it was until recently a matter of course to say that the
purpose of the Constitution was to protect the rights of minorities.
That it might ever be perverted to exactly the opposite purpose--to
the purpose of fastening not only upon minorities but even upon
majorities for an unlimited future the will of the majority for the
time being--certainly never crossed the mind of any of the great men
who framed the Constitution of the United States. Yet this is
precisely what the Prohibition mania has done. The safeguards designed
to protect freedom against thoughtless or wanton invasion have been
seized upon as a means of protecting a denial of freedom against any
practical possibility of repeal. Upon a matter concerning the ordinary
practices of daily life, we and our children and our children's
children are deprived of the possibility of taking such action as we
think fit unless we can obtain the assent of twothirds of both
branches of Congress and the Legislatures of three-fourths of the
States. To live under such a dispensation in such a matter is to live
without the first essentials of a government of freemen. I admit that
all this is not clearly in the minds of most of the people who break
the law, or who condone or abet the breaking of the law. Nevertheless
it is virtually in their minds. For, whenever an attempt is made to
bring about a substantial change in the Prohibition law, the objection
is immediately made that such a change would necessarily amount to a
nullification of the Eighteenth Amendment. And so it would. People
therefore feel in their hearts that they are confronted practically
with no other choice but that of either supinely submitting to the
full rigor of Prohibition, of trying to procure a law which nullifies
the Constitution, or of expressing their resentment against an outrage
on the first principles of the Constitution by contemptuous disregard
of the law. It is a choice of evils; and it is not surprising that
many good citizens regard the last of the three choices as the best.
How far this contempt and this disregard has gone is but very
imperfectly indicated by the things which were doubtless in President
Angell's mind, and which are in the minds of most persons who publicly
express their regret over the prevalence of law-breaking. What they
are thinking about, what the Anti-Saloon League talks about, what the
Prohibition enforcement officers expend their energy upon, is the sale
of alcoholic drinks in public places and by bootleggers. But where the
bootlegger and the restaurant-keeper counts his thousands, home brew
counts its tens of thousands. To this subject there is a remarkable
absence of attention on the part of the Anti-Saloon League and of the
Prohibition enforcement service. They know that there are not hundreds
of thousands but millions of people breaking the law by making their
own liquors, but they dare not speak of it. They dare not go even so
far as to make it universally known that the making of home brew is a
violation of the law. To this day a very considerable number of people
who indulge in the practice are unaware that it is a violation of the
law. And the reason for this careful and persistent silence is only
too plain. To make conspicuous before the whole American people the
fact that the law is being steadily and complacently violated in
millions of decent American homes would bring about a realization of
the demoralizing effect of Prohibition which its sponsors, fanatical
as they are, very wisely shrink from facing.
How long this demoralization may last I shall not venture to predict.
But it will not be overcome in a day; and it will not be overcome at
all by means of exhortations. It is possible that enforcement will
gradually become more and more efficient, and that the spirit of
resistance may thus gradually be worn out. On the other hand it is
also possible that means of evading the law may become more and more
perfected by invention and otherwise, and that the melancholy and
humiliating spectacle which we are now witnessing may be of very long
duration. But in any case it has already lasted long enough to do
incalculable and almost ineradicable harm. And for all this it is
utterly idle to place the blame on those qualities of human nature
which have led to the violation of the law. Of those qualities some
are reprehensible and some are not only blameless but commendable. The
great guilt is not that of the law-breakers but that of the lawmakers.
It is childish to imagine that every law, no matter what its nature,
can command respect. Nothing would be easier than to imagine laws
which a very considerable number of perfectly wellmeaning people would
be glad to have enacted, but which if enacted it would be not only the
right, but the duty, of sound citizens to ignore. I do not say that
the Eighteenth Amendment falls into this category. But it comes
perilously near to doing so, and thousands of the best American
citizens think that it actually does do so. It has degraded the
Constitution of the United States. It has created a division among the
people of the United States comparable only to that which was made by
the awful issue of slavery and secession. That issue was a result of
deepseated historical causes in the face of which the wisdom and
patriotism of three generations of Americans found itself powerless.
This new cleavage has been caused by an act of legislative folly
unmatched in the history of free institutions. My hope--a distant and
yet a sincere hope--is that the American people may, in spite of all
difficulties, be awakened to a realization of that folly and restore
the Constitution to its traditional dignity by a repeal, sooner or
later, of the monstrous Amendment by which it has been defaced.
CHAPTER III
DESTROYING OUR FEDERAL SYSTEM
THUS far I have been dealing with the wrong which the Prohibition
Amendment commits against the vital principle of any national
Constitution, the principle which alone justifies the idea of a
Constitution--a body of organic law removed from the operation of the
ordinary processes of popular rule and representative government. But
reference was made at the outset to a wrong of a more special, yet
equally profound, character. The distinctive feature of our system of
government is that it combines a high degree of power and independence
in the several States with a high degree of power and authority in the
national government. Time was when the dispute naturally arising in
such a Federal Union, concerning the line of division between these
two kinds of power, turned on an abstract or legalistic question of
State sovereignty. That abstract question was decided, once for all,
by the arbitrament of arms in our great Civil War. But the decision,
while it strengthened the foundations of the Federal Union, left
unimpaired the individuality, the vitality, the self-dependence of the
States in all the ordinary affairs of life. It continued to be true,
after the war as before, that each State had its own local pride,
developed its own special institutions, regulated the conduct of life
within its boundaries according to its own views of what was conducive
to the order, the well-being, the contentment, the progress, of its
own people. It has been the belief of practically all intelligent
observers of our national life that this individuality and
self-dependence of the States has been a cardinal element in the
promotion of our national welfare and in the preservation of our
national character. In a country of such vast extent and natural
variety, a country developing with unparalleled rapidity and
confronted with constantly changing conditions, who can say how great
would have been the loss to local initiative and civic spirit, how
grave the impairment of national concord and good will, if all the
serious concerns of the American people had been settled for them by a
central government at Washington ? In that admirable little book,
"Politics for Young Americans," Charles Nordhoff fifty years ago
expounded in simple language the principles underlying our system of
government. Coming to the subject of "Decentralization," he said:
Experience has shown that this device [decentralization] is of
extreme importance, for two reasons: First, it is a powerful and
the best means of training a people to efficient political action
and the art of self-government; and, second, it presents constant
and important barriers to the encroachment of rulers upon the
rights and liberties of the nation; every subdivision forming a
stronghold of resistance by the people against unjust or wicked
rulers. Take notice that any system of government is excellent in
the precise degree in which it naturally trains the people in
political independence, and habituates them to take an active part
in governing themselves. Whatever plan of government does this is
good--no matter what it may be called; and that which avoids this
is necessarily bad.
What Mr. Nordhoff thus set forth has been universally acknowledged as
the cardinal merit of local self-government; and in addition to this
cardinal merit it has been recognized by all competent students of our
history that our system of self-governing States has proved itself of
inestimable benefit in another way. It has rendered possible the
trying of important experiments in social and governmental policy;
experiments which it would have been sometimes dangerous, and still
more frequently politically impossible, to inaugurate on a national
scale. When these experiments have proved successful, State after
State has followed the example set by one or a few among their number;
when they have been disappointing in their results, the rest of the
Union has profited by the warning. But, highly important as is this
aspect of State independence, the most essential benefits of it are
the training in self-government which is emphasized in the above
quotation from Mr. Nordhoff, and the adaptation of laws to the
particular needs and the particular character of the people of the
various States. That modern conditions have inevitably led to a vast
enlargement of the powers of the central government, no thinking
person can deny. It would be folly to attempt to stick to the exact
division of State functions as against national which was natural when
the Union was first formed. The railroad, the telegraph, and the
telephone, the immense development of industrial, commercial, and
financial organization, the growth of interwoven interests of a
thousand kinds, have brought the people of California and New York, of
Michigan and Texas, into closer relations than were common between
those of Massachusetts and Virginia in the days of Washington and John
Adams. In so far as the process of centralization has been dictated by
the clear necessities of the times, it would be idle to obstruct it or
to cry out against it. But, so far from this being an argument against
the preservation of the essentials of local self-government, it is the
strongest possible argument in favor of that preservation. With the
progress of science, invention, and business organization, the power
and prestige of the central government are bound to grow, the power
and prestige of the State governments are bound to decline, under the
pressure of economic necessity and social convenience; all the more,
then, does it behoove us to sustain those essentials of State
authority which are not comprised within the domain of those
overmastering economic forces. If we do not hold the line where the
line can be held, we give up the cause altogether; and it will be only
a question of time when we shall have drifted into complete subjection
to a centralized government, and State boundaries will have no more
serious significance than county boundaries have now. But if there is
one thing in the wide world the control of which naturally and
preeminently belongs to the individual State and not to the central
government at Washington, that thing is the personal conduct and
habits of the people of the State. If it is right and proper that the
people of New York or Illinois or Maryland shall be subjected to a
national law which declares what they may or may not eat or drink--a
law which they cannot themselves alter, no matter how strongly they
may desire it--then there is no act of centralization whatsoever which
can be justly objected to as an act of centralization. The Prohibition
Amendment is not merely an impairment of the principle of
self-government of the States; it constitutes an absolute abandonment
of that principle. This does not mean, of course, an immediate
abandonment of the practice of State self-government; established
institutions have a tenacious life, and moreover there are a thousand
practical advantages in State selfgovernment which nobody will think
of giving up. But the principle, I repeat, is abandoned altogether if
we accept the Eighteenth Amendment as right and proper; and if anybody
imagines that the abandonment of the principle is of no practical
consequence, he is woefully deluded. So long as the principle is held
in esteem, it is always possible to make a stout fight against any
particular encroachment upon State authority; any proposed
encroachment must prove its claim to acceptance not only as a
practical desideratum but as not too flagrant an invasion of State
prerogatives. But with the Eighteenth Amendment accepted as a proper
part of our system, it will be impossible to object to any invasion as
more flagrant than that to which the nation has already given its
approval. A striking illustration of this has, curiously enough, been
furnished in the brief time that has passed since the adoption or the
eighteenth Amendment. Southern Senators and Representatives and
Legislaturemen who, for getting all about their cherished doctrine of
State rights, had fallen over themselves in their eagerness to fasten
the Eighteenth Amendment upon the country, suddenly discovered that
they were deeply devoted to that doctrine when the Nineteenth
Amendment came up for consideration. But nobody would listen to them.
