CHAPTER VII

NATURE OF THE PROHIBITIONIST TYRANNY

THAT there are some things which, however good they may be in

themselves, the majority has no right to impose upon the minority, is

a doctrine that was, I think I may say, universally understood among

thinking Americans of all former generations. It was often forgotten

by the unthinking; but those who felt themselves called upon to be

serious instructors of public opinion were always to be counted on to

assert it, in the face of any popular clamor or aberration. The most

deplorable feature, to my mind, of the whole story of the Prohibition

amendment, was the failure of our journalists and leaders of opinion,

with a few notable exceptions, to perform this duty which so

peculiarly devolves upon them. Lest any reader should imagine that

this doctrine of the proper limits of majority power is something

peculiar to certain political theorists, I will quote just one

authority --where I might quote scores as well--to which it is

impossible to apply any such characterization. It ought, of course, to

be unnecessary to quote any authority, since the Constitution itself

contains the clearest possible embodiment of that doctrine. In the

excellent little book of half a century ago referred to in a previous

chapter, Nordhoff's "Politics for Young Americans," the chapter

entitled "Of Political Constitutions" opens as follows:

A political Constitution is the instrument or compact in which the

rights of the people who adopt it, and the powers and

responsibilities of their rulers, are described, and by which they

are fixed. The chief object of a constitution is to limit the power

of majorities. A moment's reflection will tell you that mere

majority rule, unlimited, would be the most grinding of tyrannies;

the minority at any time would be mere slaves, whose rights to

life, property and comfort no one who chose to join the majority

would be bound to respect.

All this is stated, and the central point put in italics, by Mr.

Nordhoff, as matter that must be impressed upon young people just

beginning to think about public questions, and not at all as matter of

controversy or doubt. The last sentence, to be sure, requires

amplification; Mr. Nordhoff certainly did not intend his young readers

to infer that such tyranny as he describes is either sure to occur in

the absence of a Constitution or sure to be prevented by it. The

primary defense against it is in the people's own recognition of the

proper limits of majority power; what Mr. Nordhoff wished to impress

upon his readers is the part played by a Constitution in fixing that

recognition in a strong and enduring form. The quotation I have in

mind, however, from one of the highest of legal authorities, has no

reference to the United States Constitution or to any Constitution. It

deals with the essential principles of law and of government. It is

from a book by the late James C. Carter, who was beyond challenge the

leader of the bar of New York, and was also one of the foremost

leaders in movements for civic improvement. The book bears the title

"Law: its Origin, Growth and Function," and consists of a course of

lectures prepared for delivery to the law school of Harvard University

seventeen years ago; which, it is to be noted, was before the movement

for National Prohibition had got under way. Mr. Carter was not arguing

for any specific object, but was impressing upon the young men general

truths that had the sanction of ages of experience, and were the

embodiment of the wisest thought of generations. Let us hear a few of

these truths as he laid them down:

Nothing is more attractive to the benevolent vanity of men than the

notion that they can effect great improvement in society by the

simple process of forbidding all wrong conduct, or conduct which

they think is wrong, by law, and of enjoining all good conduct by

the same means. (p. 221 )

The principal danger lies in the attempt often made to convert into

crimes acts regarded by large numbers, perhaps a majority, as

innocent --that is to practise what is, in fact, tyranny. While all

are ready to agree that tyranny is a very mischievous thing, there

is not a right understanding equally general of what tyranny is.

Some think that tyranny is a fault only of despots, and cannot be

committed under a republican form of government; they think that

the maxim that the majority must govern justifies the majority in

governing as it pleases, and requires the minority to acquiesce

with cheerfulness in legislation of any character, as if what is

called self-government were a scheme by which different parts of

the community may alternately enjoy the privilege of tyrannizing

over each other. (p. 246)

Speaking in particular of the evil effects of that particular "species

of criminal legislation to which sumptuary laws belong," Mr. Carter,

after dwelling upon the subject in detail, says:

An especially pernicious effect is that society becomes divided

between the friends and the foes of repressive laws, and the

opposing parties become animated with hostility which prevents

united action for purposes considered beneficial by both. Perhaps.

the worst of all is that the general regard and reverence for law

are impaired, a consequence the mischief of which can scarcely be

estimated (p. 247).

