Univer of wpe vy meee F825 | Dig it= A ey eg * a mete ome al are aro 7 SHiSLNGhbeinass aoa aesaaaeea eae, ABEL et otal 7 | PaEtteLe te j : wate Te i TEEthiee TPtEstalereaeie Tt 1h a. Tate Tttlaea , VATHSESUAELEGELONAUALAI LET PLAIAULAESEATOESEEGIA ALATA ATRL SLSTELEGUEALAESTTES FLESH ETOHGLaTaReaEstaT CLE HITUHTI PLAT TEATATPumnedTaEATSTTTot et tate Bid | , . | re: iy ie Ee: A . ey t Ne en tie 5 a el aa —— Penn | — ° - pa. iepe-Queantnmaie mentee nanan tee note a ee 8 . Tz = rp mee - LIBRARY OF THE UNIVERSITY OF VIRGINIA PRESENTED BY | MRS. CLAUDE A. SWANSON | F 1 7 7 : : : 4 2; | SSE P " eas eréei FUTURE TUT UT UTA UU TUALAL SU UUUEL EA LUA UALS AUS UUI DRIER UOT A CLT . i.A ne ae a eecmieesinnenatieshstieeaenamenameeaenetinenenentineieeennnemnemeae © eiaeatear tel teal ieehaetieatt St tek teat Deel deckin ie terete eee Pepe pene Ose eee ets ferent renters” i ae ne a er i | | SS ee 7 nel eee ee 2p iro 4Tear tbieicietal. Peal epereitae TeEiate : sieleiee TERLIEA TEL LGEAEieie TiEStalereseieaiit PUTTS eae | HPATSURELH VESUUAVATATE LM PQELATEAEAGT AGO FTES A FES SEATALGT ALAR ETE ESE EGGS REGAESRUGIEEESUATEGESEAUGEEREOLSUELAIA THIEL UAT RORERI AIA EEE Wl ed - ae 7 Oe | i f , I ’ weaia» ; ALD SIT TECERESIEBIOTALSICISTEININT SUPISTOIEILILIDIAT ELSE LLL LLL LL: } J | Pele if | rit a , : j TRGEiiae i ate eoata. Thibe tii TRies i i i Hh / . / Hah eae SuRaeabeale a : aaa EE AS C OF PROHTBIEION Sa - ~ ee _ aan - a pee ee Oe Ge yee we nest aed ete ks ht ee Ak a ei Eee eeey Severe weet ere ee ua 5 ee ae |. - Vy i: 17) 3 t 4 ff 5 : ; a iT 4} i Bain TUTTI ET TTUI RI ETLUET ETTORE LEETHE ABC OF PROHIBITION BY FABIAN FRANKLIN AUTHOR OF “WHAT PROHIBITION HAS DONE TO AMERICA” NEW YORK HARCOURT, BRACE AND COMPANY©} 7 Tt | a uy | it . — for, —- om, ‘ ‘of oA F oe -< ~ — COPYRIGHT, 1927, BY HARCOURT, BRACE AND COMPANY, INC. PRINTED IN THE U. S. A. BY QUINN & BODEN COMPANY, INC, RAHWAY, WN. J. TVETEIEVAILII LLL iti at ERT AURL REL LER eats) TEL TTT aiaCHAPTER I II It IV XVI XVII XVIII XIX XX XXI XXII CONTENTS MAJORITY AND MINORITY . THE EIGHTEENTH AMENDMENT AND THE TEN COMMANDMENTS THE STATES AND THE UNION . BARTERING THE CONSTITUTION FOR A COCKTAIL “THOU SHALT NOT” IN THE OLD CON- STITUTION CONCERNING RESPECT FOR LAW . THE COST OF ENFORCEMENT CONCERNING DESPERATE REMEDIES . PERSONAL LIBERTY . THE CRIME OF DRINKING A HOUSE DIVIDED AGAINST ITSELF . DRINK AND CRIME MANIFEST DESTINY . STATISTICS SOMETHING MORE ABOUT STATIS- TICS WAS THE AMENDMENT “PUT OVER’? THE AMENDMENT IN CONGRESS TESTS OF PUBLIC SENTIMENT MODERATE DRINKING AND MODER- ATE BURGLARY STATE ENFORCEMENT ACTS NULLIFICATION OR REPEAL? CUT OUT THE CANCER! . Vv PAGE NI II 113 122 129 136 142 AEE OT PE eB ee kt each heh ie ol ia ent die a if if } nN 2 7 : ’ - | a a a a | / | it a a . ‘ ' a. { t a 7 + iT) i 4 i a 7 7 | ‘ a : a - t ‘ ; ' a , , | Pe +e Bh ee . * iP oy i / iz : : es tA ; : / ri 5 i 7 t : 4 te i. Big TT Tl a ; ' ’ f ; ; io) FY\ a . — Sel 5 ers a - —— * oa | — —_ —_ ‘eaD TOP RIT A TULIT I Le Raia TSERTUILT LLLi F ’ 7 ith ; ih ii} i : i | teri 4 ' ih SETAE ) \ Tt Ter 1 ae } i ta | ; ae ' i ' | } j | iy i iM ee Neer eee Nee SS ee — _- —— ee _neeaieamnaaael Renae TEE A BC OF PROHIBITION le ee ete td hat Ped ee ee ne oe ee ene ee ae i 1! i i ij } i f 1 : : | i - B } i f it - #9 ' er Preieiateiaietisetay 7. aH re ThEleiE , Tabi t TERTHLIRIED ishi ah We ; i PRIMERS HEEL SHUGUALALE LH PLGTOT CUPRA HAE RES ATER ATL ST ETA EE PS ESTES EO LEV STAT ES ROSETTA AT EST BH } hi i i ae area eae Tee ERP EPL Le UCI eeslle CHAPTER I MAJORITY AND MINORITY We all believe in majority rule. But what do we mean when we say we believe in majority rule? Do we mean that whenever the majority think that a certain thing is desirable, it is right and proper for them to put that thing into the form of a law, which the minority will be compelled to obey? Certainly no sane man, if he stops to think, can mean that. The majority might think it desirable that everybody should go to church three times every Sunday, or that nobody should ever go to church at all. They might think it desirable that there should be no dancing, or that nobody should waste his time in reading novels or in playing cards. They might think that everybody should be in bed by nine o'clock at night or out of bed by six o’clock in the morning. They certainly might think—for in some of our States they do think—that nobody should smoke cigarettes. Now some of these things are things that even an overwhelming majority would not have the moral _ right to put into law and force upon the minority; / 34 THE ABC OF PROHIBITION but all of them are things that it would be the height of folly and unreason to put into law unless they were backed by an overwhelming majority of the | people. Right or wrong, desirable or undesirable, laws regulating the personal lives of people, laws re- | stricting their personal liberty except for purposes | manifestly necessary, if justified at all, are justified | only when they represent the unmistakable demand ' of the community as a whole. : | When we say that we believe in majority rule, we mean—if we are men of sense—that within the proper limits of law and government the majority should decide, and the minority should loyally accept the decision. We do not mean that there are vo limits to what law and government may rightfully under- take to command. If we did, we should be subscrib- ing to a doctrine every bit as intolerable as the doctrine of the divine right of an absolute monarch. Majorities have no more claim to a divine right to do as they please to the rest of the people than kings have to do as they please to all the people. | But this is not all. Not only do majorities not _ have the unlimited right to do as they please; they ‘also do not have the unlimited power to do as they please. In this respect also they are like kings; for although we speak of absolute monarchies there22s = MAJORITY AND MINORITY 5 never has really been such a thing—at least not in modern times. Wise kings, whether “absolute” or not, when they found they had undertaken to impose upon the people something to which the people would not submit, did not get black in the face and swear they would never yield to disloyal subjects; they took the back track. Kings who didn’t have the sense to see the limits of their power—kings like Charles I and James II in their relation to England, or like George III in his relation to America—simply rushed into destruction or disaster. And it is the same with majority rule as it is with monarchical rule. | Prohibitionists are in the habit of saying that the enforcement or non-enforcement of the Eight- eenth Amendment will be a supreme test of de- mocracy. They say that if we can’t enforce it then democracy is a failure. Nothing of the kind. If our democracy can’t enforce a law that an enormous minority (very possibly, indeed, a majority) resent as an outrage, it will be in no way different from a / monarchy, or an aristocracy, or any other form of / government. None of them can do that. The Eighteenth Amendment 7s going to be a test of democracy, however; but in a way very different from what the Prohibitionists have in mind. It is not going to test whether democracy has as much power6 THE ABC OF PROHIBITION as monarchy; it is going to test whether democracy has as much wisdom as monarchy. Only the most foolish and obstinate of kings have imagined that be- cause they had once commanded a thing, however wrong or unworkable, they must stick to it to prove their power; and the question is whether we are going to be like those foolish and obstinate kings or whether we have sense enough to recognize that if we have committed an error we shall serve the cause of our country not by persisting in the error to show our power, but by correcting the error to show our wisdom. a vb ! ; | J | 4 : At i co=~ = ———— ae eee ee Oe CHAPTER II GN lo ee THE EIGHTEENTH AMENDMENT AND THE TEN COMMANDMENTS eee ee Oe ie el eee fc | ty } oe He: Te if i ihe ei Te te 1 | 1S: y + | , | | ; 1 it A i} ig i) “Should the Eighteenth Amendment be Re- pealed?” was the question under debate at a public forum. Both sides were represented by prominent spokesmen. Interest was centered upon the wide- spread violation of the Prohibition law. After much threshing of disputable matters, the Prohibition speaker’s voice rose to a height which indicated that he had reached a triumphant climax in