The Personal Problem
THE opponents of the Eighteenth Amendment and the Volstead Act have quite unnecessarily weakened their case by the usual argument based on personal liberty, and, to a certain extent, by their advocacy of light wines and beers.
Every civilized community is so accustomed to the limitation of individual freedom in the public interest that the appeal to personal liberty as such carries no weight in this connection and means almost nothing. If a community, with substantial unanimity, once chooses to regard any particular act by an individual as seriously detrimental to social welfare, the appeal to personal liberty becomes academic, if not unsound, however just it may seem from an individualistic standpoint. Thus the restrictions on the sale of poisons and narcotics are made with general consent, and their enforcement has the support of public opinion. The infringement of liberty thus involved creates no grievance. The same is true of traffic regulations and scores of others. It is in the realm of local discussion and local legislation that the difference of individual opinion as to interference with personal liberty presents a real issue and one that often has to be thrashed out until a conclusion satisfactory to the local majority has been reached.
The practical question, therefore, is not whether a given restriction is an infringement of personal liberty, but whether the preponderant and effective sentiment of a community regards it as necessary to social well-being. The word ‘community’ is the key to the problem, and the case against the Federal Amendment and the Volstead Act is that they are infringements of community liberty, because they impose the will of the national government in a domain appropriate to local control.
As the disastrous experience with the Eighteenth Amendment has shown all too clearly, the enforcement of temperance is peculiarly a matter which depends for its success on the attitude of the community — that is, the city, town, or village in which one lives. If the preponderant sentiment of such a community is against the manufacture and sale of alcoholic drinks, there is no serious difficulty about enforcement. This has been shown by a long record of no license under local option in hundreds of American communities; and when such communities comprise practically the whole population of a state, which is simply a larger unit of community life, enforcement by state legislation has in many instances been equally successful. By the same token national prohibition would create no grievance, however objectionable theoretically, if it represented the substantial unanimity of all local communities. That it does so now would hardly be claimed by its most ardent champions.
The great mistake of the Eighteenth Amendment from the temperance point of view has been that it substituted a drastic national law, wholly regardless of community sentiment and community liberty, for the method of gradual prohibition based on local and state enactment. The experiment of national prohibition might be justified from the point of view of a temperance extremist indifferent to our political traditions if the record of the temperance movement had been a dismal failure and the evils of intemperance, as reflected in crime and social behavior, had been correspondingly aggravated. But the facts, whether based on temperance statistics and propaganda or on general experience and observation, pointed in quite the opposite direction. So far from being discouraged by the progress of temperance in the United States up to the time of the war, its advocates had every reason for optimism regarding the final outcome. We have all seen the charts that used to be printed from time to time showing prohibition states in white, local-option states shaded, and license states in ominous black; and the gradual advance of the white areas, the changes under local option from license to no license, and the tendency of the black areas to dwindle down to the large centres of population were apparent to everyone. The speed with which prohibition and no license advanced, rather than their slowness, was the striking fact during the twenty or thirty years before the war.
There were other encouraging phenomena which were doubtless related to the changes above mentioned. No one whose observation has extended over the last thirty or forty years can have failed to notice the difference in the drinking habits of the community. Drinking during business hours or at luncheon, formerly a grave abuse, had practically disappeared from business districts in our large cities. It is a well-known fact that in and before the nineties reunions of college and university men were characterized by a good deal of drinking, whereas the experience of many, if not all, colleges and universities since that time was that drunkenness among undergraduates and graduates had become exceptional, even on festive occasions. At one large convivial gathering of university graduates in New York a few years before the war, where over a thousand men sat down to dinner, champagne was provided without extra cost and in quantity practically unlimited, except by the tastes and habits of those present. The number of men in that gathering who gave any signs of having taken too much was certainly not more than two or three, and the assembly was in perfect order during the after-dinner speaking. Could that experience, impossible thirty or forty years ago, be repeated today? It may be a reflection on such a collection of men to admit that they might allow their annoyance with the Volstead Act to drive them to an excess against which their taste and moral sense defended them a few years ago, but Burke’s dictum about indicting a people would seem to have some application here. Certainly the general reaction to prohibition is too obvious a psychological fact to be dismissed with a hasty condemnation. As for undergraduate life in our colleges and universities, the change from a situation in which, with perfect liberty to drink, the habit of being ‘on the water wagon’ had come to be regarded as desirable and creditable, to one in which a boy finds it rather amusing and clever to buy and drink what he can get, is certainly one which does not conduce to satisfaction.
Another phenomenon to which the public was becoming accustomed before the war was the prohibition of drinking on duty, off duty, or both, by employees of railroads and other industries. This was a limitation which did not depend upon legislative enactment and the enforcement of which, to a growing extent, had the acquiescence of all concerned, including the public.