To prevent consequences like these, springing as they do from the most

deep-seated qualities of human nature, by pious exhortations is a

hopeless undertaking. But if it be so in general--if the consequences

of majority tyranny in the shape of repressive laws governing personal

habits could be predicted so clearly upon general principles--how

vastly more certain and more serious must these consequences be when

such a law is fastened upon the people by means that would be

abhorrent even in the case of any ordinary law! The people who object

to Prohibition are exultantly told by their masters that it is idle

for them to think of throwing off their chains; that the law is

riveted upon them by the Constitution, and the possibility of repeal

is too remote for practical consideration. Thus the one thought that

might mitigate resentment and discountenance resistance, the thought

that freedom might be regained by repeal, is set aside; and the result

is what we have been witnessing. On this phase of the subject,

however, enough has been said in a previous chapter. What I wish to

point out at present is some peculiarities of National Prohibition

which make it a more than ordinarily odious example of majority

tyranny. National Prohibition in the United States --granting, for the

sake of argument, that it expresses the will of a majority--is not a

case merely of a greater number of people forcing their standards of

life upon a smaller number, in a matter in which such coercion by a

majority is in its nature tyrannical. The population of the United

States is, in more than one respect, composed of parts extremely

diverse as regards the particular subject of this legislation. The

question of drink has a totally different aspect in the South from

what it has in the North; a totally different aspect in the cities

from what it has in the rural districts or in small towns; to say

nothing of other differences which, though important, are of less

moment. How profoundly the whole course of the Prohibition movement

has been affected by the desire of the South to keep liquor away from

the negroes, needs no elaboration; it would not be going far beyond

the truth to say that the people of New York are being deprived of

their right to the harmless enjoyment of wine and beer in order that

the negroes of Alabama and Texas may not get beastly drunk on rotgut

whiskey. If the South had stuck to its own business and to its

traditional principle of State autonomy--a principle which the South

invokes as ardently as ever when it comes to any other phase of the

negro question--there would never have been a Prohibition Amendment to

the Constitution of the United States; and at the same time the South

would have found it perfectly possible to deal effectively with its

own drink problem by energetic execution of its own laws, made

possible by its own public opinion.

Nor is the case essentially different as regards the West; the very

people who are loudest in their shouting for the Eighteenth Amendment

are also most emphatic in their praises of what Kansas accomplished by

enforcing her own Prohibition law. Thus the Prohibitionist tyranny is

in no small measure a sectional tyranny, which is of course an

aggravated form of majority tyranny. But what needs insisting on even

more than this is the way in which the country districts impose their

notions about Prohibition upon the people of the cities, and

especially of the great cities. When attention is called to the

wholesale disregard of the law, contempt for the law, and hostility to

the law which is so manifest in the big cities, the champions of

Prohibition in the press--including the New York press--never tire of

saying that it is only in New York and a few other great cities that

this state of things exists. But everybody knows that the condition

exists not only in "a few," but in practically all, of our big cities;

