This eBook was produced by J. Henry Phillips. (continued 2)

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.

CHAPTER X

PROHIBITION AND SOCIALISM

In the foregoing chapter I have said that while absorption in the idea of democracy has had a tendency to impair devotion to the idea of liberty, yet that in democracy itself there is no inherent opposition to liberty. The danger to individual liberty in a democracy is of the same nature as the danger to individual liberty in a monarchy or an oligarchy; whether power be held by one man, or by a thousand, or by a majority out of a hundred million, it is equally possible for the governing power on the one hand to respect, or on the other hand to ignore, the right of individuals to the free play of their individual powers, the exercise of their individual predilections, the leading of their individual lives according to their own notions of what is right or desirable. A monarch of enlightened and liberal mind will respect that right, and limit his encroachments upon it to the minimum required for the essential objects of reasonable government; so, too, will a democracy if it is of like temper and intelligence. But it is not so with Socialism. Numerous as are the varieties of Socialism, they all agree in being inherently antagonistic to individualism. It may be pleaded, in criticism of this assertion, that all government is opposed to individualism; that the difference in this respect between Socialism and other forms of civil organization is only one of degree; that we make a surrender of individuality, as well as of liberty, when we consent to live in any organized form of society. It is not worth while to dispute the point; the difference may, if one chooses, be regarded as only a difference of degree. But when a difference of degree goes to such a point that what is minor, incidental, exceptional in the one case, is paramount, essential, pervasive in the other, the difference is, for all the purposes of thinking, equivalent to a difference of kind. Socialism is in its very essence opposed to individualism. It makes the collective welfare not an incidental concern of each man's daily life, but his primary concern. The standard it sets up, the regulations it establishes, are not things that a man must merely take account of as special restraints on his freedom, exceptional limitations on the exercise of his individuality; they constitute the basic conditions of his life. When the Socialist movement was in its infancy in this country--though it had made great headway in several of the leading countries of Europe--the customary way of disposing of it was with a mere wave of the hand. Socialism can never work; it is contrary to human nature--these simple assertions were regarded by nearly all conservatives as sufficient to settle the matter in the minds of all sensible persons That is now no longer so much the fashion; yet I have no doubt that a very large proportion of those who are opposed to Socialism are still content with this way of disposing of it. But Socialism has steadily--though of course with fluctuations --increased in strength, in America as well as in Europe, for many decades; and it would be folly to imagine that mere declarations of its being "impracticable," or "contrary to human nature," will suffice to check it. Millions of men and women, here in America--ranging in intellect all the way from the most cultured to the most ignorant--are filled with an ardent faith that in Socialism, and in nothing else, is to be found the remedy for all the great evils under which mankind suffers; and there is no sign of slackening in the growth of this faith. When the time comes for a real test of its strength--when it shall have gathered such force as to be able to throw down a real challenge to the conservative forces in the political field--it is absurd to suppose that those who are inclined to welcome it as the salvation of the world will be frightened off by prophecies of failure. They will want to make the trial; and they will make the trial, regardless of all prophecies of disaster, if the people shall have come to believe that the object is a desirable one--that Socialism is a form of life which they would like after they got it. The one great bulwark against Socialism is the sentiment of liberty. If we find nothing obnoxious in universal regimentation; if we feel that life would have as much savor when all of us were told off to our tasks, or at least circumscribed and supervised in our activities, by a swarm of officials carrying out the benevolent edicts of a paternal Government; if we hold as of no account the exercise of individual choice and the development of individual potentialities which are the very lifeblood of the existing order of society; if all these things hold no value for us, then we shall gravitate to Socialism as surely as a river will find its way to the sea. Socialism--granted its practicability, and its practicability can never be disproved except by trial, by long and repeated