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diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..6833f05 --- /dev/null +++ b/.gitattributes @@ -0,0 +1,3 @@ +* text=auto +*.txt text +*.md text diff --git a/17417-h.zip b/17417-h.zip Binary files differnew file mode 100644 index 0000000..6912ea0 --- /dev/null +++ b/17417-h.zip diff --git a/17417-h/17417-h.htm b/17417-h/17417-h.htm new file mode 100644 index 0000000..2dceb34 --- /dev/null +++ b/17417-h/17417-h.htm @@ -0,0 +1,2277 @@ +<!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"> +<html> +<head> +<meta http-equiv="Content-Type" content="text/html; charset=ISO-8859-1"> +<title>The Project Gutenberg eBook of What Prohibition Has Done to America, by Fabian Franklin</title> +</head> +<body> +<h1>The Project Gutenberg eBook, What Prohibition Has Done to America, by +Fabian Franklin</h1> +<pre> +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 <a href = "http://www.gutenberg.org">www.gutenberg.org</a></pre> +<p>Title: What Prohibition Has Done to America</p> +<p>Author: Fabian Franklin</p> +<p>Posting Date: November 19, 2010 [eBook #17417]</p> +<p>Release Date: December 30, 2005</p> +<p>Language: English</p> +<p>Character set encoding: ISO-8859-1</p> +<p>***START OF THE PROJECT GUTENBERG EBOOK WHAT PROHIBITION HAS DONE TO AMERICA***</p> +<br><br><center><h3>This eBook was produced by J. Henry Phillips.</h3></center><br><br> +<P align="center"><BIG><BIG>What Prohibition Has Done to America</BIG></BIG></P> +<P align="center">by Fabian Franklin<BR> +Copyright 1922, Harcourt, Brace & Co., New York. </P> +<P align="center"><BIG><BIG>Table of Contents</BIG></BIG></P> +<P><BR> +</P> +<P>Chapter I - <A HREF="#chap01">Perverting the Constitution</A></P> +<P>Chapter II - <A HREF="#chap02">Creating a Nation of Lawbreakers</A></P> +<P>Chapter III - <A HREF="#chap03">Destroying Our Federal System</A></P> +<P>Chapter IV - <A HREF="#chap04">How the Amendment Was Put Through</A></P> +<P>Chapter V - <A HREF="#chap05">The Law Makers and the Law</A></P> +<P>Chapter VI - <A HREF="#chap06">The Law Enforcers and the Law</A></P> +<P>Chapter VII - <A HREF="#chap07">Nature of the Prohibitionist Tyranny</A></P> +<P>Chapter VIII - <A HREF="#chap08">One-Half of One Percent</A></P> +<P>Chapter IX - <A HREF="#chap09">Prohibition and Liberty</A></P> +<P>Chapter X - <A HREF="#chap10">Prohibition and Socialism</A></P> +<P>Chapter XI - <A HREF="#chap11">Is There Any Way Out?</A></P> +<P> </P> + +<A NAME="chap01"></A> +<P align="center"><BIG><STRONG>CHAPTER I </STRONG></BIG></P> +<P align="center"><BIG><STRONG>PERVERTING THE CONSTITUTION </STRONG></BIG></P> +<P>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.</P> +<P>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.</P> +<P>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.</P> +<P>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.</P> +<P>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.</P> +<P>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.</P> +<P>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.<BR> +<BR> +</P> +<A NAME="chap02"></A> +<P align="center"><BIG><STRONG>CHAPTER II </STRONG></BIG></P> +<P align="center"><BIG><STRONG>CREATING A NATION OF LAW- BREAKERS </STRONG></BIG></P> +<P>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:</P> +<P>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.</P> +<P>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.</P> +<P>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.</P> +<P>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.<BR> +<BR> +</P> +<A NAME="chap03"></A> +<P align="center"><STRONG><BIG>CHAPTER III </BIG></STRONG></P> +<P align="center"><STRONG><BIG>DESTROYING OUR FEDERAL SYSTEM </BIG></STRONG></P> +<P>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:</P> +<BLOCKQUOTE> +<P>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.</P> +</BLOCKQUOTE> +<P>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.<BR> +<BR> +</P> +<A NAME="chap04"></A> +<P align="center"><STRONG><BIG>CHAPTER IV </BIG></STRONG></P> +<P align="center"><STRONG><BIG>HOW THE AMENDMENT WAS PUT THROUGH </BIG></STRONG></P> +<P>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?</P> +<P>* 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.</P> +<P> <BR> +</P> +<A NAME="chap05"></A> +<P align="center"><BIG><STRONG>CHAPTER V </STRONG></BIG></P> +<P align="center"><BIG><STRONG>THE LAW MAKERS AND THE LAW </STRONG></BIG></P> +<P>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.