They professed--and doubtless some of them sincerely professed--to
find an essential difference between putting Woman Suffrage into the
Constitution and putting Prohibition into the Constitution. The
determination of the right of suffrage was, they said, the most
fundamental attribute of a sovereign State; national Prohibition did
not strike at the heart of State sovereignty as did national
regulation of the suffrage. But the abstract question of sovereignty
has had little interest for the nation since the Civil War; and if we
waive that abstract question, the Prohibition Amendment was an
infinitely more vital thrust at the principle of State selfgovernment.
The Woman Suffrage Amendment was the assertion of a fundamental
principle of government, and if it was an abridgment of sovereignty it
was an abridgment of the same character as those embodied in the
Constitution from the beginning, the Prohibition Amendment brought the
Federal Government into control of precisely those intimate concerns
of daily life which, above all else, had theretofore been left
untouched by the central power, and subject to the independent
jurisdiction of each individual State. The South had eagerly swallowed
a camel, and when it asked the country to strain at a gnat it found
nobody to listen. Our public men, and our leaders of opinion,
frequently and earnestly express their concern over the decline of
importance in our State governments, the lessened vigor of the State
spirit. The sentiment is not peculiar to any party or to any section;
it is expressed with equal emphasis and with equal frequency by
leading Republicans and leading Democrats, by Northerners and
Southerners. All feel alike that with the decay of State spirit a
virtue will go out of our national spirit--that a centralized America
will be a devitalized America. But when they discuss the subject, they
are in the habit of referring chiefly to defects in administration; to
neglect of duty by the average citizen or perhaps by those in high
places in business or the professions; to want of intelligence in the
Legislature, etc. And for all this there is much reason; yet all this
we have had always with us, and it is not always that we have had with
us this sense of the decline of State spirit. For that decline the
chief cause is the gradual, yet steady and rapid, extension of
national power and lowering of the comparative importance of the
functions of the State. However, the functions that still remain to
the State--and its subdivisions, the municipalities and counties --are
still of enormous importance; and, with the growth of public-welfare
activities which are ramifying in so many directions, that importance
may be far greater in the future. But what is to become of it if we
are ready to surrender to the central government the control of our
most intimate concerns? And what concern can be so intimate as that of
the conduct of the individual citizen in the pursuit of his daily
life? How can the idea of the State as an object of pride or as a
source of authority flourish when the most elementary of its functions
is supinely abandoned to the custody of a higher and a stronger power?
The Prohibition Amendment has done more to sap the vitality of our
State system than could be done by a hundred years of misrule at
Albany or Harrisburg or Springfield. The effects of that misrule are
more directly apparent, but they leave the State spirit untouched in
its vital parts. The Prohibition Amendment strikes at the root of that
spirit, and its evil precedent, if unreversed, will steadily cut off
the source from which that spirit derives its life.
CHAPTER IV
HOW THE AMENDMENT WAS PUT THROUGH
THERE has been a vast amount of controversy over the question whether
a majority of the American people favored the adoption of the
Eighteenth Amendment. There is no possible way to settle that
question. Even future votes, if any can be had that may be looked upon
as referendum votes, cannot settle it, whichever way they may turn
out. If evidence should come to hand which indicates that a majority
of the American people favor the retention of the Amendment now that
it is an accomplished fact, this will not prove that they favored its
adoption in the first place; it may be that they wish to give it a
fuller trial, or it may be that they do not wish to go through the
upheaval and disturbance of a fresh agitation of the question or it
may be some other reason quite different from what was in the
situation four years ago. On the other hand, if the referendum should
seem adverse, this might be due to disgust at the lawlessness that has
developed in connection with the Prohibition Amendment, or to a
realization of the vast amount of discontent it has aroused, or to
something else that was not in the minds of the majority when the
Amendment was put through. But really the question is of very little
importance. From the standpoint of fundamental political doctrine, it
makes no difference whether 40 million, or 50 million, or 60 million
people out of a hundred million desired to put into the Constitution a
provision which is an offense against the underlying idea of any
Constitution, an injury to the American Federal system, an outrage
upon the first principles both of law and of liberty. And if, instead
of viewing the matter from the standpoint of fundamental political
doctrine, we look upon it as a question of Constitutional procedure,
it is again--though for a different reason--a matter of little
consequence whether a count of noses would have favored the adoption
of the Amendment or not. The Constitution provides a definite method
for its own amendment, and this method was strictly carried out--the
Amendment received the approval of the requisite number of
Representatives, Senators and State Legislatures; from the standpoint
of Constitutional procedure the question of popular majorities has
nothing to do with the case. But from every standpoint the way in
which the Eighteenth Amendment was actually put through Congress and
the Legislatures has a great deal to do with the case. Prohibitionists
constantly point to the big majority in Congress, and the promptness
and almost unanimity of the approval by the Legislatures, as proof of
an overwhelming preponderance of public sentiment in favor of the
Amendment. It is proof of no such thing. To begin with, nothing is
more notorious than the fact that a large proportion of the members of
Congress and State Legislatures who voted for the Prohibition
Amendment were not themselves in favor of it. Many of them openly
declared that they were voting not according to their own judgment but
in deference to the desire of their constituents. But there is not the
slightest reason to believe that one out of twenty of those gentlemen
made any effort to ascertain the desire of a majority of their
constituents; nor, for that matter, that they would have followed that
desire if they had known what it was. What they were really concerned
about was to get the support, or avoid the enmity, of those who held,
or were supposed to hold, the balance of power. For that purpose a
determined and highly organized body of moderate dimensions may
outweigh a body ten times as numerous and ten times as representative
of the community. The Anti-Saloon League was the power of which
Congressmen and Legislaturemen alike stood in fear. Never in our
political history has there been such an example of consummately
organized, astutely managed, and unremittingly maintained
intimidation; and accordingly never in our history has a measure of
such revolutionary character and of such profound importance as the
Eighteenth Amendment been put through with anything like such
smoothness and celerity. The intimidation exercised by the AntiSaloon
League was potent in a degree far beyond the numerical strength of the
League and its adherents, not only because of the effective and
systematic use of its black-listing methods, but also for another
reason. Weak-kneed Congressmen and Legislaturemen succumbed not only
to fear of the ballots which the League controlled but also to fear of
another kind. A weapon not less powerful than political intimidation
was the moral intimidation which the Prohibition propaganda had
constantly at command. That such intimidation should be resorted to by
a body pushing what it regards as a magnificent reform is not
surprising; the pity is that so few people have the moral courage to
beat back an attack of this kind. Throughout the entire agitation, it
was the invariable habit of Prohibition advocates to stigmatize the
anti-Prohibition forces as representing nothing but the "liquor
interests." The fight was presented in the light of a struggle between
those who wished to coin money out of the degradation of their
fellow-creatures and those who sought to save mankind from perdition.
That the millions of people who enjoyed drinking, to whom it was a
cherished source of refreshment, recuperation, and sociability, had
any stake in the matter, the agitators never for a moment
acknowledged; if a man stood out against Prohibition he was not the
champion of the millions who enjoyed drink, but the servant of the
interests who sold drink. This preposterous fiction was allowed to
pass current with but little challenge; and many a public man who
might have stood out against the Anti-Saloon League's power over the
ballot-box cowered at the thought of the moral reprobation which a
courageous stand against Prohibition might bring down upon him. Thus
the swiftness with which the Prohibition Amendment was adopted by
Congress and by State Legislatures, and the overwhelming majorities
which it commanded in those bodies, is no proof either of sincere
conviction on the part of the lawmakers or of their belief that they
were expressing the genuine will of their constituents. As for
individual conviction, the personal conduct of a large proportion of
the lawmakers who voted for Prohibition is in notorious conflict with
their votes; and as for the other question, it has happened in State
after State that the Legislature was almost unanimous for Prohibition
when the people of the State had quite recently shown by their vote
that they were either distinctly against it or almost evenly divided.
Of this kind of proceeding, Maryland presented an example so flagrant
as to deserve special mention. Although popular votes in the State
had, within quite a short time, recorded strong anti-Prohibition
majorities, the Legislature rushed its ratification of the Eighteenth
Amendment through in the very first days of its session; and this in
face of the fact that Maryland has always held strongly by State
rights and cherished its State individuality, and that the leading
newspapers of the State and many of its foremost citizens came out
courageously and energetically against the Amendment. In these
circumstances, nothing but a mean subserviency to political
intimidation can possibly account for the indecent haste with which
the ratification was pushed through. It is interesting to note a
subsequent episode which casts a further interesting light on the
matter, and tends to show that there are limits beyond which the
whip-and-spur rule of the Anti-Saloon League cannot go. In the session
of the present year, the Anti-Saloon League tried to get a State
Prohibition enforcement bill passed. Although there was a great public
protest, the bill was put through the lower House of the Legislature;
but in the Senate it encountered resistance of an effective kind. The
Senate did not reject the bill; but, in spite of bitter opposition by
the Anti-Saloon League, it attached to the bill a referendum clause.
