<SPAN name="chap04"></SPAN>
<h2>CHAPTER IV </h2>
<h2>HOW THE AMENDMENT WAS PUT THROUGH </h2>
<p>THERE has been a vast amount of controversy over the question whether a
majority of the American people favored the adoption of the Eighteenth
Amendment. There is no possible way to settle that question. Even future
votes, if any can be had that may be looked upon as referendum votes, cannot
settle it, whichever way they may turn out. If evidence should come to
hand which indicates that a majority of the American people favor the retention
of the Amendment now that it is an accomplished fact, this will not prove
that they favored its adoption in the first place; it may be that they
wish to give it a fuller trial, or it may be that they do not wish to go
through the upheaval and disturbance of a fresh agitation of the question
or it may be some other reason quite different from what was in the situation
four years ago. On the other hand, if the referendum should seem adverse,
this might be due to disgust at the lawlessness that has developed in connection
with the Prohibition Amendment, or to a realization of the vast amount
of discontent it has aroused, or to something else that was not in the
minds of the majority when the Amendment was put through. But really the
question is of very little importance. From the standpoint of fundamental
political doctrine, it makes no difference whether 40 million, or 50 million,
or 60 million people out of a hundred million desired to put into the Constitution
a provision which is an offense against the underlying idea of any Constitution,
an injury to the American Federal system, an outrage upon the first principles
both of law and of liberty. And if, instead of viewing the matter from
the standpoint of fundamental political doctrine, we look upon it as a
question of Constitutional procedure, it is again--though for a different
reason--a matter of little consequence whether a count of noses would have
favored the adoption of the Amendment or not. The Constitution provides
a definite method for its own amendment, and this method was strictly carried
out--the Amendment received the approval of the requisite number of Representatives,
Senators and State Legislatures; from the standpoint of Constitutional
procedure the question of popular majorities has nothing to do with the
case. But from every standpoint the way in which the Eighteenth Amendment
was actually put through Congress and the Legislatures has a great deal
to do with the case. Prohibitionists constantly point to the big majority
in Congress, and the promptness and almost unanimity of the approval by
the Legislatures, as proof of an overwhelming preponderance of public sentiment
in favor of the Amendment. It is proof of no such thing. To begin with,
nothing is more notorious than the fact that a large proportion of the
members of Congress and State Legislatures who voted for the Prohibition
Amendment were not themselves in favor of it. Many of them openly declared
that they were voting not according to their own judgment but in deference
to the desire of their constituents. But there is not the slightest reason
to believe that one out of twenty of those gentlemen made any effort to
ascertain the desire of a majority of their constituents; nor, for that
matter, that they would have followed that desire if they had known what
it was. What they were really concerned about was to get the support, or
avoid the enmity, of those who held, or were supposed to hold, the balance
of power. For that purpose a determined and highly organized body of moderate
dimensions may outweigh a body ten times as numerous and ten times as representative
of the community. The Anti-Saloon League was the power of which Congressmen
and Legislaturemen alike stood in fear. Never in our political history
has there been such an example of consummately organized, astutely managed,
and unremittingly maintained intimidation; and accordingly never in our
history has a measure of such revolutionary character and of such profound
importance as the Eighteenth Amendment been put through with anything like
such smoothness and celerity. The intimidation exercised by the AntiSaloon
League was potent in a degree far beyond the numerical strength of the
League and its adherents, not only because of the effective and systematic
use of its black-listing methods, but also for another reason. Weak-kneed
Congressmen and Legislaturemen succumbed not only to fear of the ballots
which the League controlled but also to fear of another kind. A weapon
not less powerful than political intimidation was the moral intimidation
which the Prohibition propaganda had constantly at command. That such intimidation
should be resorted to by a body pushing what it regards as a magnificent
reform is not surprising; the pity is that so few people have the moral
courage to beat back an attack of this kind. Throughout the entire agitation,
it was the invariable habit of Prohibition advocates to stigmatize the
anti-Prohibition forces as representing nothing but the "liquor interests."
The fight was presented in the light of a struggle between those who wished
to coin money out of the degradation of their fellow-creatures and those
who sought to save mankind from perdition. That the millions of people
who enjoyed drinking, to whom it was a cherished source of refreshment,
recuperation, and sociability, had any stake in the matter, the agitators
never for a moment acknowledged; if a man stood out against Prohibition
he was not the champion of the millions who enjoyed drink, but the servant
of the interests who sold drink. This preposterous fiction was allowed
to pass current with but little challenge; and many a public man who might
have stood out against the Anti-Saloon League's power over the ballot-box
cowered at the thought of the moral reprobation which a courageous stand
against Prohibition might bring down upon him. Thus the swiftness with
which the Prohibition Amendment was adopted by Congress and by State Legislatures,
and the overwhelming majorities which it commanded in those bodies, is
no proof either of sincere conviction on the part of the lawmakers or of
their belief that they were expressing the genuine will of their constituents.
