Reconstruction and Prohibition

FEBRUARY, 1929

BY A. LAWRENCE LOWELL

I

IN the spring of 1918 an American said to a friend that the young men taking part in the war had been raised to such a pitch of exaltation that they would live on a higher plane than their fathers. The answer was a chilling caution not to believe it; that the war would be followed by an era of materialism. The friend then pointed out that such a reaction had generally occurred after great wars, and that the result is a natural one, because, as strenuous physical exertion is followed by fatigue, so a violent moral effort, when the cause that produced it is removed, is succeeded by moral lassitude and therewith a turning of attention into very different channels. That this revulsion of spirit should be expected to follow peace is now recognized by those who have thought about the subject; but there are other aftereffects of war of quite a different character that merit consideration.

The very reaction that follows the cessation of hostilities has some unexpected results. War brings a great wave of emotion, and when, with peace, that recedes in a low tide of feeling, it does not leave things as they were before. Some traditions have been swept away, some habits changed; but in the swirl, the eddies, the cross currents of the falling waters it is not easy to distinguish the old landmarks, and see which have been destroyed and which remain.

To most people the return of peace brings the desire to be about one’s own business; but in some earnest souls it stimulates an ambition to effect a great moral reform. In the stress of war, individuals and peoples do things that would seem impossible under ordinary conditions. Obstacles that otherwise would be insuperable are overcome. Familiar restraints and impeding habits are loosened; and enthusiasts do not appreciate that this state of mind will fade into the light of common day. To them a millennium seems within reach, and in the confused state of opinion that prevails they are tempted to strive for objects that in other times they would regard as remote or unattainable.

Such an experience followed the Civil War. In that case rancor against the Southerners and philanthropy toward the negroes combined to produce the measures known as Reconstruction. The policy had such disastrous results, and at the present day has so few, if any, defenders, that we find it hard to attribute high motives to the men who approved it. Yet many of them had the best intentions. They not only shared the general conviction that slavery must be forever abolished, but believed that the sole difference between the races was the color of the skin. On this basis they insisted on justice as they saw it — that is, absolute equality of every kind—for the negro; and certainly justice for the oppressed is in itself a noble motive.

Copyright 1929, by The Atlantic Monthly Company. All rights reserved.

Everyone knows the result: much bad government by carpetbaggers supported by an inexperienced and ignorant vote of the freedmen; maladministration; financial mismanagement; economic and social distress; resistance by force and fraud through the shotgun and the tissue ballot. In most of the seceding states the right of the negro to vote could be maintained only by the presence of federal troops; and this was continued until President Hayes, elected by the political party responsible for the policy of Reconstruction, decided to withdraw them. As head of the nation, not only had he sworn to execute its laws, but these amendments had specially empowered, and therefore intended, the federal government to provide for their enforcement. Nevertheless he made up his mind that to attempt to fulfill a clear constitutional obligation would be both futile and demoralizing, and posterity has been convinced that he was right. The result was to leave the enforcement of the provisions for negro suffrage practically to the states instead of the federal government. Moreover, the longest and most elaborate section of the Fourteenth Amendment has been from the outset a dead letter. It provides that if in any state the suffrage is restricted the representation in Congress shall be proportionally diminished; but although in many states, both North and South, the right to vote has been, and is now, restricted by clauses requiring the ability to read and write or other qualifications, no serious effort has ever been made to carry this constitutional provision into effect. The Fourteenth Amendment has had the effect of enlarging the authority of the Supreme Court in matters wholly unrelated to its main object of negro rights, but so far as enforcement of the suffrage by the national administration is concerned both this amendment and the Fifteenth have become well-nigh obsolete.

Although the policy of Reconstruction, as distinguished from the abolition of slavery, failed of its object, and without being repealed has been discarded, yet its consequences have by no means passed away. It has left in the South a resentment that the Civil War alone would not have provoked, and that a half-century of noninterference with the treatment of the racial question by the states, and of growing prosperity in the South, did not obliterate. Sectional distrust of the party which enacted the policy, but had long repudiated it, remained an active force in public life; and, contrary to many common interests, dominated until the last election the politics of the former Confederate States. Although within those fifty years two foreign wars occurred in which North and South fought side by side, although no one in the South wishes to-day that the Civil War had resulted in Confederate victory and dissolution of the Union, yet the errors of Reconstruction still cast their shadow upon the land south of Mason and Dixon’s line.

