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.
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.
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)
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).
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.