his argument. Being a fair-minded man, he had admitted, as of course every fair-minded man must, that there is a vast amount of violation of the law. “Yes,” he cried, ‘millions of people break the Prohibition law; but so do millions of people break the Ten Commandments. Do you propose to repeal the Ten Commandments?” No, we do not propose to repeal the Ten Com- mandments; but neither do we propose to enact the Ten Commandments. They are not, and never have been, incorporated in the law of the land. They are not enforced by policemen and district attorneys and judges. Violation of them is not punished by fine 78 THE ABC OF PROHIBITION or imprisonment or outlawry. They are impressed upon the minds and consciences of the people as moral injunctions; but nobody proposes that they should be written into the statute books, and obedi- ence to them imposed upon the people by force. Laws against murder, laws against stealing, are, indeed so enforced, and they have been so enforced, time out of mind, among nations that had never heard of the Ten Commandments. These laws are enacted, and are enforced by governmental power, not because they are in the Ten Commandments, but because they are obviously necessary to the peace and security of the community. But there is no law on the statute books to punish lying, still less a law to punish covetousness; and if any one were to pro- pose such a law in Congress its absurdity would be so obvious that the proposal would not provoke so much as the compliment of a laugh. You can’t tell whether a law is a good law or a bad law by simply asking whether the object which it aims to accomplish is good or bad. It would be a good thing if everybody told the truth; but it would be a horrible thing if the government were to under- take to compel everybody to tell the truth. In re- gard to nearly all of the Ten Commandments thereic? tela / - , a a ————— =< se a ee a a a. AMENDMENT AND COMMANDMENTS 9 is a fairly universal feeling that the things which they enjoin are good and the things which they forbid are bad; yet no person of any intelligence would for a moment entertain the idea that it would be a good thing to force them upon the people by statutory penalties. Accordingly, even if an overwhelming majority of the people of the country thought that total abstinence from intoxicating drinks was a desirable thing, it would not in the least follow that it would be a good thing to enact a law to force total ab- stinence from intoxicating drinks upon all the people of the country; for, even then, many extremely im- portant questions would remain to be answered be- fore you could say that such a law was desirable. Let me here name just a few of these questions: 1—Is this the kind of thing that ought to be imposed upon people by law, or the kind of thing that should be left to moral and social influences which bear upon the individual conscience? 2—Will the law, however well intended, be felt by large numbers of good and respectable people as a tyrannical interference with their personal life and personal liberty? 3—Can the law be successfully enforced? 4—Will the enforcement of the law necessitatea ipisi : a re ¥ 7 ae ; : > ara : » i j - fi 7 Tr " a ei wh A 7 tray eles. ¢ Stee vie racer ie TETET eT Tata j 7 7 i } i viate if aean 7th ATG HESLETaT ATA LAT LAYERS AU OES ES Ls BHA REEVE EST SHEAES HHT CTE ELST THA TR AT Pea LA LEE A IO THE ABC OF PROHIBITION measures odious to a freedom-loving people, and create in the minds of thousands of excellent citizens a feeling of contempt and hatred for the law? There has been a great deal of dispute as to whether the Eighteenth Amendment was or was not “put over” on the people; that is a subject which we may look into later on. But, whether it was “put over” or not, one thing is quite certain: Congress and the State Legislatures passed the Eighteenth Amendment without giving any serious attention to these questions; and the people at large were still less alive to them. It was put through in haste and we are repenting at leisure. If the people had realized then what nearly every sensible person realizes now in regard to these four questions, the Eighteenth Amendment would have had mighty hard sledding, instead of the easy time it had in going through.CHAPTER III THE STATES AND THE UNION Prohibitionists are very fond of saying that the | adoption of the Eighteenth Amendment involved no | great change, that it was but the last step in a pro- © cess which had been almost completed. A large pro- portion of all the States, they say, had already adopted Prohibition, and the number of such States was increasing rapidly. When the statistical facts are carefully examined, it turns out that they do not really bear out this view; but I am not going to insist upon that. For the present, I am avoiding all kinds of statistical con- troversy, and trying to fix attention upon the large, the vital, the unmistakable, the fundamental, el- ements of the case. Let us note, then, to begin with, a very remarkable circumstance, which everybody will recognize: Before the Eighteenth Amendment was adopted, the Prohibition question was one that engaged public interest only in a very mild way. People rarely talked | about it; nobody thought of it as one of the burning | questions of the time. Ever since the Eighteenth II12 THE ABC OF PROHIBITION other hand, Prohibition has been one of the chief | topics of public discussion and of private conversa- ' tion. It has been talked about, and thought about, twenty times as much as any other subject of public interest whatsoever. And year by year the feeling has been growing stronger and stronger that it presents a national problem of the utmost gravity. Now, if the Eighteenth Amendment was merely the last step in a process that had been almost com- pleted, this is surely a most extraordinary develop: ment. The drink question—Prohibition, local option, high license—had been agitated in the various States of the country for more than half a century. The States had gone backward and forward in the matter, trying first one thing and then another. The Eight- eenth Amendment was to put an end to all this backing and filling; the country was to obtain free- dom from unrest over the liquor question, through adopting completely the solution which had already been almost completely adopted. But nothing of the kind happened. Why? Amendment was put into the Constitution, on the \.£ The reason that nothing of the kind happened Si | is that the Eighteenth Amendment was no merely J& the last step in a process which had been almost completed. When we passed from State Prohibitioni : c s ee Se entire eee ete eo oe a a A THE STATES AND THE UNION 13. to national Prohibition we did not simply complete the process that had been going on in the various ; States. On the contrary, we took a tremendous’ plunge into an entirely new state of things. National Prohibition differs from State Prohibition ~ in two vital points, each of them of immeasurable importance. In the first place, so long as the drink question in eactt-State-was-in the hands of the people of that State, the people felt that if Prohibition didn’t work well in that State, or if.a majority of its people didn’t like it, they could, with a reasonable degree of effort, get rid of it, or modify it. A large State like New York-or-Ttinois does indeed include many kinds of people; yet there is enough contact, enough neigh- borhood, enough community of interest, among them to give the experiences and the desires of any con- siderable proportion of its people real weight in determining the action of the whole. A very big minority might therefore patiently submit to what they regarded as an unwarrantable law imposed by ; Para 7 a ae ge in EEE, x a a oe 2 a al the majority, in the hope that within a reasonable / time they might get the law repealed or modified/ Still more would that be the case in a State like Maryland or Rhode Island. But as soon as you make Prohibition a national law, all this is utterly changed. The citizens of New York or Maryland then no | 7 ' > ie ' a \4 iy 1} ' F 7) | ie | i. i" ’ - ie | ‘2 : os : \ . . 7 i. | +e iS 7 - i. | Te j { . i. ab oF. ae 3) a oF 7. ‘>. 8 | 2 ae. Te: i Tey . ‘ We af rt & + . Tay | ial st , ti 3% 7. 