Law and Self-Control

I

THE inconclusive and interminable debate between Wets and Drys reached a fitting summary in the equally inconclusive, and almost equally interminable, Report of the Wickersham Commission. Eleven very competent investigators made eleven different statements, and only one presented anything that can be called a new plan of procedure. That is about where any other eleven persons, however uninstructed they might be, would be likely to arrive at the end of a discussion. The situation has, in fact, become a deadlock. The prohibitory programme has been found disappointing in its effects, but no practicable substitute has been generally approved. The result is a condition of helplessness and hesitancy. Great numbers of people are reluctant to abandon the high hopes with which the prohibitory plan was undertaken, but are disheartened by the obstructions and evasions which have thwarted its success. The confession which forces itself upon many serious-minded citizens, even if it be not openly expressed, is that something else must be done; but what the next step should be is as yet undetermined.

If this is a fair statement of a prevailing state of mind, it may be timely to consider whether the whole subject should not be approached from a different point of view, and a fresh start made along a more hopeful course of procedure. As one examines the prohibitory programme its aim is seen to be strictly limited. It deals with nothing further than the manufacture and distribution of alcoholic drink. The Eighteenth Amendment prohibits transportation and sale; the Volstead Act reënforces this intention by an attempted definition of intoxicating drink. The enemy of society against which both are directed is the drink traffic, which had become strongly entrenched as a huge wholesale business and was operating through a vast number of saloons.

One of the most influential advocates of prohibition has lately acknowledged with candor this limitation. ‘Prohibition,’ the Christian Century of Chicago has announced in an editorial (January 14, 1931), ‘has nothing to do with the personal liberty to drink or not to drink. . . . Being a Dry has to do not with drinking but with the traffic in drink. It is the selling of liquor which the Eighteenth Amendment forbids; not the drinking of it. . . . There is not a word in the entire body of antiliquor legislation that forbids drinking. The drinker does not violate the Eighteenth Amendment or the Volstead Law. Modern American liquor legislation has always dealt with liquor as a business, not with liquor as a habit. It has not challenged the right to drink; it has challenged the right to sell.... Its attack has not been directed at the thirst motive of the drinker, but at the profit motive of the seller.... A Dry is not a moralist; he is an economist.’

This authoritative statement of the Dry position indicates precisely the inadequacy of its programme and the chief reason for its disappointing results. A campaign against the liquor traffic has much to justify it. The saloon has become generally recognized as an unmixed evil; everybody is glad to have it disappear. Nor is there anything fundamentally discreditable in a prohibitory law. Many protests are heard about its invasion of rights and its unjustified restraint of personal liberty, as though prohibition of the liquor traffic had introduced a new principle of social control. The fact is, however, that civilized society is beset by all manner of prohibitions which invade without hesitation the liberty of the individual. Not to speak of unquestioned social dangers, like narcotics, poisons, and inflammables, against which human life must be guarded, the prohibitory principle is applied and accepted in the most incidental and familiar experiences of modern life. The traffic officer at the street corner holds up his hand and prohibits with his gesture the passing of my car. The customs official ransacks the baggage of a returning tourist and prohibits an uncensored landing. The policeman rings my doorbell and prohibits the blocking of my sidewalk by merchandise or snow. We live under a system of prohibitions; and if it be legally determined that the same principle should be applied to alcoholic drink nothing unprecedented is proposed.

The position of those who defy a prohibitory law as an invasion of their freedom is not unlike the defiance of the customs laws because they restrict freedom of importation. ‘Why should I,’ a traveler asks, ‘conform to what seems to me unjustifiable scrutiny? Is not smuggling in reality a defense of my own rights? Am I not justified in evading a bad law?' Traffic with bootleggers defends itself by the same argument; it is in effect a reversion to anarchy. The only escape from the acceptance of prohibition as a general principle is to abandon civilized society and to seek w hat a famous philosopher called the desolate freedom of the wild ass.

