What Prohibition Has Done to America - The Law Enforcers and the Law

What Prohibition Has Done to America

by Fabian Franklin
Copyright 1922, Harcourt, Brace & Co., New York.

CHAPTER VI

THE LAW ENFORCERS AND THE LAW

DAY after day, month after month, a distressing, a disgusting spectacle is presented to the American people in connection with the enforcement of the national Prohibition law. No day passes without newspaper headlines which "feature" some phase of the contest going on between the Government on the one hand and millions of citizens on the other; citizens who belong not to the criminal or semi-criminal classes, nor yet to the ranks of those who are indifferent or disloyal to the principles of our institutions, but who are typical Americans, decent, industrious, patriotic, law-abiding. It is true that the individuals whom the Government hunts down by its spies, its arrests, its prosecutions, are men who make a business of breaking the Prohibition law, and most of whom would probably just as readily break other laws if money was to be made by it. But none the less the real struggle is not with the thousands who furnish liquor but with the hundreds of thousands, or millions, to whom they purvey it. Every time we read of a spectacular raid or a sensational capture, we are really reading of a war that is being waged by a vast multitude of good normal American citizens against the enforcement of a law which they regard as a gross invasion of their rights and a violation of the first principles of American government. The state of things thus arising was admirably and compactly characterized by Justice Clarke, of the United States Supreme Court, in a single sentence of his recent address before the Alumni of the New York University Law School, as follows:

The Eighteenth Amendment required millions of men and women to abruptly give up habits and customs of life which they thought not immoral or wrong, but which, on the contrary, they believed to be necessary to their reasonable comfort and happiness, and thereby, as we all now see, respect not only for that law, but for all law, has been put to an unprecedented and demoralizing strain in our country, the end of which it is difficult to see.

Upon all this, however, as concerned with the conduct of the people at large, perhaps enough has been said in previous chapters. What I wish to dwell upon at this point is the conduct of those who, either in the Government itself, or in the power behind the Government--the Anti-Saloon League--are carrying on the enforcement of the Prohibition law. They are not carrying it on in the way in which the enforcement of other laws is carried on. In the case of a normal criminal law--and it must always be remembered that the Volstead act is a criminal law, just like the laws against burglary, or forgery, or arson--those who are responsible for its enforcement regard themselves as administrators of the law, neither more nor less. But the enforcement of the Prohibition law is something quite different: it is not a work of administration but of strategy; not a question of seeing that the law is obeyed by everybody, but of carrying on a campaign against the defiers of the law just as one would carry on a campaign against a foreign enemy. The generals in charge of the campaign decide whether they shall or shall not attack a particular body of the enemy; and their decision is controlled by the same kind of calculation as that made by the generals in a war of arms--a calculation of the chances of victory. Where the enemy is too numerous, or too strongly entrenched, or too widely scattered, they leave him alone; where they can drive him into a corner and capture him, they attack. To realize how thoroughly this policy is recognized as a simple fact, one can hardly do better than quote these perfectly naive and sincere remarks in an editorial entitled "Government Bootlegging," in the New York Tribune, a paper that has never been unfriendly to the Eighteenth Amendment:

That American ships had wine lists was no news to the astute Wayne B. Wheeler, generalissimo of the Prohibition forces. He was fully informed before Mr. Gallivan spoke, and by silence gave consent to them. He was complaisant, it may be assumed, because he did not wish to furnish another argument to those who would repeal or modify the Volstead act. He has made no fuss over home brew and has allowed ruralists to make cider of high alcoholic voltage. He saw it would be difficult, if not impossible, to stop home manufacture and did not wish to swell the number of anti-Volsteaders. He was looking to securing results rather than to being gloriously but futilely consistent. Similarly the practical Mr. Wheeler foresaw that if American ships were bone-dry the bibulous would book on foreign ships and the total consumption of beverages would not be materially diminished. For a barren victory he did not care to have Volsteadism carry the blame of driving American passenger ships from the sea. Prohibitionists who have not put their brains in storage may judge whether or not his tactics are good and contribute to the end he seeks.

