The Question of Personal Liberty
THE great case in which Prohibition is the recognized defendant is now on trial before a jury of the entire nation. Within a comparatively short time the verdict must be rendered. Will it be repeal, amendment, efficient enforcement, or nullification ? The decision is in doubt; the issues are vital. As never before, this jury of the nation needs a fair, impartial charge, from a court, imaginary or otherwise, clarifying the real issues, summing up the real facts, honestly submitting the whole to the public for the correct and final decision. Fanaticism, overexaggeration of many material facts, and suppression of facts equally material, have continued long enough, and neither press, pulpit, nor politics may be found guiltless. Proponent and opponent have erred in their zealous interest in the cause.
It would seem that a fair beginning in an attempt to understand the problem would be an inquiry into the reasons why certain outstanding, disinterested persons used their best efforts to secure the passage of the Prohibition Amendment to the Constitution. Many of the reasons are obvious; most are forgotten in the flare of excitement which now follows any mention of the issue.
Those engaged in law enforcement, from the prosecuting attorney to the policeman, knew from experience that a substantial part of the criminal population centred about saloons and dives where whiskey was dispensed. These saloons and dives not only were havens for the planning of crime and refuges for escape, but they furnished cheaply the stimulus of intoxication without which many crimes would never be planned or carried through. Moreover, the background of such places encouraged the existance of a ‘gang’ element, which created and maintained a code of existence in which the star of ambition was the more successful and larger-scale commission of crime. In addition, enforcement officials traced many isolated crimes of frenzy, of which the taking of human lives formed no small part, to the immediate stimulus of whiskey and the atmosphere of the saloon.
Employers of labor saw clearly the waste of time as well as the loss of money occasioned to them and to their employees because men did not come to work when their pockets were full enough to supply them with liquor for a day or more. Social workers saw abject poverty due solely to the drink habit of the head of the house; judges in divorce courts saw liquor as the real cause for the separation of otherwise well-mated couples. The increase in automobile traffic focused the eye of the public upon the evil of the drunken driver.
All of the above practical everyday happenings, appealing even to the thoughtless, fought side by side with the often sincerely religious belief in the immorality of the use of intoxicating liquor as such and the obvious danger to the community of any habit-forming vice. Needless to add, the fanatics, the opportunists, and the publicity-seekers gave their aid.
Enough reason, indeed, for practicable prohibition.
Doubtless the many sincere people who advocated the passage of the Prohibition Amendment, carried away though they were by enthusiasm, made an honest effort to foresee any practical objections to its passage. Two substantial objections appeared: first, the resulting loss in revenue to the Government and the losses to those who had invested their money in business which would be curtailed or abolished; second, the interference with the rights of personal liberty. No other objections were openly suggested, and no others appeared to exist, except the personal interest of certain politicians.
The first objection was readily dismissed. No question of revenue could be permitted to prevent or delay steps for the betterment of the nation in so important a matter. The investments of individuals would be taken care of — or at least that was the belief— in such a way as to minimize if not remove the possibility of loss.
There remained only the problem of the infringement of personal liberty. Did personal liberty in this connection involve a great principle? Was it a blow at fundamental rights for the Government to interfere with, or regulate, the right of an individual to indulge in intoxicating liquor? Would more extensive suppressions follow? The answer came that this is the age of necessary regulation. Our publicservice commissions control our intrastate public-service corporations, and the people are educated to rejoice in the fact that they are not left to the mercy of street-railway, gas, and telephone companies. Our banks are subject to regulation by state or Federal government, our railroads by an interstate commerce commission; we are protected against trusts, profiteering, and price-fixing; our food is inspected; our traffic is regulated. In a word, we have accustomed ourselves in recent years to protection with respect to those public matters which are too large or too complicated to be coped with by the individual. And we realize the value of this protection on the whole. Viewed in that light, is not the liquor traffic — just as the narcotic traffic, with its important relationship to the public weal — a proper subject, of regulation? So thought the supporters of the Amendment.
Did personal liberty mean the right to the congenial influence of liquor in the home, at the wedding, at the feast? Was this glowing aid to good-fellowship to be entirely abolished? Probably but few except those who viewed the prohibition of liquor as a moral instead of as a practical issue believed in such a possibility. They were aiming at the saloon, the rallying-place of drunkenness, the breeding-place of crime. That they, who were sure they knew how to drink their sip without excess, without harm to the public, might also be deprived appeared unnecessary, remote. That could be arranged. Or so they believed.
With such beliefs, upon such theories, with such support, and without a tangible fundamental argument urged in opposition, the Amendment itself was carried. Who shall say, if its enforcement had been planned in the same spirit, that the results would not have justified its passage?