Another unfortunate effect of the principles held by the extremists at the close of the Civil War lies in their lack of influence over the treatment of the negro after the policy of Reconstruction was abandoned. Most of the people in the North, convinced that this policy had been a mistake and that they did not understand the question, subsided into a position if not of indifference at least of self-distrust, and refrained from trying to interfere with conditions which they felt that they did not comprehend. Apart from a few men deeply interested in negro education, the Northern philanthropists, on the other hand, who cared intensely about the negroes, have failed to recognize that the position of the races in the South presented any peculiar question; or rather they assumed that it had only one simple solution, the absolute equality of the races for all purposes; and they have tended to attribute any opposition to this principle to unworthy motives. Thus prejudice enhanced prejudice, and men who, by a serious study of the problem, might have had an effect on the treatment of the negro, and bettered his life, lost that chance, exasperating rather than moderating Southern sentiment.

II

Such in brief has been the history of a policy framed by extremists at the close of a great war; founded largely on a philanthropic impulse regardless of actual conditions and obstacles; sanctioned by the Constitution, but impossible of execution; and finally abandoned without repeal of the constitutional provisions by which it was decreed. Another amendment, not wholly dissimilar in its philanthropic motive, has been adopted at the end of another war, and people are watching the results. Unlike Reconstruction, Prohibition was enacted with no admixture of bitterness against a beaten foe. So far as the incentive was not economic it was wholly moral; yet, like Reconstruction, it was the work of people who had long advocated as a minority a reform which the war enabled them to carry into effect. As with Reconstruction, a vigorous dislike to the policy is making the practical enforcement of the law difficult if not impossible.

Prohibition had long been advocated in different parts of the country and had been adopted in various forms. One of these was local option by towns or cities; and this was in large measure successful. In rural communities where the sentiment was general, and in suburbs of those cities which did not adopt it, it resulted in suppressing open barrooms, but not in preventing people who wanted intoxicating liquor from obtaining it for themselves. A number of states went farther, forbidding manufacture and sale throughout their territory. For many years a strict enforcement of these laws was impeded by the decision of the Supreme Court in the Original Package Case. Interstate commerce, being within the domain of the federal government, could not be restricted by statutes of the states; and the court held that so long as merchandise was in the original package in which it was shipped from another state it was a subject of interstate commerce, regulated only by federal law. Finally in 1913 Congress passed an act withdrawing from federal protection the shipment of liquor into any state that forbade its sale, thus leaving each state free to enact its exclusion altogether. This is important to bear in mind, because people in discussing the Volstead Act may recall only the condition when states could not prevent the admission of liquor within their boundaries. Of course, with the freedom of internal trade, and the absence of state customhouses, — one of the greatest benefits conferred by the framers of the Constitution, and a principal source of our national development and prosperity, — it is more difficult for a state than for the nation to guard its approaches; but on the other hand there is more likelihood of a general community of opinion in most of the states than in the country as a whole, and that is of no small importance in the enforcement of a law.

Nevertheless, to enforce a law against the opinion of any considerable minority is always difficult. In some states, where opinion has been sufficiently harmonious, Prohibition has, no doubt, been effective; but in others, where opinion has been divided, this has not been the case. Maine has had a constitutional provision of that kind for half a century; but in Bangor a system — devised, it is said, by the chief justice of her highest court — was long in use whereby the provision was turned in practice into high license. The keeper of a disreputable saloon was prosecuted until driven out of business, while the keeper of an orderly one was prosecuted every other year, fined a fixed sum, and was otherwise unmolested. The system continued until an attempt was made to apply it in Portland, when the prohibitionists became indignant and it had to be given up. The provision in a state constitution was thus made to work for a time in Bangor as if it were one for local option. Believing that obedience to law is the basis of civil society, I am not excusing this, but merely pointing out the difficulty of carrying out a statute against strong opposition, and the way it may be perverted where many people regard it as unreasonable.

