STATEMENT BY ROSCOE POUND

As I interpret the evidence before us, it establishes certain definite economic and social gains following national prohibition. But it establishes quite as clearly that these gains have come from closing saloons rather than from the more ambitious program of complete and immediate universal total abstinence to be enforced concurrently by nation and state. Thus the task is to conserve the gains while finding out how to eliminate the abuses and bad results which have developed in the past decade. Those results are due chiefly to: (1) the enormous margin between the cost of producing or importing illicit liquor and the prices it commands; (2) the hostility or at best lukewarmness of public opinion in important localities and of a significant part of the public everywhere; and (3) the tendency of many states to leave the matter to the Federal Government and of the Federal Government to seek to confine itself to certain larger aspects of enforcement. Instead of the two governments each pressing vigorously toward a common end, as contemplated in the Amendment, they allow enforcement in large part to fall down between them.

Americans have had a perennial faith in political mechanics; and, in the spirit of that faith, it is urged that the organization and machinery of enforcement and the legislative provisions may be so far improved as to bring about an adequate observance and enforcement which admittedly do not exist. But there is no reason to suppose that machinery and organization and equipment will change public opinion in the places and among the classes of the community where public opinion has proved an obstacle, nor that they will succeed in the teeth of public opinion any more than they have in the past. Hence, while making enforcement as effective as we may, so long as the Amendment as it is remains the supreme law of the land, we should be at work to enable the fundamental difficulties to be reached. This, it seems clear, can only be done by a revision of the Amendment. It can be done only by so redrawing the Amendment as, on the one hand, to preserve Federal control and a check upon bringing back of the saloon anywhere, and, on the other hand, allow of an effective control adapted to local conditions in places where, as things are at least, it is futile to seek a nationally enforced general total abstinence.

Objection is made to immediate steps toward revision on the ground that they will hamper and discourage enforcement; that there has been no fair test of enforceability; and that no assuredly workable systems of control are at hand if revision of the Amendment were to make them possible. As to the first, the conditions which call for revision are recognized by the Bureau of Prohibition in its program for an enforcement abdicating a large part of the task which the Amendment imposes on the Federal Government. I do not understand how a frank endeavor to deal adequately with the parts of the task which it is giving over, while seeking to enable it to do more thoroughly what it is attempting to do, should discourage its performance of the restricted task. As to the second objection, the Amendment and the National Prohibition Act, enacted in an era of enthusiasm, enforced in a decade of prosperity, backed by an exceptional machinery for special enforcement both Federal and Sate, and guarded by strong organizations urging action and jealously watching for lack of zeal or want of efficiency seem to me to have had the best chance they are likely to have of showing what they can achieve. My fear is that obstinate attempt to maintain them at all hazards as they are will give impetus to a reaction in which the gains will be lost.

Federal control of what had become a nation-wide traffic, and abolition of the saloon are great steps forward which should be maintained.

As to what might be done if the Amendment were revised, it would be possible to retain or come back to complete prohibition throughout the land, or to retain it where it is effective, protecting such areas in their policy, and yet to establish some form of control for localities where complete prohibition has proved or may prove ineffective. It requires an unwarranted lack of faith in American political ingenuity to assume that no such forms of control may be worked out. Mr. Anderson has proposed a well thought out plan, based on study of systems of liquor control and their operation. His plan deserves careful consideration as the best and most complete which has been brought to our attention. This or some like plan for adapting national control to local conditions may well be the next forward step.

ROSCOE POUND

Washington, D.C., January 7, 1931.