What Prohibition Has Done to America

by Fabian Franklin
Copyright 1922,  Harcourt, Brace & Co., New York. 

CHAPTER VII

NATURE OF THE PROHIBITIONIST TYRANNY

THAT there are some things which, however good they may be in themselves, the majority has no right to impose upon the minority, is a doctrine that was, I think I may say, universally understood among thinking Americans of all former generations. It was often forgotten by the unthinking; but those who felt themselves called upon to be serious instructors of public opinion were always to be counted on to assert it, in the face of any popular clamor or aberration. The most deplorable feature, to my mind, of the whole story of the Prohibition amendment, was the failure of our journalists and leaders of opinion, with a few notable exceptions, to perform this duty which so peculiarly devolves upon them. Lest any reader should imagine that this doctrine of the proper limits of majority power is something peculiar to certain political theorists, I will quote just one authority --where I might quote scores as well--to which it is impossible to apply any such characterization. It ought, of course, to be unnecessary to quote any authority, since the Constitution itself contains the clearest possible embodiment of that doctrine. In the excellent little book of half a century ago referred to in a previous chapter, Nordhoff's "Politics for Young Americans," the chapter entitled "Of Political Constitutions" opens as follows:

A political Constitution is the instrument or compact in which the rights of the people who adopt it, and the powers and responsibilities of their rulers, are described, and by which they are fixed. The chief object of a constitution is to limit the power of majorities. A moment's reflection will tell you that mere majority rule, unlimited, would be the most grinding of tyrannies; the minority at any time would be mere slaves, whose rights to life, property and comfort no one who chose to join the majority would be bound to respect.

All this is stated, and the central point put in italics, by Mr. Nordhoff, as matter that must be impressed upon young people just beginning to think about public questions, and not at all as matter of controversy or doubt. The last sentence, to be sure, requires amplification; Mr. Nordhoff certainly did not intend his young readers to infer that such tyranny as he describes is either sure to occur in the absence of a Constitution or sure to be prevented by it. The primary defense against it is in the people's own recognition of the proper limits of majority power; what Mr. Nordhoff wished to impress upon his readers is the part played by a Constitution in fixing that recognition in a strong and enduring form. The quotation I have in mind, however, from one of the highest of legal authorities, has no reference to the United States Constitution or to any Constitution. It deals with the essential principles of law and of government. It is from a book by the late James C. Carter, who was beyond challenge the leader of the bar of New York, and was also one of the foremost leaders in movements for civic improvement. The book bears the title "Law: its Origin, Growth and Function," and consists of a course of lectures prepared for delivery to the law school of Harvard University seventeen years ago; which, it is to be noted, was before the movement for National Prohibition had got under way. Mr. Carter was not arguing for any specific object, but was impressing upon the young men general truths that had the sanction of ages of experience, and were the embodiment of the wisest thought of generations. Let us hear a few of these truths as he laid them down:

Nothing is more attractive to the benevolent vanity of men than the notion that they can effect great improvement in society by the simple process of forbidding all wrong conduct, or conduct which they think is wrong, by law, and of enjoining all good conduct by the same means. (p. 221 )

The principal danger lies in the attempt often made to convert into crimes acts regarded by large numbers, perhaps a majority, as innocent --that is to practise what is, in fact, tyranny. While all are ready to agree that tyranny is a very mischievous thing, there is not a right understanding equally general of what tyranny is. Some think that tyranny is a fault only of despots, and cannot be committed under a republican form of government; they think that the maxim that the majority must govern justifies the majority in governing as it pleases, and requires the minority to acquiesce with cheerfulness in legislation of any character, as if what is called self-government were a scheme by which different parts of the community may alternately enjoy the privilege of tyrannizing over each other. (p. 246)

Speaking in particular of the evil effects of that particular "species of criminal legislation to which sumptuary laws belong," Mr. Carter, after dwelling upon the subject in detail, says:

An especially pernicious effect is that society becomes divided between the friends and the foes of repressive laws, and the opposing parties become animated with hostility which prevents united action for purposes considered beneficial by both. Perhaps. the worst of all is that the general regard and reverence for law are impaired, a consequence the mischief of which can scarcely be estimated (p. 247).