That the prohibitionists who urged the passage of the Eighteenth Amendment were actuated by the highest moral purpose no one has a right to doubt; that there was a real evil to combat is not less certain. There is almost no desire to restore the open saloon; but the question is whether, in the enthusiasm for suppressing drunkenness, they went, like the advocates of Reconstruction, too far, and thereby imperiled the object in view. It has been said that, had the Volstead Act set the limit of alcohol at a point below which wine and beer may indeed, but seldom do, intoxicate those who drink them, the law would have been so generally accepted and obeyed that the bootlegger would have found no sufficient market to sustain his trade. Whether that be true or not is a matter of conjecture, and it is proverbial that the most useless of pursuits is hypothetics, or the study of those things that might have happened and did not.

When national prohibition went into effect men who had no personal objection to wine, who had in the past served it on their tables, were more concerned about obeying the law than they seem to be to-day. The host would sometimes remark that what he offered was not illegal, for it was a pre-war purchase. One hears little of that now. There are many people, and let us hope there always will be many, who refuse to break the law, although not satisfied with it; but they appear to become fewer year by year. At first clubs and hotels were careful in their conduct. Member or guest might bring his own supply, but neither directly nor indirectly would they assist; but the observance of the law is certainly less strict to-day. Bootlegging is universally believed to have become a vast organized business employing a large capital, and in most cities no one who wants liquor seems to find any serious difficulty in getting it. In short, as everyone knows, the law is not enforced, and as time goes on it seems to be less and less effective.

There is no reason to suppose that the national administration has been intentionally lax; but it is doubtful whether sumptuary laws can ever be enforced against the resistance of any large minority. Lawyers draw a distinction between malum in se and malum prohibitum — that is, between those acts which are intrinsically wrong in themselves and those which are offenses because made so by statute; or, in other words, between acts universally esteemed immoral and those which are not generally so regarded but in the interest of the common welfare are forbidden by legislation. Laws dealing with acts of the latter class which involve obvious danger to others are easily enforced, because everyone has an interest that his neighbors should not put him or his property in peril; but this is not true where the effect on other people is remote or not potent. That is the reason why sumptuary laws, affecting what seems to be only personal conduct, are difficult to enforce. Many excellent people believe that drinking any intoxicant, even to an extent that does not intoxicate, is inherently immoral; but that is very far from a general opinion, and a large part of those who do not hold it feel that interference with their personally innocent habits is not justified by a claim of benefit to the public of which they are not convinced. Whether this attitude be right or wrong, it is a fact that must be taken into account in considering the possibility of enforcing universal prohibition. There is little use in abusing those who oppose the law, as the advocates of Reconstruction reproached the Southerners in the earlier years of that policy. Epithets do not alter facts. The question discussed in this article is not whether Prohibition would be a benefit if it could be carried into effect, but whether it can be enforced, and, if not, whether the present condition is better than some modification of the policy.

Moreover, if it be true that the men who buy and drink bootlegged liquor are evil-minded persons led by a perverted appetite to encourage violations of law to the injury of the public, then they ought to be punished. It is they who support the traffic by supplying the demand, for without them it would quickly die out. Yet no attempt is made to treat the individual purchase of liquor as a crime, or to prosecute those who do so as participants in the offense of selling it. The fact is that the public does not regard buying liquor for personal consumption as a crime; grand juries would not indict, or petty juries convict. It is one of many cases where a policy cannot be carried out, because even those who desire it are not willing to take the measures necessary for its enforcement. On the other hand, it is almost mathematically demonstrable that the present practice of proceeding against bootleggers alone cannot be effectual, because the profit increases with the risk. Under such conditions the unlawful trade will be amply remunerative unless the proportion of successful violations is small. The same principle applies to blockaderunning in war, which continues until the risk of capture is very great, until, to use the formal term, the blockade is made effective. Now it is evident that so far the attempt to exclude liquor from the United States, to prevent its sale,—in short, to keep people who want it from getting it,— has not been successful and does not seem to be getting more so. To judge, therefore, from experience up to this time, it seems highly improbable that the blockade of liquor can be made effective.

III

Public sentiment is sometimes in favor of a law, but against its enforcement. That sounds like a paradox, and perhaps it is, because people are not always rational or consistent. Those who are enthusiastic about a measure strive earnestly to procure its enactment, and sometimes, when they have done so, rest satisfied with their victory, assume that the matter is settled, and suspend organized effort; while others who dislike the law are contented if it is not enforced. This has often been true of old laws that have become partly obsolete, like the Sunday laws, which many people do not want either repealed or strictly enforced. But it is needless to go for examples beyond our subject of liquor. During the half-century that Maine was governed by her own constitutional prohibition, it was commonly and notoriously violated. People who believed in prohibition had their law, others who wanted liquor had that; and, save for occasional outbursts of righteous indignation, there seemed to be general contentment with the situation.

