What Prohibition Has Done to America

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

CHAPTER IX

Prohibition and Liberty

LIBERTY is not today the watchword that it was a hundred years ago, or fifty years ago, or thirty years ago. Though there may be much doubt as to the causes of the change, it must be admitted as a fact that the feeling that liberty is in itself one of the prime objects of human desire, a precious thing to be struggled for when denied and to be jealously defended when possessed, has not so strong a hold on men's minds at this time as it had in former generations. Some of the chief reasons for this change are not, however, far to seek. In the tremendous movement, political and economic, that has marked the past hundred years, three ideas have been dominant--democracy, efficiency, humanitarianism. None of these three ideas is inherently bound up with the idea of liberty; and indeed each one of the three contains the seed of marked hostility to the idea of liberty. This is more true, and more obviously true, of efficiency and of humanitarianism than it is of democracy; but it is true in no small measure of democracy also. For people intent upon the idea that government must be democratic--that is, must reflect the will of the majority--naturally concentrate upon the effort to organize the majority and increase its power; a process which throws into the shade regard for individual rights and liberties, and even tends to put them somewhat in the light of obstacles to the great aim. Furthermore, the democratic movement has set for itself objects beyond the sphere of government; and in the domain of economic control, democracy--if that is the right word for it--must strive for collective power, as distinguished from individual liberty, even more intently than in the field of government.

However, in the case of democracy, there is at least no inherent opposition to liberty; such opposition as develops out of it may be regarded as comparatively accidental. Not so with efficiency or humanitarianism. Even here, however, I feel that a word of warning is necessary. I am not speaking of the highest and truest efficiency, or of the most farsighted and most beneficent humanitarianism. I am speaking of efficiency as understood in the common use of the term as a label; and I am speaking of humanitarianism as represented by the attitude and the mental temper of nearly all of the excellent men and women who actually represent that cause and who devote their lives to the problems of social betterment. To the efficiency expert and to his multitude of followers, the immediate increase of productivity is so absorbing an object that if it has been attained by a particular course of action, the question whether its attainment has involved a sacrifice of liberty seems to his mind absolutely trivial. Of course this would not be so if the sacrifice were of a startling nature; but short of something palpably galling, something grossly offensive to the primary instincts of freemen, he simply doesn't understand how any person of sense can pretend to be concerned about it, in the face of demonstrated success from the efficiency standpoint. What is true of the apostle of efficiency, and his followers, is even more emphatically true of the humanitarian. And, difficult as many people find it to stand out against the position of the efficiency advocate, it is far more difficult to dissent from that of the devotee of humanitarianism. In the case of the first, one has to brace up one's intellect to resist a plausible and enticing doctrine; in the case of the second, one must, in a sense, harden one's heart as well as stiffen one s mind. For here one has to deal not with a mere calculation of a general increase of prosperity or comfort, but with the direct extirpation of vice and misery which no decent person can contemplate without keen distress. I f the humanitarian finds the principle of liberty thrust in the way of his task of healing and rescue, he will repel with scorn the idea that any such abstraction should be permitted to impede his work of salvation; and--especially if the idea of liberty has, through other causes, suffered a decline from its once high authority--he will find multitudes ready to share his indignation. And he will find still greater multitudes who do not share his indignation, and in their hearts feel much misgiving over the invasion of liberty, but who are without the firmness of conviction, or without the moral courage, necessary to the assertion of principle when such assertion brings with it the danger of social opprobrium. The leaders in humanitarian reforms, and their most active followers, are, as a rule, men and women of high moral nature, and whether wise or unwise, broad-minded or narrow and fanatical, are justly credited with being actuated by a good motive; unfortunately, however, these attributes rarely prevent them from making reckless statements as to the facts of the matter with which they are dealing, nor from indulging in calumnious abuse of those who oppose them. Hence thousands of persons really averse to their programme give tacit or lukewarm assent to it rather than incur the odium which outspoken opposition would invite; and accordingly, true though it is that the idea of liberty is not cherished so ardently or so universally as in a former day, the decline into which it has fallen in men's hearts and minds is by no means so great as surface indications make it seem. On the one hand, the efficiency people and the professional humanitarians are, like all reformers and agitators, abnormally vocal; and on the other hand the lovers of the old-fashioned principle of liberty are abnormally silent, so far as any public manifestation is concerned.

