Get at the Facts

I

THE writer was elected mayor of the city of Chicago in the spring of 1923. During the three and one half years that have elapsed since his induction into office he has acquired an experience in efforts to enforce the national prohibition law which has led him to the conclusion that in the interest of domestic peace, and even public safety, definite and reliable information should be obtained, if possible, as to the effect upon the national welfare of the passage of this law — whether that effect be good or evil, or both.

In the year 1920 Congress passed the Volstead Act, intended to give vitality to the Eighteenth Amendment to the Federal Constitution, which prohibits traffic in intoxicating liquor.

At the time the Volstead Act was passed twenty-four states of the Union had prohibition laws in full force and effect, so that the Federal Constitution and the Volstead Act, in the main, created new social inhibitions in the north central and northeastern sections of the country. Six years have elapsed since the passage of the Volstead Act, and the national policy prescribed by that law is to-day our most discussed and disturbing domestic question.

Many prohibitionists assume that because of the adoption of the Eighteenth Amendment and the passage of the Volstead law the liquor-traffic question is permanently settled. Clearly, facts that are obvious to everybody are against this assumption.

At a recent hearing before a subcommittee of the Committee on the Judiciary of the United States Senate, advocates of prohibition with much ability and earnestness argued that the new national policy had brought widespread beneficial results to the nation, and their opponents with equal candor and force urged that these laws are responsible for an increase in drunkenness, insanity, and other evils, and have caused an almost general disrespect for law and order.

The evidence submitted to the subcommittee was illuminating, but the vehemence and even the extravagance of both the proponents and the opponents of prohibition at the hearing were so marked that the Committee seems to have been unable to make a report promotive of domestic peace.

Neither side at the hearing showed a disposition to concede an iota of merit or truth to the contentions of the other, and each seemed unable or unwilling to search for a basis upon which any adjustment of the problem could be reached. At least they did not agree that prohibition laws, where desired by the people and enforced by public officials, had promoted in a large way the public welfare, or that the adoption of the new national programme had been followed by serious social evils.

For more than fifty years there has been in this country an increasing wave of opposition to the liquor traffic. Temperance and total abstinence during those years have made rapid strides. In addition to the twenty-four states which had adopted prohibition laws before the adoption of the Eighteenth Amendment, large sections of those states where the traffic was legally permissible, through local-option measures, had become dry. The fact, then, is that prohibition had become the policy of a large part of the nation before the adoption of the Eighteenth Amendment, and this fine progress was accomplished without causing any marked social or political disturbances.

When, however, by Federal enactment it was attempted to impose prohibition upon many of the northern and eastern industrial states, our troubles began. A large majority of the people here were and are opposed to prohibition laws. They do not and they cannot by force be brought to respect them. Hence, such efforts as have been made to enforce the laws in those states — or, more correctly, in their larger communities — have been followed by social and political evils of the first rank. The wise legislator in a democracy will not attempt to impose by law any special programme, however desirable in the abstract, that will not receive genera! support of the people, if for no other reason than that such attempt will in practice be found unworkable. It is not what people should think, but rather what they actually believe, that determines whether they may be likely to respect and obey certain of our laws; and men, except through the slow process of education, cannot be brought to support a policy that they believe to be oppressive and unjust. The practicability, then, rather than the desirability of national prohibition should be given more careful and tolerant thought.

There is a widely entertained feeling that Congress in enacting prohibition legislation had exercised powers never intended to be reposed in the national government by the framers of the Constitution. Even though it be conceded that Government has the right to interfere with the free will of the individual as to what he may see fit to drink, still it is a debatable question whether such powers, under the spirit of our Constitution, should not be exercised by the several states and their constituent governments. It is true, of course, as so often answered, that the Constitution cannot be unconstitutional, yet within its general spirit and purpose, and with the nature of the question under consideration in mind, there is practical value in the argument that the enforcement of the policy of the Eighteenth Amendment in the interest of social peace and good government could be better assigned to the state governments. But this question, important and interesting as it is, may for our purposes be disregarded. The Federal Government has assumed to act in the premises, and the United States Supreme Court has held that such action is at least legal.

II

An ever-present danger in a democracy lies in the possible abuse of power reposed of necessity in the majority. Majorities are sometimes quite as unwise and may on occasion be as lawless as minorities. In a republic, where the will of the people is crystallized into law through elected agents, there is a constant possibility that the agent may at times and to the great damage of the people misinterpret his instructions, whether expressed or implied, and this has been our too common experience.