Why is it, then, that the prohibition of liquor traffic in the United States has met with such serious and increasing opposition? It is, of course, in large part because so many people care more for their rights than for the conditions which govern civilized society, and defy or evade any law which restricts their own desires. ‘No one,’ they say, ‘shall tell us what we may eat or drink. Our commerce with bootleggers is a gesture of liberty. Alcoholic drink in reasonable quantity is a pleasurable resource of recreation, and should no more be denied to self-respecting citizens than indulgence in coffee or candy or tobacco.’ To this determined and defiant state of mind any suggestion of reënforcing restriction can have no weight. The only end of the controversy must be the abolition of all restriction. The next step in such legislation should be a step backward. The issue between law-keepers and lawbreakers becomes undisguised and irreconcilable, and need not be further considered here.

On the other hand, there is much room for further reflection by those who earnestly desire — as I do — that the policy of restriction may be maintained, but recognize that it is obstructed by dissent and threatened with failure. What is the fundamental defect in a scheme which was undertaken with such high intention? The obvious answer to this question is reached when one considers the end which such legislation has in view. The Dry campaign is wholly justified in attacking the traffic; but why does the traffic exist and flourish? It is because so many people want to drink, and their desire is so imperative that no legal restriction, however drastic, can successfully prohibit it. Behind the drink traffic lies the drink habit; and the weakness in the prohibitory scheme is in anticipating that the repression of a traffic will accomplish the suppression of a thirst. It mistakes the means for the end, prohibition for temperance, and a problem of morals for a problem of law. Thus it not only sets the cart before the horse, but expects the cart to be the agent of propulsion.

This exaggerated anticipation was stimulated by the special circumstances which promoted prohibition. In the critical years of the World War no means seemed too drastic to protect the soldiers from temptation, and the country accepted prohibition among other forms of self-restraint. The belief was, however, sedulously fostered that the country had found at last a complete solution of a world-old problem, and that a nation of more than a hundred million people would soon become, as a valiant advocate expressed it, as dry as the Great Sahara. As a consequence of this complete dependence on the redemptive effect of law, a form of regulation which might be logically defended as a contributory or palliative measure was pushed to conclusions which many well-wishers for prohibition find it difficult to accept. The habits of a vast population of the most diverse types and traditions were subjected to one sweeping regulation, which took no account of diversity in character or conviction; an Amendment was procured which was wholly foreign to the purpose of the Constitution, and an enforcing Act added which was manifestly fictitious in its definition of intoxicating drink. Legality supplanted morality, and restriction of a traffic undertook the conversion of a habit. The curious result has ensued that a nation-wide campaign for a great moral reform has omitted the consideration of the real source of evil. It has anticipated that if the supply was checked the demand would disappear, while in fact it is the demand which creates the supply; and responsibility for evasion of the law thus rests, not solely on the bootlegger who supplies the demand, but no less on the patrons who demand the supply.

II

It is most chastening, therefore, to observe that the movement for personal abstinence, which had attained during the last thirty years such headway, has almost disappeared from public notice. What has become of the total abstinence societies and the temperance associations of both Catholics and Protestants, and the pledges which have rescued millions from the drink habit? What is heard to-day of the great discovery made by economists and employing corporations that modern industry must be fortified by temperance among the workers, which has led employers in hundreds of occupations to demand abstinence as a condition of employment? The increasing complexity of industrial machinery had called for a new alertness and self-control in the workers which were simply inconsistent with even the moderate use of intoxicating drink. All these movements toward sobriety have become little more than memories through the complete dependence on law as the sufficient instrument of redemption. Restriction has supplanted education, and the zeal for prohibition has silenced the teaching of temperance, until the very language of self-control has become practically extinct amid the clamorous debates of Wets and Drys.

Several members of the Wickersham Commission have observed this extraordinary transition. ‘The traffic,’ says Judge Kenyon, ‘never can be entirely eliminated, so long as the appetite for drink remains.’ ‘Americans,’ writes Dean Pound, ‘have had a perennial faith in political mechanisms . . . but there is no reason to suppose that machinery and organization and equipment will change public opinion among the classes of the country 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.’ That sagacious and witty jurist Mr. Justice Deasy, of the Supreme Court of Maine, once illustrated the function of prohibitory law, as of all legislation, by comparing it with a maritime practice which was familiar to his seacoast neighbors. ‘When a schooner is beating up the coast,’ he said, ‘and meets an opposing slant of wind, the captain summons his crew aft to trim the mainsheet. All hands, with one exception, tail on the rope and pull; but one man is set, not to pull, but to make fast the slack of the sheet as it is hauled in, or, as sailors say, “ to hold the turn.”’ That, Judge Deasy said, is the place of law in modern society. It does not supplant popular sentiment, or trim the sails of social progress. It confirms that which public opinion sanctions. It makes fast the pull. It holds the turn. ‘A law,’ Mr. Brand Whitlock remarked in the August 1930 issue of the Atlantic, ‘must derive its force and sanction from the public conscience. That is what a law is in a democracy — a statute that the people will back up. When statutes run counter to custom, they are impotent. The trouble with the reformers is that they are always getting the cart before the horse. They imagine that they can change the custom by changing the statute, but they can’t. They must change the custom first.’

