<SPAN name="chap07"></SPAN>
<h2>CHAPTER VII </h2>
<h2>NATURE OF THE PROHIBITIONIST TYRANNY </h2>
<p>THAT there are some things which, however good they may be in themselves,
the majority has no right to impose upon the minority, is a doctrine that
was, I think I may say, universally understood among thinking Americans
of all former generations. It was often forgotten by the unthinking; but
those who felt themselves called upon to be serious instructors of public
opinion were always to be counted on to assert it, in the face of any popular
clamor or aberration. The most deplorable feature, to my mind, of the whole
story of the Prohibition amendment, was the failure of our journalists
and leaders of opinion, with a few notable exceptions, to perform this
duty which so peculiarly devolves upon them. Lest any reader should imagine
that this doctrine of the proper limits of majority power is something
peculiar to certain political theorists, I will quote just one authority
--where I might quote scores as well--to which it is impossible to apply
any such characterization. It ought, of course, to be unnecessary to quote
any authority, since the Constitution itself contains the clearest possible
embodiment of that doctrine. In the excellent little book of half a century
ago referred to in a previous chapter, Nordhoff's "Politics for Young
Americans," the chapter entitled "Of Political Constitutions"
opens as follows:</p>
<BLOCKQUOTE>
<p>A political Constitution is the instrument or compact in which the rights
of the people who adopt it, and the powers and responsibilities of their
rulers, are described, and by which they are fixed. The chief object of
a constitution is to limit the power of majorities. A moment's reflection
will tell you that mere majority rule, unlimited, would be the most grinding
of tyrannies; the minority at any time would be mere slaves, whose rights
to life, property and comfort no one who chose to join the majority would
be bound to respect.</p>
</BLOCKQUOTE>
<p>All this is stated, and the central point put in italics, by Mr. Nordhoff,
as matter that must be impressed upon young people just beginning to think
about public questions, and not at all as matter of controversy or doubt.
The last sentence, to be sure, requires amplification; Mr. Nordhoff certainly
did not intend his young readers to infer that such tyranny as he describes
is either sure to occur in the absence of a Constitution or sure to be
prevented by it. The primary defense against it is in the people's own
recognition of the proper limits of majority power; what Mr. Nordhoff wished
to impress upon his readers is the part played by a Constitution in fixing
that recognition in a strong and enduring form. The quotation I have in
mind, however, from one of the highest of legal authorities, has no reference
to the United States Constitution or to any Constitution. It deals with
the essential principles of law and of government. It is from a book by
the late James C. Carter, who was beyond challenge the leader of the bar
of New York, and was also one of the foremost leaders in movements for
civic improvement. The book bears the title "Law: its Origin, Growth
and Function," and consists of a course of lectures prepared for delivery
to the law school of Harvard University seventeen years ago; which, it
is to be noted, was before the movement for National Prohibition had got
under way. Mr. Carter was not arguing for any specific object, but was
impressing upon the young men general truths that had the sanction of ages
of experience, and were the embodiment of the wisest thought of generations.
Let us hear a few of these truths as he laid them down:</p>
<BLOCKQUOTE>
<p>Nothing is more attractive to the benevolent vanity of men than the notion
that they can effect great improvement in society by the simple process
of forbidding all wrong conduct, or conduct which they think is wrong,
by law, and of enjoining all good conduct by the same means. (p. 221 )</p>
<p>The principal danger lies in the attempt often made to convert into crimes
acts regarded by large numbers, perhaps a majority, as innocent --that
is to practise what is, in fact, tyranny. While all are ready to agree
that tyranny is a very mischievous thing, there is not a right understanding
equally general of what tyranny is. Some think that tyranny is a fault
only of despots, and cannot be committed under a republican form of government;
they think that the maxim that the majority must govern justifies the majority
in governing as it pleases, and requires the minority to acquiesce with
cheerfulness in legislation of any character, as if what is called self-government
were a scheme by which different parts of the community may alternately
enjoy the privilege of tyrannizing over each other. (p. 246)</p>
</BLOCKQUOTE>
<p>Speaking in particular of the evil effects of that particular "species
of criminal legislation to which sumptuary laws belong," Mr. Carter,
after dwelling upon the subject in detail, says:</p>
<BLOCKQUOTE>
<p>An especially pernicious effect is that society becomes divided between
the friends and the foes of repressive laws, and the opposing parties become
animated with hostility which prevents united action for purposes considered
beneficial by both. Perhaps. the worst of all is that the general regard
and reverence for law are impaired, a consequence the mischief of which
can scarcely be estimated (p. 247).</p>
</BLOCKQUOTE>
<p>To prevent consequences like these, springing as they do from the most
deep-seated qualities of human nature, by pious exhortations is a hopeless
undertaking. But if it be so in general--if the consequences of majority
tyranny in the shape of repressive laws governing personal habits could
be predicted so clearly upon general principles--how vastly more certain
and more serious must these consequences be when such a law is fastened
