Part 3 — Chapter III CAN THE PEOPLE GET WHAT THEY WANT?

Congress will do what the people want if the request is made clearly and forceably enough: Inhibitions are waning: Later generations will not bless birth control workers or Congress if legislation is bungled now: Danger of blundering as Comstock blundered: Those who mean well regarding legislation must do well: Present laws unconstitutional: First class legal opinion deems all “doctors only” laws unconstitutional also: Time to discard governmental distrust of the people.

The people can get just what they want from Congress and the State Legislatures regarding the birth control question, if they make their wants known definitely enough. If they leave it wholly to the relatively few citizens who take the trouble to go down to Washington and worry bills through Congress, they may wake later to find that misguided enthusiasm has done for this generation what Comstock did for his generation—enacted laws which were well meant, but which have worked ill. Some senator of our day may have to warn Congress as did Senator Conkling in 1873, lest we “do something which when we come to see it in print, will not be the thing we would have done if we had understood it.” It is doubtful if any thoughtful members of Congress or any clear-headed citizens could be proud if it should happen that the laws affecting birth control were amended so as to create a special privilege in access to knowledge instead of freedom for all; if they established monopoly instead of equal opportunity; or if they created paternalism instead of democracy. No one in later years would bless Congress for passing another batch of unenforceable laws. And it is safe to say also that American citizens would not bless any birth control advocates who, after endless talk and the expenditure of time and money which Congressional work requires, should persuade Congress to leave the subject of birth control still mired in the obscenity laws where Comstock (and Congress meekly acquiescing) placed it over half a century ago.

Much water has gone under the bridge since birth control corrective legislation was first proposed. Congressional inhibitions have considerably lessened. The whole subject in press, pulpit, fiction and private life is on a more wholesome plane than ever before. The time is ripe to have that improvement reflected into sound legislative action. Congress will just as willingly do the fine thing as the flimsy thing, if the people demand it. Congress will help to take birth control out of the laws, instead of putting it into further spurious laws, if the people say so.

It is up to the public to let the birth control workers know what is wanted, and for both the birth control workers and the public to let Congress know what is wanted—and wanted with the best that is in people’s minds and hearts, not what is dictated by their superficial fears, their doubts and their shames.

Professor Raymond Pearl has said: “The cure for the defects of birth control, paraphrasing the old remark about democracy, is more and more democratic birth control.” And surely the cure for the defects of legislation regarding birth control is more and more democratic legislation.

It has to be admitted that the American public has often been shockingly easy-going about responsibility for the sort of laws that its representatives enact, likewise that the public is often woefully pliant in accepting ready made opinions and policies without analysis. But it is to be hoped that there are enough citizens who are genuinely interested to help check misguided legislation and promote sound legislation on this subject, to prevent our country from making another great blunder in birth control legislation instead of correcting Comstock’s original blunder with a clean firm sweep. Standing up and being counted as a believer in birth control is not enough. Those who are on record in birth control organizations as adherents of “the cause” must see to it that their names are not linked to endorsements of bills which they do not approve. Birth control leaders, like members of Congress, will yield to public opinion, if it is clearly enough and forcibly enough expressed.

It is time for every one who means well in this matter to do well also. The gist of the question is very simple and lucid. It has unfortunately been gummed up with all manner of excrescences. But they can all be readily scraped off by dint of the application of plain common sense and determination not to fool one’s self or to attempt to fool the public or the legislators.

Also there is a considerable portion of the American public which cares about having the laws on this subject in harmony with the proud traditions of American ideals, the people to whom the guarantees of freedom of speech and of the press mean something, and who are keen to have the spirit of the Constitution lived up to, not so much because it is the Constitution as because those principles of freedom are vital to human progress and precious to human aspiration. There has always been a sizable body of opinion that all the Comstock laws are constitutional, as contrary to the United States Constitution and to the constitutions of the States. Forty-five of the forty-eight States in the Union have provisions in their constitutions or the Bill of Rights that “every man is given the right freely to write, speak and publish his opinions on all subjects, being responsible for the abuse of that privilege.” Twenty-six of the States give an additional safeguard providing that “No law shall ever be passed to restrain freedom of speech or of the press.” Courtlandt Palmer, in 1883 wrote a vigorous article in the “New York Observer” in criticism of the Comstock laws, in which he said:

Sometimes a mistaken method of preventing vice entails worse evils than the vice it would prevent. The Liberals oppose the methods of these postal laws (the Federal obscenity laws) because they regard them as an example of saving at the spigot and losing at the bung, an instance of expending a dollar to save a dime. The question straightway narrows itself into one issue, viz., that of method. It is agreed on all hands that obscenity should be checked, and if possible eradicated. The only point is how. We regard these laws as unconstitutional, useless, unnecessary, impolitic and immoral. They are unconstitutional, because the United States Constitution simply empowers Congress to establish post offices and post roads—no more. How then can these words be construed to authorize our representatives to sit in judgment on the moral quality of the parcels entrusted to the mails? The Post Office as we conceive it is a mechanical not an ethical institution. Judge Story says in his work on the Constitution that Congress can not use this power (viz., to establish post-offices and post-roads) for any other ulterior purpose, which means, if it means anything, that while the government may for postal reasons, or for the convenience and necessity of the service, exclude such articles as liquor and dynamite, it can not sit in judgment on the intellectual or moral quality of the communications entrusted to it.

It has many times been suggested that the matter of birth control legislation be settled by a test case taken to the supreme court on the ground of unconstitutionality. But in view of the fact that the Supreme Court declined to act on Margaret Sanger’s case when it was appealed from the New York courts, and in view of various other precedents, it has not seemed a promising way to get results, certainly not quick results. It might take several years at best to carry a case through, and in the meantime Congress might be only too glad to utilize the fact that a decision was pending, to postpone its own responsibility to act on the repeal bill on which it has been asked to act for six years past. The obvious fact that the ban on the circulation of knowledge in the Comstock law is contrary to the right of freedom of the press should alone be sufficient reason for its repeal by Congress. And both birth control advocates and Congress should pay attention to the fact that there is first class legal opinion that all the “doctors only” laws, if enacted, would also be unconstitutional.

Above everything, is it not high time for Americans to discard these laws which are predicated upon the utterly undemocratic basis of governmental distrust of the people? Is it not a matter of deep concern to upstanding American citizens that they should be for over half a century the victims of the discreditable fear that animated a man like Anthony Comstock? Do not Americans trust themselves with knowledge? Are they longer willing to retain the mouldy laws which have stood for such a disgracefully extended period as a sign of distrust of the people? Are they not ready now to share the deep emotion of Walt Whitman who said, “There is to me something profoundly affecting in large masses of men following the lead of those who do not believe in men.” Are they not more than ready to demand that Congress and the State Legislatures shall make all haste in purging the statute books of these old blemishes, so that the pure white light of science may shine unimpeded upon the lives of all?

“Study, without reflection,” says Confucius, “is waste of time; reflection without study is dangerous.”