and for that matter that it exists in a large proportion of all the

cities of the country, big and little. But if we confine ourselves

only to the 34 cities having a population of 200,000 or more, we have

here an aggregate population of almost exactly 25,000,000--nearly

one-fourth of the entire population of the country. Is it a trifling

matter that these great communities, this vast population of

large-city dwellers, should have their mode of life controlled by a

majority rolled up by the vote of people whose conditions, whose

advantages and disadvantages, whose opportunities and mode of life,

and consequently whose desires and needs, are of a wholly different

nature? Could the tyranny of the majority take a more obnoxious form

than that of sparse rural populations, scattered over the whole area

of the country from Maine to Texas and from Georgia to Oregon,

deciding for the crowded millions of New York and Chicago that they

shall or shall not be permitted to drink a glass of beer? Nor is it

only the obvious tyranny of such a regime that makes it so

unjustifiable. There are some special features in the case which

accentuate its unreasonableness and unfairness. In the American

village and small town, the use of alcoholic drinks presents almost no

good aspect. The countryman sees nothing but the vile and sordid side

of it. The village grogshop, the bar of the smalltown hotel, in

America has presented little but the gross and degrading aspect of

drinking. Prohibition has meant, to the average farmer, the abolition

of the village groggery and the small-town barroom. That it plays a

very different part in the lives of millions of city people--and for

that matter that it does so in the lives of millions of industrial

workers in smaller communities--is a notion that never enters the

farmer's mind. And to this must be added the circumstance that the

farmer can easily make his own cider and other alcoholic drinks, and

feels quite sure that Prohibition will never seriously interfere with

his doing so. Altogether, we have here a case of one element of the

population decreeing the mode of life of another element of whose

circumstances and desires they have no understanding, and who are

affected by the decree in a wholly different way from that in which

they themselves are affected by it. Many other points might be made,

further to emphasize the monstrosity of the Prohibition that has been

imposed upon our country. Of these perhaps the most important one is

the way in which the law operates so as to be effective against the

poor, and comparatively impotent against the rich. But this and other

points have been so abundantly brought before the public in connection

with the news of the day that it seemed hardly necessary to dwell upon

them. My object has been rather to direct attention to a few broad

considerations, less generally thought of. The objection that applies

to sumptuary laws in general has tenfold force in the case of National

Prohibition riveted down by the Constitution, and imposed upon the

whole nation by particular sections and by particular elements of the

population. A question of profound interest in connection with this

aspect of Prohibition demands a few words of discussion. It has been

asserted with great confidence, and denied with equal positiveness,

that Prohibition has had the effect of very greatly increasing the

addiction to narcotic drugs. I confess my inability to decide, from

any data that have come to my attention, which of these contradictory

assertions is true. But it is not denied by anybody, I believe, that,

whether Prohibition has anything to do with the case or not, the use

of narcotic drugs in this country is several times greater per capita

than it is in any of the countries of Europe--six or seven times as

great as in most. Why this should be so, it is perhaps not easy to

determine. The causes may be many. But I submit that it is at least

highly probable that one very great cause of this extraordinary and

deplorable state of things is the atmosphere of reprobation which in

America has so long surrounded the practice of moderate drinking. Any

resort whatever to alcoholic drinks being held by so large a

proportion of the persons who are most influential in religious and

educational circles to be sinful and incompatible with the best

character, it is almost inevitable that, in thousands of cases,

desires and needs which would find their natural satisfaction in

temperate and social drinking are turned into the secret and

infinitely more unwholesome channel of drug addiction. How much of the

extraordinary extent of this evil in America may be due to this cause,

I shall of course not venture to estimate; but that it is a large part

of the explanation, I feel fairly certain. And my belief that it is so

is greatly strengthened by the familiar fact that in the countries in

which wine is cheap and abundant, and is freely used by all the

people, drunkenness is very rare in comparison with other countries.

As easy and familiar recourse to wine prevents resort to stronger

drinks, so it seems highly probable that the practice of temperate

drinking would in thousands of cases obviate the craving for drugs.

But when all drinking, temperate and intemperate, is alike put under

the ban, the temptation to secret indulgence in drugs gets a foothold;

and that temptation once yielded to, the downward path is swiftly

trodden. Finally, there is a broad view of the whole subject of the

relation of Prohibition to life, which these last reflections may

serve to suggest. When a given evil in human life presents itself to

our consideration, it is a natural and a praiseworthy impulse to seek

to effect its removal. To that impulse is owing the long train of

beneficent reforms which form so gratifying a feature of the story of

the past century and more. But that story would have been very

different if the reformer had in every instance undertaken to

extirpate whatever he found wrong or noxious. To strike with crusading

frenzy at what you have worked yourself up into believing is wholly an

accursed thing is a tempting short cut, but is fraught with the

possibility of all manner of harm. In the case of Prohibition, I have

endeavored to point out several of the forms of harm which it carries

with it. But in addition to those that can so plainly be pointed out,

there is a broader if less definite one.

When we have choked off a particular avenue of satisfaction to a

widespread human desire; when, foiled perhaps in one direction, we

attack with equal fury the possibility of escape in another and

another; who shall assure us that, debarred of satisfaction in old and

tried ways, the same desires will not find vent in far more injurious

indulgences ? How different if, instead of crude and wholesale

compulsion, resort were had--as it had been had before the

Prohibitionist mania swept us off our feet--to well-considered

measures of regulation and restriction, and to the legitimate

influences of persuasion and example! The process is slower, to be

sure, but it had accomplished wonderful improvement in our own time

and before; what it gained was solid gain; and it did not invite

either the resentment, the lawlessness, or the other evils which

despotic prohibition of innocent pleasure carries in its train.

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