But this is the age of overcompensation, in the insurance sense. Nothing may be done moderately. Advertising glares, slogans bellow, the press exaggerates, enthusiasts see but one side. The nation adopted a Prohibition Amendment. Congress, or the states, or both, were to enforce it. The National Prohibition Act was passed. Light wines and beer, as well as stronger drink, were legislated out of existence; every avenue of moderation, of compromise, of allowance for human nature and the shock of great change, was closed. The need of the spirited and understanding support of a public accustomed to its independence was forgotten and discarded. Prohibition was to be imposed by force upon a people traditionally proud of personal liberty. The broadest exercise of regulatory power ever known to the world was to be rigidly carried out to its greatest extent without the wholehearted support of the nation; indeed, with a sincere opposition by a substantial and respected part of the people.
At this point, indeed, the question of personal liberty became a fundamental issue. Of all those who sincerely favored the Prohibition Amendment, only those who viewed the whole question of intoxicating liquor as a moral issue favored the strictness and inelasticity of the terms of the National Prohibition Act. With these sincere persons followed the politicians, and professional seekers of publicity. Opposed to enforcement as provided in the Act were the personal-liberty advocates, the believers in light wines and beer, and almost all those who had previously used and respected the moderate use of intoxicating liquor. Included in the above were those respected citizens, foreign-born or children of foreign-born parents, coming from lands where light wines, beer, or whiskey in moderation have been approved for generations. Naturally the laboring class opposed so strict an enforcement, as did those who spoke affectionately, and without much thought, of the ‘good old days.’
Such a power of opposition has the strength to rebel successfully. Those who believe so fundamentally in personal liberty have real point to their argument that the law has gone too far. The original purpose of community good has been forgotten, and, instead of an enforcement directed only to the end of public welfare, there is an enforcement which insults the pride and suppresses the normal instincts of many good men. If necks are bowed to this yoke, what next?
Native and foreign-born alike who believe in the use of beer and light wines, and who have never seen evil result from their use, resent the needless interference with their rights and pleasures. Worst of all, they refuse to place a fullness of trust in a Congress which moves to needless lengths of oppression. They ask the reason for such deprivation. Some doctors reply that any amount of alcohol has a toxic effect. The citizen knows from his experience that such a toxic effect from beer and light wines will never affect the public in general, and that its effect on the individual is negligible compared to the benefits which the individual derives from the independent enjoyment of liberty. The reformer declares that beer and light wines must be suppressed because, if the public gets a finger, it will want a whole hand. The everyday citizen instinctively replies that the effect will be just the opposite; that a public safely satisfied with beer and light wines will offer little opposition to the prohibition of whiskey.
What wonder that there has spread over the nation a sincere indignation at the National Prohibition Act, which in many cases has grown to include indignation at the whole fundamental theory of prohibition. With the wave of indignation has also come a wave of sentimentality toward the ‘good old days.’ Out of this normal manifestation of human nature the bootleggers are reaping a fortune, and with experience the bootleg organization is becoming more and more efficient, and gathering, perhaps, a larger number of potential criminals to its banner.
Against this increasing resistance the Government throws its small band of prohibition agents, its district courts with power of injunction, and its district attorneys. The stronger the sincere resistance, the greater the effort to tighten up by force. The safety valve of public opinion as an important moral aid slips further and further from the minds of enforcement officials. A vicious circle: stricter enforcement results in greater public opposition, and greater public opposition begets more drastic enforcement. And with it all comes the natural evil of a new and growing criminal class, bribery, corruption, and a public loathing of prohibition agents, without reason though it may be.
What, then, is to be done? Conditions will not remain unchanged, and to the average observation it appears that any change will be for the worse. What shall it be: enforcement, nullification, amendment, or repeal?
Conditions as they exist to-day indicate that enforcement of the present law in a satisfactory manner is impossible without the aid of public opinion. Public opinion is veering further and further away from enforcement. Views of individuals may differ as to this last statement, but the strongest advocates of the National Prohibition Act must admit that a large part of the public is showing a stronger and stronger disposition to oppose the principles of the Act. The longer such a condition exists, the greater the danger of confusing the issue of the National Prohibition Act with the fundamental issue of prohibition. Continued attempts at strong-arm enforcement appear to lead only in the direction of nullification.
Strangely, perhaps, many profound thinkers look to nullification as the best solution. I believe, however, that the best thought is to the contrary. A mere abandonment or forgetting of the law will be an unsatisfactory solution to both sides. Repeated attempts will be made to reinstate the enforcement machinery. The fundamental theory of prohibition will be neither sustained nor defeated. Individuals will be uncertain as to the safety of pursuing their desires, and will suffer from occasional attempts at enforcement. Advocates of personal liberty will have failed in establishing their great principles. The bitterness engendered by the National Prohibition Act will remain. Worst of all, an atmosphere of disrespect for the Government, its laws, and its courts will be fostered, with consequences that no man can foretell.