When the Apostle was enumerating the virtues of the Christian character he counseled his friends to add to their knowledge temperance, or, as the phrase is more correctly translated, ‘ to furnish intelligence with self-control.’ What evidence is there to-day that increase in intelligent self-control has been attained in the matter of the drink habit? On the contrary, one sees among intelligent and privileged people, both old and young, a conspicuous disregard of intelligent thought concerning alcoholic drink, and a widespread abandonment of self-control. The revolt against legal restriction has brought with it an alarming loss of self-restraint and an unblushing laxity of conduct. Exclusive concern for abolition of the traffic may thus defeat its own intention, and the drink habit be stimulated by resistance to the law.

Prohibition, in other words, is, as President Hoover has justly said, a noble experiment; or, as Mr. Justice Holmes has said of the Constitution itself, ‘It is an experiment, as all life is an experiment.’ An experiment, however, by its very nature invites revision and readjustment as circumstances dictate. Local concurrence becomes a prerequisite of legal efficiency. A prevailing public sentiment can secure the successful administration of a drastic law, but it cannot be successfully forced upon an unconsenting community by pressure from without or from above.

These reflections, therefore, do not seem to encourage the movement to repeal the existing law; for this retreat would not only be a surrender of much that has been gained, but would be politically impracticable. On the other hand, it would seem to be not impracticable to procure such amplification of the Amendment as would make it more applicable and flexible. If effective law must be derived from the consent of the governed, then it must take account of varied traditions and habits, and meet communities where they are, not where others want them to be. What might appear reasonable in one region might seem elsewhere a mere flourish or threat, inviting evasion or contempt. The area of successful administration might be reconsidered, the terms of the existing amendment made applicable to the varied conditions and different communities, and the Volstead Act brought into some contact with reality. The Dry position would be greatly fortified if it could be thus made less intemperate and more impregnable.

III

It is not, however, the purpose of this paper to urge modifications of law, but, on the contrary, to turn from this thorny subject to a less obstructed, though less traveled, path. The heated controversy concerning legislation should not disguise from those who wish to stabilize prohibition the antecedent condition of their success. Beneath and behind the agitation for suppression of the drink traffic lies the more fundamental need of education concerning the drink habit. The consent of the governed must become an intelligent and instructed consent. The maintenance of drastic restriction will depend, not on political pressure, but on an awakened and chastened social conscience. The first question which a conscientious citizen should ask himself is not: ‘Shall the law concerning the drink traffic be enforced or repealed?’ but: ‘How shall I conduct myself, in the presence of a grave social peril, so as to contribute most to the public good?’ To define a Dry as an economist is to ignore the antecedent fact that he is primarily called to selfdiscipline. Thus considered, he is a Dry because he abstains from the use of alcohol as a beverage. His first concern is with the breaking of a habit, not with the breaking of a law.

In short, those who hope, as I do, that a restrictive law can be rescued from its present perils are now called to apply themselves to a new movement for moral education and personal sobriety. What can be expected in a situation where great numbers of people satisfy their consciences by voting Dry and drinking Wet, or decline to make any personal sacrifice for the public good? How can a law be expected to administer itself, or be accepted as desirable for wage earners or Negroes but inappropriate for prosperous homes, or college boys, or the festivities of the privileged? The future of the prohibitory programme in the United States depends, not on multiplying restrictions, or on punishing offenders, but on educating the social conscience. So long as people are determined to live for themselves alone, no law, however drastic, can be successful in its operation,

Mrs. Browning, in commenting on the Utopian programmes of her time, wrote in convincing verse, —

That is the truth which the Drys now need to hear. They are tempted to anticipate that a moral reform may be accomplished by a legislative regulation, forgetting that human character develops from within. Legislation may go far to reënforce character, or may by ill-considered schemes go equally far to undermine character; but legislation cannot create character. A golden age, Herbert Spencer said, cannot be made by leaden people. The best that the law can do to reënforce a moral reform is to ‘hold the turn.’