<BR> +<BR> +</P> +<A NAME="chap06"></A> +<P align="center"><BIG><STRONG>CHAPTER VI </STRONG></BIG></P> +<P align="center"><BIG><STRONG>THE LAW ENFORCERS AND THE LAW </STRONG></BIG></P> +<P>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:</P> +<BLOCKQUOTE> +<P>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.</P> +</BLOCKQUOTE> +<P>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:</P> +<P>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.</P> +<P>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.</P> +<P>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.</P> +<P>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!<BR> +<BR> +</P> +<A NAME="chap07"></A> +<P align="center"><BIG><STRONG>CHAPTER VII </STRONG></BIG></P> +<P align="center"><BIG><STRONG>NATURE OF THE PROHIBITIONIST TYRANNY </STRONG></BIG></P> +<P>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:</P> +<BLOCKQUOTE> +<P>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.</P> +</BLOCKQUOTE> +<P>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:</P> +<BLOCKQUOTE> +<P>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 )</P> +<P>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)</P> +</BLOCKQUOTE> +<P>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:</P> +<BLOCKQUOTE> +<P>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).</P> +</BLOCKQUOTE> +<P>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.</P> +<P>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.</P> +<P>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.<BR> +<BR> +<BR> +</P> +<A NAME="chap08"></A> +<P align="center"><BIG><STRONG>CHAPTER VIII </STRONG></BIG></P> +<P align="center"><BIG><STRONG>ONE-HALF OF ONE PER CENT. </STRONG></BIG></P> +<P>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."</P> +<P>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.</P> +<P>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.</P> +<P>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.<BR> +<BR> +<BR> +</P> + +<A NAME="chap09"></A> +<P align="center"><BIG><STRONG>CHAPTER IX</STRONG></BIG></P> +<P align="center"><BIG><STRONG>PROHIBITION AND LIBERTY</STRONG></BIG></P> + +<P> +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. +</P> +<P> +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. +</P> +<P> +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. +</P> +<P> +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. +</P> +<P> +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. +<BR><BR> +</P> +<P> +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. +</P> +<P> +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. +</P> +<P> +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. +</P> +<P> +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. +</P> +<P> +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. +</P> +<P> +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. +</P> +<P> +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. +</P> +<P> +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. +</P> +<P> +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. +<BR><BR> +</P> + +<A NAME="chap10"></A> +<P align="center"><BIG><STRONG>CHAPTER X </STRONG></BIG></P> +<P align="center"><BIG><STRONG>PROHIBITION AND SOCIALISM </STRONG></BIG></P> +<P>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.<BR> +<BR> +<BR> +</P> +<A NAME="chap11"></A> +<P align="center"><STRONG><BIG>CHAPTER XI </BIG></STRONG></P> +<P align="center"><STRONG><BIG>IS THERE ANY WAY OUT? </BIG></STRONG></P> +<P>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.</P> +<P>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.</P> +<P>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.</P> +<P>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.</P> +<P>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.</P> +<P>THE END<BR> +</P> +<P><BR> +<BR> +</P> +<p>***END OF THE PROJECT GUTENBERG EBOOK WHAT PROHIBITION HAS DONE TO AMERICA***</p> +<p>******* This file should be named 17417-h.txt or 17417-h.zip *******</p> +<p>This and all associated files of various formats will be found in:<br> +<a href="http://www.gutenberg.org/dirs/1/7/4/1/17417">http://www.gutenberg.org/1/7/4/1/17417</a></p> +<p>Updated editions will replace the previous one--the old editions +will be renamed.