Consider the liquor question. What the majority opinion of the nation is thereon is uncertain; and, again, the majority opinion of to-day may be made up in part of the minority opinion of yesterday. In the flux and flow of public opinion an elective representative not infrequently is at a loss to know what the people may actually require of him; as a result, representative government, so unavoidably hampered, is often led into gross error, and particularly so when it attempts to interfere in matters that until recent times have, with reasonable limitations, generally been regarded as properly within the free will of the individual.

The concurrence of thirty-six states of the Union is required to make an amendment to the United States Constitution. In ordinary times this requirement serves as a sufficient protection from unwise or undigested amendments to that fundamental law, which, as was intended, in the main prescribes only rules of the most general character for the guidance of the national government. But in a time of national excitement, when public attention was temporarily diverted to a great world struggle, which so engaged the passions of men that it was thought not impossible that the older European civilizations might sink in chaos and ruin, it was found not difficult to adopt an amendment to the Constitution that in normal times might have received more serious thought and consideration. The exaltation of spirit of those days brought somewhat similar social changes in other countries.

It is not urged here that the Eighteenth Amendment did not receive the assent of a majority of the people. That question may be disregarded for the moment, but it is insisted that the representatives of the people acted upon this important subject under the inspiration and exaltation of a time that was altogether exceptional in our history. In a less degree it recalls experiences of the French Revolution, when men and women in a frenzy of fraternal zeal entered upon the impossible purpose of attempting to cure in a moment of time, through the power of the majority, all of the social ills with which France was then afflicted.

Once a constitutional amendment is adopted, it may become practically impossible to repeal or modify it. Thereafter the policy declared by the amendment may rest, because of a change in public opinion, entirely in the will of a minority, and even though subsequent thought and investigation may convince a majority of the people that an error of first importance has been committed by the adoption of the amendment, the policy becomes practically fixed, and in the end may express the will of a relatively small minority of the people. This may or may not be our predicament at the present moment, for no one knows to-day what the majority of our people desire on this question, although signs are not entirely absent of a growing belief that the adoption of the Eighteenth Amendment constituted a serious social error.

Our Constitution is the fundamental law of the nation, and its provisions in the main are, as they should be, the expression of general principles that meet with the almost unanimous respect and support of an intelligent, moral people. Questions of a widely controversial nature have no place in such an instrument. They should find treatment at the hands of legislative authority to the end that the law at all times may at least be expressive of popular will. That public opinion in this republic is liable to marked changes will not be denied, and of our domestic questions few have been the subject of more popular interest, debate, and changes than the liquor-traffic question.

III

It is believed by many that there is in the nation a growing disrespect for nearly all our penal laws, and that particularly in the larger cities and towns of the country such laws are not obeyed or enforced; and, further, that these conditions are in large part due to the attempt to enforce national prohibition. The extent to which this belief is well founded, and the effect upon the social progress of the nation, might well be the subject of careful study.

It cannot be denied that the purpose of the new national programme — that is, the prevention of drunkenness and the use of intoxicating liquor — has not as yet been realized. Drunkenness does exist to an alarming extent, and whether it is on the increase or the decrease is one of the undetermined issues in the case.

A further fact that is worthy of intensive study is that the illegal traffic in liquor is corruptive of our official life. Law enforcement officials, not only in the large cities and towns but throughout the nation, are being subjected in a very positive way to the degrading influence of this traffic. It does not solve the question to say that if all public officials would enter into a whole-hearted purpose, by coöperative efforts, to enforce these laws they could be enforced, for the fact is that the unpopularity of the laws renders such coöperation and coordination of effort well-nigh impossible.

The writer has said quite publicly that even these, in some quarters, unpopular laws could be enforced were all public officials — Federal, state, and municipal — to enter into a definite programme for their enforcement; but, even so, this would tend only to intensify rather than solve the problem, for not much of permanent benefit can be expected from efforts to enforce a particular law upon an objecting and protesting people, otherwise law-abiding.

Public officials are only human and they will react humanly to their environment. Where such officials depend for office upon votes, they will not in every case in good faith enforce laws which citizens of their communities oppose. And one of the most disturbing results of our Federal prohibition law is that so many elective officials — national, state, and municipal — are chosen, not for their probity or capacity, not in accordance with national, state, or community needs, but rather because of the attitude they assume on the liquor question.