16h ‘eh ii) a a . Bu 2! ey rt at i F]14 THE ABC OF PROHIBITION longer feel that they can get rid of Prohibition if it works badly or if they change their mind about it. They know that in order to get the law changed they have to bring over to their way of thinking the people of States altogether different in conditions, ‘A. desires, manner of living; people, too, who know nothing, and perhaps care less, about the way in which the law works in States a thousand miles away. To have their daily lives regulated, their personal habits interfered with, by the people of distant _) | States, with little or no hope of relief, is a kind of \ A thing which freemen cannot be expected to endure with patience. The second point has to do not with the prospect of repeal, but with the possibility of enforcement. The enforcement of a law regulating the daily lives of people depends essentially upon the sentiment of the community immediately affected. So long as Pro- -hibition was a State law, even if there was practically / no hope of repeal, it commanded a large measure \ of respect among the people of the State as being the act of a majority of the people. Even then there were, of course, many who regarded it as wrong, even as \tyrannical; yet on the whole it was pretty generally acquiesced in. There was no such open and intense hostility to it as has been displayed against theeee er a ee Ey % — een aaa THE STATES AND THE UNION 1s national law.,A conspicuous example of this is fur- nished by the State of Kansas, which was thoroughly committed to Prohibition long before the Eighteenth Amendment was passed. There is strong evidence to the effect that there is vastly more violation of the | Prohibition law, and vastly more resentment against it, in Kansas since it has become a national law than there was when it was a State law. It will be observed that I have said nothing what- ever about the doctrine of State rights or of State sovereignty. Whatever result the Civil War may have had in regard to these abstract doctrines, it still left with us the practical distinction between the province of the States and the province of the nation. Especially did it leave wholly untouched the power of the individual States to deal with all matters re-_ lating to the ordinary concerns of life. This division of powers—this combination of State self-govern- ment in home concerns and national control in inter- State and national concerns—has been the very key- stone of our system, the great practical contribution we have made to the art of government in a va Republic. The enormous injury that national Pro- ' hibition is doing to this vital feature of our American | system, any one can see for himself. i\ NG RE oo il 16 THE ABC OF PROHIBITION And all this time I have said not a word about national Prohibition being established not by an or- dinary statute but by actually being made part of the Federal Constitution. How infinitely worse this makes the situation we shall see in the next chapter. hee MATH Ea eeT THIEL tibial TOEELILLLLLERLA Rielle Li eeealereaeiaiiial Tete bevedeesiii VOPR OUAEU ESTUARIES - if eiba ids hl. LZ. ; 4h. ff | i ' iF , :2 a} a CHAPTER IV BARTERING THE CONSTITUTION FOR A COCKTAIL On or about Christmas day, 1922, the District Attorney of the United States at New York City felt moved to issue a statement in which he implored the people not to “barter their Constitution for a cocktail.” But this pathetic appeal found no echo whatever in the bosoms of his stony-hearted fellow citizens. If they drank fewer cocktails than they had expected to, it was not because of any compunctions of conscience aroused by the District Attorney’s words, but solely because the officers of the law, by strenuous exertions, made the getting of the cocktails more difficult or the dispensing of them more dan- gerous. But District Attorney Hayward’s phrase is worth pondering, all the same. For, in a very true sense, though not at all the sense which he intended, the Constitution “as been bartered for a cocktail. The ' barter was effected when the Eighteenth Amendment was put into the Constitution. For then it was that the Constitution was lowered to the plane of dealing with cocktails. FT Se aaa et eer | eet ee | ae es = Se — ee init daderubeunerssmeatne ovate ' ) a ; it ri 7 3 ’ | 7 : ,* ’ 7 . ‘ by + 7 7 7 ‘ ‘ a i a i a a ! ‘ . it iF ) o 1 ’ ee Re ee 17 - ee . p ee es Oe ee - F Sara "a decent cern tne oamneneeen nme et amy teler ’ i] ii be 4 4 +E Ve : i? it aa +e Eiri HIME Hal 7 vee Petbiaie THERHHBHEH HBB See es 18 THE ABC OF PROHIBITION The object of any Constitution like ours is to place beyond the reach of the ordinary processes of legisla- tive change certain fundamental features of the government and certain fundamental rights of the people. The Constitution of the United States under- took to do this, and nothing more. It provided a certain framework for the Federal government which it created; it fixed the limits of the power of that government, as distinguished from the State governments; and it guaranteed certain essentials of liberty and property. It said nothing whatever about cocktails; and it commanded the kind of respect which a true Constitution is capable of commanding, and which no Constitution that undertakes to deal with cocktails can possibly command. The purpose of the Eighteenth Amendment was to make impossible all practical thought of ever getting rid of Prohibition. No matter how ill it might work in the great cities, no matter how much it might be resented in ten, or twenty, or thirty of our States, no matter what a majority of the people might think about its folly or its tyranny, once it was in the Constitution it could not be got out of it, so long as thirteen of the forty-eight States—thirteen States, however small, however remote, however peculiar inBARTERING THE CONSTITUTION IQ their conditions—persisted in adhering to the Eight- eenth Amendment. It was upon the hopelessness of this prospect that the Anti-Saloon managers counted as ensuring the acquiescence of all decent and law-abiding people in the thing which they had put through. But the trick has not worked that way. On the contrary, the more it was insisted that the Eighteenth | Amendment could never be repealed, the more it was felt that the Eighteenth Amendment was not morally | binding on those who regarded it as an act of op- pression and unreason. The one great reason why an ordinary law that is oppressive and unreasonable commands the obedi- ence of good citizens who oppose it is that, if it 1s as bad as they think it, there is a fair chance of getting it repealed. But this does not hold in the case of a law that is placed beyond the reach of argument, a law that is impervious to attack, however offensive its working. The light-hearted contempt with which the Eighteenth Amendment is treated by millions of good citizens is a phenomenon without a parallel in the history of free institutions. But there is nothing surprising about it. In making us a nation of law- breakers, the Eighteenth Amendment has done onlyVIPeTATA Hela eater eieitieiae TAPTERELRET EST AL } aie t et wT eRe bal Titel ’ eta ini 1 Tid 7 ’ PETES PLEASES LLL EES ET HEHE HEB aay BS eer * os a LE LES ES 5 i... EM — = — ? 20 THE ABC OF PROHIBITION what, by its very nature, it was calculated to do. The framers of the Federal Constitution recog- nized the fact that there were some things which it was necessary to safeguard against the vicissitudes of public opinion from day to day, from year to year, even from decade to decade. These things were of three kinds and three kinds only: The division of powers as between the Federal government and the State governments; the structure of the Federal gov- ernment itself; and the fundamental rights of Ameri- can citizens. 