As for individual conviction, the personal conduct of a large proportion
of the lawmakers who voted for Prohibition is in notorious conflict with
their votes; and as for the other question, it has happened in State after
State that the Legislature was almost unanimous for Prohibition when the
people of the State had quite recently shown by their vote that they were
either distinctly against it or almost evenly divided. Of this kind of
proceeding, Maryland presented an example so flagrant as to deserve special
mention. Although popular votes in the State had, within quite a short
time, recorded strong anti-Prohibition majorities, the Legislature rushed
its ratification of the Eighteenth Amendment through in the very first
days of its session; and this in face of the fact that Maryland has always
held strongly by State rights and cherished its State individuality, and
that the leading newspapers of the State and many of its foremost citizens
came out courageously and energetically against the Amendment. In these
circumstances, nothing but a mean subserviency to political intimidation
can possibly account for the indecent haste with which the ratification
was pushed through. It is interesting to note a subsequent episode which
casts a further interesting light on the matter, and tends to show that
there are limits beyond which the whip-and-spur rule of the Anti-Saloon
League cannot go. In the session of the present year, the Anti-Saloon League
tried to get a State Prohibition enforcement bill passed. Although there
was a great public protest, the bill was put through the lower House of
the Legislature; but in the Senate it encountered resistance of an effective
kind. The Senate did not reject the bill; but, in spite of bitter opposition
by the Anti-Saloon League, it attached to the bill a referendum clause.
With that clause attached, the Anti-Saloon League ceased to desire the
passage of the bill, and allowed it to be killed on its return to the lower
House of the Legislature. Is this not a fine exhibition of the nature of
the League's hold on legislation? And is there not abundant evidence that
the whole of this Maryland story is typical of what has been going on throughout
the country? Charges are made that the Anti-Saloon League has expended
vast sums of money in its campaigns; money largely supplied, it is often
alleged, by one of the world's richest men, running into the tens of millions
or higher. r do not believe that these charges are true. More weight is
to be attached to another factor in the case--the adoption of the Amendment
by Congress while we were in the midst of the excitement and exaltation
of the war, and two million of our young men were overseas. Unquestionably,
advantage was taken of this situation, there can be little doubt that the
Eighteenth Amendment would have had much harder sledding at a normal time.
And it is right, accordingly, to insist that the Amendment was not subjected
to the kind of discussion, nor put through the kind of test of national
approval, which ought to precede any such permanent and radical change
in our Constitutional organization. This is especially true because National
Prohibition was not even remotely an issue in the preceding election, nor
in any earlier one. All these things must weigh in our judgment of the
moral weight to be attached to the adoption of the Eighteenth Amendment;
but there is another aspect of that adoption which is more important. The
gravest reproach which attaches to that unfortunate act, the one which
causes deepest concern among thinking citizens, does not relate to any
incidental feature of the Prohibition manoevres. The fundamental trouble
lay in a deplorable absence of any general understanding of the seriousness
of making a vital change in the Constitution--incomparably the most vital
to which it has ever been subjected--and of the solemn responsibility of
those upon whom rested the decision to make or not to make that change.
Even in newspapers in which one would expect, as a matter of course, that
this aspect of the question would be earnestly impressed upon their readers,
it was, as a rule, passed over without so much as a mention. And this is
not all. One of the shrewdest and most successful of the devices which
the League and its supporters constantly made use of was to represent the
function of Congress as being merely that of submitting the question to
the State Legislatures; as though the passage of the Amendment by a two-thirds
vote of Congress did not necessarily imply approval, but only a willingness
to let the sentiment of the several States decide. Of course, such a view
is preposterous; of course, if such were the purpose of the Constitutional
procedure there would be no requirement of a two-thirds vote.* But many
members of Congress were glad enough to take refuge behind this view of
their duty, absurd though it was; and no one can say how large a part it
played in securing the requisite two-thirds of House and Senate. Yet from
the moment the Amendment was thus adopted by Congress, nothing more was
heard of this notion of that body having performed the merely ministerial
act of passing the question on to the Legislatures. On the contrary, the
two-thirds vote (and more) was pointed to as conclusive evidence of the
overwhelming support of the Amendment by the nation; the Legislatures were
expected to get with alacrity into the band-wagon into which Congress had
so eagerly climbed. Evidently, it would have been far more difficult to
get the Eighteenth Amendment into the Constitution if the two-thirds vote
of Congress had been the sole requirement for its adoption. Congressmen
disposed to take their responsibility lightly, and yet not altogether without
conscience, voted with the feeling that their act was not final, when they
might otherwise have shrunk from doing what their Judgment told them was
wrong; and, the thing once through Congress, Legislatures hastened to ratify
in the feeling that ratification by the requisite number of Legislatures
was manifestly a foregone conclusion. Thus at no stage of the game was
there given to this tremendous Constitutional departure anything even distantly
approaching the kind of consideration that such a step demands. The country
was jockeyed and stampeded into the folly it has committed; and who can
say what may be the next folly into which we shall fall, if we do not awaken
to a truer sense of the duty that rests upon every member of a lawmaking
body--to decide these grave questions in accordance with the dictates of
his own honest and intelligent judgment?</p>
<p>* This should be self-evident; but if there were any room for doubt. it
would be removed by a reference to the language of Article V of the Constitution:
"The Congress, whenever two-thirds of both Houses shall deem it necessary,
shall propose amendments to this Constitution" which shall be valid
"when ratified by the Legislatures of three-fourths of the States."
Thus Congress does not submit an amendment, but proposes it; and it does
this only when two-thirds of both Houses deem it necessary. The primary
act of judgment is performed by Congress; what remains for the Legislatures
is to ratify or not to ratify that act.</p>
<p> <br/></p>
<div style="break-after:column;"></div><br />
1 of 2
2 of 2
Previous
Next
Update Required
To play the media you will need to either update your browser to a recent version or update your Flash plugin.