CREATING A NATION OF LAW-BREAKERS
IN his baccalaureate address as President of Yale University, in June,
1922, Dr. Angell felt called upon to say that in this country "the
violation of law has never been so general nor so widely condoned as
at present," and to add these impressive words of appeal to the young
graduates:
This is a fact which strikes at the very heart of our system of
government, and the young man entering upon his active career must
decide whether he too will condone and even abet such disregard of
law, or whether he will set his face firmly against such a course.
It is safe to say that there has never been a time in the history of
our country when the President of a great university could have found
it necessary to address the young Americans before him in any such
language. There has never been a time when deliberate disregard of law
was habitual among the classes which represent culture, achievement,
and wealth--the classes among whom respect for law is usually
regarded as constant and instinctive. That such disregard now prevails
is an assertion for which President Angell did not find it necessary
to point to any evidence. It is universally admitted. Friends of
Prohibition and enemies of Prohibition, at odds on everything else,
are in entire agreement upon this. It is high time that thinking
people went beyond the mere recognition of this fact and entered into
a serious examination of the cause to which it is to be ascribed.
Perhaps I should say the causes, for of course more causes than one
enter into the matter. But I say the cause, for the reason that there
is one cause which transcends all others, both in underlying
importance and in the permanence of its nature. That cause does not
reside in any special extravagances that there may be in the Volstead
act. The cardinal grievance against which the unprecedented contempt
for law among high-minded and law-abiding people is directed is not
the Volstead act but the Eighteenth Amendment. The enactment of that
Amendment was a monstrosity so gross that no thinking American thirty
years ago would have regarded it as a possibility. It is not only a
crime against the Constitution of the United States, and not only a
crime against the whole spirit of our Federal system, but a crime
against the first principles of rational government. The object of the
Constitution of the United States is to imbed in the organic law of
the country certain principles, and certain arrangements for the
distribution of power, which shall be binding in a peculiar way upon
generation after generation of the American people. Once so imbedded,
it may prove to be impossible by anything short of a revolution to get
them out, even though a very great majority of the people should
desire to do so.
If laws regulating the ordinary personal conduct of individuals are to
be entrenched in this way, one of the first conditions of respect for
law necessarily falls to the ground. That practical maxim which is
always appealed to, and rightly appealed to, in behalf of an unpopular
law--the maxim that if the law is bad the way to get it repealed is to
obey it and enforce it--loses its validity. If a majority cannot
repeal the law--if it is perfectly conceivable, and even probable,
that generation after generation may pass without the will of the
majority having a chance to be put into effect--then it is idle to
expect intelligent freemen to bow down in meek submission to its
prescriptions. Apart from the question of distribution of governmental
powers, it was until recently a matter of course to say that the
purpose of the Constitution was to protect the rights of minorities.
That it might ever be perverted to exactly the opposite purpose--to
the purpose of fastening not only upon minorities but even upon
majorities for an unlimited future the will of the majority for the
time being--certainly never crossed the mind of any of the great men
who framed the Constitution of the United States. Yet this is
precisely what the Prohibition mania has done. The safeguards designed
to protect freedom against thoughtless or wanton invasion have been
seized upon as a means of protecting a denial of freedom against any
practical possibility of repeal. Upon a matter concerning the ordinary
practices of daily life, we and our children and our children's
children are deprived of the possibility of taking such action as we
think fit unless we can obtain the assent of twothirds of both
branches of Congress and the Legislatures of three-fourths of the
States. To live under such a dispensation in such a matter is to live
without the first essentials of a government of freemen. I admit that
all this is not clearly in the minds of most of the people who break
the law, or who condone or abet the breaking of the law. Nevertheless
it is virtually in their minds. For, whenever an attempt is made to
bring about a substantial change in the Prohibition law, the objection
is immediately made that such a change would necessarily amount to a
nullification of the Eighteenth Amendment. And so it would. People
therefore feel in their hearts that they are confronted practically
with no other choice but that of either supinely submitting to the
full rigor of Prohibition, of trying to procure a law which nullifies
the Constitution, or of expressing their resentment against an outrage
on the first principles of the Constitution by contemptuous disregard
of the law. It is a choice of evils; and it is not surprising that
many good citizens regard the last of the three choices as the best.
How far this contempt and this disregard has gone is but very
imperfectly indicated by the things which were doubtless in President
Angell's mind, and which are in the minds of most persons who publicly
express their regret over the prevalence of law-breaking. What they
are thinking about, what the Anti-Saloon League talks about, what the
Prohibition enforcement officers expend their energy upon, is the sale
of alcoholic drinks in public places and by bootleggers. But where the
bootlegger and the restaurant-keeper counts his thousands, home brew
counts its tens of thousands. To this subject there is a remarkable
absence of attention on the part of the Anti-Saloon League and of the
Prohibition enforcement service. They know that there are not hundreds
of thousands but millions of people breaking the law by making their
own liquors, but they dare not speak of it. They dare not go even so
far as to make it universally known that the making of home brew is a
violation of the law. To this day a very considerable number of people
who indulge in the practice are unaware that it is a violation of the
law. And the reason for this careful and persistent silence is only
too plain. To make conspicuous before the whole American people the
fact that the law is being steadily and complacently violated in
millions of decent American homes would bring about a realization of
the demoralizing effect of Prohibition which its sponsors, fanatical
as they are, very wisely shrink from facing.
How long this demoralization may last I shall not venture to predict.
But it will not be overcome in a day; and it will not be overcome at
all by means of exhortations. It is possible that enforcement will
gradually become more and more efficient, and that the spirit of
resistance may thus gradually be worn out. On the other hand it is
also possible that means of evading the law may become more and more
perfected by invention and otherwise, and that the melancholy and
humiliating spectacle which we are now witnessing may be of very long
duration. But in any case it has already lasted long enough to do
incalculable and almost ineradicable harm. And for all this it is
utterly idle to place the blame on those qualities of human nature
which have led to the violation of the law. Of those qualities some
are reprehensible and some are not only blameless but commendable. The
great guilt is not that of the law-breakers but that of the lawmakers.
It is childish to imagine that every law, no matter what its nature,
can command respect. Nothing would be easier than to imagine laws
which a very considerable number of perfectly wellmeaning people would
be glad to have enacted, but which if enacted it would be not only the
right, but the duty, of sound citizens to ignore. I do not say that
the Eighteenth Amendment falls into this category. But it comes
perilously near to doing so, and thousands of the best American
citizens think that it actually does do so. It has degraded the
Constitution of the United States. It has created a division among the
people of the United States comparable only to that which was made by
the awful issue of slavery and secession. That issue was a result of
deepseated historical causes in the face of which the wisdom and
patriotism of three generations of Americans found itself powerless.
This new cleavage has been caused by an act of legislative folly
unmatched in the history of free institutions. My hope--a distant and
yet a sincere hope--is that the American people may, in spite of all
difficulties, be awakened to a realization of that folly and restore
the Constitution to its traditional dignity by a repeal, sooner or
later, of the monstrous Amendment by which it has been defaced.