trial--holds out the promise of great blessings to mankind. And some of these blessings it is actually capable of furnishing, even if in the end it should prove to be a failure. Above all it could completely abolish poverty--that is, anything like abject poverty. The productive power of mankind, thanks to the progress of science and invention, is now so great that, even if Socialism were to bring about a very great decline of productiveness--not, to be sure, such utter blasting of productiveness as has been caused by the Bolshevik insanity--there would yet be amply enough to supply, by equal distribution, the simple needs of all the people. Besides the abolition of poverty, there would be the extinction of many sinister forms of competitive greed and dishonesty. To the eye of the thinking conservative, these things-poverty, greed, dishonesty--while serious evils, are but the blemishes in a great and wholesome scheme of human life; drawbacks which go with the benefits of a system in which each man is free, within certain necessary limits, to do his best or his worst; a price such as, in this imperfect world, we have to pay for anything that is worth having. But to the Socialist the matter presents itself in no such light. He sees a mass of misery which he believes--and in large measure justly believes--Socialism would put an end to; and he has no patience with the conservative who points out--and justly points out-- that the poverty is being steadily, though gradually, overcome in the advance of mankind under the existing order. "Away with it," he says; "we cannot wait a hundred years for that which we have a right to demand today." And "away with it" we ought all to say, if Socialism, while doing away with it, would not be doing away with something else of infinite value and infinite benefit to mankind, both material and spiritual; something with which is bound up the richness and zest of life, not only for what it is the fashion of radicals to call "the privileged few," but for the great mass of mankind. That something is liberty, and the individuality which is inseparably bound up with liberty. The essence of Socialism is the suppression of individuality, the exaltation of the collective will and the collective interest, the submergence of the individual will and the individual interest. The particular form--even the particular degree--of coercion by which this submergence is brought about varies with the different types of Socialism; but they all agree in the essential fact of the submergence. Socialism may possibly be compatible with prosperity, with contentment; it is not compatible with liberty, not compatible with individuality. I am, of course, not undertaking here to discuss the merits of Socialism; my purpose is only to point out that those who are hostile to Socialism must cherish liberty. And it is vain to cherish liberty in the abstract if you are doing your best to dry up the very source of the love of liberty in the concrete workings of every man's daily experience. With the plain man--indeed with men in general, plain or otherwise--love of liberty, or of any elemental concept, is strong only if it is instinctive; and it cannot be instinctive if it is jarred every day by habitual and unresented experience of its opposite. Prohibition is a restraint of liberty so clearly unrelated to any primary need of the state, so palpably bearing on the most personal aspect of a man's own conduct, that it is impossible to acquiesce in it and retain a genuine and lively feeling of abhorrence for any other threatened invasion of the domain of liberty which can claim the justification of being intended for the benefit of the poor or unfortunate. So long as Prohibition was a local measure, so long even as it was a measure of State legislation, this effect did not follow; or, if at all, only in a small degree. People did not regard it as a dominant, and above all as a paramount and inescapable, part of the national life. But decreed for the whole nation, and imbedded permanently in the Constitution, it will have an immeasurable effect in impairing that instinct of liberty which has been the very heart of the American spirit; and with the loss of that spirit will be lost the one great and enduring defense against Socialism. It is not by the argumentation of economists, nor by the calculations of statisticians, that the Socialist advance can be halted. The real struggle will be a struggle not of the mind but of the spirit; it will be Socialism and regimentation against individualism and liberty. The cause of Prohibition has owed its rapid success in no small measure to the support of great capitalists and industrialists bent upon the absorbing object of productive efficiency; but they have paid a price they little realize. For in the attainment of this minor object, they have made a tremendous breach in the greatest defense of the existing order of society against the advancing enemy. To undermine the foundations of Liberty is to open the way to Socialism.

