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.