</p> + +<p>Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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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 + + + +***END OF THE PROJECT GUTENBERG EBOOK WHAT PROHIBITION HAS DONE TO +AMERICA*** + + +******* This file should be named 17417.txt or 17417.zip ******* + + +This and all associated files of various formats will be found in: +http://www.gutenberg.org/dirs/1/7/4/1/17417 + + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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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 <a href = "http://www.gutenberg.org">www.gutenberg.org</a></pre> +<p>Title: What Prohibition Has Done to America</p> +<p>Author: Fabian Franklin</p> +<p>Release Date: December 30, 2005 [eBook #17417]</p> +<p>Language: English</p> +<p>Character set encoding: ISO-8859-1</p> +<p>***START OF THE PROJECT GUTENBERG EBOOK WHAT PROHIBITION HAS DONE TO AMERICA***</p> +<br><br><center><h3>This eBook was produced by J. Henry Phillips.</h3></center><br><br> +<P align="center"><BIG><BIG>What Prohibition Has Done to America</BIG></BIG></P> +<P align="center">by Fabian Franklin<BR> +Copyright 1922, Harcourt, Brace & Co., New York. </P> +<P align="center"><BIG><BIG>Table of Contents</BIG></BIG></P> +<P><BR> +</P> +<P>Chapter I - <A href="http://www.druglibrary.org/schaffer/History/e1920/fabian.htm">Perverting the Constitution</A></P> +<P>Chapter II - <A href="http://www.druglibrary.org/schaffer/History/e1920/fabian2.htm">Creating a Nation of Lawbreakers</A></P> +<P>Chapter III - <A href="http://www.druglibrary.org/schaffer/History/e1920/fabian3.htm">Destroying Our Federal System</A></P> +<P>Chapter IV -<A href="http://www.druglibrary.org/schaffer/History/e1920/fabian4.htm"> How the Amendment Was Put Through</A></P> +<P>Chapter V - <A href="http://www.druglibrary.org/schaffer/History/e1920/fabian5.htm">The Law Makers and the Law</A></P> +<P>Chapter VI - <A href="http://www.druglibrary.org/schaffer/History/e1920/fabian6.htm">The Law Enforcers and the Law</A></P> +<P>Chapter VII - <A href="http://www.druglibrary.org/schaffer/History/e1920/fabian7.htm">Nature of the Prohibitionist Tyranny</A></P> +<P>Chapter VIII - <A href="http://www.druglibrary.org/schaffer/History/e1920/fabian8.htm">One-Half of One Percent</A></P> +<P>Chapter IX - <A href="http://www.druglibrary.org/schaffer/History/e1920/fabian9.htm">Prohibition and Liberty</A></P> +<P>Chapter X - <A href="http://www.druglibrary.org/schaffer/History/e1920/fabian10.htm">Prohibition and Socialism</A></P> +<P>Chapter XI - <A href="http://www.druglibrary.org/schaffer/History/e1920/fabian11.htm">Is There Any Way Out?</A></P> +<P> </P> +<P align="center"><BIG><STRONG>CHAPTER I </STRONG></BIG></P> +<P align="center"><BIG><STRONG>PERVERTING THE CONSTITUTION </STRONG></BIG></P> +<P>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.</P> +<P>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.</P> +<P>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.</P> +<P>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.</P> +<P>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.</P> +<P>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.</P> +<P>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.<BR> +<BR> +</P> +<P align="center"><BIG><STRONG>CHAPTER II </STRONG></BIG></P> +<P align="center"><BIG><STRONG>CREATING A NATION OF LAW- BREAKERS </STRONG></BIG></P> +<P>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:</P> +<P>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.</P> +<P>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.</P> +<P>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.</P> +<P>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.<BR> +<BR> +</P> +<P align="center"><STRONG><BIG>CHAPTER III </BIG></STRONG></P> +<P align="center"><STRONG><BIG>DESTROYING OUR FEDERAL SYSTEM </BIG></STRONG></P> +<P>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:</P> +<BLOCKQUOTE> +<P>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.</P> +</BLOCKQUOTE> +<P>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.<BR> +<BR> +</P> +<P align="center"><STRONG><BIG>CHAPTER IV </BIG></STRONG></P> +<P align="center"><STRONG><BIG>HOW THE AMENDMENT WAS PUT THROUGH </BIG></STRONG></P> +<P>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?</P> +<P>* 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.</P> +<P> <BR> +</P> +<P align="center"><BIG><STRONG>CHAPTER V </STRONG></BIG></P> +<P align="center"><BIG><STRONG>THE LAW MAKERS AND THE LAW </STRONG></BIG></P> +<P>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.