PROHIBITION AND LIBERTY
Liberty is not to-day the watchword that it was a hundred years ago, or
fifty years ago, or thirty years ago. Though there may be much doubt as
to the causes of the change, it must be admitted as a fact that the
feeling that liberty is in itself one of the prime objects of human
desire, a precious thing to be struggled for when denied and to be
jealously defended when possessed, has not so strong a hold on men's
minds at this time as it had in former generations.
Some of the chief reasons for this change are not, however, far to
seek. In the tremendous movement, political and economic, that has
marked the past hundred years, three ideas have been
dominant--democracy, efficiency, humanitarianism. None of these three
ideas is inherently bound up with the idea of liberty; and indeed each
one of the three contains the seed of marked hostility to the idea of
liberty. This is more true, and more obviously true, of efficiency and
of humanitarianism than it is of democracy; but it is true in no small
measure of democracy also. For people intent upon the idea that
government must be democratic that is, must reflect the will of the
majority naturally concentrate upon the effort to organize the majority
and increase its power; a process which throws into the shade regard
for individual rights and liberties, and even tends to put them
somewhat in the light of obstacles to the great aim. Furthermore, the
democratic movement has set for itself objects beyond the sphere of
government; and in the domain of economic control, democracy if that is
the right word for it must strive for collective power, as
distinguished from individual liberty, even more intently than in the
field of government.
However, in the case of democracy, there is at least no _inherent
opposition_ to liberty; such opposition as develops out of it may be
regarded as comparatively accidental. Not so with efficiency or
humanitarianism. Even here, however, I feel that a word of warning is
necessary. I am not speaking of the highest and truest efficiency, or
of the most far-sighted and most beneficent humanitarianism. I am
speaking of efficiency as understood in the common use of the term as a
label; and I am speaking of humanitarianism as represented by the
attitude and the mental temper of nearly all of the excellent men and
women who actually represent that cause and who devote their lives to
the problems of social betterment.
To the efficiency expert and to his multitude of followers, the
immediate increase of productivity is so absorbing an object that if it
has been attained by a particular course of action, the question
whether its attainment has involved a sacrifice of liberty seems to his
mind absolutely trivial. Of course this would not be so if the
sacrifice were of a startling nature; but short of something palpably
galling, something grossly offensive to the primary instincts of
freemen, he simply doesn't understand how any person of sense can
pretend to be concerned about it, in the face of demonstrated success
from the efficiency standpoint.
What is true of the apostle of efficiency, and his followers, is even
more emphatically true of the humanitarian. And, difficult as many
people find it to stand out against the position of the efficiency
advocate, it is far more difficult to dissent from that of the devotee
of humanitarianism. In the case of the first, one has to brace up one's
intellect to resist a plausible and enticing doctrine; in the case of
the second, one must, in a sense, harden one's heart as well as stiffen
one's mind. For here one has to deal not with a mere calculation of a
general increase of prosperity or comfort, but with the direct
extirpation of vice and misery which no decent person can contemplate
without keen distress. If the humanitarian finds the principle of
liberty thrust in the way of his task of healing and rescue, he will
repel with scorn the idea that any such abstraction should be permitted
to impede his work of salvation; and especially if the idea of liberty
has, through other causes, suffered a decline from its once high
authority he will find multitudes ready to share his indignation. And
he will find still greater multitudes who do not share his indignation,
and in their hearts feel much misgiving over the invasion of liberty,
but who are without the firmness of conviction, or without the moral
courage, necessary to the assertion of principle when such assertion
brings with it the danger of social opprobrium. The leaders in
humanitarian reforms, and their most active followers, are, as a rule,
men and women of high moral nature, and whether wise or unwise,
broad-minded or narrow and fanatical, are justly credited with being
actuated by a good motive; unfortunately, however, these attributes
rarely prevent them from making reckless statements as to the facts of
the matter with which they are dealing, nor from indulging in
calumnious abuse of those who oppose them. Hence thousands of persons
really averse to their programme give tacit or lukewarm assent to it
rather than incur the odium which outspoken opposition would invite;
and accordingly, true though it is that the idea of liberty is not
cherished so ardently or so universally as in a former day, the decline
into which it has fallen in men's hearts and minds is by no means so
great as surface indications make it seem. On the one hand, the
efficiency people and the professional humanitarians are, like all
reformers and agitators, abnormally vocal; and on the other hand the
lovers of the old-fashioned principle of liberty are abnormally silent,
so far as any public manifestation is concerned.