In the foregoing I have admitted, I think, as great a decline in the current prestige of the idea of liberty as would be claimed by the most enthusiastic efficiency man or the most ardent humanitarian. I now wish to insist upon the other side of the matter. Persons who are always ready to be carried away with the current--and their name is legion--constantly make the mistake of imagining that the latest thing is the last. They are the first to throw aside old and venerable notions as outworn; they look with condescending pity upon those who are so dull as not to recognize the infinite potency of change; and yet, curiously enough, they never think of the possibility of a change which may reverse the current of today just as the current of today has reversed that of yesterday. The tree of liberty is less flourishing today than it was fifty or a hundred years ago; its leaves are not so green, and it is not so much the object of universal admiration and affection. But its roots are deep down in the soil; and it supplies a need of mankind too fundamental, feeds an aspiration too closely linked with all that elevates and enriches human nature, to permit of its being permanently neglected or allowed to fall into decay. And even at this very time, as I have indicated above, the mass of the people--and I mean great as well as small, cultured and wealthy as well as ignorant and poor--retain their instinctive attachment to the idea of liberty. It is chiefly in a small, but extremely prominent and influential, body of oversophisticated people--specialists of one kind or another--that the principle of liberty has fallen into the disrepute to which I have referred. The prime reason why the Prohibition law is so light-heartedly violated by all sorts and conditions of men, why it is held in contempt by hundreds of thousands of our best and most respected citizens, is that the law is a gross outrage upon personal liberty. Many, indeed, would commit the violation as a mere matter of self-indulgence; but it is absurd to suppose that this would be done, as it is done, by thousands of persons of the highest type of character and citizenship. These people are sustained by the consciousness that, though their conduct may be open to criticism, it at least has the justification of being a revolt against a law--a law unrepealable by any ordinary process--that strikes at the foundations of liberty. Defenders of Prohibition seek to do away with the objection to it as an invasion of personal liberty by pointing out that all submission to civil government is in the nature of a surrender of personal liberty. This is true enough, but only a shallow mind can be content with this cheap and easy disposition of the question. To any one who stops to think of the subject with some intelligence it must be evident that the argument proves either too much or nothing at all. If it means that no proposed restriction can properly be objected to as an invasion of personal liberty, because all restrictions are on the same footing as part of the order of society, it means what every man of sense would at once declare to be preposterous; and if it does not mean that it leaves the question at issue wholly untouched. Submission to an orderly government does, of course, involve the surrender of one s personal freedom in countless directions But speaking broadly, such surrender is exacted, under what are generally known as "free institutions," only to the extent to which the right of one man to do as he pleases has to be restricted in order to secure the elementary rights of other men from violation, or to preserve conditions that are essential to the general welfare. If A steals, he steals from B; if he murders, he kills B; if he commits arson, he sets fire to B's house. If a man makes a loud noise in the street, he disturbs the quiet of hundreds of his fellow citizens, and may make life quite unendurable to them. There are complexities into which I cannot enter in such matters as Sunday closing and kindred regulations; but upon examination it is easily enough seen that they fall in essence under the same principle--the principle of restraint upon one individual to prevent him from injuring not himself, but others. A law punishing drunkenness, which is a public nuisance, comes under the head I have been speaking of; a law forbidding a man to drink for fear that he may become a drunkard does not. And in fact the prohibitionists themselves instinctively recognize the difference, and avoid, so far as they can, offending the sense of liberty by so direct an attack upon it. It is safe to say that if the Eighteenth Amendment had undertaken to make the drinking of liquor a crime, instead of the manufacture and sale of it, it could not have been passed or come anywhere near being passed. There is hardly a Senator or a Representative that would not have recoiled from a proposal so palpably offensive to the instinct of liberty. Yet precisely this is the real object of the Eighteenth Amendment; its purpose--and, if enforced, its practical effect--is to make it permanently a crime against the national government for an American to drink a glass of beer or wine. The legislators, State and national, who enacted it knew this perfectly well; yet if the thing had been put into the Amendment in so many words, hardly a man of them would have cast his vote for it. The phenomenon is not so strange, or so novel, as it might seem; it has a standard prototype in the history of Rome. The Roman people had a rooted aversion and hostility to kings; and no Caesar would ever have thought of calling himself rex. But imperator went down quite smoothly, and did just as well. In addition to its being a regulation of individual conduct in a matter which is in its nature the individual's own concern, Prohibition differs in another essential respect from those restrictions upon liberty which form a legitimate and necessary part of the operation of civil government. To put a governmental ban upon all alcoholic drinks is to forbid the use of a thing in order to prevent its abuse. Of course there are fanatics who declare--and believe--that all indulgence in alcoholic drink, however moderate, is abuse; but to justify Prohibition on that ground would be to accept a doctrine even more dangerous to liberty. It is bad enough to justify the proscription of an innocent indulgence on the ground that there is danger of its being carried beyond the point of innocence; but it is far worse to forbid it on the ground that, however innocent and beneficial a moderate indulgence may seem to millions of people, it is not regarded as good for them by others. The only thing that lends dignity to the Prohibition cause is the undeniable fact that drunkenness is the source of a vast amount of evil and wretchedness; the position of those who declare that all objections must be waived in the presence of this paramount consideration is respectable, though in my judgment utterly wrong. But any man who justifies Prohibition on the ground that drinking is an evil, no