With that clause attached, the Anti-Saloon League ceased to desire the
passage of the bill, and allowed it to be killed on its return to the
lower House of the Legislature. Is this not a fine exhibition of the
nature of the League's hold on legislation? And is there not abundant
evidence that the whole of this Maryland story is typical of what has
been going on throughout the country? Charges are made that the
Anti-Saloon League has expended vast sums of money in its campaigns;
money largely supplied, it is often alleged, by one of the world's
richest men, running into the tens of millions or higher. r do not
believe that these charges are true. More weight is to be attached to
another factor in the case--the adoption of the Amendment by Congress
while we were in the midst of the excitement and exaltation of the
war, and two million of our young men were overseas. Unquestionably,
advantage was taken of this situation, there can be little doubt that
the Eighteenth Amendment would have had much harder sledding at a
normal time. And it is right, accordingly, to insist that the
Amendment was not subjected to the kind of discussion, nor put through
the kind of test of national approval, which ought to precede any such
permanent and radical change in our Constitutional organization. This
is especially true because National Prohibition was not even remotely
an issue in the preceding election, nor in any earlier one. All these
things must weigh in our judgment of the moral weight to be attached
to the adoption of the Eighteenth Amendment; but there is another
aspect of that adoption which is more important. The gravest reproach
which attaches to that unfortunate act, the one which causes deepest
concern among thinking citizens, does not relate to any incidental
feature of the Prohibition manoevres. The fundamental trouble lay in a
deplorable absence of any general understanding of the seriousness of
making a vital change in the Constitution--incomparably the most vital
to which it has ever been subjected--and of the solemn responsibility
of those upon whom rested the decision to make or not to make that
change. Even in newspapers in which one would expect, as a matter of
course, that this aspect of the question would be earnestly impressed
upon their readers, it was, as a rule, passed over without so much as
a mention. And this is not all. One of the shrewdest and most
successful of the devices which the League and its supporters
constantly made use of was to represent the function of Congress as
being merely that of submitting the question to the State
Legislatures; as though the passage of the Amendment by a two-thirds
vote of Congress did not necessarily imply approval, but only a
willingness to let the sentiment of the several States decide. Of
course, such a view is preposterous; of course, if such were the
purpose of the Constitutional procedure there would be no requirement
of a two-thirds vote.* But many members of Congress were glad enough
to take refuge behind this view of their duty, absurd though it was;
and no one can say how large a part it played in securing the
requisite two-thirds of House and Senate. Yet from the moment the
Amendment was thus adopted by Congress, nothing more was heard of this
notion of that body having performed the merely ministerial act of
passing the question on to the Legislatures. On the contrary, the
two-thirds vote (and more) was pointed to as conclusive evidence of
the overwhelming support of the Amendment by the nation; the
Legislatures were expected to get with alacrity into the band-wagon
into which Congress had so eagerly climbed. Evidently, it would have
been far more difficult to get the Eighteenth Amendment into the
Constitution if the two-thirds vote of Congress had been the sole
requirement for its adoption. Congressmen disposed to take their
responsibility lightly, and yet not altogether without conscience,
voted with the feeling that their act was not final, when they might
otherwise have shrunk from doing what their Judgment told them was
wrong; and, the thing once through Congress, Legislatures hastened to
ratify in the feeling that ratification by the requisite number of
Legislatures was manifestly a foregone conclusion. Thus at no stage of
the game was there given to this tremendous Constitutional departure
anything even distantly approaching the kind of consideration that
such a step demands. The country was jockeyed and stampeded into the
folly it has committed; and who can say what may be the next folly
into which we shall fall, if we do not awaken to a truer sense of the
duty that rests upon every member of a lawmaking body--to decide these
grave questions in accordance with the dictates of his own honest and
intelligent judgment?
* This should be self-evident; but if there were any room for doubt.
it would be removed by a reference to the language of Article V of the
Constitution: "The Congress, whenever two-thirds of both Houses shall
deem it necessary, shall propose amendments to this Constitution"
which shall be valid "when ratified by the Legislatures of
three-fourths of the States." Thus Congress does not submit an
amendment, but proposes it; and it does this only when two-thirds of
both Houses deem it necessary. The primary act of judgment is
performed by Congress; what remains for the Legislatures is to ratify
or not to ratify that act.
CHAPTER V
THE LAW MAKERS AND THE LAW
WELL MEANING exhorters, shocked at the spectacle of millions of
perfectly decent and law-abiding Americans showing an utter disregard
of the Prohibition law, are prone to insist that to violate this law,
or to abet its violation, is just as immoral as to violate any other
criminal law. The thing is on the statute-books--nay, in the very
Constitution itself --and to offend against it, they say, is as much a
crime as to commit larceny, arson or murder. But they may repeat this
doctrine until Doomsday, and make little impression upon persons who
exercise their common sense. The law that makes larceny, arson or
murder a crime merely registers, and emphasizes, and makes effective
through the power of the Government, the dictates of the moral sense
of practically all mankind; and if, in the case of some kindred
crimes, it goes beyond those dictates for special reasons, the
extension is only such as is called for by the circumstances. However
desirable it may be that the sudden transformation of an innocent act
into a crime by mere governmental edict should carry with it the same
degree of respect as is paid to laws against crimes which all normal
men hold in abhorrence, it is idle to expect any such thing; and in a
case where the edict violates principles which almost all of us only a
short time ago held to be almost sacred, the expectation is worse than
merely idle. A nation which could instantly get itself into the frame
of mind necessary for such supine submission would be a nation fit for
servitude, not freedom. But in the case of the Prohibition Amendment,
and of the Volstead act for its enforcement, there enters another
element which must inevitably and most powerfully affect the feelings
of men toward the law. Everybody knows that the law is violated, in
spirit if not in letter, by a large proportion of the very men who
imposed it upon the country. Members of Congress and of the State
Legislatures--those that voted for Prohibition, as well as those that
voted against it--have their private stocks of liquor like other
people; nor is there any reason to believe that many of them are more
scrupulous than other people in augmenting their supply from outside
sources. One of the means resorted to by the Anti-Saloon League in
pushing through the Amendment was the particular care they took to
make its passage involve little sacrifice of personal indulgence on
the part of those who were wealthy enough, or clever enough, to
provide for the satisfaction of their own desires in the matter of
drink, at least for many years to come. The League knew perfectly that
in some Prohibition States the possession of liquor was forbidden as
well as its manufacture, transportation and sale; but the AntiSaloon
League would never have dared to include in the Amendment a ban upon
possession. Congressmen who voted for it knew that not only they
themselves, but their wealthy and influential constituents, would be
in a position to provide in very large measure for their own future
indulgences; and it may be set down as certain that had this not been
the case, opposition to the Amendment would have been vastly more
effective than it was. In order that a person should entertain a
genuine feeling that the Prohibition Amendment is entitled to the same
kind of respect as the general body of criminal law, it is
necessary--even if he waives all those questions of Constitutional
principle which have been dwelt upon in previous chapters--that he
should regard drinking as a crime. And this is indeed the express
belief of many upholders of the Amendment--a foolish belief, in my
judgment, but certainly a sincere one. I have before me a
letter--typical of many--published in one of our leading newspapers
and written evidently by a man of education as well as sincerity. He
speaks bitterly of the proposal to permit "light wines and beer," and
asks whether any one would propose to permit light burglary or light
arson. That man evidently regards indulgence in any intoxicating
liquor as a crime, and he looks upon the law as a prohibition of that
crime. And he is essentially right, if the law is right. For while the
law does not in its express terms make drinking a crime, its
intention--and its practical effect so far as regards the great mass
of the people--is precisely that. The people President Angell had in
mind when he implored the young Yale graduates not to be like them,
are not makers or sellers of liquor, but drinkers of it. They are not
moonshiners or smugglers or bootleggers; they are the people upon
whose patronage or connivance the moonshiners and smugglers and
bootleggers depend for their business. And everybody knows that, in
their private capacity, Senators and Representatives and
Legislaturemen are precisely like their fellow-citizens in this
matter. They may possibly be somewhat more careful about the letter of
the law; they are certainly just as regardless of its spirit. With the
exception of a comparatively small number of genuine
Prohibitionists--men who were for Prohibition before the Anti-Saloon
League started its campaign--they would laugh at the question whether
they regard drinking as a crime. And they act accordingly. What degree
of moral authority can the law be expected to have in these
circumstances? Upon the mind of a man intensely convinced that the law
is an outrage, how much impression can be produced by the mere fact
that it was passed by Congress and the Legislatures, when the real
attitude of the members of those bodies is such as it is seen to be in
their private conduct? How much of a moral sanction would be given to
a law against larceny if a large proportion of the men who enacted the
law were themselves receivers of stolen goods ? Or a law against
forgery if the legislators were in the frequent habit of passing
forged checks? It happens that the receiving of stolen goods or the
passing of forged checks is a crime under the law, as well as the
stealing or the forgery itself; and that the Prohibition law does not
make the drinking or even the buying of liquor, but only the making or
selling of it, a crime; but what a miserable refuge this is for a man
who professes to believe that the abolition of intoxicating liquor is
so supreme a public necessity as to demand the remaking of the
Constitution of the United States for the purpose! Not the least of
the causes of public disrespect for the Prohibition law is the
notorious insincerity of the makers of the law, and their flagrant
disrespect for their own creation.
CHAPTER VI
THE LAW ENFORCERS AND THE LAW
DAY after day, month after month, a distressing, a disgusting
spectacle is presented to the American people in connection with the
enforcement of the national Prohibition law. No day passes without
newspaper headlines which "feature" some phase of the contest going on
between the Government on the one hand and millions of citizens on the
other; citizens who belong not to the criminal or semi-criminal
classes, nor yet to the ranks of those who are indifferent or disloyal
to the principles of our institutions, but who are typical Americans,
decent, industrious, patriotic, law-abiding. It is true that the
individuals whom the Government hunts down by its spies, its arrests,
its prosecutions, are men who make a business of breaking the
Prohibition law, and most of whom would probably just as readily break
other laws if money was to be made by it. But none the less the real
struggle is not with the thousands who furnish liquor but with the
hundreds of thousands, or millions, to whom they purvey it. Every time
we read of a spectacular raid or a sensational capture, we are really
reading of a war that is being waged by a vast multitude of good
normal American citizens against the enforcement of a law which they
regard as a gross invasion of their rights and a violation of the
first principles of American government. The state of things thus
arising was admirably and compactly characterized by Justice Clarke,
of the United States Supreme Court, in a single sentence of his recent
address before the Alumni of the New York University Law School, as
follows:
The Eighteenth Amendment required millions of men and women to
abruptly give up habits and customs of life which they thought not
immoral or wrong, but which, on the contrary, they believed to be
necessary to their reasonable comfort and happiness, and thereby,
as we all now see, respect not only for that law, but for all law,
has been put to an unprecedented and demoralizing strain in our
country, the end of which it is difficult to see.
Upon all this, however, as concerned with the conduct of the people at
large, perhaps enough has been said in previous chapters. What I wish
to dwell upon at this point is the conduct of those who, either in the
Government itself, or in the power behind the Government--the
Anti-Saloon League--are carrying on the enforcement of the Prohibition
law. They are not carrying it on in the way in which the enforcement
of other laws is carried on. In the case of a normal criminal law--and
it must always be remembered that the Volstead act is a criminal law,
just like the laws against burglary, or forgery, or arson--those who
are responsible for its enforcement regard themselves as
administrators of the law, neither more nor less. But the enforcement
of the Prohibition law is something quite different: it is not a work
of administration but of strategy; not a question of seeing that the
law is obeyed by everybody, but of carrying on a campaign against the
defiers of the law just as one would carry on a campaign against a
foreign enemy. The generals in charge of the campaign decide whether
they shall or shall not attack a particular body of the enemy; and
their decision is controlled by the same kind of calculation as that
made by the generals in a war of arms--a calculation of the chances of
victory. Where the enemy is too numerous, or too strongly entrenched,
or too widely scattered, they leave him alone; where they can drive
him into a corner and capture him, they attack. To realize how
thoroughly this policy is recognized as a simple fact, one can hardly
do better than quote these perfectly naive and sincere remarks in an
editorial entitled "Government Bootlegging," in the New York Tribune,
a paper that has never been unfriendly to the Eighteenth Amendment:
That American ships had wine lists was no news to the astute Wayne B.
