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+The Project Gutenberg eBook, What Prohibition Has Done to America, by
+Fabian Franklin
+
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+
+
+
+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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