To prevent consequences like these, springing as they do from the most deep-seated qualities of human nature, by pious exhortations is a hopeless undertaking. But if it be so in general--if the consequences of majority tyranny in the shape of repressive laws governing personal habits could be predicted so clearly upon general principles--how vastly more certain and more serious must these consequences be when such a law is fastened upon the people by means that would be abhorrent even in the case of any ordinary law! The people who object to Prohibition are exultantly told by their masters that it is idle for them to think of throwing off their chains; that the law is riveted upon them by the Constitution, and the possibility of repeal is too remote for practical consideration. Thus the one thought that might mitigate resentment and discountenance resistance, the thought that freedom might be regained by repeal, is set aside; and the result is what we have been witnessing. On this phase of the subject, however, enough has been said in a previous chapter. What I wish to point out at present is some peculiarities of National Prohibition which make it a more than ordinarily odious example of majority tyranny. National Prohibition in the United States --granting, for the sake of argument, that it expresses the will of a majority--is not a case merely of a greater number of people forcing their standards of life upon a smaller number, in a matter in which such coercion by a majority is in its nature tyrannical. The population of the United States is, in more than one respect, composed of parts extremely diverse as regards the particular subject of this legislation. The question of drink has a totally different aspect in the South from what it has in the North; a totally different aspect in the cities from what it has in the rural districts or in small towns; to say nothing of other differences which, though important, are of less moment. How profoundly the whole course of the Prohibition movement has been affected by the desire of the South to keep liquor away from the negroes, needs no elaboration; it would not be going far beyond the truth to say that the people of New York are being deprived of their right to the harmless enjoyment of wine and beer in order that the negroes of Alabama and Texas may not get beastly drunk on rotgut whiskey. If the South had stuck to its own business and to its traditional principle of State autonomy--a principle which the South invokes as ardently as ever when it comes to any other phase of the negro question--there would never have been a Prohibition Amendment to the Constitution of the United States; and at the same time the South would have found it perfectly possible to deal effectively with its own drink problem by energetic execution of its own laws, made possible by its own public opinion.