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 respec- tive 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. These things were not to be subject to disturbance except by the extraordi- nary and very difficult process of amendment pre- scribed by the Constitution. Into this great instrument there was injected for the first time by the Eighteenth Amendment matter of a wholly different kind—not only a different kind but the opposite kind. Whether Prohibition is right or wrong, wise or un- Se a A oa‘ ; : b : a 5: 4 ————————— Cee eee te eel tae teiseenatelenenssnrensnindiattesisini nen Mh BARTERING THE CONSTITUTION 21 ~\F-xwise, it 1s certainly a denial of personal liberty. Pro- / hibitionists maintain that the denial is justified, like other restraints upon personal liberty to which we all cheerfully assent; anti-Prohibitionists maintain that this denial of personal liberty is of a vitally different nature from those to which we all assent. But every \ one admits that it is a denial of personal liberty; and | to entrench a denial of personal liberty behind the mighty ramparts of our Constitution is to do pre- cisely the opposite of what our Constitution—or any Constitution like ours—is designed to do. The Constitution withdraws certain things from the control of the majority for the time being—with- draws them from the province of ordinary legislation —for the purpose of safeguarding liberty: the Eighteenth Amendment seizes upon the mechanism designed for this purpose, and perverts it to the diametrically opposite end, that of safeguarding the denial of liberty. All history teaches that liberty iS in danger from the tyranny of majorities as well as from that of oligarchies and monarchies; accordingly the Constitution says: No mere majority, no ordi- nary legislative procedure, shall be competent to deprive the people of the liberty that is hereby guaranteed to them. But the Eighteenth Amend- ment says: No mere majority, no ordinary legislative procedure, shall be competent to restore to theera AL det sebelesatotil Biateieietiieias badddeistaisibl: HLRTUISLET HATTA LAER EET ERA i apm OE: ae a a ae 22 THE ABC OF PROHIBITION people the liberty that is hereby taken away from them. Thus the Eighteenth Amendment not only asserts the right of the majority to control the personal habits of all our people, from the Atlantic to the Pacific and from the Great Lakes to the Gulf. It does much more than that. It asserts the right of the majority of today to rivet that control so that it can- not be shaken off, even by a majority, zm the future— \ year after year, decade after decade, generation after generation. Such an arrogation of power is a mon- strosity which even those who assert the doctrine of the divine right of the majority ought to recognize as preposterous. SPaiateieieluiet atSh ait TEIRIEI LEI ALLL eaea eta eiea : ie Testa HEATELETALA EET SESE TEG EET yeaa ay ae HU TH aT ECHAPTER V “THOU SHALT NOT” IN THE OLD CONSTITUTION In the preceding chapter, I pointed out briefly what the Constitution of the United States undertook to do: “It provided a certain framework for the Federal government which it created; it fixed the limits of the power of that government, as distin- guished from the State governments; and it guaran- teed certain essentials of liberty and property. It said nothing whatever about cocktails; and it com- manded the kind of respect which a true Constitu- tion is capable of commanding, and which no Constitution that undertakes to deal with cocktails can possibly command.” But this does not begin to do justice to the contrast between the Eighteenth Amendment and the rest of the Constitution. The old Constitution—the Con- stitution as it was before the Eighteenth Amendment —not only contained no prohibition of drink; it contained no prohibition of any personal act, how- ever criminal. It left the question of crime to be dealt with by ordinary legislation. It contained many 23= = 7 aegis 24 THE ABC OF PROHIBITION prohibitions; but in every instance its “Thou shalt not” was addressed to the government, State or Federal, not to the citizen. The object in every case was to set limits to governmental power, in no case to control individual conduct. It contained no prohi- bition of murder, or arson, or forgery, or perjury, or robbery; it contains no such prohibition now. The only personal act that the Constitution of the United States makes a crime today is the manufacture, sale, or importation of intoxicating liquor. The absence of any provision designed to control personal conduct was no accident; such provision was wholly foreign to the very idea of the Constitu- tion. In so far as it imposed restraints, the purpose of the restraints was to protect individuals or classes against governmental tyranny or injustice. The power of government to make laws against crime was ample; no Constitution was needed for that purpose. But it was by no means certain that the power of government would never be so used as to destroy or impair rights held to be essential to a free people. Accordingly, there were certain things which the Constitution prohibited government from doing. What kind of things these were may be seen from a few instances: PALS AL a PALE ELE LLG LELEA LTR OLLI LLL Le Lea T . | Seibieie 7, ath Sethe BTSTTI ALE a : ath ehh TE. Th " " H Pata etel era. AEE AEE PeLRtaIES | eateh SUTTER eea tat aati ELST AL GSSESEB ELST AE, HSE SEE EEE Ht | HH aee —— “THOU SHALT NOT” IN CONSTITUTION 25 Congress shall make no law respecting an establish- ment of religion or preventing the free exercise there- of, or abridging the freedom of speech or of the press. No person shall . . . be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation. The right of the people to be secure in their per- sons, houses, papers, and effects, against unreason- able searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Not one of these provisions says ‘Thou shalt not” to the individual citizen; every one of them says “Thou shalt not” to Congress, or President, or Gov- ernor, or Legislature, or judge; every one of them is designed to protect individuals or classes against governmental oppression or injustice. It is interesting to observe that there is one crime that the Constitution does deal with—the crime of treason; and it is still more interesting to note just how the Constitution deals with it. Treason stands apart from all other crimes in that it aims directly against the very existence of the constituted govern- ment; it might therefore be supposed that in the case at Aaieeeen ieeeiee aaa eee a rr Se aaa a al anaes eaPestanet a-aaeal ia eeheaeatenica ial rah anaivel beaten net feel tne We eee eee 1 } | iP iz, } ee FE: ; ; i hi ‘ if if, er: ; 'F. } FT ra e103 ; TFLIRHET ETS ARIEL EST AL AP aEAT ATE ET ERE aa Witty Tit atTT seeas : i eer et te teas 7 | toh : : siti sietee ft sf li | Tretet. Patan 4 TEEMELEHAT EAHA TA EOERESLS HAL ATAATATRLSTETE EAI IESE ESTES EEESEHEOEHST EATERS EET ERUAT ELA ATT La Reena Ea ea a ‘SS Ee! pa ' pbk D SL r } H iaihi i. Sete .. j Pia: ° : 26 THE ABC OF PROHIBITION oi treason the Constitution would naturally depart from its attitude in regard to crimes in general and lay down a positive law concerning it. But even in dealing with treason, the Constitution does nothing of the kind; on the contrary its provisions even on this crime are directed solely to setting limits to governmental power. The subject is dealt with in Article III, Section 3, of the Constitution, which reads (in full) as follows: 1. Treason against the United States shall con- sist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. 2. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attained. Every word of this is directed to the protection of the citizen against governmental excess. No words or writing, and no acts short of levying war, or partici- pating in war, against the United States shall con- stitute treason; conviction of treason shall not be possible without the kind of testimony prescribed ; punishment for treason shall not extend beyond the guilty party. That is all. Even in the case of the“THOU SHALT NOT” IN CONSTITUTION 27 crime of treason, the sole concern of the Constitution was to protect individuals against the excesses of governmental zeal or popular frenzy. It seems needless to say anything more concerning the utter discordance of the Eighteenth Amendment with the entire spirit and purpose of the Constitution. But there is one aspect of the actual operation of the Eighteenth Amendment which brings out the con- trast in a still more glaring light. The provisions of the Constitution quoted in the early portion of this chapter form part of what is generally known as the Bill of Rights. This Bill of Rights has been cherished by generation after generation of Americans as a veritable charter of liberty. It is, indeed, part of that heritage of liberty which we derive from the most precious of British traditions. To place on a level with these sacred bulwarks of human rights an arbi- trary restraint upon the personal habits of daily life was bad enough, outrageous enough, in itself. The Eighteenth Amendment does this, on its face; in its actual working it does much more than this. For it has aroused such widespread resentment, it has been met with such contemptuous disregard on the part of millions of American citizens, the task of enforce- ment has proved to be one of such stupendous diffi- culty, that those charged with it are constantly Ce a n= a a TE A i] 2 i i ao ‘ sy ve, 16 1 i 181 if is! ahh er eh er 5! 