If the balance of forces between Wets and Drys is such that the Drys control legislation, but cannot capture administration, the result which automatically follows is the nullification of the law. This, as was noted by de Tocqueville in 1830, was a standard American practice when the Prohibition program was formulated. There is some evidence that the legislator has often acted in matters of liquor legislation with the arrière pensée that the blow of a severe law will be softened by laxness of administration.

The experience through which the country is now passing has called attention to the phenomenon of the nullification of law, and given currency to the aphorism that disrespect for one law leads [p.34] to contempt for all. This aphorism is equally useful to the Drys, who argue that unrepealable laws should be enforced, and to the Wets, who argue that unenforceable laws should be repealed. It was given expression in President Hoover’s inaugural address:

“Our whole system of self-government will crumble either if the officials elect what laws they will enforce or the citizens elect what laws they will obey. The worst evil of disregard for some laws is that it destroys respect for all law.”

On the other side of the argument there is a body of opinion which looks to nullification to accomplish the solution of the Prohibition problem. One party fears nullification as a menace to government; the other party welcomes it as a device for ending the agitation of the liquor problem. But there is good evidence that both views are ill-founded; that nullification, far from being a menace to our system of government, is actually a part thereof; and that the Prohibition question, far from being solved by nullification, will only be aggravated thereby. [p.35]

The theory that self-government is doomed when officers and citizens decide which laws are to be enforced is based upon a discredited view of free government: the doctrine of the separation of powers. This doctrine is a relic of eighteenth-century rationalism. It originated in Montesquieu’s misunderstanding of the government of England. It has no roots in our history, but only in a foreigner’s misconception of our institutions. It was a fashionable political dogma at the time the American Constitution was drawn up, but it was not then, and is not now, realized in the actual working of local government in Anglo-Saxon countries. And in these the local government takes care of most of the enforcement of criminal law.

According to the theory of the separation of powers, people can be assured of self-government only when their officials enforce blindly whatever laws their legislatures enact. There is no short [p.36] circuit allowed from people to administration. The popular will must be expressed through the legislature or not at all.

If this bookish doctrine were true, the only units of population that could make their will felt in public affairs would be those that happened to have sovereign legislative bodies. The smaller units, which take care of the enforcing of the law, would have only as much room for choice as the sovereign specifically allowed them. The law expressed by the legislature would be the “command of the sovereign,” and aside from specific delegations of powers, there would be no elasticity or local variation in carrying out the sovereign’s commands.

But the government that lives outside of books takes its course without much regard for the metaphysical thing called sovereignty or the precious distinction between legislation and enforcement.

Everyone knows that in American politics law-enforcement policies are openly voted upon in municipal elections. If the party that advocates [p.37] strict law enforcement is defeated at the polls, those who are elected to office have a mandate from the voters to nullify certain of the laws enacted by the sovereign legislative authority. This control of the policy to be followed by local officials is an inherent part of the total legal and political process.

Prosecuting officials are equally sensitive to local pressure. In Kansas City, they obtain convictions in one-third of one per cent of the cases of arrest for liquor-law violation; in the rural districts nearby, they convict twenty-five per cent of the persons arrested. The judges in one region sentence a Prohibition offender as if his crime were as serious as forgery; elsewhere they treat him like a careless motorist. All this goes on openly, the judges announcing in advance what punishments they will inflict. And back of all these permanent officials, there are the temporary instruments of enforcement, the members of the juries and grand juries. If they refuse to indict and convict, enforcement is impossible. The [p.38] command of the sovereign goes unheeded.

From the standpoint of the abstract doctrine of the separation of powers, this margin of local freedom is no doubt a deplorable anomaly. From the point of view of the doctrine of sovereignty, it is an inexcusable usurpation. But, actually, these practices conform to the great tradition of Anglo-Saxon self-government. Through all the changes that have marked the political path of the Anglo-Saxons from the tribal period to the present, local independence in applying criminal laws has prevailed.

In the early Anglo-Saxon times each community defined its own law. The king administered justice in a limited class of cases, but it was the local law that governed these cases. By the law of Berkshire a murderer forfeited life and substance; by the law of Urchenfeld he was fined one hundred and twenty shillings. At Lewes the crime of rape was compounded for eight shillings fourpence; in Worcestershire it could not be compounded. When, in a later century, Henry [p.39] II sent his justices through the land they would inform themselves of the law of the locality, and would base their decisions upon the information they received. Later the royal judges built up a system of law that was common to the whole realm; this was the Common Law of England. But local autonomy was not thereby extinguished; from autonomy in defining the law it passed over to autonomy in enforcing it.

In the days of Queen Elizabeth law enforcement was in the hands of the country gentry. From this class were recruited the Justices of the Peace, “full of wise saws and modern instances.” Shakespeare knew the type. They enforced as much or as little of the law as they saw fit. If they happened to be strict Calvinists they might even go beyond the law in trying to force the people of their districts to conform to the Calvinist virtues. They would fine the villagers for shooting at the butts on Sunday. The good Queen would write letters of protest, but she had no way of compelling uniform law enforcement. The local [p.40] authorities simply nullified the laws that did not please them. This willingness to nullify law came to America in the Mayflower.

In colonial times the Navigation Acts were unenforceable in America, the region for which they were intended. Smuggling ranked with other commercial enterprises as an eminently respectable, as well as profitable, occupation. Public opinion sided with the smuggler. Attempts to enforce the law broke down because the local government authorities held the key positions. This story has been repeated again and again in the history of our country. Tocqueville saw the system in operation in 1831. As it was with the Fugitive Slave Law in the North before the Civil War, so is it with the Fifteenth Amendment in the South since Hayes’ administration.