upon the people by means that would be abhorrent even in the case of any
ordinary law! The people who object to Prohibition are exultantly told
by their masters that it is idle for them to think of throwing off their
chains; that the law is riveted upon them by the Constitution, and the
possibility of repeal is too remote for practical consideration. Thus the
one thought that might mitigate resentment and discountenance resistance,
the thought that freedom might be regained by repeal, is set aside; and
the result is what we have been witnessing. On this phase of the subject,
however, enough has been said in a previous chapter. What I wish to point
out at present is some peculiarities of National Prohibition which make
it a more than ordinarily odious example of majority tyranny. National
Prohibition in the United States --granting, for the sake of argument,
that it expresses the will of a majority--is not a case merely of a greater
number of people forcing their standards of life upon a smaller number,
in a matter in which such coercion by a majority is in its nature tyrannical.
The population of the United States is, in more than one respect, composed
of parts extremely diverse as regards the particular subject of this legislation.
The question of drink has a totally different aspect in the South from
what it has in the North; a totally different aspect in the cities from
what it has in the rural districts or in small towns; to say nothing of
other differences which, though important, are of less moment. How profoundly
the whole course of the Prohibition movement has been affected by the desire
of the South to keep liquor away from the negroes, needs no elaboration;
it would not be going far beyond the truth to say that the people of New
York are being deprived of their right to the harmless enjoyment of wine
and beer in order that the negroes of Alabama and Texas may not get beastly
drunk on rotgut whiskey. If the South had stuck to its own business and
to its traditional principle of State autonomy--a principle which the South
invokes as ardently as ever when it comes to any other phase of the negro
question--there would never have been a Prohibition Amendment to the Constitution
of the United States; and at the same time the South would have found it
perfectly possible to deal effectively with its own drink problem by energetic
execution of its own laws, made possible by its own public opinion.</p>
<p>Nor is the case essentially different as regards the West; the very people
who are loudest in their shouting for the Eighteenth Amendment are also
most emphatic in their praises of what Kansas accomplished by enforcing
her own Prohibition law. Thus the Prohibitionist tyranny is in no small
measure a sectional tyranny, which is of course an aggravated form of majority
tyranny. But what needs insisting on even more than this is the way in
which the country districts impose their notions about Prohibition upon
the people of the cities, and especially of the great cities. When attention
is called to the wholesale disregard of the law, contempt for the law,
and hostility to the law which is so manifest in the big cities, the champions
of Prohibition in the press--including the New York press--never tire of
saying that it is only in New York and a few other great cities that this
state of things exists. But everybody knows that the condition exists not
only in "a few," but in practically all, of our big cities; and
for that matter that it exists in a large proportion of all the cities
of the country, big and little. But if we confine ourselves only to the
34 cities having a population of 200,000 or more, we have here an aggregate
population of almost exactly 25,000,000-- nearly one-fourth of the entire
population of the country. Is it a trifling matter that these great communities,
this vast population of large-city dwellers, should have their mode of
life controlled by a majority rolled up by the vote of people whose conditions,
whose advantages and disadvantages, whose opportunities and mode of life,
and consequently whose desires and needs, are of a wholly different nature?
Could the tyranny of the majority take a more obnoxious form than that
of sparse rural populations, scattered over the whole area of the country
from Maine to Texas and from Georgia to Oregon, deciding for the crowded
millions of New York and Chicago that they shall or shall not be permitted
to drink a glass of beer? Nor is it only the obvious tyranny of such a
regime that makes it so unjustifiable. There are some special features
in the case which accentuate its unreasonableness and unfairness. In the
American village and small town, the use of alcoholic drinks presents almost
no good aspect. The countryman sees nothing but the vile and sordid side
of it. The village grogshop, the bar of the smalltown hotel, in America
has presented little but the gross and degrading aspect of drinking. Prohibition
has meant, to the average farmer, the abolition of the village groggery
and the small-town barroom. That it plays a very different part in the
lives of millions of city people--and for that matter that it does so in
the lives of millions of industrial workers in smaller communities--is
a notion that never enters the farmer's mind. And to this must be added
the circumstance that the farmer can easily make his own cider and other
alcoholic drinks, and feels quite sure that Prohibition will never seriously
interfere with his doing so. Altogether, we have here a case of one element
of the population decreeing the mode of life of another element of whose
circumstances and desires they have no understanding, and who are affected
by the decree in a wholly different way from that in which they themselves
are affected by it. Many other points might be made, further to emphasize
the monstrosity of the Prohibition that has been imposed upon our country.
