HOW THE AMENDMENT WAS PUT THROUGH
THERE has been a vast amount of controversy over the question whether
a majority of the American people favored the adoption of the
Eighteenth Amendment. There is no possible way to settle that
question. Even future votes, if any can be had that may be looked upon
as referendum votes, cannot settle it, whichever way they may turn
out. If evidence should come to hand which indicates that a majority
of the American people favor the retention of the Amendment now that
it is an accomplished fact, this will not prove that they favored its
adoption in the first place; it may be that they wish to give it a
fuller trial, or it may be that they do not wish to go through the
upheaval and disturbance of a fresh agitation of the question or it
may be some other reason quite different from what was in the
situation four years ago. On the other hand, if the referendum should
seem adverse, this might be due to disgust at the lawlessness that has
developed in connection with the Prohibition Amendment, or to a
realization of the vast amount of discontent it has aroused, or to
something else that was not in the minds of the majority when the
Amendment was put through. But really the question is of very little
importance. From the standpoint of fundamental political doctrine, it
makes no difference whether 40 million, or 50 million, or 60 million
people out of a hundred million desired to put into the Constitution a
provision which is an offense against the underlying idea of any
Constitution, an injury to the American Federal system, an outrage
upon the first principles both of law and of liberty. And if, instead
of viewing the matter from the standpoint of fundamental political
doctrine, we look upon it as a question of Constitutional procedure,
it is again--though for a different reason--a matter of little
consequence whether a count of noses would have favored the adoption
of the Amendment or not. The Constitution provides a definite method
for its own amendment, and this method was strictly carried out--the
Amendment received the approval of the requisite number of
Representatives, Senators and State Legislatures; from the standpoint
of Constitutional procedure the question of popular majorities has
nothing to do with the case. But from every standpoint the way in
which the Eighteenth Amendment was actually put through Congress and
the Legislatures has a great deal to do with the case. Prohibitionists
constantly point to the big majority in Congress, and the promptness
and almost unanimity of the approval by the Legislatures, as proof of
an overwhelming preponderance of public sentiment in favor of the
Amendment. It is proof of no such thing. To begin with, nothing is
more notorious than the fact that a large proportion of the members of
Congress and State Legislatures who voted for the Prohibition
Amendment were not themselves in favor of it. Many of them openly
declared that they were voting not according to their own judgment but
in deference to the desire of their constituents. But there is not the
slightest reason to believe that one out of twenty of those gentlemen
made any effort to ascertain the desire of a majority of their
constituents; nor, for that matter, that they would have followed that
desire if they had known what it was. What they were really concerned
about was to get the support, or avoid the enmity, of those who held,
or were supposed to hold, the balance of power. For that purpose a
determined and highly organized body of moderate dimensions may
outweigh a body ten times as numerous and ten times as representative
of the community. The Anti-Saloon League was the power of which
Congressmen and Legislaturemen alike stood in fear. Never in our
political history has there been such an example of consummately
organized, astutely managed, and unremittingly maintained
intimidation; and accordingly never in our history has a measure of
such revolutionary character and of such profound importance as the
Eighteenth Amendment been put through with anything like such
smoothness and celerity. The intimidation exercised by the AntiSaloon
League was potent in a degree far beyond the numerical strength of the
League and its adherents, not only because of the effective and
systematic use of its black-listing methods, but also for another
reason. Weak-kneed Congressmen and Legislaturemen succumbed not only
to fear of the ballots which the League controlled but also to fear of
another kind. A weapon not less powerful than political intimidation
was the moral intimidation which the Prohibition propaganda had
constantly at command. That such intimidation should be resorted to by
a body pushing what it regards as a magnificent reform is not
surprising; the pity is that so few people have the moral courage to
beat back an attack of this kind. Throughout the entire agitation, it
was the invariable habit of Prohibition advocates to stigmatize the
anti-Prohibition forces as representing nothing but the "liquor
interests." The fight was presented in the light of a struggle between
those who wished to coin money out of the degradation of their
fellow-creatures and those who sought to save mankind from perdition.
That the millions of people who enjoyed drinking, to whom it was a
cherished source of refreshment, recuperation, and sociability, had
any stake in the matter, the agitators never for a moment
acknowledged; if a man stood out against Prohibition he was not the
champion of the millions who enjoyed drink, but the servant of the
interests who sold drink. This preposterous fiction was allowed to
pass current with but little challenge; and many a public man who
might have stood out against the Anti-Saloon League's power over the
ballot-box cowered at the thought of the moral reprobation which a
courageous stand against Prohibition might bring down upon him. Thus
the swiftness with which the Prohibition Amendment was adopted by
Congress and by State Legislatures, and the overwhelming majorities
which it commanded in those bodies, is no proof either of sincere
conviction on the part of the lawmakers or of their belief that they
were expressing the genuine will of their constituents. As for
individual conviction, the personal conduct of a large proportion of
the lawmakers who voted for Prohibition is in notorious conflict with
their votes; and as for the other question, it has happened in State
after State that the Legislature was almost unanimous for Prohibition
when the people of the State had quite recently shown by their vote
that they were either distinctly against it or almost evenly divided.
