What Prohibition Has Done to America Part 1

What Prohibition Has Done to America.

by Fabian Franklin.

CHAPTER I

PERVERTING THE CONSt.i.tUTION

THE object of a Const.i.tution 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 Const.i.tution 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 Const.i.tution, 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 Const.i.tution, 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 Const.i.tution 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 Const.i.tution was the dictate of the highest political wisdom; and it was only because of the manifest wisdom upon which it was based that the Const.i.tution, 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 Const.i.tution of the United States has been p.r.o.nounced by an ill.u.s.trious 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 superst.i.tion, 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 Const.i.tution 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 Const.i.tution 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 ent.i.ties, 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 Const.i.tution 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 a.s.sent; anti-prohibitionists maintain that this denial of personal liberty is of a vitally different nature from those to which we all a.s.sent. 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 Const.i.tution is to do precisely the opposite of what our Const.i.tution--or any Const.i.tution like ours--is designed to do. The Const.i.tution 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 Const.i.tution 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 Const.i.tutional 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 circ.u.mstance 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 Const.i.tutions, and this has made familiar and commonplace the idea of Prohibition as part of a Const.i.tution. But our State Const.i.tutions are not Const.i.tutions in anything like the same sense as that which attaches to the Const.i.tution of the United States. Most of our State Const.i.tutions 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 Const.i.tutions are full of a mult.i.tude of details which really belong in the ordinary domain of statute law; and n.o.body looks upon them as embodying that fundamental and organic law upon whose integrity and authority depends the life and safety of our inst.i.tutions. The Const.i.tution of the United States, on the other hand, is a true Const.i.tution--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 b.u.t.tress 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 Const.i.tution. 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 Const.i.tution. 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 Const.i.tution, 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 Const.i.tution 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 Const.i.tution. If the Const.i.tution is to command the kind of respect which shall make it the steadfast bulwark of our inst.i.tutions, 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 Const.i.tution, 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 cla.s.ses which represent culture, achievement, and wealth--the cla.s.ses among whom respect for law is usually regarded as constant and instinctive. That such disregard now prevails is an a.s.sertion 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 Const.i.tution 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 Const.i.tution 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 pa.s.s 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 Const.i.tution 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 Const.i.tution 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 a.s.sent 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 Const.i.tution, or of expressing their resentment against an outrage on the first principles of the Const.i.tution 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 Const.i.tution 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 inst.i.tutions. 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 Const.i.tution 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 Const.i.tution, the principle which alone justifies the idea of a Const.i.tution--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 inst.i.tutions, 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 Ma.s.sachusetts 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 const.i.tutes an absolute abandonment of that principle. This does not mean, of course, an immediate abandonment of the practice of State self-government; established inst.i.tutions have a tenacious life, and moreover there are a thousand practical advantages in State selfgovernment which n.o.body 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 ill.u.s.tration of this has, curiously enough, been furnished in the brief time that has pa.s.sed 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 n.o.body would listen to them.

They professed--and doubtless some of them sincerely professed--to find an essential difference between putting Woman Suffrage into the Const.i.tution and putting Prohibition into the Const.i.tution. 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 a.s.sertion 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 Const.i.tution 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 n.o.body 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 munic.i.p.alities 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 Const.i.tution a provision which is an offense against the underlying idea of any Const.i.tution, 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 Const.i.tutional 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 Const.i.tution 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 Const.i.tutional 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 const.i.tuents. 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 const.i.tuents; 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 succ.u.mbed 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 pa.s.s 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 const.i.tuents. 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 circ.u.mstances, 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 pa.s.sed. 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 pa.s.sage 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 Const.i.tutional 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 Const.i.tution--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, pa.s.sed 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 pa.s.sage 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 Const.i.tutional 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 pa.s.sing 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 Const.i.tution 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 Const.i.tutional 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 Const.i.tution: "The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Const.i.tution"

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 p.r.o.ne 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 Const.i.tution 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 circ.u.mstances. 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 pa.s.sage 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 const.i.tuents, 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 ent.i.tled to the same kind of respect as the general body of criminal law, it is necessary--even if he waives all those questions of Const.i.tutional 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 ma.s.s 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 circ.u.mstances? 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 pa.s.sed by Congress and the Legislatures, when the real att.i.tude 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 pa.s.sing forged checks? It happens that the receiving of stolen goods or the pa.s.sing 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 Const.i.tution 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 pa.s.ses 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 cla.s.ses, nor yet to the ranks of those who are indifferent or disloyal to the principles of our inst.i.tutions, 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 mult.i.tude 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 ent.i.tled "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 a.s.sumed, 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 pa.s.senger 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.