Nor is the case essentially different as regards the West; the very people who are loudest in their shouting for the Eighteenth Amendment are also most emphatic in their praises of what Kansas accomplished by enforcing her own Prohibition law. Thus the Prohibitionist tyranny is in no small measure a sectional tyranny, which is of course an aggravated form of majority tyranny. But what needs insisting on even more than this is the way in which the country districts impose their notions about Prohibition upon the people of the cities, and especially of the great cities. When attention is called to the wholesale disregard of the law, contempt for the law, and hostility to the law which is so manifest in the big cities, the champions of Prohibition in the press--including the New York press--never tire of saying that it is only in New York and a few other great cities that this state of things exists. But everybody knows that the condition exists not only in "a few," but in practically all, of our big cities; and for that matter that it exists in a large proportion of all the cities of the country, big and little. But if we confine ourselves only to the 34 cities having a population of 200,000 or more, we have here an aggregate population of almost exactly 25,000,000-- nearly one-fourth of the entire population of the country. Is it a trifling matter that these great communities, this vast population of large-city dwellers, should have their mode of life controlled by a majority rolled up by the vote of people whose conditions, whose advantages and disadvantages, whose opportunities and mode of life, and consequently whose desires and needs, are of a wholly different nature? Could the tyranny of the majority take a more obnoxious form than that of sparse rural populations, scattered over the whole area of the country from Maine to Texas and from Georgia to Oregon, deciding for the crowded millions of New York and Chicago that they shall or shall not be permitted to drink a glass of beer? Nor is it only the obvious tyranny of such a regime that makes it so unjustifiable. There are some special features in the case which accentuate its unreasonableness and unfairness. In the American village and small town, the use of alcoholic drinks presents almost no good aspect. The countryman sees nothing but the vile and sordid side of it. The village grogshop, the bar of the smalltown hotel, in America has presented little but the gross and degrading aspect of drinking. Prohibition has meant, to the average farmer, the abolition of the village groggery and the small-town barroom. That it plays a very different part in the lives of millions of city people--and for that matter that it does so in the lives of millions of industrial workers in smaller communities--is a notion that never enters the farmer's mind. And to this must be added the circumstance that the farmer can easily make his own cider and other alcoholic drinks, and feels quite sure that Prohibition will never seriously interfere with his doing so. Altogether, we have here a case of one element of the population decreeing the mode of life of another element of whose circumstances and desires they have no understanding, and who are affected by the decree in a wholly different way from that in which they themselves are affected by it. Many other points might be made, further to emphasize the monstrosity of the Prohibition that has been imposed upon our country. Of these perhaps the most important one is the way in which the law operates so as to be effective against the poor, and comparatively impotent against the rich. But this and other points have been so abundantly brought before the public in connection with the news of the day that it seemed hardly necessary to dwell upon them. My object has been rather to direct attention to a few broad considerations, less generally thought of. The objection that applies to sumptuary laws in general has tenfold force in the case of National Prohibition riveted down by the Constitution, and imposed upon the whole nation by particular sections and by particular elements of the population. A question of profound interest in connection with this aspect of Prohibition demands a few words of discussion. It has been asserted with great confidence, and denied with equal positiveness, that Prohibition has had the effect of very greatly increasing the addiction to narcotic drugs. I confess my inability to decide, from any data that have come to my attention, which of these contradictory assertions is true. But it is not denied by anybody, I believe, that, whether Prohibition has anything to do with the case or not, the use of narcotic drugs in this country is several times greater per capita than it is in any of the countries of Europe--six or seven times as great as in most. Why this should be so, it is perhaps not easy to determine. The causes may be many. But I submit that it is at least highly probable that one very great cause of this extraordinary and deplorable state of things is the atmosphere of reprobation which in America has so long surrounded the practice of moderate drinking. Any resort whatever to alcoholic drinks being held by so large a proportion of the persons who are most influential in religious and educational circles to be sinful and incompatible with the best character, it is almost inevitable that, in thousands of cases, desires and needs which would find their natural satisfaction in temperate and social drinking are turned into the secret and infinitely more unwholesome channel of drug addiction. How much of the extraordinary extent of this evil in America may be due to this cause, I shall of course not venture to estimate; but that it is a large part of the explanation, I feel fairly certain. And my belief that it is so is greatly strengthened by the familiar fact that in the countries in which wine is cheap and abundant, and is freely used by all the people, drunkenness is very rare in comparison with other countries. As easy and familiar recourse to wine prevents resort to stronger drinks, so it seems highly probable that the practice of temperate drinking would in thousands of cases obviate the craving for drugs. But when all drinking, temperate and intemperate, is alike put under the ban, the temptation to secret indulgence in drugs gets a foothold; and that temptation once yielded to, the downward path is swiftly trodden. Finally, there is a broad view of the whole subject of the relation of Prohibition to life, which these last reflections may serve to suggest. When a given evil in human life presents itself to our consideration, it is a natural and a praiseworthy impulse to seek to effect its removal. To that impulse is owing the long train of beneficent reforms which form so gratifying a feature of the story of the past century and more. But that story would have been very different if the reformer had in every instance undertaken to extirpate whatever he found wrong or noxious. To strike with crusading frenzy at what you have worked yourself up into believing is wholly an accursed thing is a tempting short cut, but is fraught with the possibility of all manner of harm. In the case of Prohibition, I have endeavored to point out several of the forms of harm which it carries with it. But in addition to those that can so plainly be pointed out, there is a broader if less definite one.

When we have choked off a particular avenue of satisfaction to a widespread human desire; when, foiled perhaps in one direction, we attack with equal fury the possibility of escape in another and another; who shall assure us that, debarred of satisfaction in old and tried ways, the same desires will not find vent in far more injurious indulgences ? How different if, instead of crude and wholesale compulsion, resort were had--as it had been had before the Prohibitionist mania swept us off our feet--to well-considered measures of regulation and restriction, and to the legitimate influences of persuasion and example! The process is slower, to be sure, but it had accomplished wonderful improvement in our own time and before; what it gained was solid gain; and it did not invite either the resentment, the lawlessness, or the other evils which despotic prohibition of innocent pleasure carries in its train.