Of these perhaps the most important one is the way in which the law operates
so as to be effective against the poor, and comparatively impotent against
the rich. But this and other points have been so abundantly brought before
the public in connection with the news of the day that it seemed hardly
necessary to dwell upon them. My object has been rather to direct attention
to a few broad considerations, less generally thought of. The objection
that applies to sumptuary laws in general has tenfold force in the case
of National Prohibition riveted down by the Constitution, and imposed upon
the whole nation by particular sections and by particular elements of the
population. A question of profound interest in connection with this aspect
of Prohibition demands a few words of discussion. It has been asserted
with great confidence, and denied with equal positiveness, that Prohibition
has had the effect of very greatly increasing the addiction to narcotic
drugs. I confess my inability to decide, from any data that have come to
my attention, which of these contradictory assertions is true. But it is
not denied by anybody, I believe, that, whether Prohibition has anything
to do with the case or not, the use of narcotic drugs in this country is
several times greater per capita than it is in any of the countries of
Europe--six or seven times as great as in most. Why this should be so,
it is perhaps not easy to determine. The causes may be many. But I submit
that it is at least highly probable that one very great cause of this extraordinary
and deplorable state of things is the atmosphere of reprobation which in
America has so long surrounded the practice of moderate drinking. Any resort
whatever to alcoholic drinks being held by so large a proportion of the
persons who are most influential in religious and educational circles to
be sinful and incompatible with the best character, it is almost inevitable
that, in thousands of cases, desires and needs which would find their natural
satisfaction in temperate and social drinking are turned into the secret
and infinitely more unwholesome channel of drug addiction. How much of
the extraordinary extent of this evil in America may be due to this cause,
I shall of course not venture to estimate; but that it is a large part
of the explanation, I feel fairly certain. And my belief that it is so
is greatly strengthened by the familiar fact that in the countries in which
wine is cheap and abundant, and is freely used by all the people, drunkenness
is very rare in comparison with other countries. As easy and familiar recourse
to wine prevents resort to stronger drinks, so it seems highly probable
that the practice of temperate drinking would in thousands of cases obviate
the craving for drugs. But when all drinking, temperate and intemperate,
is alike put under the ban, the temptation to secret indulgence in drugs
gets a foothold; and that temptation once yielded to, the downward path
is swiftly trodden. Finally, there is a broad view of the whole subject
of the relation of Prohibition to life, which these last reflections may
serve to suggest. When a given evil in human life presents itself to our
consideration, it is a natural and a praiseworthy impulse to seek to effect
its removal. To that impulse is owing the long train of beneficent reforms
which form so gratifying a feature of the story of the past century and
more. But that story would have been very different if the reformer had
in every instance undertaken to extirpate whatever he found wrong or noxious.
To strike with crusading frenzy at what you have worked yourself up into
believing is wholly an accursed thing is a tempting short cut, but is fraught
with the possibility of all manner of harm. In the case of Prohibition,
I have endeavored to point out several of the forms of harm which it carries
with it. But in addition to those that can so plainly be pointed out, there
is a broader if less definite one.</p>
<p>When we have choked off a particular avenue of satisfaction to a widespread
human desire; when, foiled perhaps in one direction, we attack with equal
fury the possibility of escape in another and another; who shall assure
us that, debarred of satisfaction in old and tried ways, the same desires
will not find vent in far more injurious indulgences ? How different if,
instead of crude and wholesale compulsion, resort were had--as it had been
had before the Prohibitionist mania swept us off our feet--to well-considered
measures of regulation and restriction, and to the legitimate influences
of persuasion and example! The process is slower, to be sure, but it had
accomplished wonderful improvement in our own time and before; what it
gained was solid gain; and it did not invite either the resentment, the
lawlessness, or the other evils which despotic prohibition of innocent
pleasure carries in its train.<br/>
<br/>
<br/></p>
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