What Prohibition Has Done to America

by Fabian Franklin

CHAPTER IV

HOW THE AMENDMENT WAS PUT THROUGH

THERE has been a vast amount of controversy over the question whether a majority of the American people favored the adoption of the Eighteenth Amendment. There is no possible way to settle that question. Even future votes, if any can be had that may be looked upon as referendum votes, cannot settle it, whichever way they may turn out. If evidence should come to hand which indicates that a majority of the American people favor the retention of the Amendment now that it is an accomplished fact, this will not prove that they favored its adoption in the first place; it may be that they wish to give it a fuller trial, or it may be that they do not wish to go through the upheaval and disturbance of a fresh agitation of the question or it may be some other reason quite different from what was in the situation four years ago. On the other hand, if the referendum should seem adverse, this might be due to disgust at the lawlessness that has developed in connection with the Prohibition Amendment, or to a realization of the vast amount of discontent it has aroused, or to something else that was not in the minds of the majority when the Amendment was put through. But really the question is of very little importance. From the standpoint of fundamental political doctrine, it makes no difference whether 40 million, or 50 million, or 60 million people out of a hundred million desired to put into the Constitution a provision which is an offense against the underlying idea of any Constitution, an injury to the American Federal system, an outrage upon the first principles both of law and of liberty. And if, instead of viewing the matter from the standpoint of fundamental political doctrine, we look upon it as a question of Constitutional procedure, it is again--though for a different reason--a matter of little consequence whether a count of noses would have favored the adoption of the Amendment or not. The Constitution provides a definite method for its own amendment, and this method was strictly carried out--the Amendment received the approval of the requisite number of Representatives, Senators and State Legislatures; from the standpoint of Constitutional procedure the question of popular majorities has nothing to do with the case. But from every standpoint the way in which the Eighteenth Amendment was actually put through Congress and the Legislatures has a great deal to do with the case. Prohibitionists constantly point to the big majority in Congress, and the promptness and almost unanimity of the approval by the Legislatures, as proof of an overwhelming preponderance of public sentiment in favor of the Amendment. It is proof of no such thing. To begin with, nothing is more notorious than the fact that a large proportion of the members of Congress and State Legislatures who voted for the Prohibition Amendment were not themselves in favor of it. Many of them openly declared that they were voting not according to their own judgment but in deference to the desire of their constituents. But there is not the slightest reason to believe that one out of twenty of those gentlemen made any effort to ascertain the desire of a majority of their constituents; nor, for that matter, that they would have followed that desire if they had known what it was. What they were really concerned about was to get the support, or avoid the enmity, of those who held, or were supposed to hold, the balance of power. For that purpose a determined and highly organized body of moderate dimensions may outweigh a body ten times as numerous and ten times as representative of the community. The Anti-Saloon League was the power of which Congressmen and Legislaturemen alike stood in fear. Never in our political history has there been such an example of consummately organized, astutely managed, and unremittingly maintained intimidation; and accordingly never in our history has a measure of such revolutionary character and of such profound importance as the Eighteenth Amendment been put through with anything like such smoothness and celerity. The intimidation exercised by the AntiSaloon League was potent in a degree far beyond the numerical strength of the League and its adherents, not only because of the effective and systematic use of its black-listing methods, but also for another reason. Weak-kneed Congressmen and Legislaturemen succumbed not only to fear of the ballots which the League controlled but also to fear of another kind. A weapon not less powerful than political intimidation was the moral intimidation which the Prohibition propaganda had constantly at command. That such intimidation should be resorted to by a body pushing what it regards as a magnificent reform is not surprising; the pity is that so few people have the moral courage to beat back an attack of this kind. Throughout the entire agitation, it was the invariable habit of Prohibition advocates to stigmatize the anti-Prohibition forces as representing nothing but the "liquor interests." The fight was presented in the light of a struggle between those who wished to coin money out of the degradation of their fellow-creatures and those who sought to save mankind from perdition. That the millions of people who enjoyed drinking, to whom it was a cherished source of refreshment, recuperation, and sociability, had any stake in the matter, the agitators never for a moment acknowledged; if a man stood out against Prohibition he was not the champion of the millions who enjoyed drink, but the servant of the interests who sold drink. This preposterous fiction was allowed to pass current with but little challenge; and many a public man who might have stood out against the Anti-Saloon League's power over the ballot-box cowered at the thought of the moral reprobation which a courageous stand against Prohibition might bring down upon him. Thus the swiftness with which the Prohibition Amendment was adopted by Congress and by State Legislatures, and the overwhelming majorities which it commanded in those bodies, is no proof either of sincere conviction on the part of the lawmakers or of their belief that they were expressing the genuine will of their constituents. As for individual conviction, the personal conduct of a large proportion of the lawmakers who voted for Prohibition is in notorious conflict with their votes; and