Candidates for public office make very practical use of the prohibition question, even in cases where the office sought has no power or jurisdiction over the subject; too many of them do not entertain the belief that any duty rests upon them to educate or direct public opinion. Witness the recent primary election in the State of Pennsylvania.

The demoralizing effect of the illegal traffic in liquor upon our national, state, and municipal governments is so widespread and deep-rooted that it cannot be even summarized, much less adequately discussed here — in one way or another the malign influence of this traffic is felt throughout public life, to the great injury of much that appeals to the pride of the patriotic American. Even our courts have not been free of its corroding influence; judges and prosecuting, as well as executive and legislative, officials in many disturbing ways have indicated a political sensitiveness to this influence; and it is not extravagant to say that where the national prohibition law is unpopular it has been found extremely difficult to procure that prompt and efficient administration of the law so necessary to effective, decent government.

In the progress of the nation, the proper government of large cities, because of their extraordinary growth in population, wealth, and influence, has become a matter of consequence to the national welfare, and officials charged with this responsibility should be chosen with intelligent thought of their character, experience, and abilities. Problems of increasing difficulty and complexity confront such officials, and no argument is needed to prove that persons of high moral and even technical quality should be selected for these most important posts. Yet extremists on both sides of the prohibition question have been so prolific and loud of argument that, with damaging results to the country, almost every other matter of social or political consequence is driven from the public forum.

A new and increasingly dangerous and difficult element has entered as a factor in the problem. In recent years the making of beer and moonshine whiskey in the private home is expanding at an alarming rate. In the days of the saloon, drunkenness touched the family life in the majority of cases only intermittently, but under these later conditions the use of intoxicants has so entered the daily life in many of our homes that strong and even poisonous liquors are becoming as staple a commodity therein as is the daily bread. There is much evidence which tends to prove that this demoralizing practice has entered the homes of the people, not only in industrial centres, but also in sparsely settled regions throughout the country. The only legal method by which this evil may be attacked is through the use of the search warrant; to employ this unpopular writ in so extensive a manner as to reach this newer development in an effective way would be followed by consequences that, to put the matter lightly, would be undesirable and even dangerous. Here, again, is needed an intensive study of a phase of the question that is fraught with great difficulty.

Mr. James C. Carter, a profound student of the law and in his day a leader of the American Bar, in notes written by him in 1906 for his Harvard University law lectures said, concerning a proposal to pass prohibition laws: —

The object the lawmaker seeks to gain by this legislation is to do away with, or greatly diminish, the indulgence in intoxicating drinks, for, although the sale only is prohibited, the real thing sought and expected is the prevention of the use. He wholly fails to gain the object in view; but objects not in view, and by no means desired, are brought about on the largest scale—vast and useless expenditures, perjury and subornation of perjury, violation of jurors’ oaths, corrupt bribery of public officers, the local elections turned into a scramble for the possession of the offices controlling the public machinery for the punishment of offenses in order that that machinery may be bought and sold for a price; law and its administration brought into public contempt, and many men otherwise esteemed as good citizens made insensible to the turpitude of perjury, bribery, and corruption; animosity created between different bodies of citizens, rendering them incapable of acting together for confessedly good objects.

How completely this amazing prophecy has been realized is shown by Mr. Edwin M. Abbott, counsel for the Director of Public Safety of Philadelphia, in the May 1926 issue of the Annals of the American Academy of Political and Social Science:

The enforcement of the Volstead Act has opened many channels for the illegal use of money. Disregard of the Eighteenth Amendment, which is a part of our Constitution, and as much a part of the Constitution as the Bill of Rights, has led to the commission of many other crimes beside that of bribery. A most amazing condition has resulted to the body politic through the honest attempt in Philadelphia to enforce the prohibition laws. Perjury struts naked through our halls of justice, and disregard for the sanctity of the oath prevails in most of these cases. Public officials, police officials, magistrates, grand jurors, petit jurors, and even some judges upon the bench forget that they are all sworn to uphold the Constitution and laws, both of the nation and the commonwealth, before they enter upon the activities of their offices. Witnesses in court no more regard the oath as binding them to tell the truth, but use their testimony to their own advantage, irrespective of its truth or falsity. If jurors do not like the law they acquit defendants who are charged with transgressing it. If jurists find the law obnoxious to them they discharge malefactors convicted of breaking it. If police officials have been tainted with avarice and have fallen for a price, then memory becomes hazy and faulty, and so we have farce after farce enacted in what should be courts of justice.