2 \ aN — aaa ee ee ee ee Se re = — ow Renee eee eae ee ee - . ad Sede ee eee ee eo aryPOTS PELETELEIEILSTATELIEL ITI LPERLIRiELLLi ALLL eea et eieinaliiei iti. 7 Traine HALES BASES BEES EHR GHSE ERT SEA SALE RESTATE LA Sees ad EEA 28 THE ABC OF PROHIBITION tempted to transgress, and in countless cases do transgress, the limits which the Bill of Rights im- poses upon governmental power. Into this subject we shall enter more fully in a later chapter. For the present, it suffices to note that the Eighteenth Amendment not only perverts the Constitution by applying it to an end wholly foreign to its spirit and purpose, but also undermines some of its most vital provisions by the violations of the Bill of Rights which are committed in the pursuit of that end.CHAPTER VI CONCERNING RESPECT FOR LAW The Prohibition law is contemptuously disre- garded by millions of citizens, including multitudes of men and women of the highest standing in the community. As to this fact there is no dispute; it is asserted by Prohibitionists and anti-Prohibitionists alike. Nor is there-much difference of opinion as to the evil_effect_of_this upon respect for law in general. Nearly everybody, on both sides, feels that the con- tempt with which the Prohibition law is treated by millions of reputable citizens is big with danger to the authority of law in general and to the very foundations of our democracy. Yet there are many laws on the statute books which are far more completely ignored than the Prohibition law, and nobody thinks of their violation as a grave evil or public danger. Why is it, then, that the widespread disregard of this particular law is felt to be so serious a menace to respect for law in general? The reason is plain enough, when we come to think about it. 29 a eel —s — =~ — ee a ae a ee ed Se eee Oe ee ee es ee a a ae eae ee <—- 6 oo toe et tral gt ee het et de ek il a ee . as S et 8 pment ee ge ee ee aS on 2 ee a ee ' ' : ul ’ a / i \? : | ' ie | | a pone sie puta ~ ee es30 THE ABC OF PROHIBITION Sometimes a law becomes a dead letter by common consent, and then it is virtually no law at all. Such is the case with the old “blue laws” of a number of our States. Somehow or other, they can’t be got off the statute books; but no attempt is made to en- force them. Once in a long while, in one county or another, there is a freakish spasm of enforcement zeal, but it always proves to be farcical and short- lived. People in general never think of these laws at all; they are as if they did not exist. Accordingly, the ignoring of them has no influence on people’s habits of thought, and does no injury to their regard for the authority of law in general. Without having actually become a dead letter, a law may be of such character that nobody expects it to be strictly observed. It may demand something that is evidently unreasonable or impracticable, and the community gets into the habit of viewing its vio- lation, in greater or less degree, with entire com- placency. The most important instance of this kind of law is that of the general property tax—a tax levied at the same rate on all forms of property. Most of our States kept this tax on their statute books for years and years after it had become evident that it was utterly unreasonable and impracticable so far as regards stocks, bonds, etc.; the consequence was that nearly everybody evaded the tax on these formsCONCERNING RESPECT FOR LAW 31 of property. This was a regrettable state of things; it was not so entirely harmless as the ignoring of a law which has actually become a dead letter. However, the injury it did to respect for law in general was very slight; a law that is broken once a year, that is broken because its unreasonableness is almost uni- versally admitted, and that the government makes almost no effort to enforce, does not have much rela- tion to the status of law in general. Utterly different from all this is the case of the | Prohibition law. That law, so far from being dead, is | on the face of things the livest of all laws; the en-| deavor to enforce it is the most conspicuous of all our} governmental activities; the law is violated, not once’ a year by a particular class of people, but every day of the year by millions of men and women of all classes; and the desperate efforts of the government to cope with this situation are a familiar feature of every day’s news. To imagine that such a state of things can go on year after year without disastrously impairing the general respect for law would be the height of folly. To bring this state of things to an end must there- fore be the desire of all good citizens, whatever view they may take of the Prohibition question in the abstract. But how can it be brought to an end? TheHh Hisense THILIETLLI ELLA PAELLA RI LEaT Teta Te eae alia THALES FATALE ET A ERE ETE ESET ee Ee 32 THE ABC OF PROHIBITION right way would be to repeal the law—that is the way that all nations capable of self-government do with laws that bring about such consequences as this. It is also the way that wise governments of any kind—monarchies, oligarchies, aristocracies—do in such a situation. With us, the lamentable error of having put Prohibition into the Constitution makes this extraordinarily difficult; and yet it is to this that we must look forward in the end as the only satis- factory solution. At best, however, this will take very many years to accomplish; and in the meanwhile it is possible that the situation may be improved by the relegation of the law to something like the status of a dead letter; for, as we have seen, when everybody frankly recognizes that a certain law has become a dead letter, the situation is much the same as though it had been repealed. It does not give rise to that con- stant struggle between the enforcement of the law on the one hand and the wholesale violation of it on the other—without the slightest sense of guilt on the part of the violators—which makes Prohibition so profoundly demoralizing to the nation. One way of attempting to get rid of the trouble would be to increase the rigor of the law and to employ a vastly greater number of men and a vastlyCONCERNING RESPECT FOR LAW 33 greater sum of money in its enforcement. Whether such a course, if adopted, would succeed in its object is in the highest degree doubtful; all experience points to the probability that it would only drive the violation of the law into other channels, and at the same time enormously intensify the resentment aroused by the law. But, be this as it may, the fact is that there is no chance of getting such a course adopted. In both houses of Congress, the Pro- hibitionists have controlled an overwhelming majority of votes throughout the seven years since the Eighteenth Amendment became part of the Con- stitution; yet they have never been able to make headway in this direction. Supine as Congress may have shown itself in the matter of Prohibition, it has nevertheless been clear that there was a limit beyond which it could not be driven. Even more hopeless than this is the endeavor to bring about respect for the Prohibition law by pious or patriotic exhortation. It is for this purpose that there was organized, several years ago, a National Citizens’ Committee of One Thousand for Law En- forcement. Once every year, this Committee, or a delegation from it, goes to Washington to impress its views upon the country. But no perceptible number of persons have been in the slightest degree influ- enced by its appeals. And in this there is nothing atTTL E EE LETTER eee Ter TEST eet ec teeae Ea CSTE StS RTEE HUH : PTH EPEAT ETE ET a HRA PRISCETESEUEUER TAD 34 THE ABC OF PROHIBITION all surprising. The people who treat this particular law with contempt, because they regard it as an out- rageous infringement of their personal liberty, are perfectly aware that it zs a law, and that it could not be a law unless many millions of their fellow- citizens had felt it right that the law should be