Part 1 (1/2)
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