What Prohibition Has Done to America

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

CHAPTER V

THE LAW MAKERS AND THE LAW

WELL MEANING exhorters, shocked at the spectacle of millions of perfectly decent and law-abiding Americans showing an utter disregard of the Prohibition law, are prone to insist that to violate this law, or to abet its violation, is just as immoral as to violate any other criminal law. The thing is on the statute-books--nay, in the very Constitution itself --and to offend against it, they say, is as much a crime as to commit larceny, arson or murder. But they may repeat this doctrine until Doomsday, and make little impression upon persons who exercise their common sense. The law that makes larceny, arson or murder a crime merely registers, and emphasizes, and makes effective through the power of the Government, the dictates of the moral sense of practically all mankind; and if, in the case of some kindred crimes, it goes beyond those dictates for special reasons, the extension is only such as is called for by the circumstances. However desirable it may be that the sudden transformation of an innocent act into a crime by mere governmental edict should carry with it the same degree of respect as is paid to laws against crimes which all normal men hold in abhorrence, it is idle to expect any such thing; and in a case where the edict violates principles which almost all of us only a short time ago held to be almost sacred, the expectation is worse than merely idle. A nation which could instantly get itself into the frame of mind necessary for such supine submission would be a nation fit for servitude, not freedom. But in the case of the Prohibition Amendment, and of the Volstead act for its enforcement, there enters another element which must inevitably and most powerfully affect the feelings of men toward the law. Everybody knows that the law is violated, in spirit if not in letter, by a large proportion of the very men who imposed it upon the country. Members of Congress and of the State Legislatures--those that voted for Prohibition, as well as those that voted against it--have their private stocks of liquor like other people; nor is there any reason to believe that many of them are more scrupulous than other people in augmenting their supply from outside sources. One of the means resorted to by the Anti-Saloon League in pushing through the Amendment was the particular care they took to make its passage involve little sacrifice of personal indulgence on the part of those who were wealthy enough, or clever enough, to provide for the satisfaction of their own desires in the matter of drink, at least for many years to come. The League knew perfectly that in some Prohibition States the possession of liquor was forbidden as well as its manufacture, transportation and sale; but the AntiSaloon League would never have dared to include in the Amendment a ban upon possession. Congressmen who voted for it knew that not only they themselves, but their wealthy and influential constituents, would be in a position to provide in very large measure for their own future indulgences; and it may be set down as certain that had this not been the case, opposition to the Amendment would have been vastly more effective than it was. In order that a person should entertain a genuine feeling that the Prohibition Amendment is entitled to the same kind of respect as the general body of criminal law, it is necessary--even if he waives all those questions of Constitutional principle which have been dwelt upon in previous chapters--that he should regard drinking as a crime. And this is indeed the express belief of many upholders of the Amendment--a foolish belief, in my judgment, but certainly a sincere one. I have before me a letter--typical of many--published in one of our leading newspapers and written evidently by a man of education as well as sincerity. He speaks bitterly of the proposal to permit "light wines and beer," and asks whether any one would propose to permit light burglary or light arson. That man evidently regards indulgence in any intoxicating liquor as a crime, and he looks upon the law as a prohibition of that crime. And he is essentially right, if the law is right. For while the law does not in its express terms make drinking a crime, its intention--and its practical effect so far as regards the great mass of the people--is precisely that. The people President Angell had in mind when he implored the young Yale graduates not to be like them, are not makers or sellers of liquor, but drinkers of it. They are not moonshiners or smugglers or bootleggers; they are the people upon whose patronage or connivance the moonshiners and smugglers and bootleggers depend for their business. And everybody knows that, in their private capacity, Senators and Representatives and Legislaturemen are precisely like their fellow-citizens in this matter. They may possibly be somewhat more careful about the letter of the law; they are certainly just as regardless of its spirit. With the exception of a comparatively small number of genuine Prohibitionists--men who were for Prohibition before the Anti-Saloon League started its campaign--they would laugh at the question whether they regard drinking as a crime. And they act accordingly. What degree of moral authority can the law be expected to have in these circumstances? Upon the mind of a man intensely convinced that the law is an outrage, how much impression can be produced by the mere fact that it was passed by Congress and the Legislatures, when the real attitude of the members of those bodies is such as it is seen to be in their private conduct? How much of a moral sanction would be given to a law against larceny if a large proportion of the men who enacted the law were themselves receivers of stolen goods ? Or a law against forgery if the legislators were in the frequent habit of passing forged checks? It happens that the receiving of stolen goods or the passing of forged checks is a crime under the law, as well as the stealing or the forgery itself; and that the Prohibition law does not make the drinking or even the buying of liquor, but only the making or selling of it, a crime; but what a miserable refuge this is for a man who professes to believe that the abolition of intoxicating liquor is so supreme a public necessity as to demand the remaking of the Constitution of the United States for the purpose! Not the least of the causes of public disrespect for the Prohibition law is the notorious insincerity of the makers of the law, and their flagrant disrespect for their own creation.