Wheeler, generalissimo of the Prohibition forces. He was fully
informed before Mr. Gallivan spoke, and by silence gave consent to
them. He was complaisant, it may be assumed, because he did not wish
to furnish another argument to those who would repeal or modify the
Volstead act. He has made no fuss over home brew and has allowed
ruralists to make cider of high alcoholic voltage. He saw it would be
difficult, if not impossible, to stop home manufacture and did not
wish to swell the number of anti-Volsteaders. He was looking to
securing results rather than to being gloriously but futilely
consistent. Similarly the practical Mr. Wheeler foresaw that if
American ships were bone-dry the bibulous would book on foreign ships
and the total consumption of beverages would not be materially
diminished. For a barren victory he did not care to have Volsteadism
carry the blame of driving American passenger ships from the sea.
Prohibitionists who have not put their brains in storage may judge
whether or not his tactics are good and contribute to the end he
seeks.
Now from the standpoint of pure calculation directed to the attainment
of a strategic end, in a warfare between the power of a Government and
the forces of a very large proportion of the population over which it
holds sway, the Tribune may be entirely right. But what is left of the
idea of respect for law? With what effectiveness can either President
Angell or President Harding appeal to that sentiment when it is openly
admitted that the Government not only deliberately overlooks
violations of the law by millions of private individuals, but actually
directs that the law shall be violated on its own ships, for fear that
the commercial loss entailed by doing otherwise would further excite
popular resentment against the law? It has only to be added that since
the date of that editorial (June 18, 1922) the Anti-Saloon League has
come out strongly against the selling of liquor on Governmentowned
ships--a change which only emphasizes the point I am making. For, in
spite of the Tribune's shrewd observations, it soon became clear that
the Volstead act was being so terribly discredited by the preposterous
spectacle of the Government selling liquor on its own ships that
something had to be done about it; and it was only under the pressure
of this situation that a new line of strategy was adopted by the
Anti-Saloon League. What it will do if it finds that it cannot put
through its plan of excluding liquor from all ships, American and
foreign, remains to be seen. Now it may be replied to all this that a
certain amount of laxity is to be found in the execution of all laws;
that the resources at the disposal of government not being sufficient
to secure the hunting down and punishment of all offenders, our
executive and prosecuting officers and police and courts apply their
powers in such directions and in such ways as to accomplish the
nearest approach possible to a complete enforcement of the law. But
the reply is worthless. Because the enforcement of all laws is in some
degree imperfect, it does not follow that there is no disgrace and no
mischief in the spectacle of a law enforced with spectacular vigor,
and even violence, in a thousand cases where such enforcement cannot
be successfully resisted, and deliberately treated as a dead letter in
a hundred thousand cases where its enforcement would show how
widespread and intense is the people's disapproval of the law. There
are many instances in which a law has become a dead letter; where this
is generally recognized no appreciable harm is done, since universal
custom operates as a virtual repeal. But here is a case of a law
enforced with militant energy where it suits the officers of the
Government to enforce it, systematically ignored in millions of cases
by the same officers because it suits them to do that, and cynically
violated by the direct orders of the Government itself when this
course seems recommended by a cold-blooded calculation of policy ! If
the laws against larceny, or arson, or burglary, or murder, were
executed in this fashion, what standing would the law have in
anybody's mind? Yet in the case of these crimes, the law only makes
effective the moral code which substantially the whole of the
community respects as a fundamental part of its ethical creed; and
accordingly even if the law were administered in any such outrageous
fashion as is the case with Prohibition, it would still retain in
large measure its moral authority.
But in the case of the Prohibition law, an enormous minority, and very
possibly a majority, of the people regard the thing it forbids as
perfectly innocent and, within proper limits, eminently desirable; the
only moral sanction that it has in their minds is that of its being on
the statute books. What can that moral sanction possibly amount to
when the administration of the law itself furnishes the most notorious
of all examples of disrespect for its commands? There is another
aspect of the enforcement of the law which invites comment, but upon
which I shall say only a few words. I refer to the many invasions of
privacy, unwarranted searches, etc., that have taken place in the
execution of the law. I f this went on upon a much larger scale than
has actually been the case, it would justly be the occasion for
perhaps the most severe of all the indictments against the Volstead
act; for it would mean that Americans are being habituated to
indifference in regard to the violation of one of their most ancient
and most essential rights.
But in fact the danger of public resentment over such a course has
been the chief cause of the sagacious strategy which has characterized
the policy of the Government; or perhaps one should rather say, the
Anti-Saloon League, for it is the League, and not the Government, that
is the predominant partner in this matter. For the present, the League
has been "lying low" in the matter of search and seizure; but if it
should ever feel strong enough to undertake the suppression of home
brew, there is not the faintest question but that it will press
forward the most stringent conceivable measures of search and seizure.
Accordingly, there opens up before the eyes of the American people
this pleasing prospect: If the present struggle of the League (or the
Government) with bootleggers and moonshiners and smugglers is brought
to a successful conclusion, there will naturally be a greater resort
than ever to home manufacture; and equally naturally, it will then be
necessary for the League (or the Government) to undertake to stamp out
that practice. But obviously this cannot be done without inaugurating
a sweeping and determined policy of search and seizure in private
houses; a beautiful prospect for "the land of the free," for the
inheritors of the English tradition of individual liberty and of the
American spirit of '76--sight for gods and men to weep over or laugh
at!
CHAPTER VII
NATURE OF THE PROHIBITIONIST TYRANNY
THAT there are some things which, however good they may be in
themselves, the majority has no right to impose upon the minority, is
a doctrine that was, I think I may say, universally understood among
thinking Americans of all former generations. It was often forgotten
by the unthinking; but those who felt themselves called upon to be
serious instructors of public opinion were always to be counted on to
assert it, in the face of any popular clamor or aberration. The most
deplorable feature, to my mind, of the whole story of the Prohibition
amendment, was the failure of our journalists and leaders of opinion,
with a few notable exceptions, to perform this duty which so
peculiarly devolves upon them. Lest any reader should imagine that
this doctrine of the proper limits of majority power is something
peculiar to certain political theorists, I will quote just one
authority --where I might quote scores as well--to which it is
impossible to apply any such characterization. It ought, of course, to
be unnecessary to quote any authority, since the Constitution itself
contains the clearest possible embodiment of that doctrine. In the
excellent little book of half a century ago referred to in a previous
chapter, Nordhoff's "Politics for Young Americans," the chapter
entitled "Of Political Constitutions" opens as follows:
A political Constitution is the instrument or compact in which the
rights of the people who adopt it, and the powers and
responsibilities of their rulers, are described, and by which they
are fixed. The chief object of a constitution is to limit the power
of majorities. A moment's reflection will tell you that mere
majority rule, unlimited, would be the most grinding of tyrannies;
the minority at any time would be mere slaves, whose rights to
life, property and comfort no one who chose to join the majority
would be bound to respect.
All this is stated, and the central point put in italics, by Mr.
Nordhoff, as matter that must be impressed upon young people just
beginning to think about public questions, and not at all as matter of
controversy or doubt. The last sentence, to be sure, requires
amplification; Mr. Nordhoff certainly did not intend his young readers
to infer that such tyranny as he describes is either sure to occur in
the absence of a Constitution or sure to be prevented by it. The
primary defense against it is in the people's own recognition of the
proper limits of majority power; what Mr. Nordhoff wished to impress
upon his readers is the part played by a Constitution in fixing that
recognition in a strong and enduring form. The quotation I have in
mind, however, from one of the highest of legal authorities, has no
reference to the United States Constitution or to any Constitution. It
deals with the essential principles of law and of government. It is
from a book by the late James C. Carter, who was beyond challenge the
leader of the bar of New York, and was also one of the foremost
leaders in movements for civic improvement. The book bears the title
"Law: its Origin, Growth and Function," and consists of a course of
lectures prepared for delivery to the law school of Harvard University
seventeen years ago; which, it is to be noted, was before the movement
for National Prohibition had got under way. Mr. Carter was not arguing
for any specific object, but was impressing upon the young men general
truths that had the sanction of ages of experience, and were the
embodiment of the wisest thought of generations. Let us hear a few of
these truths as he laid them down:
Nothing is more attractive to the benevolent vanity of men than the
notion that they can effect great improvement in society by the
simple process of forbidding all wrong conduct, or conduct which
they think is wrong, by law, and of enjoining all good conduct by
the same means. (p. 221 )
The principal danger lies in the attempt often made to convert into
crimes acts regarded by large numbers, perhaps a majority, as
innocent --that is to practise what is, in fact, tyranny. While all
are ready to agree that tyranny is a very mischievous thing, there
is not a right understanding equally general of what tyranny is.
Some think that tyranny is a fault only of despots, and cannot be
committed under a republican form of government; they think that
the maxim that the majority must govern justifies the majority in
governing as it pleases, and requires the minority to acquiesce
with cheerfulness in legislation of any character, as if what is
called self-government were a scheme by which different parts of
the community may alternately enjoy the privilege of tyrannizing
over each other. (p. 246)
Speaking in particular of the evil effects of that particular "species
of criminal legislation to which sumptuary laws belong," Mr. Carter,
after dwelling upon the subject in detail, says:
An especially pernicious effect is that society becomes divided
between the friends and the foes of repressive laws, and the
opposing parties become animated with hostility which prevents
united action for purposes considered beneficial by both. Perhaps.
the worst of all is that the general regard and reverence for law
are impaired, a consequence the mischief of which can scarcely be
estimated (p. 247).