as for the other question, it has happened in State after State that the Legislature was almost unanimous for Prohibition when the people of the State had quite recently shown by their vote that they were either distinctly against it or almost evenly divided. Of this kind of proceeding, Maryland presented an example so flagrant as to deserve special mention. Although popular votes in the State had, within quite a short time, recorded strong anti-Prohibition majorities, the Legislature rushed its ratification of the Eighteenth Amendment through in the very first days of its session; and this in face of the fact that Maryland has always held strongly by State rights and cherished its State individuality, and that the leading newspapers of the State and many of its foremost citizens came out courageously and energetically against the Amendment. In these circumstances, nothing but a mean subserviency to political intimidation can possibly account for the indecent haste with which the ratification was pushed through. It is interesting to note a subsequent episode which casts a further interesting light on the matter, and tends to show that there are limits beyond which the whip-and-spur rule of the Anti-Saloon League cannot go. In the session of the present year, the Anti-Saloon League tried to get a State Prohibition enforcement bill passed. Although there was a great public protest, the bill was put through the lower House of the Legislature; but in the Senate it encountered resistance of an effective kind. The Senate did not reject the bill; but, in spite of bitter opposition by the Anti-Saloon League, it attached to the bill a referendum clause. With that clause attached, the Anti-Saloon League ceased to desire the passage of the bill, and allowed it to be killed on its return to the lower House of the Legislature. Is this not a fine exhibition of the nature of the League's hold on legislation? And is there not abundant evidence that the whole of this Maryland story is typical of what has been going on throughout the country? Charges are made that the Anti-Saloon League has expended vast sums of money in its campaigns; money largely supplied, it is often alleged, by one of the world's richest men, running into the tens of millions or higher. r do not believe that these charges are true. More weight is to be attached to another factor in the case--the adoption of the Amendment by Congress while we were in the midst of the excitement and exaltation of the war, and two million of our young men were overseas. Unquestionably, advantage was taken of this situation, there can be little doubt that the Eighteenth Amendment would have had much harder sledding at a normal time. And it is right, accordingly, to insist that the Amendment was not subjected to the kind of discussion, nor put through the kind of test of national approval, which ought to precede any such permanent and radical change in our Constitutional organization. This is especially true because National Prohibition was not even remotely an issue in the preceding election, nor in any earlier one. All these things must weigh in our judgment of the moral weight to be attached to the adoption of the Eighteenth Amendment; but there is another aspect of that adoption which is more important. The gravest reproach which attaches to that unfortunate act, the one which causes deepest concern among thinking citizens, does not relate to any incidental feature of the Prohibition manoevres. The fundamental trouble lay in a deplorable absence of any general understanding of the seriousness of making a vital change in the Constitution--incomparably the most vital to which it has ever been subjected--and of the solemn responsibility of those upon whom rested the decision to make or not to make that change. Even in newspapers in which one would expect, as a matter of course, that this aspect of the question would be earnestly impressed upon their readers, it was, as a rule, passed over without so much as a mention. And this is not all. One of the shrewdest and most successful of the devices which the League and its supporters constantly made use of was to represent the function of Congress as being merely that of submitting the question to the State Legislatures; as though the passage of the Amendment by a two-thirds vote of Congress did not necessarily imply approval, but only a willingness to let the sentiment of the several States decide. Of course, such a view is preposterous; of course, if such were the purpose of the Constitutional procedure there would be no requirement of a two-thirds vote.* But many members of Congress were glad enough to take refuge behind this view of their duty, absurd though it was; and no one can say how large a part it played in securing the requisite two-thirds of House and Senate. Yet from the moment the Amendment was thus adopted by Congress, nothing more was heard of this notion of that body having performed the merely ministerial act of passing the question on to the Legislatures. On the contrary, the two-thirds vote (and more) was pointed to as conclusive evidence of the overwhelming support of the Amendment by the nation; the Legislatures were expected to get with alacrity into the band-wagon into which Congress had so eagerly climbed. Evidently, it would have been far more difficult to get the Eighteenth Amendment into the Constitution if the two-thirds vote of Congress had been the sole requirement for its adoption. Congressmen disposed to take their responsibility lightly, and yet not altogether without conscience, voted with the feeling that their act was not final, when they might otherwise have shrunk from doing what their Judgment told them was wrong; and, the thing once through Congress, Legislatures hastened to ratify in the feeling that ratification by the requisite number of Legislatures was manifestly a foregone conclusion. Thus at no stage of the game was there given to this tremendous Constitutional departure anything even distantly approaching the kind of consideration that such a step demands. The country was jockeyed and stampeded into the folly it has committed; and who can say what may be the next folly into which we shall fall, if we do not awaken to a truer sense of the duty that rests upon every member of a lawmaking body--to decide these grave questions in accordance with the dictates of his own honest and intelligent judgment?