In the foregoing I have admitted, I think, as great a decline in the
current prestige of the idea of liberty as would be claimed by the most
enthusiastic efficiency man or the most ardent humanitarian. I now wish
to insist upon the other side of the matter. Persons who are always
ready to be carried away with the current--and their name is
legion--constantly make the mistake of imagining that the latest thing
is the last. They are the first to throw aside old and venerable
notions as outworn; they look with condescending pity upon those who
are so dull as not to recognize the infinite potency of change; and
yet, curiously enough, they never think of the possibility of a change
which may reverse the current of to-day just as the current of to-day
has reversed that of yesterday. The tree of liberty is less flourishing
to-day than it was fifty or a hundred years ago; its leaves are not so
green, and it is not so much the object of universal admiration and
affection. But its roots are deep down in the soil; and it supplies a
need of mankind too fundamental, feeds an aspiration too closely linked
with all that elevates and enriches human nature, to permit of its
being permanently neglected or allowed to fall into decay.
And even at this very time, as I have indicated above, the mass of the
people and I mean great as well as small, cultured and wealthy as well
as ignorant and poor retain their instinctive attachment to the idea of
liberty. It is chiefly in a small, but extremely prominent and
influential, body of over-sophisticated people--specialists of one kind
or another--that the principle of liberty has fallen into the disrepute
to which I have referred. The prime reason why the Prohibition law is
so light-heartedly violated by all sorts and conditions of men, why it
is held in contempt by hundreds of thousands of our best and most
respected citizens, is that the law is a gross outrage upon personal
liberty. Many, indeed, would commit the violation as a mere matter of
self-indulgence; but it is absurd to suppose that this would be done,
as it is done, by thousands of persons of the highest type of character
and citizenship. These people are sustained by the consciousness that,
though their conduct may be open to criticism, it at least has the
justification of being a revolt against a law--a law unrepealable by
any ordinary process--that strikes at the foundations of liberty.
Defenders of Prohibition seek to do away with the objection to it as an
invasion of personal liberty by pointing out that all submission to
civil government is in the nature of a surrender of personal liberty.
This is true enough, but only a shallow mind can be content with this
cheap and easy disposition of the question. To any one who stops to
think of the subject with some intelligence it must be evident that the
argument proves either too much or nothing at all. If it means that no
proposed restriction can properly be objected to as an invasion of
personal liberty, because all restrictions are on the same footing as
part of the order of society, it means what every man of sense would at
once declare to be preposterous; and if it does not mean that it leaves
the question at issue wholly untouched.
Submission to an orderly government does, of course, involve the
surrender of one's personal freedom in countless directions. But
speaking broadly, such surrender is exacted, under what are generally
known as "free institutions," only to the extent to which the right of
one man to do as he pleases has to be restricted in order to secure the
elementary rights of other men from violation, or to preserve
conditions that are essential to the general welfare. If A steals, he
steals from B; if he murders, he kills B; if he commits arson, he sets
fire to B's house. If a man makes a loud noise in the street, he
disturbs the quiet of hundreds of his fellow citizens, and may make
life quite unendurable to them. There are complexities into which I
cannot enter in such matters as Sunday closing and kindred regulations;
but upon examination it is easily enough seen that they fall in essence
under the same principle--the principle of restraint upon one
individual to prevent him from injuring not himself, but others.
