This eBook was produced by J. Henry Phillips.
What Prohibition Has Done to America
by Fabian Franklin
Copyright 1922, Harcourt, Brace & Co., New York.
Table of Contents
Chapter I - Perverting the Constitution
Chapter II - Creating a Nation of Lawbreakers
Chapter III - Destroying Our Federal System
Chapter IV - How the Amendment Was Put Through
Chapter V - The Law Makers and the Law
Chapter VI - The Law Enforcers and the Law
Chapter VII - Nature of the Prohibitionist Tyranny
Chapter VIII - One-Half of One Percent
Chapter IX - Prohibition and Liberty
Chapter X - Prohibition and Socialism
Chapter XI - Is There Any Way Out?
CHAPTER I
PERVERTING THE CONSTITUTION
THE object of a Constitution like that of the United States is to
establish certain fundamentals of government in such a way that they
cannot be altered or destroyed by the mere will of a majority of the
people, or by the ordinary processes of legislation. The framers of
the Constitution saw the necessity of making a distinction between
these fundamentals and the ordinary subjects of law-making, and
accordingly they, and the people who gave their approval to the
Constitution, deliberately arrogated to themselves the power to
shackle future majorities in regard to the essentials of the system of
government which they brought into being. They did this with a clear
consciousness of the object which they had in view--the stability of
the new government and the protection of certain fundamental rights
and liberties. But they did not for a moment entertain the idea of
imposing upon future generations, through the extraordinary sanctions
of the Constitution, their views upon any special subject of ordinary
legislation. Such a proceeding would have seemed to them far more
monstrous, and far less excusable, than that tyranny of George III and
his Parliament which had given rise to the American Revolution.
Until the adoption of the Eighteenth Amendment, the Constitution of
the United States retained the character which properly belongs to the
organic law of a great Federal Republic. The matters with which it
dealt were of three kinds, and three only--the division of powers as
between the Federal and the State governments, the structure of the
Federal government itself, and the safeguarding of the fundamental
rights of American citizens. These were things that it was felt
essential to remove from the vicissitudes attendant upon the temper of
the majority at given time. There was not to be any doubt from year to
year as to the limits of Federal power on the one hand and State power
on the other; nor as to the structure of the Federal government and
the respective functions of the legislative, executive, and judicial
departments of that government; nor as to the preservation of certain
fundamental rights pertaining to life, liberty and property.
That these things, once laid down in the organic law of the country,
should not be subject to disturbance except by the extraordinary and
difficult process of amendment prescribed by the Constitution was the
dictate of the highest political wisdom; and it was only because of
the manifest wisdom upon which it was based that the Constitution, in
spite of many trials and drawbacks, commanded, during nearly a century
and a half of momentous history, the respect and devotion of
generation after generation of American citizens. Although the
Constitution of the United States has been pronounced by an
illustrious British statesman the most wonderful work ever struck off
at a given time by the brain and purpose of man, it would be not only
folly, but superstition, to regard it as perfect. It has been amended
in the past, and will need to be amended in the future. The Income Tax
Amendment enlarged the power of the Federal government in the field of
taxation, and to that extent encroached upon a domain theretofore
reserved to the States. The amendment which referred the election of
Senators to popular vote, instead of having them chosen by the State
Legislatures, altered a feature of the mechanism originally laid down
for the setting up of the Federal government. The amendments that were
adopted as a consequence of the Civil War were designed to put an end
to slavery and to guarantee to the negroes the fundamental rights of
freemen. With the exception of the amendments adopted almost
immediately after the framing of the Constitution itself, and
therefore usually regarded as almost forming part of the original
instrument, the amendments just referred to are the only ones that had
been adopted prior to the Eighteenth; and it happens that these
amendments--the Sixteenth, the Seventeenth, and the group comprising
the Thirteenth, Fourteenth and Fifteenth--deal respectively with the
three kinds of things with which the Constitution was originally, and
is legitimately, concerned: the division of powers between the Federal
and the State governments, the structure of the Federal government
itself, the safeguarding of the fundamental rights of American
citizens.
One of the gravest indictments against the Eighteenth Amendment is
that it has struck a deadly blow at the heart of our Federal system,
the principle of local self-government. How sound that indictment is,
how profound the injury which National Prohibition inflicted upon the
States as self-governing entities, will be considered in a subsequent
chapter. At this point we are concerned with an objection even more
vital and more conclusive.