en- acted. Is it not silly to imagine that the respect which these people refuse to pay to the public law they will pay to the pious appeal of a few private individuals? To many persons, no doubt, in spite of all that has been said above, the question of the basis of re- spect for law must still seem very puzzling. To such persons I should like to recommend a reading of the article on “Law Making and Law Enforcement” which appeared in Harper’s Magazine for November, 1925, and of which the author is Arthur T. Hadley, President Emeritus of Yale University, one of the foremost of American publicists. The opening para- graph of the article is as follows: Who enforces the laws? The first impulse of most people would be to answer, “The police and the sheriffs, with occasional assistance from the army in emergencies.” But if we stop to think about the matter we shall see that this is a very superficial view of things, and that only a small fraction of our law enforcement is se- cured or needs to be secured in this way. In ninety-CONCERNING RESPECT FOR LAW 35 nine cases out of a hundred obedience to the law is quite voluntary. The people at large do not have to be compelled by the police to obey the laws against murder or burglary or the various regulations for the convenience of the public. They do it of them- selves, either as a matter of conscience or in deference to public opinion. And the fact that they do it of themselves is the thing which makes civilized society possible. It enables the police to concentrate their attention on the work of protecting the public against a relatively small number of habitual lawbreakers who do not recognize their moral obligations to them- selves or to society. Conscience and public opinion enforce the laws; the police suppress the exceptions. res —a -_ mer TNS oe Pa = a sue IS nie have-eidelenerte-eheainah bvknaeuteehett naed Bt eteenerted dl a-tenactand baked bd Ind oe oe eel aks leh ek ones ee ee ee . a —— Ee The bottom reason of the frightful mess that the Prohibition law has made is that it utterly ignores the conditions upon which rational law making and rational law enforcement depend. ; te hal a bud Tt ' Tt 0 ; 2 iF i! L; l; - PT \ Tt a } i 'z) : 4 r : ft 4 : i: : TT fj yy 7 ' | \ | - 4rn i i \ ; : ry vie PaieLAueieaiil Tite sit Tilt arya : ' * weal. . N . Teg aaa EIPIEEAT STAT ER eIOV ETE ETAT CH Peet er Eta iF PT 2 + 7. ' ea) CHAPTER VII THE COST OF ENFORCEMENT The attempt to enforce the Prohibition laws costs a good deal of money. Congress appropriates about thirty million dollars a year directly for the purpose, and a far larger expense is involved in the burden it places upon police and courts and prisons. But all this is a mere bagatelle. The cost of Prohibition en- forcement in dollars and cents, though by no means trifling, is too small a matter for this great and enormously wealthy nation to be worried about. But there is an entirely different kind of price that we are paying for Prohibition enforcement—a terrible price in the shape of bribery and corruption, a terrible price in the shape of countless crimes com- mitted by agents of the law, a terrible price in the shape of the violation of principles long held sacred as the defense of a free people against the tyranny of arbitrary power. It would be useless for me to try in a brief space to bring this state of things home to the reader by individual instances of malfeasance. A few instances would prove nothing; and to give a multitude of in- 30THE COST OF ENFORCEMENT 37 stances is out of the question in a brief space. But the citation of instances is unnecessary. To any man who has kept in touch with the daily news during the past seven years, the story is only too familiar. Prohibition officers removed by the score for cor- ruption; constant changes in enforcement methods for the sake of getting rid first of one and then of another of the abuses that have been discovered; hold-ups of innocent persons by Prohibition agents, with the killing of the innocent a not infrequent in- cident—these things have been familiar items of news throughout the time that national Prohibition has been on the statute books. But as regards the state of our country, the most serious aspect of Prohibition enforcement does not lie in the corruption of individual agents or even the outrages which have been committed by them. It lies in the readiness which has been shown by so many perfectly honest and well-meaning Prohibitionists, in office and out, to brush aside the most cherished prin- ciples of our law, to sacrifice the best traditions of our government, in the pursuit of their object. If they have not got very far in breaking down these principles and traditions, it is not because of their own moderation or restraint, but because of the re- sistance which they have encountered. Were it not er re — ee — = ' “2 ae Se eh ene ee ee ee on ere ' a : , ; | | oP ij iba ae Tf |: : TIEITIEIE Eta tae 1 TEIRIERLCU ATLA EREai aE Hil TepRaee aL Pita Fi} a te aeLinad | Fate 1. 5 ea}: i i | A 3 TF at reESTaaET: AHR SETHE Ear a vate He Ta > oes ee & ; : : ee) —— — 38 THE ABC OF PROHIBITION for the barrier presented by the Constitution, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” would unquestionably by this time have been disastrously impaired in the effort to make national Prohibition effective. So would the right of trial by jury. In fact both of these rights have been seriously encroached upon. Although the Supreme Court has blocked these encroachments in some directions, it has permitted them in others. For even the Supreme Court is, and of necessity must be, influenced by considerations of practical necessity as well as of strict judicial interpretation; and it is reluctant to deny to the agencies of govern- ment the powers necessary for the enforcement of any valid law. Now the trouble about the national Prohibition law is that it evidently cannot be enforced without stretching the powers of government to the utmost limits that the Constitution permits; and these limits cannot be precisely defined. The Supreme Court has gone as far as possible in giving governmental power the benefit of the doubt; though in the opinion of many persons of the highest competence it would have been infinitely wiser to give the principles of individual liberty the benefit of the doubt. Be this as it may, we are paying a heavy price for Pro-THE COST OF ENFORCEMENT 39 hibition in the shape of impairment of the traditional safeguards of liberty. Injunctions, padlocking, con- fiscation, have become familiar substitutes for the orderly processes of law enforcement by trial, con- viction, and sentence based upon proved guilt; and all this is but a mere fraction of what would have happened if the course of Prohibitionist tyranny had not been held in check both by a wholesome public sentiment and by the actual interposition of the courts. Every now and then, one hears of some person of considerable prominence declaring that if the people won’t obey the Prohibition law, they ought to be compelled to obey it if it took the whole power of the United States army to enforce it. Of course. such extravagant nonsense is not sanctioned by any but a few extremists; it would be unfair to charge Prohibitionists in general, or even the leaders of the Anti-Saloon League, with responsibility for any such proposal. But at bottom such a proposal only carries to a preposterous extreme the error that underlies a large part of the entire campaign of Prohibition enforcement. That error consists in the notion that if a law is’ deliberately resisted by a large part of the popula- tion, every possible resource of governmental power | ought to be used to overcome that resistance. If you ‘ : I a ere saat ere Tt 9p plist ce ' 7 : 7 | j ey - ia os . er I 2 ie : 4 iF i 7 ik e | 7 ee ee ee ee > . Ce ee eed ees Se I a PE pan ee , Shee ee ° ¢, arab. Tibi ereraietaieaeeetaee riadal ar | TPP } , , «i r A ’ Teh e SOLEIL OI AIELALOSSIELLIL LOL arated eerbleghae iia ical TUPTEAEARLO LEAL eeeaietal, TELGLTLRLaLeTaL Tittiitia ’ ts FLEES HALAL PRAIA COLES AES PEELS ALARA LLL EES EEE TRS eT ET He SEA ed Se ‘ ; te ee a ee ar ai) Seat ei eal: ha, ; 40 THE ABC OF PROHIBITION can’t get juries to convict, find some way of doing without juries; if you can’t get search-warrants enough to meet the case, search without warrants; if the courts are congested, and the police overworked, create more courts and employ more police. The idea that the enormous extent and extraordinary character of the resistance means that the law is wrong does not seem to cross the minds of these well- meaning but misguided persons. Yet nothing is better established by the experience of mankind, nothing more clearly recognized by those who have given thought and study to the great principles of law and government. When a law, and especially a law de- signed to regulate the ordinary habits of daily life, clearly fails to command the general consent of the people, the remedy is to be sought in changing the law to fit the people, not in an obstinate endeavor to change the people to fit the law. What we are witnessing in the matter of national Prohibition is no new phenomenon; though in degree it goes beyond all previous record, it is in kind the most familiar of juristic experiences. Let us see what was said on the subject by the late James C. Carter, one of the foremost of American lawyers, and one of the finest exemplars of American citizenship, inTHE COST OF ENFORCEMENT 4I his book on Law, Its Origin, Growth and Function, published twenty years ago: eee eee es en) . 