To prevent consequences like these, springing as they do from the most
deep-seated qualities of human nature, by pious exhortations is a
hopeless undertaking. But if it be so in general--if the consequences
of majority tyranny in the shape of repressive laws governing personal
habits could be predicted so clearly upon general principles--how
vastly more certain and more serious must these consequences be when
such a law is fastened upon the people by means that would be
abhorrent even in the case of any ordinary law! The people who object
to Prohibition are exultantly told by their masters that it is idle
for them to think of throwing off their chains; that the law is
riveted upon them by the Constitution, and the possibility of repeal
is too remote for practical consideration. Thus the one thought that
might mitigate resentment and discountenance resistance, the thought
that freedom might be regained by repeal, is set aside; and the result
is what we have been witnessing. On this phase of the subject,
however, enough has been said in a previous chapter. What I wish to
point out at present is some peculiarities of National Prohibition
which make it a more than ordinarily odious example of majority
tyranny. National Prohibition in the United States --granting, for the
sake of argument, that it expresses the will of a majority--is not a
case merely of a greater number of people forcing their standards of
life upon a smaller number, in a matter in which such coercion by a
majority is in its nature tyrannical. The population of the United
States is, in more than one respect, composed of parts extremely
diverse as regards the particular subject of this legislation. The
question of drink has a totally different aspect in the South from
what it has in the North; a totally different aspect in the cities
from what it has in the rural districts or in small towns; to say
nothing of other differences which, though important, are of less
moment. How profoundly the whole course of the Prohibition movement
has been affected by the desire of the South to keep liquor away from
the negroes, needs no elaboration; it would not be going far beyond
the truth to say that the people of New York are being deprived of
their right to the harmless enjoyment of wine and beer in order that
the negroes of Alabama and Texas may not get beastly drunk on rotgut
whiskey. If the South had stuck to its own business and to its
traditional principle of State autonomy--a principle which the South
invokes as ardently as ever when it comes to any other phase of the
negro question--there would never have been a Prohibition Amendment to
the Constitution of the United States; and at the same time the South
would have found it perfectly possible to deal effectively with its
own drink problem by energetic execution of its own laws, made
possible by its own public opinion.
Nor is the case essentially different as regards the West; the very
people who are loudest in their shouting for the Eighteenth Amendment
are also most emphatic in their praises of what Kansas accomplished by
enforcing her own Prohibition law. Thus the Prohibitionist tyranny is
in no small measure a sectional tyranny, which is of course an
aggravated form of majority tyranny. But what needs insisting on even
more than this is the way in which the country districts impose their
notions about Prohibition upon the people of the cities, and
especially of the great cities. When attention is called to the
wholesale disregard of the law, contempt for the law, and hostility to
the law which is so manifest in the big cities, the champions of
Prohibition in the press--including the New York press--never tire of
saying that it is only in New York and a few other great cities that
this state of things exists. But everybody knows that the condition
exists not only in "a few," but in practically all, of our big cities;
and for that matter that it exists in a large proportion of all the
cities of the country, big and little. But if we confine ourselves
only to the 34 cities having a population of 200,000 or more, we have
here an aggregate population of almost exactly 25,000,000--nearly
one-fourth of the entire population of the country. Is it a trifling
matter that these great communities, this vast population of
large-city dwellers, should have their mode of life controlled by a
majority rolled up by the vote of people whose conditions, whose
advantages and disadvantages, whose opportunities and mode of life,
and consequently whose desires and needs, are of a wholly different
nature? Could the tyranny of the majority take a more obnoxious form
than that of sparse rural populations, scattered over the whole area
of the country from Maine to Texas and from Georgia to Oregon,
deciding for the crowded millions of New York and Chicago that they
shall or shall not be permitted to drink a glass of beer? Nor is it
only the obvious tyranny of such a regime that makes it so
unjustifiable. There are some special features in the case which
accentuate its unreasonableness and unfairness. In the American
village and small town, the use of alcoholic drinks presents almost no
good aspect. The countryman sees nothing but the vile and sordid side
of it. The village grogshop, the bar of the smalltown hotel, in
America has presented little but the gross and degrading aspect of
drinking. Prohibition has meant, to the average farmer, the abolition
of the village groggery and the small-town barroom. That it plays a
very different part in the lives of millions of city people--and for
that matter that it does so in the lives of millions of industrial
workers in smaller communities--is a notion that never enters the
farmer's mind. And to this must be added the circumstance that the
farmer can easily make his own cider and other alcoholic drinks, and
feels quite sure that Prohibition will never seriously interfere with
his doing so. Altogether, we have here a case of one element of the
population decreeing the mode of life of another element of whose
circumstances and desires they have no understanding, and who are
affected by the decree in a wholly different way from that in which
they themselves are affected by it. Many other points might be made,
further to emphasize the monstrosity of the Prohibition that has been
imposed upon our country. Of these perhaps the most important one is
the way in which the law operates so as to be effective against the
poor, and comparatively impotent against the rich. But this and other
points have been so abundantly brought before the public in connection
with the news of the day that it seemed hardly necessary to dwell upon
them. My object has been rather to direct attention to a few broad
considerations, less generally thought of. The objection that applies
to sumptuary laws in general has tenfold force in the case of National
Prohibition riveted down by the Constitution, and imposed upon the
whole nation by particular sections and by particular elements of the
population. A question of profound interest in connection with this
aspect of Prohibition demands a few words of discussion. It has been
asserted with great confidence, and denied with equal positiveness,
that Prohibition has had the effect of very greatly increasing the
addiction to narcotic drugs. I confess my inability to decide, from
any data that have come to my attention, which of these contradictory
assertions is true. But it is not denied by anybody, I believe, that,
whether Prohibition has anything to do with the case or not, the use
of narcotic drugs in this country is several times greater per capita
than it is in any of the countries of Europe--six or seven times as
great as in most. Why this should be so, it is perhaps not easy to
determine. The causes may be many. But I submit that it is at least
highly probable that one very great cause of this extraordinary and
deplorable state of things is the atmosphere of reprobation which in
America has so long surrounded the practice of moderate drinking. Any
resort whatever to alcoholic drinks being held by so large a
proportion of the persons who are most influential in religious and
educational circles to be sinful and incompatible with the best
character, it is almost inevitable that, in thousands of cases,
desires and needs which would find their natural satisfaction in
temperate and social drinking are turned into the secret and
infinitely more unwholesome channel of drug addiction. How much of the
extraordinary extent of this evil in America may be due to this cause,
I shall of course not venture to estimate; but that it is a large part
of the explanation, I feel fairly certain. And my belief that it is so
is greatly strengthened by the familiar fact that in the countries in
which wine is cheap and abundant, and is freely used by all the
people, drunkenness is very rare in comparison with other countries.
As easy and familiar recourse to wine prevents resort to stronger
drinks, so it seems highly probable that the practice of temperate
drinking would in thousands of cases obviate the craving for drugs.
But when all drinking, temperate and intemperate, is alike put under
the ban, the temptation to secret indulgence in drugs gets a foothold;
and that temptation once yielded to, the downward path is swiftly
trodden. Finally, there is a broad view of the whole subject of the
relation of Prohibition to life, which these last reflections may
serve to suggest. When a given evil in human life presents itself to
our consideration, it is a natural and a praiseworthy impulse to seek
to effect its removal. To that impulse is owing the long train of
beneficent reforms which form so gratifying a feature of the story of
the past century and more. But that story would have been very
different if the reformer had in every instance undertaken to
extirpate whatever he found wrong or noxious. To strike with crusading
frenzy at what you have worked yourself up into believing is wholly an
accursed thing is a tempting short cut, but is fraught with the
possibility of all manner of harm. In the case of Prohibition, I have
endeavored to point out several of the forms of harm which it carries
with it. But in addition to those that can so plainly be pointed out,
there is a broader if less definite one.
When we have choked off a particular avenue of satisfaction to a
widespread human desire; when, foiled perhaps in one direction, we
attack with equal fury the possibility of escape in another and
another; who shall assure us that, debarred of satisfaction in old and
tried ways, the same desires will not find vent in far more injurious
indulgences ? How different if, instead of crude and wholesale
compulsion, resort were had--as it had been had before the
Prohibitionist mania swept us off our feet--to well-considered
measures of regulation and restriction, and to the legitimate
influences of persuasion and example! The process is slower, to be
sure, but it had accomplished wonderful improvement in our own time
and before; what it gained was solid gain; and it did not invite
either the resentment, the lawlessness, or the other evils which
despotic prohibition of innocent pleasure carries in its train.
CHAPTER VIII
ONE-HALF OF ONE PER CENT.
THE Eighteenth Amendment forbids "the manufacture, sale or
transportation of intoxicating liquors within, the importation thereof
into, or the exportation thereof from the United States and all
territory subject to the jurisdiction thereof for beverage purposes."
The Volstead act declares that the phrase "intoxicating liquor," as
used in the act, "shall be construed to include 'all liquors'
containing one-half of one percentum or more of alcohol by volume
which are fit for use for beverage purposes."
Since everybody knows that a drink containing one-half of one per
cent. of alcohol is not in fact an intoxicating drink, a vast amount
of indignation has been aroused, among opponents of National
Prohibition, by this stretching of the letter of the Amendment. I have
to confess that r cannot get excited over this particular phase of the
Volstead legislation. There is, to be sure, something offensive about
persons who profess to be peculiarly the exponents of high morality
being willing to attain a practical end by inserting in a law a
definition which declares a thing to be what in fact it is not; but
the offense is rather one of form than of really important substance.
The Supreme Court has decided that Congress did not exceed its powers
in making this definition of "intoxicating liquor"; and, while this
does not absolve the makers of the law of the offense against strict
truthfulness, it may rightly be regarded as evidence that the
transgression was not of the sort that constituted a substantial
usurpation--the assumption by Congress of a power lying beyond the
limits of the grant conferred upon it by the Eighteenth Amendment. If
Congress chooses to declare one-half of one per cent. as its notion of
the kind of liquor beyond which there would occur a transgression of
the Eighteenth Article of the Amendments to the Constitution, says the
Supreme Court in effect, it may do so in the exercise of the power
granted to it "to enforce this Article by appropriate legislation."
Not a little effort has been expended by lawyers and
legislators--State and national --upon the idea of bringing about a
raising of the permitted percentage to 2.75. That figure appears to
represent quite accurately the point at which, as a matter of fact, an
alcoholic liquor becomes--in any real and practical sense--in the
slightest degree intoxicating. But, except for the purpose of making
something like a breach in the outer wall of the great Prohibition
fortress--the purpose of showing that the control of the
Prohibitionist forces over Congress or a State Legislature is not
absolutely unlimited--this game is not worth the candle.
To fight hard and long merely to get a concession like this, which is
in substance no concession--to get permission to drink beer that is
not beer and wine that is not wine--is surely not an undertaking worth
the expenditure of any great amount of civic energy. A source of
comfort was, however, furnished to advocates of a liberalizing of the
Prohibition regime by the very fact that the Supreme Court did
sanction so manifest a stretching of the meaning of words as is
involved in a law which declares any beverage containing as much as
one-half of one per cent. of alcohol to be an "intoxicating liquor."
