What Prohibition Has Done to America

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

CHAPTER I

PERVERTING THE CONSTITUTION

THE object of a Constitution like that of the United States is to establish certain fundamentals of government in such a way that they cannot be altered or destroyed by the mere will of a majority of the people, or by the ordinary processes of legislation. The framers of the Constitution saw the necessity of making a distinction between these fundamentals and the ordinary subjects of law-making, and accordingly they, and the people who gave their approval to the Constitution, deliberately arrogated to themselves the power to shackle future majorities in regard to the essentials of the system of government which they brought into being. They did this with a clear consciousness of the object which they had in view--the stability of the new government and the protection of certain fundamental rights and liberties. But they did not for a moment entertain the idea of imposing upon future generations, through the extraordinary sanctions of the Constitution, their views upon any special subject of ordinary legislation. Such a proceeding would have seemed to them far more monstrous, and far less excusable, than that tyranny of George III and his Parliament which had given rise to the American Revolution.

Until the adoption of the Eighteenth Amendment, the Constitution of the United States retained the character which properly belongs to the organic law of a great Federal Republic. The matters with which it dealt were of three kinds, and three only--the division of powers as between the Federal and the State governments, the structure of the Federal government itself, and the safeguarding of the fundamental rights of American citizens. These were things that it was felt essential to remove from the vicissitudes attendant upon the temper of the majority at given time. There was not to be any doubt from year to year as to the limits of Federal power on the one hand and State power on the other; nor as to the structure of the Federal government and the respective functions of the legislative, executive, and judicial departments of that government; nor as to the preservation of certain fundamental rights pertaining to life, liberty and property.

That these things, once laid down in the organic law of the country, should not be subject to disturbance except by the extraordinary and difficult process of amendment prescribed by the Constitution was the dictate of the highest political wisdom; and it was only because of the manifest wisdom upon which it was based that the Constitution, in spite of many trials and drawbacks, commanded, during nearly a century and a half of momentous history, the respect and devotion of generation after generation of American citizens. Although the Constitution of the United States has been pronounced by an illustrious British statesman the most wonderful work ever struck off at a given time by the brain and purpose of man, it would be not only folly, but superstition, to regard it as perfect. It has been amended in the past, and will need to be amended in the future. The Income Tax Amendment enlarged the power of the Federal government in the field of taxation, and to that extent encroached upon a domain theretofore reserved to the States. The amendment which referred the election of Senators to popular vote, instead of having them chosen by the State Legislatures, altered a feature of the mechanism originally laid down for the setting up of the Federal government. The amendments that were adopted as a consequence of the Civil War were designed to put an end to slavery and to guarantee to the negroes the fundamental rights of freemen. With the exception of the amendments adopted almost immediately after the framing of the Constitution itself, and therefore usually regarded as almost forming part of the original instrument, the amendments just referred to are the only ones that had been adopted prior to the Eighteenth; and it happens that these amendments--the Sixteenth, the Seventeenth, and the group comprising the Thirteenth, Fourteenth and Fifteenth--deal respectively with the three kinds of things with which the Constitution was originally, and is legitimately, concerned: the division of powers between the Federal and the State governments, the structure of the Federal government itself, the safeguarding of the fundamental rights of American citizens.

One of the gravest indictments against the Eighteenth Amendment is that it has struck a deadly blow at the heart of our Federal system, the principle of local self-government. How sound that indictment is, how profound the injury which National Prohibition inflicted upon the States as self-governing entities, will be considered in a subsequent chapter. At this point we are concerned with an objection even more vital and more conclusive.

Upon the question of centralization or decentralization, of Federal power or State autonomy, there is room for rational difference of opinion. But upon the question whether a regulation prescribing the personal habits of individuals forms a proper part of the Constitution of a great nation there is no room whatever for rational difference of opinion. Whether Prohibition is right or wrong, wise or unwise, all sides are agreed that it is a denial of personal liberty. Prohibitionists maintain that the denial is justified, like other restraints upon personal liberty to which we all assent; anti-prohibitionists maintain that this denial of personal liberty is of a vitally different nature from those to which we all assent. That it is a denial of personal liberty is undisputed; and the point with which we are at this moment concerned is that to entrench a denial of liberty behind the mighty ramparts of our Constitution is to do precisely 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--withdraws them from the province of ordinary legislation--for the purpose of safeguarding liberty, the Eighteenth Amendment seizes upon the mechanism designed for this purpose, and perverts it to the diametrically opposite end, that of safeguarding the denial of liberty.

All history teaches that liberty is in danger from the tyranny of majorities as well as from that of oligarchies and monarchies; accordingly the Constitution says: No mere majority, no ordinary legislative procedure, shall be competent to deprive the people of the liberty that is hereby guaranteed to them. But the Eighteenth Amendment says: No mere majority, no mere legislative procedure, shall be competent to restore to the people the liberty that is hereby taken away from them. Thus, quite apart from all questions as to the merits of Prohibition in itself, the Eighteenth Amendment is a Constitutional monstrosity. That this has not been more generally and more keenly recognized is little to the credit of the American people, and still less to the credit of the American press and of those who should be the leaders of public opinion. One circumstance may, however, be cited which tends to extenuate in some degree this glaring failure of political sense and judgment. There have long been Prohibition enactments in many of our State Constitutions, and this has made familiar and commonplace the idea of Prohibition as part of a Constitution. But our State Constitutions are not Constitutions in anything like the same sense as that which attaches to the Constitution of the United States. Most of our State Constitutions can be altered with little more difficulty than ordinary laws; the process merely takes a little more time, and offers no serious obstacle to any object earnestly desired by a substantial majority of the people of the State.

Accordingly our State Constitutions are full of a multitude of details which really belong in the ordinary domain of statute law; and nobody looks upon them as embodying that fundamental and organic law upon whose integrity and authority depends the life and safety of our institutions. The Constitution of the United States, on the other hand, is a true Constitution--concerned only with fundamentals, and guarded against change in a manner suited to the preservation of fundamentals. To put into it a regulation of personal habits, to buttress such a regulation by its safeguards, is an atrocity for which no characterization can be too severe. And it is something more than an atrocity; the Eighteenth Amendment is not only a perversion but also a degradation of the Constitution. In what precedes, the emphasis has been placed on the perversion of what was designed as a safeguard of liberty into a safeguard of the denial of liberty. But even if no issue of liberty entered into the case, an amendment that embodied a mere police regulation would be a degradation of the Constitution. In the earlier days of our history --indeed up to a comparatively recent time-- if any one had suggested such a thing as a Prohibition amendment to the Federal Constitution, he would have been met not with indignation but with ridicule. It would not have been the monstrosity, but the absurdity, of such a proposal, that would have been first in the thought of almost any intelligent American to whom it might have been presented. He would have felt that such a feature was as utterly out of place in the Constitution of the United States as would be a statute regulating the height of houses or the length of women's skirts. It might be as meritorious as you please in itself, but it didn't belong in the Constitution. If the Constitution is to command the kind of respect which shall make it the steadfast bulwark of our institutions, the guaranty of our union and our welfare, it must preserve the character that befits such an instrument. The Eighteenth Amendment, if it were not odious as a perversion of the power of the Constitution, would be contemptible as an offense against its dignity.