7 a eee eed When a law is made declaring conduct widely practiced and widely regarded as innocent to be a crime, the evil consequences which arise upon at- tempts to enforce it are apt to be viewed as the consequences of the forbidden practice, and not of the attempt to suppress it; and it is believed that the true method of avoiding, or doing away with, these consequences is to press the efforts at enforcement with increased energy. But when a mistake has been made, its consequences cannot be avoided by a more vigorous persistence in it.... The law when enacted will not execute itself. It requires the active interposition of man to put it in force. Evidence must be found and prosecutions set in motion, and as this is a task in which good men are commonly found to be unwilling, or too indolent to voluntarily engage, others must be sought for who will undertake it. The spy and informer are hired, but their testimony is open to much impeachment, and is met by opposing testimony often false and perjured. The trials become scenes of perjury and subornation of perjury, and juries find abundant ex- cuses for rendering verdicts of acquittal or persisting in disagreements, contrary to their oaths. The whole machinery of enforcement fails, or, if it succeeds at all, it is in particular places only, while in others | the law is violated with impunity... . i es ee eee ee gene mee ees ee —_ i einieamale wo - - m2 A 5 eel eet ee et ee Ee ee ene — - _ a . +THe HBA HinG HME TERRE Teeter itt anie ate HSUELE ELSA ELAIALAIELH ELELAT LALAAATAESHOOHIS HAT ATSEATREAAAS EEE IEA EST GH REA TAT LER TAT STATI ETAT ATT ET GT ReR SUA EET 42 THE ABC OF PROHIBITION An especially pernicious effect is that society be- comes divided between the friends and the foes of the repressive law, and the opposing parties become animated with a 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. This was written many years before Prohibition became a national issue; has not every word of it been fulfilled in our actual experience under the Eighteenth Amendment?CHAPTER VIII CONCERNING DESPERATE REMEDIES In the face of all the objections we have been considering, our Prohibition law might conceivably be defended on the ground of imperious necessity. It might be admitted that the law is an extraordinary invasion of personal liberty; that it is a perversion of the Constitution; that it breaks down the spirit of our Federal Union; that it leads to an unparalleled disregard for law among reputable and respected citizens; that it creates a vast and lucrative criminal business in the shape of bootlegging; that it tends to obliterate the most precious traditions of our civic law;—all this the Prohibitionist might admit, and yet defend the law upon the principle that a des- perate situation justifies a desperate remedy. But in order to justify resort to a desperate remedy, it is necessary, first, that the situation be really a desperate one, and secondly that no other means of dealing with it be possible. In the case of our Prohibition law, neither of these things is true; indeed, both of them are the opposite of the truth. 43VRLERT LESTE Titi eiaiaeteaiar Hiya Tir ° TRUS EARLS LLESeLEat Lee TES E Tera a Pete eel Pata a cite Thiet a7 , _ iieiaaiiiy 7 HIS AiEL HEDEHHE BE HI UAELESEET EL EET ETE Sea sedi t HTC poeta ta : ie : | b eho eh eed ree o- Ste: ' see HaL ie ' a en eaaiees . eI — I — SA IRE TT a RN EC em 44 THE ABC OF PROHIBITION For many decades the evils of drink had been steadily diminishing. Habits of excess which were common in times that many men can distinctly re- member, had become rare and exceptional; habitual drunkenness, formerly regarded with a certain kindly tolerance, had come to be looked upon as an inexcusable vice. Even in the last two or three dec- ades, the change had been steadily progressing—the change from immoderate indulgence to temperate enjoyment, the change often from drinking at all to total abstinence, the change from the time when drunken men were a familiar sight to the time when they had become an unusual spectacle. All this was going on not only in our country but throughout Europe; and in addition to all this, there was, in our country, according to the Prohibitionists themselves, so rapid a spread of State or local Pro- hibition that almost the whole country had been covered by it. So far from the situation being des- perate, the situation was in the highest degree hope- ful. It did not, indeed, promise a speedy fulfillment of all that the Prohibitionists desired; a good deal of time and of patient endeavor was still needed for the attainment of their object; and even in the end the purpose they had at heart might not be com- pletely accomplished. But the evils they were fight- ing were steadily diminishing, and the worst of themCONCERNING DESPERATE REMEDIES 45 were fairly headed for something like extinction; there was nothing in the situation to call for resort to a violent departure from the tested principles of rational lawmaking. So much for the character of the situation; and the case is even clearer as to the possible ways of dealing with it. Compulsory total abstinence, im- posed by a virtually unrepealable law imbedded in the Constitution, is the most extreme method con- ceivable for coping with the problem of drink. This extreme was resorted to, not because there was no other way, but because it presented the allurement of a short-cut—a means of accomplishing the result by a single stroke, of putting an end forever to all difficulties and all opposition., The allurement has proved deceptive; the result, if accomplished at all, will not be accomplished for many, many years; difficulties of the most formidable kind have arisen; and opposition has been incomparably more intense and more widespread than any that had been en- countered by more moderate measures. Of these more moderate measures there have been many, in our own country and in Europe, that have produced beneficial results and have been attended by no such evils as those brought on by the Eight- eenth Amendment. Even if it be granted that a re- Neen eee - a ee ee oe oe 2 Oe - . ' a : : | 5 , 7 a ri 3. it a { — | - | ; ‘ ye ee ee ee = —Ser Pat ek Arellano ee eee 7Mee THT iei ete eiett tetas TER Eet et arate Wisi THe ’ : : TET a7 7 7 . j 7 Tele Ti , TURE El Haat UU RE : BREED HEEL 1a Bt HEE aaa i} NO LL es ee ee 46 THE ABC OF PROHIBITION sort to Federal legislation was desirable, it would still have been possible to give to that legislation a reasonable character. Instead of making a law which we were free to amend like other laws in case it was found unsatisfactory, the Prohibition law was put into the Constitution, so that the only practical form that opposition could take was defiance, since orderly amendment or repeal was out of the question. And instead of making a law which embodied the results of experience, we took a leap in the dark; for not | only had no great nation ever been placed under a | bone-dry Prohibition law, but even in our own country no great city, and no State containing a great city, had ever adopted such a law. If there was to be a Constitutional Amendment relating to drink, it ought of course to have been one