* This should be self-evident; but if there were any room for doubt. it would be removed by a reference to the language of Article V of the Constitution: "The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution" which shall be valid "when ratified by the Legislatures of three-fourths of the States." Thus Congress does not submit an amendment, but proposes it; and it does this only when two-thirds of both Houses deem it necessary. The primary act of judgment is performed by Congress; what remains for the Legislatures is to ratify or not to ratify that act.

CHAPTER V

THE LAW MAKERS AND THE LAW

WELL MEANING exhorters, shocked at the spectacle of millions of perfectly decent and law-abiding Americans showing an utter disregard of the Prohibition law, are prone to insist that to violate this law, or to abet its violation, is just as immoral as to violate any other criminal law. The thing is on the statute-books--nay, in the very Constitution itself --and to offend against it, they say, is as much a crime as to commit larceny, arson or murder. But they may repeat this doctrine until Doomsday, and make little impression upon persons who exercise their common sense. The law that makes larceny, arson or murder a crime merely registers, and emphasizes, and makes effective through the power of the Government, the dictates of the moral sense of practically all mankind; and if, in the case of some kindred crimes, it goes beyond those dictates for special reasons, the extension is only such as is called for by the circumstances. However desirable it may be that the sudden transformation of an innocent act into a crime by mere governmental edict should carry with it the same degree of respect as is paid to laws against crimes which all normal men hold in abhorrence, it is idle to expect any such thing; and in a case where the edict violates principles which almost all of us only a short time ago held to be almost sacred, the expectation is worse than merely idle. A nation which could instantly get itself into the frame of mind necessary for such supine submission would be a nation fit for servitude, not freedom. But in the case of the Prohibition Amendment, and of the Volstead act for its enforcement, there enters another element which must inevitably and most powerfully affect the feelings of men toward the law. Everybody knows that the law is violated, in spirit if not in letter, by a large proportion of the very men who imposed it upon the country. Members of Congress and of the State Legislatures--those that voted for Prohibition, as well as those that voted against it--have their private stocks of liquor like other people; nor is there any reason to believe that many of them are more scrupulous than other people in augmenting their supply from outside sources. One of the means resorted to by the Anti-Saloon League in pushing through the Amendment was the particular care they took to make its passage involve little sacrifice of personal indulgence on the part of those who were wealthy enough, or clever enough, to provide for the satisfaction of their own desires in the matter of drink, at least for many years to come. The League knew perfectly that in some Prohibition States the possession of liquor was forbidden as well as its manufacture, transportation and sale; but the AntiSaloon League would never have dared to include in the Amendment a ban upon possession. Congressmen who voted for it knew that not only they themselves, but their wealthy and influential constituents, would be in a position to provide in very large measure for their own future indulgences; and it may be set down as certain that had this not been the case, opposition to the Amendment would have been vastly more effective than it was. In order that a person should entertain a genuine feeling that the Prohibition Amendment is entitled to the same kind of respect as the general body of criminal law, it is necessary--even if he waives all those questions of Constitutional principle which have been dwelt upon in previous chapters--that he should regard drinking as a crime. And this is indeed the express belief of many upholders of the Amendment--a foolish belief, in my judgment, but certainly a sincere one. I have before me a letter--typical of many--published in one of our leading newspapers and written evidently by a man of education as well as sincerity. He speaks bitterly of the proposal to permit "light wines and beer," and asks whether any one would propose to permit light burglary or light arson. That man evidently regards indulgence in any intoxicating liquor as a crime, and he looks upon the law as a prohibition of that crime. And he is essentially right, if the law is right. For while the law does not in its express terms make drinking a crime, its intention--and its practical effect so far as regards the great mass of the people--is precisely that. The people President Angell had in mind when he implored the young Yale graduates not to be like them, are not makers or sellers of liquor, but drinkers of it. They are not moonshiners or smugglers or bootleggers; they are the people upon whose patronage or connivance the moonshiners and smugglers and bootleggers depend for their business. And everybody knows that, in their private capacity, Senators and Representatives and Legislaturemen are precisely like their fellow-citizens in this matter. They may possibly be somewhat more careful about the letter of the law; they are certainly just as regardless of its spirit. With the exception of a comparatively small number of genuine Prohibitionists--men who were for Prohibition before the Anti-Saloon League started its campaign--they would laugh at the question whether they regard drinking as a crime. And they act accordingly. What degree of moral authority can the law be expected to have in these circumstances? Upon the mind of a man intensely convinced that the law is an outrage, how much impression can be produced by the mere fact that it was passed by Congress and the Legislatures, when the real attitude of the members of those bodies is such as it is seen to be in their private conduct? How much of a moral sanction would be given to a law against larceny if a large proportion of the men who enacted the law were themselves receivers of stolen goods ? Or a law against forgery if the legislators were in the frequent habit of passing forged checks? It happens that the receiving of stolen goods or the passing of forged checks is a crime under the law, as well as the stealing or the forgery itself; and that the Prohibition law does not make the drinking or even the buying of liquor, but only the making or selling of it, a crime; but what a miserable refuge this is for a man who professes to believe that the abolition of intoxicating liquor is so supreme a public necessity as to demand the remaking of the Constitution of the United States for the purpose! Not the least of the causes of public disrespect for the Prohibition law is the notorious insincerity of the makers of the law, and their flagrant disrespect for their own creation.

CHAPTER VI