No worse blow could have been inflicted upon the temperance movement than the sudden and hastily contrived legislation by which it was sought to impose the Federal authority in a field which peculiarly required, not the sanction of Federal authority, but the sanction of local opinion. Herein lies the constitutional objection to the Eighteenth Amendment, using the word ‘constitutional’ in the British sense, as applying to the spirit and tradition of American institutions. There is much to be said for the point of view of a recent British commentator on the American Government, who distinguishes between the written and the unwritten constitution of the United States. It is theoretically possible that by a series of amendments rushed through under stress of popular excitement other changes in our political organization affecting the fundamental rights and privileges of individuals and communities could be made nominally constitutional; but does itnecessarily follow that the loyalty of a citizen of the United States is engaged in perpetuity against anything which the Constitution may do to him? He must perforce reserve the right of individual judgment in determining his attitude toward a governmental act which is repugnant to his conscience or to the fundamental principles of our constitution, in the broad sense of the latter term; and of course he must be prepared to take the consequences of his decision.
The legitimizing of light wines and beers through some amendment of the Volstead Act would doubtless mitigate, in the minds of a large proportion of the opponents of the Eighteenth Amendment, the inconvenience and evil of its rigid enforcement; but in principle it is just as obnoxious to have the Federal Government interfere in such a matter as the precise alcoholic content that can be legally consumed as it is to have the Government prohibit alcoholic drinks altogether. It is really none of the business of the Federal Government to do either. It may well be the business of town, city, or state, speaking for an effective majority of its citizens.
A real danger that menaces this country is that of using the Federal Constitution and legislature as instruments for accomplishing the desires of groups or even majorities of the population in matters which the Anglo-Saxon mind, at least, regards as the sacred domain of community, if not of individual, action. There is hardly an argument in favor of prohibition by Federal enactment that would not apply to other forms of benevolent regulation calculated to satisfy the desires of overhasty social reformers; but it is doubtful whether there is any social reform so important as to justify the abandonment of our tradition of local or state control in such matters. Once open the door to the regulation of local and individual affairs by the Federal Government and it may prove that much of the work of centuries in gaining individual and local liberty will have to be done over again.
What attitude or course of action should be commended to those who find themselves in general agreement with the opinions here expressed? The attitude, it would seem, should be one of acquiescence in and encouragement of the process of nullification through which a community with American traditions normally asserts itself against the improper or unwelcome intrusion of governmental action in individual or local conduct. As has been frequently observed, there are now on the statute books and even in the Constitution of the United States regulations having the form of law which, at least in certain sections, nobody regards as the law. They have failed to receive the essential ratification of local or sectional opinion and are now more or less completely ignored. There is a point at which an obnoxious law, meeting with less and less observance, reaches the category of a dead letter. This may be the fate of the Eighteenth Amendment and the Volstead Act in communities which choose to disregard them — and by this I mean disregard of the law, not by persons of criminal tendencies, but by those properly described as law-abiding citizens. Those who oppose in principle the Eighteenth Amendment and the Volstead Act should, if they are honest and have the courage of their convictions, openly approve and encourage this tendency.
As to a programme of action going beyond verbal advocacy of nullification, the most obvious and effective measure is that of electing to Congress men who sympathize with state regulation of the liquor traffic and oppose the intrusion of the Federal Government in all such matters. In the second place, the withholding of appropriations for enforcement should be advocated as the consistent and legitimate means whereby a reawakened public opinion on the respective rights and functions of the Federal and state governments should assert itself.
This is not a counsel of lawlessness, for law rests fundamentally on public opinion; and public opinion can assert itself as effectively and rightfully in breaking as in making a law, provided it is really public opinion which is acting and not the capricious action of lawless-minded individuals.
If it be said that the foregoing remarks imply a humiliating confession of the breakdown of legislative procedure for the correction of errors in legislation, under a government supposedly based on law, the humiliation may be admitted; but the responsibility for it rests on those whose rash advocacy of the prohibitory amendment combined with the pusillanimous action of some politicians in the state and national legislatures to fasten upon the country a constitutional amendment which, owing to difficulties inherent in the process, practically cannot be repealed, though it is plain as a pikestaff that if the amendment were to be freshly proposed to-day, after seven years of popular education on the subject, it could not possibly prevail.
It is wholly to the interest of the temperance cause that the present abortive effort to make people temperate by Federal legislation should collapse, so that the healthy progress of temperance, so unfortunately interrupted by the Eighteenth Amendment, may be resumed. Such an outcome would leave in full force every moral and social consideration in favor of temperance and total abstinence as legitimate objectives of public education and of state and local legislation.