If a liquor that is not intoxicating can by Congressional definition
be made intoxicating, it was pointed out, then by the same token a
liquor that is intoxicating can by Congressional definition be made
non-intoxicating. Accordingly, it has been held by many, if Congress
were to substitute ten per cent., say, for one-half of one per cent.,
in the Volstead act, by which means beer and light wines would be
legitimated, the Supreme Court would uphold the law and a great relief
from the present oppressive conditions would by this very simple means
be accomplished. What the Supreme Court would actually say of such a
law I am far from bold enough to attempt to say. That the law would
not be an execution of the intent of the Eighteenth Amendment is plain
enough; and it would be a much more substantial transgression against
its purpose than is the one-half of one per cent. enactment.
Nevertheless it is quite possible that the Supreme Court would decide
that this deviation to the right of the zero mark is as much within
the discretion of Congress as was the Volstead deviation to the left.
Certainly the possibility at least exists that this would be so. But
whether this be so or not, it is quite plain that Congress, if it
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
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 put by the Eighteenth Amendment, the proposal of a
wine-and-beer law to displace the Volstead law deserves the support of
good citizens as a practical measure which would effect a great
improvement on the present state of things.
CHAPTER IX
PROHIBITION AND LIBERTY
Liberty is not to-day the watchword that it was a hundred years ago, or
fifty years ago, or thirty years ago. Though there may be much doubt as
to the causes of the change, it must be admitted as a fact that the
feeling that liberty is in itself one of the prime objects of human
desire, a precious thing to be struggled for when denied and to be
jealously defended when possessed, has not so strong a hold on men's
minds at this time as it had in former generations.
Some of the chief reasons for this change are not, however, far to
seek. In the tremendous movement, political and economic, that has
marked the past hundred years, three ideas have been
dominant--democracy, efficiency, humanitarianism. None of these three
ideas is inherently bound up with the idea of liberty; and indeed each
one of the three contains the seed of marked hostility to the idea of
liberty. This is more true, and more obviously true, of efficiency and
of humanitarianism than it is of democracy; but it is true in no small
measure of democracy also. For people intent upon the idea that
government must be democratic that is, must reflect the will of the
majority naturally concentrate upon the effort to organize the majority
and increase its power; a process which throws into the shade regard
for individual rights and liberties, and even tends to put them
somewhat in the light of obstacles to the great aim. Furthermore, the
democratic movement has set for itself objects beyond the sphere of
government; and in the domain of economic control, democracy if that is
the right word for it must strive for collective power, as
distinguished from individual liberty, even more intently than in the
field of government.
However, in the case of democracy, there is at least no _inherent
opposition_ to liberty; such opposition as develops out of it may be
regarded as comparatively accidental. Not so with efficiency or
humanitarianism. Even here, however, I feel that a word of warning is
necessary. I am not speaking of the highest and truest efficiency, or
of the most far-sighted and most beneficent humanitarianism. I am
speaking of efficiency as understood in the common use of the term as a
label; and I am speaking of humanitarianism as represented by the
attitude and the mental temper of nearly all of the excellent men and
women who actually represent that cause and who devote their lives to
the problems of social betterment.
To the efficiency expert and to his multitude of followers, the
immediate increase of productivity is so absorbing an object that if it
has been attained by a particular course of action, the question
whether its attainment has involved a sacrifice of liberty seems to his
mind absolutely trivial. Of course this would not be so if the
sacrifice were of a startling nature; but short of something palpably
galling, something grossly offensive to the primary instincts of
freemen, he simply doesn't understand how any person of sense can
pretend to be concerned about it, in the face of demonstrated success
from the efficiency standpoint.
What is true of the apostle of efficiency, and his followers, is even
more emphatically true of the humanitarian. And, difficult as many
people find it to stand out against the position of the efficiency
advocate, it is far more difficult to dissent from that of the devotee
of humanitarianism. In the case of the first, one has to brace up one's
intellect to resist a plausible and enticing doctrine; in the case of
the second, one must, in a sense, harden one's heart as well as stiffen
one's mind. For here one has to deal not with a mere calculation of a
general increase of prosperity or comfort, but with the direct
extirpation of vice and misery which no decent person can contemplate
without keen distress. If the humanitarian finds the principle of
liberty thrust in the way of his task of healing and rescue, he will
repel with scorn the idea that any such abstraction should be permitted
to impede his work of salvation; and especially if the idea of liberty
has, through other causes, suffered a decline from its once high
authority he will find multitudes ready to share his indignation. And
he will find still greater multitudes who do not share his indignation,
and in their hearts feel much misgiving over the invasion of liberty,
but who are without the firmness of conviction, or without the moral
courage, necessary to the assertion of principle when such assertion
brings with it the danger of social opprobrium. The leaders in
humanitarian reforms, and their most active followers, are, as a rule,
men and women of high moral nature, and whether wise or unwise,
broad-minded or narrow and fanatical, are justly credited with being
actuated by a good motive; unfortunately, however, these attributes
rarely prevent them from making reckless statements as to the facts of
the matter with which they are dealing, nor from indulging in
calumnious abuse of those who oppose them. Hence thousands of persons
really averse to their programme give tacit or lukewarm assent to it
rather than incur the odium which outspoken opposition would invite;
and accordingly, true though it is that the idea of liberty is not
cherished so ardently or so universally as in a former day, the decline
into which it has fallen in men's hearts and minds is by no means so
great as surface indications make it seem. On the one hand, the
efficiency people and the professional humanitarians are, like all
reformers and agitators, abnormally vocal; and on the other hand the
lovers of the old-fashioned principle of liberty are abnormally silent,
so far as any public manifestation is concerned.
In the foregoing I have admitted, I think, as great a decline in the
current prestige of the idea of liberty as would be claimed by the most
enthusiastic efficiency man or the most ardent humanitarian. I now wish
to insist upon the other side of the matter. Persons who are always
ready to be carried away with the current--and their name is
legion--constantly make the mistake of imagining that the latest thing
is the last. They are the first to throw aside old and venerable
notions as outworn; they look with condescending pity upon those who
are so dull as not to recognize the infinite potency of change; and
yet, curiously enough, they never think of the possibility of a change
which may reverse the current of to-day just as the current of to-day
has reversed that of yesterday. The tree of liberty is less flourishing
to-day than it was fifty or a hundred years ago; its leaves are not so
green, and it is not so much the object of universal admiration and
affection. But its roots are deep down in the soil; and it supplies a
need of mankind too fundamental, feeds an aspiration too closely linked
with all that elevates and enriches human nature, to permit of its
being permanently neglected or allowed to fall into decay.
And even at this very time, as I have indicated above, the mass of the
people and I mean great as well as small, cultured and wealthy as well
as ignorant and poor retain their instinctive attachment to the idea of
liberty. It is chiefly in a small, but extremely prominent and
influential, body of over-sophisticated people--specialists of one kind
or another--that the principle of liberty has fallen into the disrepute
to which I have referred. The prime reason why the Prohibition law is
so light-heartedly violated by all sorts and conditions of men, why it
is held in contempt by hundreds of thousands of our best and most
respected citizens, is that the law is a gross outrage upon personal
liberty. Many, indeed, would commit the violation as a mere matter of
self-indulgence; but it is absurd to suppose that this would be done,
as it is done, by thousands of persons of the highest type of character
and citizenship. These people are sustained by the consciousness that,
though their conduct may be open to criticism, it at least has the
justification of being a revolt against a law--a law unrepealable by
any ordinary process--that strikes at the foundations of liberty.
Defenders of Prohibition seek to do away with the objection to it as an
invasion of personal liberty by pointing out that all submission to
civil government is in the nature of a surrender of personal liberty.
This is true enough, but only a shallow mind can be content with this
cheap and easy disposition of the question. To any one who stops to
think of the subject with some intelligence it must be evident that the
argument proves either too much or nothing at all. If it means that no
proposed restriction can properly be objected to as an invasion of
personal liberty, because all restrictions are on the same footing as
part of the order of society, it means what every man of sense would at
once declare to be preposterous; and if it does not mean that it leaves
the question at issue wholly untouched.
Submission to an orderly government does, of course, involve the
surrender of one's personal freedom in countless directions. But
speaking broadly, such surrender is exacted, under what are generally
known as "free institutions," only to the extent to which the right of
one man to do as he pleases has to be restricted in order to secure the
elementary rights of other men from violation, or to preserve
conditions that are essential to the general welfare. If A steals, he
steals from B; if he murders, he kills B; if he commits arson, he sets
fire to B's house. If a man makes a loud noise in the street, he
disturbs the quiet of hundreds of his fellow citizens, and may make
life quite unendurable to them. There are complexities into which I
cannot enter in such matters as Sunday closing and kindred regulations;
but upon examination it is easily enough seen that they fall in essence
under the same principle--the principle of restraint upon one
individual to prevent him from injuring not himself, but others.
A law punishing drunkenness, which is a public nuisance, comes under
the head I have been speaking of; a law forbidding a man to drink for
fear that he may become a drunkard does not. And in fact the
prohibitionists themselves instinctively recognize the difference, and
avoid, so far as they can, offending the sense of liberty by so direct
an attack upon it. It is safe to say that if the Eighteenth Amendment
had undertaken to make the _drinking_ of liquor a crime, instead of the
_manufacture and sale_ of it, it could not have been passed or come
anywhere near being passed. There is hardly a Senator or a
Representative that would not have recoiled from a proposal so palpably
offensive to the instinct of liberty. Yet precisely this is the real
object of the Eighteenth Amendment; its purpose and, if enforced, its
practical effect is to make it permanently a crime against the national
government for an American to drink a glass of beer or wine. The
legislators, State and national, who enacted it knew this perfectly
well; yet if the thing had been put into the Amendment in so many
words, hardly a man of them would have cast his vote for it. The
phenomenon is not so strange, or so novel, as it might seem; it has a
standard prototype in the history of Rome. The Roman people had a
rooted aversion and hostility to kings; and no Caesar would ever have
thought of calling himself _rex_. But _imperator_ went down quite
smoothly, and did just as well.