A law punishing drunkenness, which is a public nuisance, comes under
the head I have been speaking of; a law forbidding a man to drink for
fear that he may become a drunkard does not. And in fact the
prohibitionists themselves instinctively recognize the difference, and
avoid, so far as they can, offending the sense of liberty by so direct
an attack upon it. It is safe to say that if the Eighteenth Amendment
had undertaken to make the _drinking_ of liquor a crime, instead of the
_manufacture and sale_ of it, it could not have been passed or come
anywhere near being passed. There is hardly a Senator or a
Representative that would not have recoiled from a proposal so palpably
offensive to the instinct of liberty. Yet precisely this is the real
object of the Eighteenth Amendment; its purpose and, if enforced, its
practical effect is to make it permanently a crime against the national
government for an American to drink a glass of beer or wine. The
legislators, State and national, who enacted it knew this perfectly
well; yet if the thing had been put into the Amendment in so many
words, hardly a man of them would have cast his vote for it. The
phenomenon is not so strange, or so novel, as it might seem; it has a
standard prototype in the history of Rome. The Roman people had a
rooted aversion and hostility to kings; and no Caesar would ever have
thought of calling himself _rex_. But _imperator_ went down quite
smoothly, and did just as well.
In addition to its being a regulation of individual conduct in a matter
which is in its nature the individual's own concern, Prohibition
differs in another essential respect from those restrictions upon
liberty which form a legitimate and necessary part of the operation of
civil government. To put a governmental ban upon all alcoholic drinks
is to forbid the _use_ of a thing in order to prevent its _abuse_. A Of
course there are fanatics who declare--and believe--that _all_
indulgence in alcoholic drink, however moderate, is abuse; but to
justify Prohibition on that ground would be to accept a doctrine even
more dangerous to liberty. It is bad enough to justify the proscription
of an innocent indulgence on the ground that there is danger of its
being carried beyond the point of innocence; but it is far worse to
forbid it on the ground that, however innocent and beneficial a
moderate indulgence may seem to millions of people, it is not regarded
as good for them by others. The only thing that lends dignity to the
Prohibition cause is the undeniable fact that drunkenness is the source
of a vast amount of evil and wretchedness; the position of those who
declare that all objections must be waived in the presence of this
paramount consideration is respectable, though in my judgment utterly
wrong. But any man who justifies Prohibition on the ground that
drinking is an evil, no matter how temperate, is either a man of narrow
and stupid mind or is utterly blind to the value of human liberty. The
ardent old-time Prohibitionist--the man who thinks, however mistakenly,
that the abolition of intoxicating drinks means the salvation of
mankind--counts the impairment of liberty as a small matter in
comparison with his world-saving reform; this is a position from which
one cannot withhold a certain measure of sympathy and respect. But to
justify the sacrifice of liberty on the ground that the man who is
deprived of it will be somewhat better off without it is to assume a
position that is at once contemptible and in the highest degree
dangerous. Contemptible, because it argues a total failure to
understand what liberty means to mankind; dangerous, because there is
no limit to the monstrosities of legislation which may flow from the
acceptance of such a view. Esau _sold_ his birthright to Jacob for a
mess of pottage which he wanted; these people would rob us of our
birthright and by way of compensation thrust upon us a mess of pottage
for which we have no desire.
Rejecting, then, the preposterous notion of extreme fanatics--whether
the fanatics of science or the fanatics of moral reform--we have in
Prohibition a restraint upon the liberty of the individual which is
designed not to protect the rights of other individuals or to serve the
manifest requirements of civil government, but to prevent the
individual from injuring himself by pursuing his own happiness in his
own way; the case being further aggravated by the circumstance that in
order to make this injury impossible he is denied even such access to
the forbidden thing as would not--except in a sense that it is absurd
to consider--be injurious. Now this may be benevolent despotism, but
despotism it is; and the people that accustoms itself to the acceptance
of such despotism, whether at the hands of a monarch, or an oligarchy,
or a democracy, has abandoned the cause of liberty. For there is hardly
any conceivable encroachment upon individual freedom which would be a
more flagrant offense against that principle than is one that makes an
iron-bound rule commanding a man to conform his personal habits to the
judgment of his rulers as to what is best for him. I do not mean to
assert that it necessarily follows that such encroachments will
actually come thick and fast on the heels of Prohibition. Any specific
proposal will, of course, be opposed by those who do not like it, and
may have a much harder time than Prohibition to acquire the following
necessary to bring about its adoption. But the resistance to it on
specific grounds will lack the strength which it would derive from a
profound respect for the general principle of liberty; whatever else
may be said against it, it will be impossible to make good the
objection that it sets an evil precedent of disregard for the claims of
that principle. The Eighteenth Amendment is so gross an instance of
such disregard that it can hardly be surpassed by anything that is at
all likely to be proposed. And if the establishment of that precedent
should fail actually to work so disastrous an injury to the cause of
liberty, we must thank the wide-spread and impressive resistance that
it has aroused. Had the people meekly bowed their heads to the yoke,
the Prohibition Amendment would furnish unfailing inspiration and
unstinted encouragement to every new attack upon personal liberty; as
it is, we may be permitted to hope that its injury to our future as a
free people will prove to be neither so profound nor so lasting as in
its nature it is calculated to be.