matter how temperate, is either a man of narrow and stupid mind or is utterly blind to the value of human liberty. The ardent old-time Prohibitionist--the man who thinks, however mistakenly, that the abolition of intoxicating drinks means the salvation of mankind--counts the impairment of liberty as a small matter in comparison with his world-saving reform; this is a position from which one cannot withhold a certain measure of sympathy and respect. But to justify the sacrifice of liberty on the ground that the man who is deprived of it will be somewhat better off without it is to assume a position that is at once contemptible and in the highest degree dangerous. Contemptible, because it argues a total failure to understand what liberty means to mankind; dangerous, because there is no limit to the monstrosities of legislation which may flow from the acceptance of such a view. Esau sold his birthright to Jacob for a mess of pottage which he wanted; these people would rob us of our birthright and by way of compensation thrust upon us a mess of pottage for which we have no desire. Rejecting, then, the preposterous notion of extreme fanatics--whether the fanatics of science or the fanatics of moral reform--we have in Prohibition a restraint upon the liberty of the individual which is designed not to protect the rights of other individuals or to serve the manifest requirements of civil government, but to prevent the individual from injuring himself by pursuing his own happiness in his own way; the case being further aggravated by the circumstance that in order to make this injury impossible he is denied even such access to the forbidden thing as would not-- except in a sense that it is absurd to consider --be injurious. Now this may be benevolent despotism, but despotism it is; and the people that accustoms itself to the acceptance of such despotism, whether at the hands of a monarch, or an oligarchy, or a democracy, has abandoned the cause of liberty. For there is hardly any conceivable encroachment upon individual freedom which would be a more flagrant offense against that principle than is one that makes an ironbound rule commanding a man to conform his personal habits to the judgment of his rulers as to what is best for him. I do not mean to assert that it necessarily follows that such encroachments will actually come thick and fast on the heels of Prohibition. Any specific proposal will, of course, be opposed by those who do not like it, and may have a much harder time than Prohibition to acquire the following necessary to bring about its adoption. But the resistance to it on specific grounds will lack the strength which it would derive from a profound respect for the general principle of liberty; whatever else may be said against it, it will be impossible to make good the objection that it sets an evil precedent of disregard for the claims of that principle. The Eighteenth Amendment is so gross an instance of such disregard that it can hardly be surpassed by anything that is at all likely to be proposed. And if the establishment of that precedent should fail actually to work so disastrous an injury to the cause of liberty, we must thank the widespread and impressive resistance that it has aroused. Had the people meekly bowed their heads to the yoke, the Prohibition Amendment would furnish unfailing inspiration and unstinted encouragement to every new attack upon personal liberty; as it is, we may be permitted to hope that its injury to our future as a free people will prove to be neither so profound nor so lasting as in its nature it is calculated to be. Before dismissing this subject it will be well to consider one favorite argument of those who contend that Prohibition is no more obnoxious to the charge of being a violation of personal liberty than are certain other laws which are accepted as matters of course. A law prohibiting narcotic drugs, they say, imposes a restraint upon personal liberty of the same sort as does a law prohibiting alcoholic liquors. And it must be admitted that there is some plausibility in the argument. The answer to it is not so simple as that to the broader pleas which have been discussed above. Yet the answer is not less conclusive. There is no principle of human conduct that can be applied with undeviating rigor to all cases; and indeed it is part of the price of the maintenance of the principle that it shall be waived in extreme instances in which its rigorous enforcement would shock the common instincts of mankind. Illustrations of this can be found in almost every domain of human action--in the everyday life of each one of us, in the practice of the professions, in the procedure of courts and juries, as well as in the field of law-making. It is wrong to tell a lie, and there are a few doctrinaire extremists who maintain that lying is not excusable under any circumstances; but the common sense of mankind declares that it is right for a man to lie in order to deceive a murderer who is seeking his mother's life. Physicians almost unanimously profess, and honestly profess, the principle that human life must be preserved as long as possible, no matter how desperate the case may seem; yet I doubt whether there is a single physician who does not mercifully refrain from prolonging life by all possible means in cases of extreme and hopeless agony. Murder is murder, and it is the sworn duty of juries to find accordingly; yet the doctrine of the "unwritten law"--while unquestionably far too often resorted to, and thus constituting a grave defect in our administration of criminal justice--is in some extreme cases properly invoked to prevent an outrage on the elementary instincts of justice. In all these instances we have a principle universally acknowledged and profoundly respected; and the waiver of it in extreme cases, so far from weakening the principle, actually strengthens it--since if it absolutely never bent it would be sure to break. And so it is with the basic principles of legislation. To forbid the use of narcotic drugs is a restraint of liberty of the same kind as to forbid the use of alcoholic liquors; but in degree the two are wide as the poles asunder. The use of narcotic drugs (except as medicine) is so unmitigatedly harmful that there is perhaps 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 intercourse; it is connected with no joys or benefits that normal human beings openly prize. A thing which is so wholly evil, and which, moreover, so swiftly and insidiously renders powerless the will of those who --perhaps by some accident--once begin to indulge in it, stands outside 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 cases would involve an intolerable sacrifice of good in order to remove a mere superficial appearance of wrong. To make the prohibition of narcotic drugs an adequate reason for not objecting to the prohibition of alcoholic drinks would be like calling upon physicians to throw into the scrap heap their principle of the absolute 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.