IV

One need not deny that prohibition, where accepted by the people, has brought peace and happiness to innumerable homes, and that in an impressive way it has caused moral, intellectual, and material enrichment to the nation.

It is neither fair nor in the least helpful to assail prohibitionists on the ground that they are narrow-minded, and are engaged in a purpose to deprive others of reasonable opportunities for pleasure. Every great social movement has as its almost certain attachment persons who have only a superficial or selfish interest therein. Demagogism and hypocrisy in connection with a matter of such deep social interest are inevitable, but the human misery caused by the intemperate use of intoxicants has resulted in such social, family, and individual loss that there was bound to follow an impressive movement to eliminate this evil. This is just what has happened; and the men and women who have devoted even lifetime efforts to eradicate the evil of intemperance have done and are doing a tremendous humanitarian service.

But, while this seems to be quite true, there is another side to the picture. Can it reasonably be denied that in important parts of the country national prohibition laws are found not workable, because they are not respected, and hence are not obeyed by that section of the people who by heredity, tradition, and custom have been taught that the moderate use of intoxicating liquor is not only harmless but actually beneficial?

If man, as has been said, is a sentimental rather than a rational animal, then the lawmaker is often charged with the difficult task of determining, not what can be done for, but rather what may be done with, him. The beliefs of men have their source so largely in tradition, custom, environment, and heredity, and personal habits and desires of widely varying kinds have so modeled and differentiated the characteristics of so many groups of our American people, that one becomes doubtful of the advisability of any attempt to compel people so impressed to obey, against their will, any rule of conduct not involving moral iniquity, however desirable in the abstract.

Canada and Sweden, nations of homogeneous population, have tried and, to a considerable extent, abandoned the experiment of national prohibition. In the United States, because of its territorial extent, its divergent industries and occupations, its heterogeneous population, and even its climatic influences, the liquor problem is one of peculiar difficulty. Racial differences alone make it quite dissimilar to what it is in other countries.

Generally, the southern and western states support prohibition laws, while the north central and northeastern states, the important industrial sections of the country, in the main oppose them. The question is one of such sectional, social, and economic complexity, and the factors involved in it are so unknown, that the writer ventures the opinion that there is no person in the country possessed of information on the whole subject that would enable him to affirm dogmatically, as so many do, the effect of national prohibition upon the country and its future progress.

No effort is here made even to list what are claimed to be both the benefits and the evils that have followed the passage of the Volstead law. But if it be conceded that benefits have resulted therefrom, and also that evils have followed in its train, then is it unreasonable to express the hope that statesmanship may in some manner devise means whereby it may become possible to determine whether the benefits, by constructive legislation, may be retained and extended, and the evils eliminated? This, it seems to the writer, presents a problem the proper solution of which is a matter of first importance to the nation.

Notwithstanding the complexity and intricacy of the problem, and though it affects in a most important and varying way almost every home in the nation, and even though efficient government itself may be seriously threatened, no intelligent and farsighted attempt has as yet been made by an organized body, made up of persons without preconceived prejudices on the matter, to learn the actual facts in the case.

It is not the purpose of the writer to give advice as to what settlement of the question would be the part of wisdom, but merely to indicate that in the welter of charges and countercharges and the contradictory reports and statistics presented by the contestants no one is in a position to determine what has been the actual effect of the attempt to enforce national prohibition; that in the present chaotic state of public opinion and knowledge on the question the factors upon which a final conclusion may be reached are not known to anybody; and that our first duty is to set about to find the truth or falsity of the conflicting claims and counterclaims made by leaders in a strife that is becoming more and more intensified, and is distracting the public mind from other matters of vital importance.

Is it possible, then, that a carefully planned study of the entire question may be begun by an agency made up of intelligent, open-minded persons, to whom may be delegated the responsibility of investigating and reporting upon conditions as they actually are, and who will be authorized to recommend new or additional legislation, if such may be found to be advisable?

The selection of the personnel of such an organization would, of course, be difficult, but it can be accomplished. Such a body, if and when organized, should be provided with legal power to receive and compel the production of any evidence competent to shed light upon the problem; and, more important, it should be supplied with adequate machinery to make on its own account an intensive study in the field to determine the truth or falsity of the claims made by either side to the controversy. Quite clearly this work, if entered upon, would be expensive and arduous; but if, as a result of such investigation, a solution of the problem could be arrived at that would meet with general approval, it would be money and effort well spent.

Is it, then, practicable to set up such a body, the personnel of which would be so outstanding in character and ability as to have and retain the confidence of the public?