<BR> +<BR> +</P> +<P align="center"><BIG><STRONG>CHAPTER VI </STRONG></BIG></P> +<P align="center"><BIG><STRONG>THE LAW ENFORCERS AND THE LAW </STRONG></BIG></P> +<P>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:</P> +<BLOCKQUOTE> +<P>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.</P> +</BLOCKQUOTE> +<P>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:</P> +<P>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.</P> +<P>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.</P> +<P>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.</P> +<P>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!<BR> +<BR> +</P> +<P align="center"><BIG><STRONG>CHAPTER VII </STRONG></BIG></P> +<P align="center"><BIG><STRONG>NATURE OF THE PROHIBITIONIST TYRANNY </STRONG></BIG></P> +<P>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:</P> +<BLOCKQUOTE> +<P>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.</P> +</BLOCKQUOTE> +<P>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:</P> +<BLOCKQUOTE> +<P>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 )</P> +<P>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)</P> +</BLOCKQUOTE> +<P>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:</P> +<BLOCKQUOTE> +<P>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).</P> +</BLOCKQUOTE> +<P>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.</P> +<P>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.</P> +<P>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.<BR> +<BR> +<BR> +</P> +<P align="center"><BIG><STRONG>CHAPTER VIII </STRONG></BIG></P> +<P align="center"><BIG><STRONG>ONE-HALF OF ONE PER CENT. </STRONG></BIG></P> +<P>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."</P> +<P>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.</P> +<P>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.</P> +<P>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.<BR> +<BR> +<BR> +</P> +<P align="center"><BIG><STRONG>CHAPTER X </STRONG></BIG></P> +<P align="center"><BIG><STRONG>PROHIBITION AND SOCIALISM </STRONG></BIG></P> +<P>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.<BR> +<BR> +<BR> +</P> +<P align="center"><STRONG><BIG>CHAPTER XI </BIG></STRONG></P> +<P align="center"><STRONG><BIG>IS THERE ANY WAY OUT? </BIG></STRONG></P> +<P>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.</P> +<P>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.</P> +<P>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.</P> +<P>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.</P> +<P>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.</P> +<P>THE END<BR> +</P> +<P><BR> +<BR> +</P> +<p>***END OF THE PROJECT GUTENBERG EBOOK WHAT PROHIBITION HAS DONE TO AMERICA***</p> +<p>******* This file should be named 17417-h.txt or 17417-h.zip *******</p> +<p>This and all associated files of various formats will be found in:<br /> +<a href="http://www.gutenberg.org/dirs/1/7/4/1/17417">http://www.gutenberg.org/1/7/4/1/17417</a></p> +<p>Updated editions will replace the previous one--the old editions +will be renamed.</p> + +<p>Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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For +example an eBook of filename 10234 would be found at: + +http://www.gutenberg.org/dirs/1/0/2/3/10234 + +or filename 24689 would be found at: +http://www.gutenberg.org/dirs/2/4/6/8/24689 + +An alternative method of locating eBooks: +<a href="http://www.gutenberg.org/dirs/GUTINDEX.ALL">http://www.gutenberg.org/dirs/GUTINDEX.ALL</a> + +*** END: FULL LICENSE *** +</pre> +</body> +</html> diff --git a/old/20051230-17417-h.zip b/old/20051230-17417-h.zip Binary files differnew file mode 100644 index 0000000..3727b74 --- /dev/null +++ b/old/20051230-17417-h.zip diff --git a/old/20051230-17417.txt b/old/20051230-17417.txt new file mode 100644 index 0000000..ec0c531 --- /dev/null +++ b/old/20051230-17417.txt @@ -0,0 +1,2090 @@ +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 + + + +Release Date: December 30, 2005 [eBook #17417] + +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 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 + + + +***END OF THE PROJECT GUTENBERG EBOOK WHAT PROHIBITION HAS DONE TO +AMERICA*** + + +******* This file should be named 17417.txt or 17417.zip ******* + + +This and all associated files of various formats will be found in: +http://www.gutenberg.org/dirs/1/7/4/1/17417 + + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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