We are brought, then, to the rather surprising conclusion that the controversy between Wets and Drys, passionate and prolonged as it has been, is in fact concerned with a secondary aspect of the drink problem. It may appear old-fashioned and uninviting at this time to propose a revival of the moral appeal; it may seem much easier to sweep away an ancient abuse by one magnificent gesture of universal prohibition; but the fact is that moral transformation is not to be precipitated on an unconsenting world, and that the slow process of education must endorse forms of law. The zeal of the prohibitionist is like the passionate desire of Theodore Parker for the immediate abolition of slavery, of which he was obliged to say, ‘The trouble seems to be that God is not in a hurry, and I am.’ In other words, the next step for those who hope, as I do, that restriction of the traffic may succeed is to renew the neglected teaching of self-restraint.

What a simple proposition is thus presented to the controversialists of to-day! It does not deny or depreciate the part of restrictive legislation in checking excess; nor does it encourage a political party to force its views on an unconsenting community, and thereby promote reaction or revolt. It summons conscientious citizens, as their immediate task, to the education of the public conscience in self-discipline and self-control. It counsels them to pause in the heated advocacy of unwelcome law, and to promote a new campaign of temperance. The next step in the repression of the drink traffic is the promotion of intelligent self-control in the drink habit. Suppose that a few thousand self-indulgent people in a community should pledge themselves to abstinence, suppose that the hip flask should become a discredited adjunct of sociability, and the stimulation by cocktails should cease to be regarded as essential to agreeable companionship, what would become of the bootleggers’ trade and the open war between coast guards and rum-runners? The supply would simply sink into insignificance for lack of demand, and the social conscience would accomplish what the law cannot hope to achieve.

IV

What considerations might lead to such a moral revival? In some instances it would be the consequence of personal apprehension, lest one should become a victim of the drink habit. One may pledge himself to abstinence as his refuge from ruin. But in most instances this moral determination would proceed from a higher motive, and would represent the willingness to sacrifice something of self-indulgence for the sake of the common good. It would mean that such persons had abandoned the law of Cain, ‘Am I my brother’s keeper?’ and had committed themselves to that maxim which is perhaps the highest utterance ever made by human lips, ‘For their sakes I sanctify myself.’

In a word, the enforcement of prohibition, and indeed the future of modern society, can be secured by nothing less than a revival of the motives which pledge the untempted to restrain themselves for the sake of the tempted, and to repeat in the face of a modern problem the ancient resolution of the Apostle, ‘ If meat make my brother to offend, I will eat no flesh while the world standeth, lest I make my brother to offend.’

Is so Utopian a programme quite beyond realization? It may seem to be for the moment too much to expect. The violence of protest against restriction may seem difficult to convert into any nobler motive. Controversy about legality has for the time supplanted consecration to morality. Many people who claim the blessings of Christian loyalty, and desire the benediction of their Master on their daily lives, have been led to forget or ignore the habit of personal sacrifice which the Christian religion dictates. They are ready to debate with warmth what kind of wine was blessed by Jesus at Cana of Galilee; but they have abandoned his teaching of self-restraint for others’ sakes. Yet it remains true that a country must be saved from degeneration, not by schemes, but by saviors, and that the call of the present time is to the conscience of the nation rather than to the controversies of the legalists. Nothing less than this is likely to redeem a nation from its contentions and rebellions. We are, in fact, facing the question whether this can be made a Christian republic.

In the days when the resumption of specie payment was debated it was affirmed, in commonplace but convincing language, that the only way to resume was to resume. To the same effect it may now be affirmed that the only way to stop the drink traffic is to stop drinking. Legal prohibition will always remain imperfectly effective unless reënforced by personal abstinence. Education is the essential prerequisite of legislation. If a new generation — yes, and their parents — could be taught to recognize the excellence of self-restraint, and could turn from self-indulgence for their own sakes to sanctifying themselves for others’ sakes, the controversy concerning law would take its legitimate place as concerned with a contributory and secondary aspect of the drink problem, and legal restriction would be welcomed and enforced as the legitimate corollary of intelligent self-control.