The Eighteenth Amendment, no more effectively enforced than it is to-day, and than it is likely to be in future, might prove to be the path of least resistance and greatest general satisfaction, were it not that it involves grave evils; for the present condition is very demoralizing. That it has produced corruption among government agents, and in some states in the police, is universally believed. Like the policy of Reconstruction in the South, it has turned many respectable people who ought to be patterns of law and order into lawbreakers. It is responsible for no small amount of violence and crime. Men who are in a position to know assert that the murders in Chicago are mainly, if not wholly, due to quarrels among the bootleggers, and between them and the hi-jackers. Such conditions are certain to last so long as an illegal and lucrative traffic is conducted on a large scale, supported by sales to citizens in good standing, while the public authorities endeavor to suppress it by force. The country is at odds with itself. There is a lack of harmony in principles that causes friction, maladjustment, and confusion. It is not a healthy condition, or one that ought to continue.

It may be assumed that the majority of the American people arc in favor of the present law; but that does not settle the matter. Perhaps the majority were in favor of the rigorous measures of Reconstruction, even at the time when President Hayes withdrew the federal troops. However that may have been, the withdrawal was not due to a change in the opinion of the majority, but to the harm done by striving to enforce the policy upon a disaffected minority. It was rapidly causing a disrespect for law, and, bad as the result has been, it would have been worse had the policy not been abandoned. Statesmanship is not a theory, but an art, and the true aim of that art is the creation of a harmonious community life on as high a plane as possible, by the acceptance, as nearly universal as may be, of common standards of public and private conduct. Too great uniformity makes for stagnation, and the happy nation is one that enjoys agreement in fundamental principles with toleration and mutual respect in nonessentials. An attempt to produce uniformity by coercion causes a revulsion that lessens the sense of solidarity, of mutual dependence and the support of a common interest.

Prohibition has no doubt done good. It has abolished the saloon; it has diminished the absence from the factory of workmen through drink, the waste of their wages on liquor, and the consequent suffering of their families. But it has done this at the cost of lowering the standards of many citizens and officials. In short, it seems to have been an economic benefit not unmixed with a distinct moral detriment. The object should be to retain the first of these and eliminate the second.

Of course, if the enforcement could be made thoroughly effective and maintained for a considerable time, the moral evils of the present condition might be removed, and habits established that would prevent their recurrence. Whether this is possible or not should be considered, not from a dogmatic or sentimental standpoint, but from that of a true statesman with an open mind, free from prejudice, by a careful examination of facts and conditions and in the light of experience. If, after such a study, enforcement appears to be feasible and desirable, by methods which can practicably be applied, it should be so administered as to be really effective, instead of being, as now, vexatious, demoralizing, and inefficient.

If, on the contrary, it should appear that the law as it now stands cannot be fully enforced, it should be so modified as to preserve those features which are most important, such as the abolition of the open saloon, and it should permit communities which desire and can carry out absolute exclusion of liquor to enjoy that privilege; while at the same time discarding things which are not essential for this purpose and are found to impede enforcement. The question seems to be one of major importance, and the quality needed to find the answer is not rhetoric but statesmanship, not enthusiasm but calm and mature reflection. The future will depend upon the moderation of people with conflicting opinions, and especially upon that of the prohibitionists. If the men who like cocktails and carry hip flasks demand that there shall be no restraints whatever on their liberty to drink as they please, irrespective of the common welfare, bootleggers will be ready to supply them, and no compromise will be reached. If the prohibitionists insist that their principle unabated shall remain the formal law, they will probably make enforcement impossible, hamper the growth of temperance, and perpetuate violation of the law and of good order. This last is the most serious aspect of the matter.

As a people we have been lawabiding, not by compulsion from above, but from a sense of the fitness of things. The success of self-government is based on a confidence that one’s neighbors will conform to the established rules of conduct, and anything that undermines that confidence strikes at the root of our civil life.