Now from the standpoint of pure calculation directed to the attainment of a strategic end, in a warfare between the power of a Government and the forces of a very large proportion of the population over which it holds sway, the Tribune may be entirely right. But what is left of the idea of respect for law? With what effectiveness can either President Angell or President Harding appeal to that sentiment when it is openly admitted that the Government not only deliberately overlooks violations of the law by millions of private individuals, but actually directs that the law shall be violated on its own ships, for fear that the commercial loss entailed by doing otherwise would further excite popular resentment against the law? It has only to be added that since the date of that editorial (June 18, 1922) the Anti-Saloon League has come out strongly against the selling of liquor on Governmentowned ships--a change which only emphasizes the point I am making. For, in spite of the Tribune's shrewd observations, it soon became clear that the Volstead act was being so terribly discredited by the preposterous spectacle of the Government selling liquor on its own ships that something had to be done about it; and it was only under the pressure of this situation that a new line of strategy was adopted by the Anti-Saloon League. What it will do if it finds that it cannot put through its plan of excluding liquor from all ships, American and foreign, remains to be seen. Now it may be replied to all this that a certain amount of laxity is to be found in the execution of all laws; that the resources at the disposal of government not being sufficient to secure the hunting down and punishment of all offenders, our executive and prosecuting officers and police and courts apply their powers in such directions and in such ways as to accomplish the nearest approach possible to a complete enforcement of the law. But the reply is worthless. Because the enforcement of all laws is in some degree imperfect, it does not follow that there is no disgrace and no mischief in the spectacle of a law enforced with spectacular vigor, and even violence, in a thousand cases where such enforcement cannot be successfully resisted, and deliberately treated as a dead letter in a hundred thousand cases where its enforcement would show how widespread and intense is the people's disapproval of the law. There are many instances in which a law has become a dead letter; where this is generally recognized no appreciable harm is done, since universal custom operates as a virtual repeal. But here is a case of a law enforced with militant energy where it suits the officers of the Government to enforce it, systematically ignored in millions of cases by the same officers because it suits them to do that, and cynically violated by the direct orders of the Government itself when this course seems recommended by a cold-blooded calculation of policy ! If the laws against larceny, or arson, or burglary, or murder, were executed in this fashion, what standing would the law have in anybody's mind? Yet in the case of these crimes, the law only makes effective the moral code which substantially the whole of the community respects as a fundamental part of its ethical creed; and accordingly even if the law were administered in any such outrageous fashion as is the case with Prohibition, it would still retain in large measure its moral authority.

But in the case of the Prohibition law, an enormous minority, and very possibly a majority, of the people regard the thing it forbids as perfectly innocent and, within proper limits, eminently desirable; the only moral sanction that it has in their minds is that of its being on the statute books. What can that moral sanction possibly amount to when the administration of the law itself furnishes the most notorious of all examples of disrespect for its commands? There is another aspect of the enforcement of the law which invites comment, but upon which I shall say only a few words. I refer to the many invasions of privacy, unwarranted searches, etc., that have taken place in the execution of the law. I f this went on upon a much larger scale than has actually been the case, it would justly be the occasion for perhaps the most severe of all the indictments against the Volstead act; for it would mean that Americans are being habituated to indifference in regard to the violation of one of their most ancient and most essential rights.

But in fact the danger of public resentment over such a course has been the chief cause of the sagacious strategy which has characterized the policy of the Government; or perhaps one should rather say, the Anti-Saloon League, for it is the League, and not the Government, that is the predominant partner in this matter. For the present, the League has been "lying low" in the matter of search and seizure; but if it should ever feel strong enough to undertake the suppression of home brew, there is not the faintest question but that it will press forward the most stringent conceivable measures of search and seizure. Accordingly, there opens up before the eyes of the American people this pleasing prospect: If the present struggle of the League (or the Government) with bootleggers and moonshiners and smugglers is brought to a successful conclusion, there will naturally be a greater resort than ever to home manufacture; and equally naturally, it will then be necessary for the League (or the Government) to undertake to stamp out that practice. But obviously this cannot be done without inaugurating a sweeping and determined policy of search and seizure in private houses; a beautiful prospect for "the land of the free," for the inheritors of the English tradition of individual liberty and of the American spirit of '76-- sight for gods and men to weep over or laugh at!