Upon the question of centralization or decentralization, of Federal
power or State autonomy, there is room for rational difference of
opinion. But upon the question whether a regulation prescribing the
personal habits of individuals forms a proper part of the Constitution
of a great nation there is no room whatever for rational difference of
opinion. Whether Prohibition is right or wrong, wise or unwise, all
sides are agreed that it is a denial of personal liberty.
Prohibitionists maintain that the denial is justified, like other
restraints upon personal liberty to which we all assent;
anti-prohibitionists maintain that this denial of personal liberty is
of a vitally different nature from those to which we all assent. That
it is a denial of personal liberty is undisputed; and the point with
which we are at this moment concerned is that to entrench a denial of
liberty behind the mighty ramparts of our Constitution is to do
precisely the opposite of what our Constitution--or any Constitution
like ours--is designed to do. The Constitution withdraws certain
things from the control of the majority for the time being--withdraws
them from the province of ordinary legislation--for the purpose of
safeguarding liberty, the Eighteenth Amendment seizes upon the
mechanism designed for this purpose, and perverts it to the
diametrically opposite end, that of safeguarding the denial of
liberty.
All history teaches that liberty is in danger from the tyranny of
majorities as well as from that of oligarchies and monarchies;
accordingly the Constitution says: No mere majority, no ordinary
legislative procedure, shall be competent to deprive the people of the
liberty that is hereby guaranteed to them. But the Eighteenth
Amendment says: No mere majority, no mere legislative procedure, shall
be competent to restore to the people the liberty that is hereby taken
away from them. Thus, quite apart from all questions as to the merits
of Prohibition in itself, the Eighteenth Amendment is a Constitutional
monstrosity. That this has not been more generally and more keenly
recognized is little to the credit of the American people, and still
less to the credit of the American press and of those who should be
the leaders of public opinion. One circumstance may, however, be cited
which tends to extenuate in some degree this glaring failure of
political sense and judgment. There have long been Prohibition
enactments in many of our State Constitutions, and this has made
familiar and commonplace the idea of Prohibition as part of a
Constitution. But our State Constitutions are not Constitutions in
anything like the same sense as that which attaches to the
Constitution of the United States. Most of our State Constitutions can
be altered with little more difficulty than ordinary laws; the process
merely takes a little more time, and offers no serious obstacle to any
object earnestly desired by a substantial majority of the people of
the State.
Accordingly our State Constitutions are full of a multitude of details
which really belong in the ordinary domain of statute law; and nobody
looks upon them as embodying that fundamental and organic law upon
whose integrity and authority depends the life and safety of our
institutions. The Constitution of the United States, on the other
hand, is a true Constitution--concerned only with fundamentals, and
guarded against change in a manner suited to the preservation of
fundamentals. To put into it a regulation of personal habits, to
buttress such a regulation by its safeguards, is an atrocity for which
no characterization can be too severe. And it is something more than
an atrocity; the Eighteenth Amendment is not only a perversion but
also a degradation of the Constitution. In what precedes, the emphasis
has been placed on the perversion of what was designed as a safeguard
of liberty into a safeguard of the denial of liberty. But even if no
issue of liberty entered into the case, an amendment that embodied a
mere police regulation would be a degradation of the Constitution. In
the earlier days of our history --indeed up to a comparatively recent
time--if any one had suggested such a thing as a Prohibition
amendment to the Federal Constitution, he would have been met not with
indignation but with ridicule. It would not have been the monstrosity,
but the absurdity, of such a proposal, that would have been first in
the thought of almost any intelligent American to whom it might have
been presented. He would have felt that such a feature was as utterly
out of place in the Constitution of the United States as would be a
statute regulating the height of houses or the length of women's
skirts. It might be as meritorious as you please in itself, but it
didn't belong in the Constitution. If the Constitution is to command
the kind of respect which shall make it the steadfast bulwark of our
institutions, the guaranty of our union and our welfare, it must
preserve the character that befits such an instrument. The Eighteenth
Amendment, if it were not odious as a perversion of the power of the
Constitution, would be contemptible as an offense against its dignity.