What Prohibition Has Done to America

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

CHAPTER XI

IS THERE ANY WAY OUT?

IN the second chapter of this book, I undertook to give an account of the state of mind which the enactment of the Eighteenth Amendment has created, and which is at the bottom of that contempt for the law whose widespread prevalence among the best elements of our population is acknowledged alike by prohibitionists and anti-prohibitionists. "People feel in their hearts," I said, "that they are confronted with no other choice but that of either submitting to the full rigor of Prohibition, of trying to procure a law which nullifies the Constitution, or of expressing their resentment against an outrage on the first principles of the Constitution by contemptuous disregard of the law." It is a deplorable choice of evils; a state of things which it is hardly too much to call appalling in its potentialities of civic demoralization.

And one who realizes the gravity of the injury that a long continuance of this situation will inevitably inflict upon our institutions and our national character must ask whether there is any practical possibility of escape from it. The right means, and the only entirely satisfactory means, of escape from it is through the undoing of the error which brought it about--that is, through the repeal of the Eighteenth Amendment. Towards that end many earnest and patriotic citizens are working; but of course they realize the stupendous difficulty of the task they have undertaken. As a rule, these men, while working for the distant goal of repeal of the Amendment, are seeking to substitute for the Volstead act a law which will permit the manufacture and sale of beer and light wines; a plan which, as I have elsewhere stated, while by no means free from grave objection--for it is clearly not in keeping with the intent of the Eighteenth Amendment--would, in my judgment, be an improvement on the present state of things. But it is not pleasant to contemplate a situation in which, to avoid something still worse, the national legislature is driven to the deliberate enactment of a law that flies in the face of a mandate of the Constitution. A possible plan exists, however, which is not open to this objection, and yet the execution of which would not present such terrific difficulty as would the proposal of a simple repeal of the Eighteenth Amendment. That Amendment imbeds Prohibition in the organic law of the country, and thus not only imposes it upon the individual States regardless of what their desires may be, but takes away from the nation itself the right to legislate upon the subject by the ordinary processes of law-making. Now an Amendment repealing the Eighteenth Amendment but at the same time conferring upon Congress the power to make laws concerning the manufacture, sale and transportation of intoxicating liquors, would make it possible for Congress to pass a Volstead act, or a beer-and-wine act, or no Liquor act at all, just as its own judgment or desire might dictate. It would give the Federal Government a power which I think it would be far more wholesome to reserve to the States; but it would get rid of the worst part of the Eighteenth Amendment. And it would have, I think, an incomparably more favorable reception, from the start, than would a proposal of simple repeal. For the public could readily be brought to see the reasonableness of giving the nation a chance, through its representatives at Washington, to express its will on the subject from time to time, and the unreasonableness of binding generation after generation to helpless submission. The plea of majority rule is always a taking one in this country; and it is rarely that that plea rests on stronger ground than it would in this instance. The one strong argument which might be urged against the proposal--namely that such a provision would make Prohibition a constant issue in national elections, while the actual incorporation of Prohibition in the Constitution settles the matter once for all--has been deprived of all its force by our actual experience. So far from settling the matter once for all, the Eighteenth Amendment has been a frightful breeder of unsettlement and contention, which bids fair to continue indefinitely.

I have offered this suggestion for what it may be worth as a practical proposal; it seems certainly deserving of discussion, and I could not refrain from putting it forward as a possible means of relief from an intolerable situation. But I do not wish to wind up on that note. The right solution--a solution incomparably better than this which I have suggested on account of its apparently better chance of acceptance--is the outright repeal of the Eighteenth Amendment. And moreover, the primary need of this moment is not so much any practical proposal likely to be quickly realized as the awakening of the public mind to the fundamental issues of the case --the essential principles of law, of government, and of individual life which are so flagrantly sinned against by the Prohibition Amendment.

To the exposition of those fundamental issues this little book has been almost exclusively confined. It has left untouched a score of aspects of the question of drink, and of the prohibition of drink, which it would have been interesting to discuss, and the discussion of which would, I feel sure, have added to the strength of the argument I have endeavored to present. But there is an advantage, too, in keeping to the high points. It is not to a multiplicity of details that one must trust in a case like this. What is needed above all is a clear and wholehearted recognition of fundamentals. And I do not believe that the American people have got so far away from their fundamentals that such recognition will be denied when the case is clearly put before them. There is one and only one thing that could justify such a violation of liberty and of the cardinal principles of rational government as is embodied in the Eighteenth Amendment. In the face of desperate necessity, there may be justification for the most desperate remedy.

But so far from this being a case of desperate necessity, nothing is more unanimously acknowledged by all except those who labor under an obsession, than that the evil of drink has been steadily diminishing. Not only during the period of Prohibition agitation, but for many decades before that, drunkenness had been rapidly declining, and both temperate drinking and total abstinence correspondingly increasing. It is unnecessary to appeal to statistics. The familiar experience of every man whose memory runs back twenty, or forty, or sixty years, is sufficient to put the case beyond question; and every species of literary and historical record confirms the conclusion. This violent assault upon liberty, this crude defiance of the most settled principles of lawmaking and of government, this division of the country--as it has been well expressed-- into the hunters and the hunted, this sowing of dragons' teeth in the shape of lawlessness and contempt for law, has not been the dictate of imperious necessity, but the indulgence of the crude desire of a highly organized but one-idead minority to impose its standards of conduct upon all of the American people. To shake off this tyranny is one of the worthiest objects to which good Americans can devote themselves. To shake it off would mean not only to regain what has been lost by this particular enactment, but to forefend the infliction of similar outrages in the future. If it is allowed to stand, there is no telling in what quarter the next invasion of liberty will be made by fanatics possessed with the itch for perfection. I am not thinking of tobacco, or anything of the kind; twenty years from now, or fifty years from now, it may be religion, or some other domain of life which at the present moment seems free from the danger of attack. The time to call a halt is now; and the way to call a halt is to win back the ground that has already been lost. To do that will be a splendid victory for all that we used to think of as American--for liberty, for individuality, for the freedom of each man to conduct his own life in his own way so long as he does not violate the rights of others, for the responsibility of each man for the evils he brings upon himself by the abuse of that freedom. May the day be not far distant when we shall once more be a nation of sturdy freemen--not kept from mischief to ourselves by a paternal law copper-fastened in the Constitution, not watched like children by a host of guardians and spies and informers, but upstanding Americans loyally obedient to the Constitution, because living under a Constitution which a people of manly freemen can wholeheartedly respect and cherish.

THE END