Of this kind of proceeding, Maryland presented an example so flagrant
as to deserve special mention. Although popular votes in the State
had, within quite a short time, recorded strong anti-Prohibition
majorities, the Legislature rushed its ratification of the Eighteenth
Amendment through in the very first days of its session; and this in
face of the fact that Maryland has always held strongly by State
rights and cherished its State individuality, and that the leading
newspapers of the State and many of its foremost citizens came out
courageously and energetically against the Amendment. In these
circumstances, nothing but a mean subserviency to political
intimidation can possibly account for the indecent haste with which
the ratification was pushed through. It is interesting to note a
subsequent episode which casts a further interesting light on the
matter, and tends to show that there are limits beyond which the
whip-and-spur rule of the Anti-Saloon League cannot go. In the session
of the present year, the Anti-Saloon League tried to get a State
Prohibition enforcement bill passed. Although there was a great public
protest, the bill was put through the lower House of the Legislature;
but in the Senate it encountered resistance of an effective kind. The
Senate did not reject the bill; but, in spite of bitter opposition by
the Anti-Saloon League, it attached to the bill a referendum clause.
With that clause attached, the Anti-Saloon League ceased to desire the
passage of the bill, and allowed it to be killed on its return to the
lower House of the Legislature. Is this not a fine exhibition of the
nature of the League's hold on legislation? And is there not abundant
evidence that the whole of this Maryland story is typical of what has
been going on throughout the country? Charges are made that the
Anti-Saloon League has expended vast sums of money in its campaigns;
money largely supplied, it is often alleged, by one of the world's
richest men, running into the tens of millions or higher. r do not
believe that these charges are true. More weight is to be attached to
another factor in the case--the adoption of the Amendment by Congress
while we were in the midst of the excitement and exaltation of the
war, and two million of our young men were overseas. Unquestionably,
advantage was taken of this situation, there can be little doubt that
the Eighteenth Amendment would have had much harder sledding at a
normal time. And it is right, accordingly, to insist that the
Amendment was not subjected to the kind of discussion, nor put through
the kind of test of national approval, which ought to precede any such
permanent and radical change in our Constitutional organization. This
is especially true because National Prohibition was not even remotely
an issue in the preceding election, nor in any earlier one. All these
things must weigh in our judgment of the moral weight to be attached
to the adoption of the Eighteenth Amendment; but there is another
aspect of that adoption which is more important. The gravest reproach
which attaches to that unfortunate act, the one which causes deepest
concern among thinking citizens, does not relate to any incidental
feature of the Prohibition manoevres. The fundamental trouble lay in a
deplorable absence of any general understanding of the seriousness of
making a vital change in the Constitution--incomparably the most vital
to which it has ever been subjected--and of the solemn responsibility
of those upon whom rested the decision to make or not to make that
change. Even in newspapers in which one would expect, as a matter of
course, that this aspect of the question would be earnestly impressed
upon their readers, it was, as a rule, passed over without so much as
a mention. And this is not all. One of the shrewdest and most
successful of the devices which the League and its supporters
constantly made use of was to represent the function of Congress as
being merely that of submitting the question to the State
Legislatures; as though the passage of the Amendment by a two-thirds
vote of Congress did not necessarily imply approval, but only a
willingness to let the sentiment of the several States decide. Of
course, such a view is preposterous; of course, if such were the
purpose of the Constitutional procedure there would be no requirement
of a two-thirds vote.* But many members of Congress were glad enough
to take refuge behind this view of their duty, absurd though it was;
and no one can say how large a part it played in securing the
requisite two-thirds of House and Senate. Yet from the moment the
Amendment was thus adopted by Congress, nothing more was heard of this
notion of that body having performed the merely ministerial act of
passing the question on to the Legislatures. On the contrary, the
two-thirds vote (and more) was pointed to as conclusive evidence of
the overwhelming support of the Amendment by the nation; the
Legislatures were expected to get with alacrity into the band-wagon
into which Congress had so eagerly climbed. Evidently, it would have
been far more difficult to get the Eighteenth Amendment into the
Constitution if the two-thirds vote of Congress had been the sole
requirement for its adoption. Congressmen disposed to take their
responsibility lightly, and yet not altogether without conscience,
voted with the feeling that their act was not final, when they might
otherwise have shrunk from doing what their Judgment told them was
wrong; and, the thing once through Congress, Legislatures hastened to
ratify in the feeling that ratification by the requisite number of
Legislatures was manifestly a foregone conclusion. Thus at no stage of
the game was there given to this tremendous Constitutional departure
anything even distantly approaching the kind of consideration that
such a step demands. The country was jockeyed and stampeded into the
folly it has committed; and who can say what may be the next folly
into which we shall fall, if we do not awaken to a truer sense of the
duty that rests upon every member of a lawmaking body--to decide these
grave questions in accordance with the dictates of his own honest and
intelligent judgment?
* This should be self-evident; but if there were any room for doubt.
it would be removed by a reference to the language of Article V of the
Constitution: "The Congress, whenever two-thirds of both Houses shall
deem it necessary, shall propose amendments to this Constitution"
which shall be valid "when ratified by the Legislatures of
three-fourths of the States." Thus Congress does not submit an
amendment, but proposes it; and it does this only when two-thirds of
both Houses deem it necessary. The primary act of judgment is
performed by Congress; what remains for the Legislatures is to ratify
or not to ratify that act.