Before dismissing this subject it will be well to consider one favorite
argument of those who contend that Prohibition is no more obnoxious to
the charge of being a violation of personal liberty than are certain
other laws which are accepted as matters of course. A law prohibiting
narcotic drugs, they say, imposes a restraint upon personal liberty of
the same sort as does a law prohibiting alcoholic liquors. And it must
be admitted that there is some plausibility in the argument. The answer
to it is not so simple as that to the broader pleas which have been
discussed above. Yet the answer is not less conclusive. There is no
principle of human conduct that can be applied with undeviating rigor
to all cases; and indeed it is part of the price of the maintenance of
the principle that it shall be waived in extreme instances in which its
rigorous enforcement would shock the common instincts of mankind.
Illustrations of this can be found in almost every domain of human
action in the everyday life of each one of us, in the practice of the
professions, in the procedure of courts and juries, as well as in the
field of law-making. It is wrong to tell a lie, and there are a few
doctrinaire extremists who maintain that lying is not excusable under
any circumstances; but the common sense of mankind declares that it is
right for a man to lie in order to deceive a murderer who is seeking
his mother's life. Physicians almost unanimously profess, and honestly
profess, the principle that human life must be preserved as long as
possible, no matter how desperate the case may seem; yet I doubt
whether there is a single physician who does not mercifully refrain
from prolonging life by all possible means in cases of extreme and
hopeless agony. Murder is murder, and it is the sworn duty of juries to
find accordingly; yet the doctrine of the "unwritten law"--while
unquestionably far too often resorted to, and thus constituting a grave
defect in our administration of criminal justice--is in some extreme
cases properly invoked to prevent an outrage on the elementary
instincts of justice. In all these instances we have a principle
universally acknowledged and profoundly respected; and the waiver of it
in extreme cases, so far from weakening the principle, actually
strengthens it since if it absolutely never bent it would be sure to
break.
And so it is with the basic principles of legislation. To forbid the
use of narcotic drugs is a restraint of liberty of the same _kind_ as
to forbid the use of alcoholic liquors; but in _degree_ the two are
wide as the poles asunder. The use of narcotic drugs (except as
medicine) is so unmitigatedly harmful that there is perhaps hardly a
human being who contends that it is otherwise. People _crave_ it, but
they are ashamed of the craving. It plays no part in any acknowledged
form of human intercourse; it is connected with no joys or benefits
that normal human beings openly prize. A thing which is so wholly evil,
and which, moreover, so swiftly and insidiously renders powerless the
will of those who--perhaps by some accident--once begin to indulge in
it, stands outside the category alike of the ordinary objects of human
desire and the ordinary causes of human degradation. To make an
exception to the principle of liberty in such a case is to do just what
common sense dictates in scores of instances where the strict
application of a general principle to extreme cases would involve an
intolerable sacrifice of good in order to remove a mere superficial
appearance of wrong. To make the prohibition of narcotic drugs an
adequate reason for not objecting to the prohibition of alcoholic
drinks would be like calling upon physicians to throw into the scrap
heap their principle of the absolute sanctity of human life because
they do not apply that principle with literal rigor in cases where to
do so would be an act of inhuman and unmitigated cruelty.