giving Congress power to legislate on the subject. This would have been contrary to the spirit of our Federal Union, under which each State has the power to deal as it thinks fit with all the ordinary concerns of its citizens; but at least it would have left to the representatives of the American people as a whole the right to make such laws on the subject as they deemed proper, and to amend or repeal them when they wished to do so or when public sentiment demanded a change. In that case Congress might or might not have passed an act of bone-dry nationalCONCERNING DESPERATE REMEDIES 47 Prohibition; but if it had done so we should not have been bound hand and foot as we now are. When we found that the law was not producing the expected good results, or that it was producing grave evils on an enormous scale, we should have been free to try what Quebec and other Canadian Provinces have tried, what Sweden or Norway has tried, what England has tried, or some form of the local-option idea which has been so extensively applied in many States of our own country. If no other method were known, there might be some excuse for resorting to the desperate remedy of a Constitutional strait-jacket to be worn permanently, no matter how frightful the consequences. But everybody knows that there are plenty of other methods, some of them recom- mended by years of successful experience, all of them far more reasonable in their nature, and none of them attended by any such fearful injury to our public life, our civic traditions, and our heritage of freedom.areb) : aay etapa EACLE EEE I Te aT o a Lebaiei / PoP Ebel treats Tea / rit , , : TRUER LTT OPA RA bp eat ae ESL OLOARIELELEAROEaCaPaeaie TETEUT Tet ieee VOU aera. sTTaTaa aie JULEM EET EE Ee La EP EET EE Ese aE He zie . ee CHAPTER IX PERSONAL LIBERTY When we object to Prohibition as an invasion of personal liberty, the Prohibitionist answers that all government involves a surrender of personal liberty. This is perfectly true, but it is no answer to the objection. Government does indeed involve some sur- render of personal liberty, but it does not involve a complete surrender of personal liberty; and the trouble with the Prohibitionist’s answer is that he cannot point out any other surrender of personal liberty that is at all comparable to that imposed by the Eighteenth Amendment. Among any free people the surrender of personal liberty is demanded, generally speaking, only to the extent to which the right of one individual to do as he pleases has to be restricted either to prevent violation of the elementary rights of other in- dividuals, or to preserve conditions essential to the general safety or welfare. Stealing, murder, arson come under the first head; instances of the second are driving on the wrong side of the street, disturbing the public by loud noises, 48PERSONAL LIBERTY 49 etc. If A steals, he steals from B; if he murders, he kills B; if he commits arson, he sets fire to B's house or defrauds the insurance company. If a man drives on the wrong side of the street, he obstructs and endangers public traffic; if he makes a loud noise in the street, he disturbs the comfort of hundreds of his fellow citizens. Between restraints directed against acts like these, and restraints intended to compel people to con- form in their personal habits to standards imposed by governmental authority, there is a difference so tremendous that one must be blind not to see it. And there is an equally great contrast as regards the way in which the restraint is felt. A surrender of personal liberty which is made by practically unan- imous consent is a wholly different thing from a surrender which is forced by the law in the face of the determined protest of vast multitudes of per- fectly normal men and women. Is there a single human being who desires to have the liberty to drive on the wrong side of the street, or who feels the prohibition to do so as a personal grievance? Where are the people who wish to repeal the laws against forgery, or arson, or obtaining money under false pretenses? Even if there were no other difference between Prohibition and other restrictive laws and regula-. « | " + Tie ij tet aieD hibit i beidiel. 1 tar bik li +} ae H Shit 7 eee Te 7 PT tr .: aa : TEIFET EL writ 7 PHRASES ELLA) GE SLA ELSPETH AGHA GH A GTA I OOOO LL EE, 50 THE ABC OF PROHIBITION tions, there would still be the capital difference that millions of persons openly object to it as a restraint upon their personal liberty and as an impairment of their comfort and happiness. If there is any other law of which this can be said, it is curious that the Prohibitionists never point it out. They are in the absurd position of asking us to accept without pro- test a law to which millions of persons object as a gross violation of their liberty, simply because we accept without protest laws to which nobody objects at all. There is, it must be confessed, one instance of restraint upon personal liberty which the Prohi- bitionist can cite with considerable plausibility. That instance is the law against narcotic drugs. We are bound to admit that here is a restraint upon a man’s personal habits which is of the same nature as a law prohibiting alcoholic drinks. How then can we consistently, while justifying the one, denounce the other as a violation of the principle of personal liberty? The two things would, indeed, be incon- sistent, if the principle of personal liberty were asserted as something absolutely sacred, something from which no departure, however slight, can be permitted for any purpose however important. But there is no principle of human conduct which can be applied with undeviating rigor to all possiblePERSONAL LIBERTY 51 cases; the principle of personal liberty, like every other principle of mankind, must yield in extreme cases—cases where the sacrifice is very slight and the good to be attained very great. We all believe in the principle that lying 1s wrong; yet we all be- lieve that there are times when it is right to lie. It is a supreme principle of the medical profession that the life of a patient must be preserved as long as possible; yet every sensible physician mercifully refrains from prolonging life to the bitter end by every possible resource in a case of extreme and hopeless agony. Deviating from a principle in such extreme cases leaves the principle itself uninjured. So it is in the case of the narcotic-drug law. The use of narcotic drugs (except as medicine) is so un- mitigatedly harmful that there is 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 inter- course; it is connected with no joys or benefits that normal human beings openly prize; it stands out- side of 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 CasesMTT TTTITA PATI TAR TRE RL TILDE CLELEL EEL RLAELE TEAL eT eee eT ETET eatery THIET Peet eta eee Tritt VOTHEATSUABLEAHLGLHLANAL LOL AUBLALEULULLEATAESEUESTA HATS RALATREATE EAA LEASH EGTA GHEU UOT EGTA ATHR EGR ROUT ATA Ta A at eeea aT aa TTD : . ; , ; \ a2 ae ala epeeee reer oa ; 52 THE ABC OF PROHIBITION would involve an intolerable sacrifice. To make the prohibition of narcotic drugs a reason for approving the prohibition of alcoholic drinks would be like calling upon physicians to throw into the scrap heap their principle of the 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. Pee One ee « | I |CHAPTER X THE CRIME OF DRINKING The Eighteenth Amendment does not expressly make drinking a crime. It prohibits the manufacture, sale, or transportation of intoxicating liquors, not the drinking of them. But the prohibition of the drinking is of course its real purpose and effect. Making or selling is for- bidden solely because it makes drinking possible. The crime against which the Eighteenth Amendment is directed is the crime of drinking. Yet if the Eighteenth Amendment had said in words what it says in effect, it. would net. have. had a ghost of a chance of adoption. Just insert thé two words “or drinking” 1 the Eighteenth Amencment, so as to make it read “the marivfact ure, sale; trans- portation, or drinking of intoxicating hiquors; - ae tl | rere fl aren ape dnleaece. | | | : é 3 | | oS Lf “ 45 i 4 } | a / ly a : Ge | eee oa -- és 1 { [ie eee CEP] | | ‘ J a area SRS | | —__—+ Set fener, | | | AL ip bse | | = ene ee | | Lee : —_—_—__+——— aerate | | : mere aie 2a | + GAYLORD PRINTEO IN U.GA. URUUUCUIL ITALENT AUUUTU SEU BUSOU UC