Should the Prohibition Amendment be repealed in order to eliminate the whole principle of prohibition from our national government? Probably many thinking people would reply spontaneously in the affirmative, with the picture of the present chaotic conditions clearly before them. Anything to eliminate the waste, the corruption, the engendering of criminal classes, the patent efforts at oppression so evident in the present laws. Properly led, a stampede of nation-wide opinion might conceivably accomplish the repeal of the Prohibition Amendment in the comparatively near future. Calm reflection, however, seems to show the lack of wisdom in such a course. Few fairminded people, upon careful consideration, will deny that the whiskey habit has many bad effects which should be eliminated if possible. Few would oppose carefully planned steps to abolish the saloon as it formerly existed, and even to-day exists. The world is in arms against the drunken driver. All approve of reasonable means of divorcing the use of liquor from its causal relation with crime, existant or potential.
Again the question, what to do? Perhaps each of us has a different thought, depending on the individual point of view. Upon so important an issue it is the duty of each of us to explain and discuss our carefully considered ideas. On some of the major premises we might all agree. Surely it would be a step forward to advance fair-minded, honest views.
It would seem important at the outset to realize that most important and effective criminal laws are passed and enforced to suppress as far as possible the willful commission of acts which are recognized by a substantial majority of the people as inimical to public welfare. These laws are not passed for the purpose of forcing upon an unwilling people rules of morality and conduct which the large majority of a respected and thinking citizenry would not otherwise obey. A proper criminal law presumes the support and obedience of the substantial people upon whom the existence and future of the nation depend. They do not require whipping into line. The law and the comparatively small enforcement machinery are aimed at the few enemies of the common welfare, the beasts of prey, who must be controlled if the honest citizen is to go his way in peace.
Let, then, the advocates of prohibition seek first to discover and impress the nation with the ways in which the use of intoxicating liquor is inimical to the public welfare. Many of the ways have been suggested, and a proper presentation of the facts to the public will bring a whole-hearted approval. Let there be eliminated from the enforcement laws those provisions which are not aimed at the elimination of a public menace. Let there be included those provisions which the fair-minded citizenry will understand are necessary for the betterment of the nation in aiding to eliminate the stimulus to crime, pauperism, unemployment, and treachery to the family. Recognize the importance and wisdom of public opinion and save the tremendous waste of attempting to oppress a people who hold the loftiest traditions of freedom.
A good beginning may be made by permitting light wines and beer for beverage purposes. The experience of the average man has been that comparatively no harm has ever resulted to the public from the use of such beverages. This is not advocated as a compromise or a sop to the people. It is their right. It is theirs to judge as to the use of food and drink where its use has no material effect upon the public. That a substantial reaction of public opinion in favor of prohibition would follow seems quite probable. The more oppressive and unpopular provisions of the Act would be eliminated thereby and the desires of a very large number of people would be satisfied harmlessly. Personal liberty would be a far less vital issue. The people would begin to appreciate that enforcement is to be carried out with reason.
Practical enforcement of the Act would be easier if beer were legalized. One of the great difficulties of enforcement is the inability of agents to distinguish between beer of more or less than one half of one per cent of alcoholic content. Many cases of illegal search have turned upon this issue alone. Eliminating home-brew, which is distinguishable by the sediment of yeast, beer and near-beer look alike, smell alike, and to many people taste alike. Whiskey, on the other hand, is unmistakable in odor, taste, and frequently in appearance. The task of the agent would be simplified if he were allowed to concentrate on hard liquor, the elimination of which as a beverage is the fundamental purpose of prohibition.
No one can say what the opinion of the majority of the people may be upon the question of whether whiskey as a beverage should be forbidden absolutely, or whether its use should be permitted in limited quantities under government supervision. It is reported that the latter plan has been carried out successfully and satisfactorily in other countries. Honest investigation of such experience and fair-minded reports should place this country in a position to judge for itself. If the latter plan be practicable, it is invasion of personal liberty to refuse to permit it.
While considering some of the problems suggested by this great issue, let it be remembered that the advocates of prohibition have gone too far. The people are aroused. They will not change their opinions without clear indications that future changes are to be made with a view to respecting their rights and opinions; that enforcement will not be directed against them as individuals, but only against conditions and practices which menace the nation. To convince the people of such good intentions, it will be necessary to go further in the direction of personal liberty than would have been necessary at the time the Amendment was carried.
Meanwhile, the trial goes on with its conflict of evidence, conflict of propaganda, and conflict of opinion. Better would it seem to attempt the abolition of the saloon and the separation of liquor from crime by fairness, truth, and the support of the public, than to defeat forever the high ideal of reasonable prohibition by oppressive attempts to abolish entirely the use of alcohol as a beverage.