CHAPTER XI

IS THERE ANY WAY OUT?

IN the second chapter of this book, I undertook to give an account of the state of mind which the enactment of the Eighteenth Amendment has created, and which is at the bottom of that contempt for the law whose widespread prevalence among the best elements of our population is acknowledged alike by prohibitionists and anti-prohibitionists. "People feel in their hearts," I said, "that they are confronted with no other choice but that of either submitting to the full rigor of Prohibition, of trying to procure a law which nullifies the Constitution, or of expressing their resentment against an outrage on the first principles of the Constitution by contemptuous disregard of the law." It is a deplorable choice of evils; a state of things which it is hardly too much to call appalling in its potentialities of civic demoralization.

And one who realizes the gravity of the injury that a long continuance of this situation will inevitably inflict upon our institutions and our national character must ask whether there is any practical possibility of escape from it. The right means, and the only entirely satisfactory means, of escape from it is through the undoing of the error which brought it about--that is, through the repeal of the Eighteenth Amendment. Towards that end many earnest and patriotic citizens are working; but of course they realize the stupendous difficulty of the task they have undertaken. As a rule, these men, while working for the distant goal of repeal of the Amendment, are seeking to substitute for the Volstead act a law which will permit the manufacture and sale of beer and light wines; a plan which, as I have elsewhere stated, while by no means free from grave objection--for it is clearly not in keeping with the intent of the Eighteenth Amendment--would, in my judgment, be an improvement on the present state of things. But it is not pleasant to contemplate a situation in which, to avoid something still worse, the national legislature is driven to the deliberate enactment of a law that flies in the face of a mandate of the Constitution. A possible plan exists, however, which is not open to this objection, and yet the execution of which would not present such terrific difficulty as would the proposal of a simple repeal of the Eighteenth Amendment. That Amendment imbeds Prohibition in the organic law of the country, and thus not only imposes it upon the individual States regardless of what their desires may be, but takes away from the nation itself the right to legislate upon the subject by the ordinary processes of law-making. Now an Amendment repealing the Eighteenth Amendment but at the same time conferring upon Congress the power to make laws concerning the manufacture, sale and transportation of intoxicating liquors, would make it possible for Congress to pass a Volstead act, or a beer-and-wine act, or no Liquor act at all, just as its own judgment or desire might dictate. It would give the Federal Government a power which I think it would be far more wholesome to reserve to the States; but it would get rid of the worst part of the Eighteenth Amendment. And it would have, I think, an incomparably more favorable reception, from the start, than would a proposal of simple repeal. For the public could readily be brought to see the reasonableness of giving the nation a chance, through its representatives at Washington, to express its will on the subject from time to time, and the unreasonableness of binding generation after generation to helpless submission. The plea of majority rule is always a taking one in this country; and it is rarely that that plea rests on stronger ground than it would in this instance. The one strong argument which might be urged against the proposal--namely that such a provision would make Prohibition a constant issue in national elections, while the actual incorporation of Prohibition in the Constitution settles the matter once for all--has been deprived of all its force by our actual experience. So far from settling the matter once for all, the Eighteenth Amendment has been a frightful breeder of unsettlement and contention, which bids fair to continue indefinitely.

I have offered this suggestion for what it may be worth as a practical proposal; it seems certainly deserving of discussion, and I could not refrain from putting it forward as a possible means of relief from an intolerable situation. But I do not wish to wind up on that note. The right solution--a solution incomparably better than this which I have suggested on account of its apparently better chance of acceptance--is the outright repeal of the Eighteenth Amendment. And moreover, the primary need of this moment is not so much any practical proposal likely to be quickly realized as the awakening of the public mind to the fundamental issues of the case --the essential principles of law, of government, and of individual life which are so flagrantly sinned against by the Prohibition Amendment.

To the exposition of those fundamental issues this little book has been almost exclusively confined. It has left untouched a score of aspects of the question of drink, and of the prohibition of drink, which it would have been interesting to discuss, and the discussion of which would, I feel sure, have added to the strength of the argument I have endeavored to present. But there is an advantage, too, in keeping to the high points. It is not to a multiplicity of details that one must trust in a case like this. What is needed above all is a clear and wholehearted recognition of fundamentals. And I do not believe that the American people have got so far away from their fundamentals that such recognition will be denied when the case is clearly put before them. There is one and only one thing that could justify such a violation of liberty and of the cardinal principles of rational government as is embodied in the Eighteenth Amendment. In the face of desperate necessity, there may be justification for the most desperate remedy.

But so far from this being a case of desperate necessity, nothing is more unanimously acknowledged by all except those who labor under an obsession, than that the evil of drink has been steadily diminishing. Not only during the period of Prohibition agitation, but for many decades before that, drunkenness had been rapidly declining, and both temperate drinking and total abstinence correspondingly increasing. It is unnecessary to appeal to statistics. The familiar experience of every man whose memory runs back twenty, or forty, or sixty years, is sufficient to put the case beyond question; and every species of literary and historical record confirms the conclusion. This violent assault upon liberty, this crude defiance of the most settled principles of lawmaking and of government, this division of the country--as it has been well expressed-- into the hunters and the hunted, this sowing of dragons' teeth in the shape of lawlessness and contempt for law, has not been the dictate of imperious necessity, but the indulgence of the crude desire of a highly organized but one-idead minority to impose its standards of conduct upon all of the American people. To shake off this tyranny is one of the worthiest objects to which good Americans can devote themselves. To shake it off would mean not only to regain what has been lost by this particular enactment, but to forefend the infliction of similar outrages in the future. If it is allowed to stand, there is no telling in what quarter the next invasion of liberty will be made by fanatics possessed with the itch for perfection. I am not thinking of tobacco, or anything of the kind; twenty years from now, or fifty years from now, it may be religion, or some other domain of life which at the present moment seems free from the danger of attack. The time to call a halt is now; and the way to call a halt is to win back the ground that has already been lost. To do that will be a splendid victory for all that we used to think of as American--for liberty, for individuality, for the freedom of each man to conduct his own life in his own way so long as he does not violate the rights of others, for the responsibility of each man for the evils he brings upon himself by the abuse of that freedom. May the day be not far distant when we shall once more be a nation of sturdy freemen--not kept from mischief to ourselves by a paternal law copper-fastened in the Constitution, not watched like children by a host of guardians and spies and informers, but upstanding Americans loyally obedient to the Constitution, because living under a Constitution which a people of manly freemen can wholeheartedly respect and cherish.

THE END