In addition to its being a regulation of individual conduct in a matter
which is in its nature the individual's own concern, Prohibition
differs in another essential respect from those restrictions upon
liberty which form a legitimate and necessary part of the operation of
civil government. To put a governmental ban upon all alcoholic drinks
is to forbid the _use_ of a thing in order to prevent its _abuse_. A Of
course there are fanatics who declare--and believe--that _all_
indulgence in alcoholic drink, however moderate, is abuse; but to
justify Prohibition on that ground would be to accept a doctrine even
more dangerous to liberty. It is bad enough to justify the proscription
of an innocent indulgence on the ground that there is danger of its
being carried beyond the point of innocence; but it is far worse to
forbid it on the ground that, however innocent and beneficial a
moderate indulgence may seem to millions of people, it is not regarded
as good for them by others. The only thing that lends dignity to the
Prohibition cause is the undeniable fact that drunkenness is the source
of a vast amount of evil and wretchedness; the position of those who
declare that all objections must be waived in the presence of this
paramount consideration is respectable, though in my judgment utterly
wrong. But any man who justifies Prohibition on the ground that
drinking is an evil, no matter how temperate, is either a man of narrow
and stupid mind or is utterly blind to the value of human liberty. The
ardent old-time Prohibitionist--the man who thinks, however mistakenly,
that the abolition of intoxicating drinks means the salvation of
mankind--counts the impairment of liberty as a small matter in
comparison with his world-saving reform; this is a position from which
one cannot withhold a certain measure of sympathy and respect. But to
justify the sacrifice of liberty on the ground that the man who is
deprived of it will be somewhat better off without it is to assume a
position that is at once contemptible and in the highest degree
dangerous. Contemptible, because it argues a total failure to
understand what liberty means to mankind; dangerous, because there is
no limit to the monstrosities of legislation which may flow from the
acceptance of such a view. Esau _sold_ his birthright to Jacob for a
mess of pottage which he wanted; these people would rob us of our
birthright and by way of compensation thrust upon us a mess of pottage
for which we have no desire.
Rejecting, then, the preposterous notion of extreme fanatics--whether
the fanatics of science or the fanatics of moral reform--we have in
Prohibition a restraint upon the liberty of the individual which is
designed not to protect the rights of other individuals or to serve the
manifest requirements of civil government, but to prevent the
individual from injuring himself by pursuing his own happiness in his
own way; the case being further aggravated by the circumstance that in
order to make this injury impossible he is denied even such access to
the forbidden thing as would not--except in a sense that it is absurd
to consider--be injurious. Now this may be benevolent despotism, but
despotism it is; and the people that accustoms itself to the acceptance
of such despotism, whether at the hands of a monarch, or an oligarchy,
or a democracy, has abandoned the cause of liberty. For there is hardly
any conceivable encroachment upon individual freedom which would be a
more flagrant offense against that principle than is one that makes an
iron-bound rule commanding a man to conform his personal habits to the
judgment of his rulers as to what is best for him. I do not mean to
assert that it necessarily follows that such encroachments will
actually come thick and fast on the heels of Prohibition. Any specific
proposal will, of course, be opposed by those who do not like it, and
may have a much harder time than Prohibition to acquire the following
necessary to bring about its adoption. But the resistance to it on
specific grounds will lack the strength which it would derive from a
profound respect for the general principle of liberty; whatever else
may be said against it, it will be impossible to make good the
objection that it sets an evil precedent of disregard for the claims of
that principle. The Eighteenth Amendment is so gross an instance of
such disregard that it can hardly be surpassed by anything that is at
all likely to be proposed. And if the establishment of that precedent
should fail actually to work so disastrous an injury to the cause of
liberty, we must thank the wide-spread and impressive resistance that
it has aroused. Had the people meekly bowed their heads to the yoke,
the Prohibition Amendment would furnish unfailing inspiration and
unstinted encouragement to every new attack upon personal liberty; as
it is, we may be permitted to hope that its injury to our future as a
free people will prove to be neither so profound nor so lasting as in
its nature it is calculated to be.
Before dismissing this subject it will be well to consider one favorite
argument of those who contend that Prohibition is no more obnoxious to
the charge of being a violation of personal liberty than are certain
other laws which are accepted as matters of course. A law prohibiting
narcotic drugs, they say, imposes a restraint upon personal liberty of
the same sort as does a law prohibiting alcoholic liquors. And it must
be admitted that there is some plausibility in the argument. The answer
to it is not so simple as that to the broader pleas which have been
discussed above. Yet the answer is not less conclusive. There is no
principle of human conduct that can be applied with undeviating rigor
to all cases; and indeed it is part of the price of the maintenance of
the principle that it shall be waived in extreme instances in which its
rigorous enforcement would shock the common instincts of mankind.
Illustrations of this can be found in almost every domain of human
action in the everyday life of each one of us, in the practice of the
professions, in the procedure of courts and juries, as well as in the
field of law-making. It is wrong to tell a lie, and there are a few
doctrinaire extremists who maintain that lying is not excusable under
any circumstances; but the common sense of mankind declares that it is
right for a man to lie in order to deceive a murderer who is seeking
his mother's life. Physicians almost unanimously profess, and honestly
profess, the principle that human life must be preserved as long as
possible, no matter how desperate the case may seem; yet I doubt
whether there is a single physician who does not mercifully refrain
from prolonging life by all possible means in cases of extreme and
hopeless agony. Murder is murder, and it is the sworn duty of juries to
find accordingly; yet the doctrine of the "unwritten law"--while
unquestionably far too often resorted to, and thus constituting a grave
defect in our administration of criminal justice--is in some extreme
cases properly invoked to prevent an outrage on the elementary
instincts of justice. In all these instances we have a principle
universally acknowledged and profoundly respected; and the waiver of it
in extreme cases, so far from weakening the principle, actually
strengthens it since if it absolutely never bent it would be sure to
break.
And so it is with the basic principles of legislation. To forbid the
use of narcotic drugs is a restraint of liberty of the same _kind_ as
to forbid the use of alcoholic liquors; but in _degree_ the two are
wide as the poles asunder. The use of narcotic drugs (except as
medicine) is so unmitigatedly harmful that there is perhaps hardly a
human being who contends that it is otherwise. People _crave_ it, but
they are ashamed of the craving. It plays no part in any acknowledged
form of human intercourse; it is connected with no joys or benefits
that normal human beings openly prize. A thing which is so wholly evil,
and which, moreover, so swiftly and insidiously renders powerless the
will of those who--perhaps by some accident--once begin to indulge in
it, stands outside the category alike of the ordinary objects of human
desire and the ordinary causes of human degradation. To make an
exception to the principle of liberty in such a case is to do just what
common sense dictates in scores of instances where the strict
application of a general principle to extreme cases would involve an
intolerable sacrifice of good in order to remove a mere superficial
appearance of wrong. To make the prohibition of narcotic drugs an
adequate reason for not objecting to the prohibition of alcoholic
drinks would be like calling upon physicians to throw into the scrap
heap their principle of the absolute sanctity of human life because
they do not apply that principle with literal rigor in cases where to
do so would be an act of inhuman and unmitigated cruelty.
CHAPTER X
PROHIBITION AND SOCIALISM
In the foregoing chapter I have said that while absorption in the idea
of democracy has had a tendency to impair devotion to the idea of
liberty, yet that in democracy itself there is no inherent opposition
to liberty. The danger to individual liberty in a democracy is of the
same nature as the danger to individual liberty in a monarchy or an
oligarchy; whether power be held by one man, or by a thousand, or by a
majority out of a hundred million, it is equally possible for the
governing power on the one hand to respect, or on the other hand to
ignore, the right of individuals to the free play of their individual
powers, the exercise of their individual predilections, the leading of
their individual lives according to their own notions of what is right
or desirable. A monarch of enlightened and liberal mind will respect
that right, and limit his encroachments upon it to the minimum
required for the essential objects of reasonable government; so, too,
will a democracy if it is of like temper and intelligence. But it is
not so with Socialism. Numerous as are the varieties of Socialism,
they all agree in being inherently antagonistic to individualism. It
may be pleaded, in criticism of this assertion, that all government is
opposed to individualism; that the difference in this respect between
Socialism and other forms of civil organization is only one of degree;
that we make a surrender of individuality, as well as of liberty, when
we consent to live in any organized form of society. It is not worth
while to dispute the point; the difference may, if one chooses, be
regarded as only a difference of degree. But when a difference of
degree goes to such a point that what is minor, incidental,
exceptional in the one case, is paramount, essential, pervasive in the
other, the difference is, for all the purposes of thinking, equivalent
to a difference of kind. Socialism is in its very essence opposed to
individualism. It makes the collective welfare not an incidental
concern of each man's daily life, but his primary concern. The
standard it sets up, the regulations it establishes, are not things
that a man must merely take account of as special restraints on his
freedom, exceptional limitations on the exercise of his individuality;
they constitute the basic conditions of his life. When the Socialist
movement was in its infancy in this country--though it had made great
headway in several of the leading countries of Europe--the customary
way of disposing of it was with a mere wave of the hand. Socialism can
never work; it is contrary to human nature--these simple assertions
were regarded by nearly all conservatives as sufficient to settle the
matter in the minds of all sensible persons That is now no longer so
much the fashion; yet I have no doubt that a very large proportion of
those who are opposed to Socialism are still content with this way of
disposing of it. But Socialism has steadily--though of course with
fluctuations --increased in strength, in America as well as in Europe,
for many decades; and it would be folly to imagine that mere
declarations of its being "impracticable," or "contrary to human
nature," will suffice to check it. Millions of men and women, here in
America--ranging in intellect all the way from the most cultured to
the most ignorant--are filled with an ardent faith that in Socialism,
and in nothing else, is to be found the remedy for all the great evils
under which mankind suffers; and there is no sign of slackening in the
growth of this faith. When the time comes for a real test of its
strength--when it shall have gathered such force as to be able to
throw down a real challenge to the conservative forces in the
political field--it is absurd to suppose that those who are inclined
to welcome it as the salvation of the world will be frightened off by
prophecies of failure. They will want to make the trial; and they will
make the trial, regardless of all prophecies of disaster, if the
people shall have come to believe that the object is a desirable
one--that Socialism is a form of life which they would like after they
got it. The one great bulwark against Socialism is the sentiment of
liberty. If we find nothing obnoxious in universal regimentation; if
we feel that life would have as much savor when all of us were told
off to our tasks, or at least circumscribed and supervised in our
activities, by a swarm of officials carrying out the benevolent edicts
of a paternal Government; if we hold as of no account the exercise of
individual choice and the development of individual potentialities
which are the very lifeblood of the existing order of society; if all
these things hold no value for us, then we shall gravitate to
Socialism as surely as a river will find its way to the sea.
Socialism--granted its practicability, and its practicability can
never be disproved except by trial, by long and repeated trial--holds
out the promise of great blessings to mankind. And some of these
blessings it is actually capable of furnishing, even if in the end it
should prove to be a failure. Above all it could completely abolish
poverty--that is, anything like abject poverty. The productive power
of mankind, thanks to the progress of science and invention, is now so
great that, even if Socialism were to bring about a very great decline
of productiveness--not, to be sure, such utter blasting of
productiveness as has been caused by the Bolshevik insanity--there
would yet be amply enough to supply, by equal distribution, the simple
needs of all the people. Besides the abolition of poverty, there would
be the extinction of many sinister forms of competitive greed and
dishonesty. To the eye of the thinking conservative, these
things-poverty, greed, dishonesty--while serious evils, are but the
blemishes in a great and wholesome scheme of human life; drawbacks
which go with the benefits of a system in which each man is free,
within certain necessary limits, to do his best or his worst; a price
such as, in this imperfect world, we have to pay for anything that is
worth having. But to the Socialist the matter presents itself in no
such light. He sees a mass of misery which he believes--and in large
measure justly believes--Socialism would put an end to; and he has no
patience with the conservative who points out--and justly points out--
that the poverty is being steadily, though gradually, overcome in the
advance of mankind under the existing order. "Away with it," he says;
"we cannot wait a hundred years for that which we have a right to
demand today." And "away with it" we ought all to say, if Socialism,
while doing away with it, would not be doing away with something else
of infinite value and infinite benefit to mankind, both material and
spiritual; something with which is bound up the richness and zest of
life, not only for what it is the fashion of radicals to call "the
privileged few," but for the great mass of mankind. That something is
liberty, and the individuality which is inseparably bound up with
liberty. The essence of Socialism is the suppression of individuality,
the exaltation of the collective will and the collective interest, the
submergence of the individual will and the individual interest. The
particular form--even the particular degree--of coercion by which this
submergence is brought about varies with the different types of
Socialism; but they all agree in the essential fact of the
submergence. Socialism may possibly be compatible with prosperity,
with contentment; it is not compatible with liberty, not compatible
with individuality. I am, of course, not undertaking here to discuss
the merits of Socialism; my purpose is only to point out that those
who are hostile to Socialism must cherish liberty. And it is vain to
cherish liberty in the abstract if you are doing your best to dry up
the very source of the love of liberty in the concrete workings of
every man's daily experience. With the plain man--indeed with men in
general, plain or otherwise--love of liberty, or of any elemental
concept, is strong only if it is instinctive; and it cannot be
instinctive if it is jarred every day by habitual and unresented
experience of its opposite. Prohibition is a restraint of liberty so
clearly unrelated to any primary need of the state, so palpably
bearing on the most personal aspect of a man's own conduct, that it is
impossible to acquiesce in it and retain a genuine and lively feeling
of abhorrence for any other threatened invasion of the domain of
liberty which can claim the justification of being intended for the
benefit of the poor or unfortunate. So long as Prohibition was a local
measure, so long even as it was a measure of State legislation, this
effect did not follow; or, if at all, only in a small degree. People
did not regard it as a dominant, and above all as a paramount and
inescapable, part of the national life. But decreed for the whole
nation, and imbedded permanently in the Constitution, it will have an
immeasurable effect in impairing that instinct of liberty which has
been the very heart of the American spirit; and with the loss of that
spirit will be lost the one great and enduring defense against
Socialism. It is not by the argumentation of economists, nor by the
calculations of statisticians, that the Socialist advance can be
halted. The real struggle will be a struggle not of the mind but of
the spirit; it will be Socialism and regimentation against
individualism and liberty. The cause of Prohibition has owed its rapid
success in no small measure to the support of great capitalists and
industrialists bent upon the absorbing object of productive
efficiency; but they have paid a price they little realize. For in the
attainment of this minor object, they have made a tremendous breach in
the greatest defense of the existing order of society against the
advancing enemy. To undermine the foundations of Liberty is to open
the way to Socialism.
CHAPTER XI
IS THERE ANY WAY OUT?
IN the second chapter of this book, I undertook to give an account of
the state of mind which the enactment of the Eighteenth Amendment has
created, and which is at the bottom of that contempt for the law whose
widespread prevalence among the best elements of our population is
acknowledged alike by prohibitionists and anti-prohibitionists.
"People feel in their hearts," I said, "that they are confronted with
no other choice but that of either submitting to the full rigor of
Prohibition, of trying to procure a law which nullifies the
Constitution, or of expressing their resentment against an outrage on
the first principles of the Constitution by contemptuous disregard of
the law." It is a deplorable choice of evils; a state of things which
it is hardly too much to call appalling in its potentialities of civic
demoralization.
And one who realizes the gravity of the injury that a long continuance
of this situation will inevitably inflict upon our institutions and
our national character must ask whether there is any practical
possibility of escape from it. The right means, and the only entirely
satisfactory means, of escape from it is through the undoing of the
error which brought it about--that is, through the repeal of the
Eighteenth Amendment. Towards that end many earnest and patriotic
citizens are working; but of course they realize the stupendous
difficulty of the task they have undertaken. As a rule, these men,
while working for the distant goal of repeal of the Amendment, are
seeking to substitute for the Volstead act a law which will permit the
manufacture and sale of beer and light wines; a plan which, as I have
elsewhere stated, while by no means free from grave objection--for it
is clearly not in keeping with the intent of the Eighteenth
Amendment--would, in my judgment, be an improvement on the present
state of things. But it is not pleasant to contemplate a situation in
which, to avoid something still worse, the national legislature is
driven to the deliberate enactment of a law that flies in the face of
a mandate of the Constitution. A possible plan exists, however, which
is not open to this objection, and yet the execution of which would
not present such terrific difficulty as would the proposal of a simple
repeal of the Eighteenth Amendment. That Amendment imbeds Prohibition
in the organic law of the country, and thus not only imposes it upon
the individual States regardless of what their desires may be, but
takes away from the nation itself the right to legislate upon the
subject by the ordinary processes of law-making. Now an Amendment
repealing the Eighteenth Amendment but at the same time conferring
upon Congress the power to make laws concerning the manufacture, sale
and transportation of intoxicating liquors, would make it possible for
Congress to pass a Volstead act, or a beer-and-wine act, or no Liquor
act at all, just as its own judgment or desire might dictate. It would
give the Federal Government a power which I think it would be far more
wholesome to reserve to the States; but it would get rid of the worst
part of the Eighteenth Amendment. And it would have, I think, an
incomparably more favorable reception, from the start, than would a
proposal of simple repeal. For the public could readily be brought to
see the reasonableness of giving the nation a chance, through its
representatives at Washington, to express its will on the subject from
time to time, and the unreasonableness of binding generation after
generation to helpless submission. The plea of majority rule is always
a taking one in this country; and it is rarely that that plea rests on
stronger ground than it would in this instance. The one strong
argument which might be urged against the proposal--namely that such a
provision would make Prohibition a constant issue in national
elections, while the actual incorporation of Prohibition in the
Constitution settles the matter once for all--has been deprived of all
its force by our actual experience. So far from settling the matter
once for all, the Eighteenth Amendment has been a frightful breeder of
unsettlement and contention, which bids fair to continue indefinitely.
I have offered this suggestion for what it may be worth as a practical
proposal; it seems certainly deserving of discussion, and I could not
refrain from putting it forward as a possible means of relief from an
intolerable situation. But I do not wish to wind up on that note. The
right solution--a solution incomparably better than this which I have
suggested on account of its apparently better chance of acceptance--is
the outright repeal of the Eighteenth Amendment. And moreover, the
primary need of this moment is not so much any practical proposal
likely to be quickly realized as the awakening of the public mind to
the fundamental issues of the case --the essential principles of law,
of government, and of individual life which are so flagrantly sinned
against by the Prohibition Amendment.
To the exposition of those fundamental issues this little book has
been almost exclusively confined. It has left untouched a score of
aspects of the question of drink, and of the prohibition of drink,
which it would have been interesting to discuss, and the discussion of
which would, I feel sure, have added to the strength of the argument I
have endeavored to present. But there is an advantage, too, in keeping
to the high points. It is not to a multiplicity of details that one
must trust in a case like this. What is needed above all is a clear
and wholehearted recognition of fundamentals. And I do not believe
that the American people have got so far away from their fundamentals
that such recognition will be denied when the case is clearly put
before them. There is one and only one thing that could justify such a
violation of liberty and of the cardinal principles of rational
government as is embodied in the Eighteenth Amendment. In the face of
desperate necessity, there may be justification for the most desperate
remedy.
But so far from this being a case of desperate necessity, nothing is
more unanimously acknowledged by all except those who labor under an
obsession, than that the evil of drink has been steadily diminishing.
Not only during the period of Prohibition agitation, but for many
decades before that, drunkenness had been rapidly declining, and both
temperate drinking and total abstinence correspondingly increasing. It
is unnecessary to appeal to statistics. The familiar experience of
every man whose memory runs back twenty, or forty, or sixty years, is
sufficient to put the case beyond question; and every species of
literary and historical record confirms the conclusion. This violent
assault upon liberty, this crude defiance of the most settled
principles of lawmaking and of government, this division of the
country--as it has been well expressed--into the hunters and the
hunted, this sowing of dragons' teeth in the shape of lawlessness and
contempt for law, has not been the dictate of imperious necessity, but
the indulgence of the crude desire of a highly organized but one-idead
minority to impose its standards of conduct upon all of the American
people. To shake off this tyranny is one of the worthiest objects to
which good Americans can devote themselves. To shake it off would mean
not only to regain what has been lost by this particular enactment,
but to forefend the infliction of similar outrages in the future. If
it is allowed to stand, there is no telling in what quarter the next
invasion of liberty will be made by fanatics possessed with the itch
for perfection. I am not thinking of tobacco, or anything of the kind;
twenty years from now, or fifty years from now, it may be religion, or
some other domain of life which at the present moment seems free from
the danger of attack. The time to call a halt is now; and the way to
call a halt is to win back the ground that has already been lost. To
do that will be a splendid victory for all that we used to think of as
American--for liberty, for individuality, for the freedom of each man
to conduct his own life in his own way so long as he does not violate
the rights of others, for the responsibility of each man for the evils
he brings upon himself by the abuse of that freedom. May the day be
not far distant when we shall once more be a nation of sturdy
freemen--not kept from mischief to ourselves by a paternal law
copper-fastened in the Constitution, not watched like children by a
host of guardians and spies and informers, but upstanding Americans
loyally obedient to the Constitution, because living under a
Constitution which a people of manly freemen can wholeheartedly
respect and cherish.
THE END
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