The autonomy of local government in matters of criminal law has not only survived the change from a law-defining to a law-enforcing function; it has also weathered the transition from the old Anglo-Saxon system to Norman feudalism, from [p.41] feudalism to squirearchy, and thence to modern popular government with its organized party politics. In the light of this historical perspective it would appear that the only state wherein local nullification menaces self-government is the one that exists in university classrooms alone. Local discretion in enforcing laws is more clearly a part of our system of self-government than the doctrines of the separation of powers and of sovereignty, in whose names it is condemned.

From the doctrinaire point of view one might still argue that these local variations are to be regarded merely as violations. This raises the question of the distinction between nullification and violation. What is the law, after all, and how can it cease to be law? If in the state of New Jersey the law against larceny is violated, and at the same time the Prohibition law, or Sunday theatre law, is disregarded, the doctrinaire will lump all of these offenses together as law-breaking. In assuming this attitude he deliberately ignores all the elements of the legal situa[p.42]tion except the formal facts of statutory enactment.

For the doctrinaire, though he may not know it, believes in the Austinian theory of law. That is to say, he thinks of the law as the command of a sovereign, and of the sovereign as a determinate organ of the state. The Austinian theory patterns a general definition of law upon the model of the most recent and superficial kind of law – the statute.

As against the Austinian conception, there is the view that law is a product of the internal development of the community, a function of its culture in which the essential element is consensus, not command. According to this more natural and general view the statutory enactment is only one among many ways in which law is expressed and defined.

The history of law, not only in Germanic lands, but in all places whose legal history is known, shows that the earliest law was based on custom, and was thought to be something that no human [p.43] agency could alter. The legal system was kept up to date by forgetting old laws and remembering new ones into existence. There was no sovereign, no determinate organ, no command.

The invention of writing interfered with this automatic legal system by making it more difficult to forget old laws or unconsciously introduce new ones. When the law was once written down innovations became conscious. Outright legislation came to be practised. The consequent revolution in our way of thinking has gone so far that we now look to new law to accomplish just those miracles of beneficence that our ancestors expected of the “good and ancient customs of the realm.” While our legislatures grind out volume after volume of new laws, we continue to exclaim of this or that inconvenience, “there ought to be a law about it.”

The invention of legislation, however, has not killed the original habit of forgetting an inapplicable law and developing a new consensus as to what is right or wrong. These processes still form [p.44] a part of the living legal system. There are whole classes of unrepealed statutes which are so obviously obsolete that any attempt to enforce them is regarded as freakish. A grand jury in Elizabeth, New Jersey, refused to indict a theatre owner who was clearly guilty of violating the Sunday closing law, on the ground that “a change in conditions and customs makes the present law governing the moral life on the Sabbath more or less obsolete.”

The doctrinaire view of law breaks down when confronted by three important kinds of statutes. Some are obsolete; others are opposed by the consensus of opinion in certain communities within the jurisdiction of the legislature which enacted them; and others are enacted without intention on the part of the legislators that they are to be enforced. With laws of these three kinds the problem of nullification arises. And in each case the Austinian doctrinaire would claim that the statute is the law; while the student of the practical workings of our jurisprudence would ask whether [p.45] the statute is actually expressive of the existing law.

To identify nullification with violation of the law is artificial from the standpoint of jurisprudence; from the standpoint of psychology, it is absurd. The statutes that are nullified by obsolescence, local opposition, or lack of serious legislative intent are not confused in the minds of citizens with the living body of the law. If the community is regularly and wilfully disregarding a law, the most casual conversation of the citizens reveals that the particular statute is distinguished from, not confused with, other elements of the legal system.

With statutes of this type there is no evidence that disrespect for law is transferable from one law to another. The mountaineer who shoots deer out of season does not drop into hog-stealing, nor does the average citizen who carries a hip-flask condone such offenses as arson, highway robbery or rape. In fact, if the provisions of the penal code relating to these offenses were repealed, the [p.46] citizens would continue to regard them as crimes, and would probably devise extra-legal means of preventing them.

The violence that characterizes the bootlegger’s trade does not arise from a moral indifference leading the bootlegger to confuse in his mind the crime of murder and the crime of transporting alcoholic beverages. The violence results merely from the failure of the government to protect an industry that is outlawed by statute. The industry reverts to primitive self-help to protect property rights that cannot be defended in the courts or guaranteed by the police. It was not against the police that the gangsters armed themselves and developed their iron code. Their organization gives a rough and bloody substitute for law in a region from which the law has withdrawn.

The Prohibition statute did more than create a new class of crimes; it abolished an old one. It made it illegal to sell, but practically unpunishable to steal, the forbidden liquor. The informal organization of the community then made com[p.47]pensation for the vagaries of the statute. Liquor larceny is still resisted and visited with punishment, though not by the police; the sale of liquor is still permitted, though not by the legislature. The speakeasies of New York often have signs tacked up behind the bar: “This place is insured against theft and dishonesty.”

Just as the Volstead Act legalizes deeds that the community continues to regard as theft, so the Jones Act sanctions deeds that the moral sense of the citizens continues to condemn as murder. By increasing the penalty for liquor-law violations, the Jones Law automatically puts the suspected liquor-law violator into the class of the suspected felon. An officer who witnesses the commission of the felony of transporting liquor – if only in a hip-flask – acquires at once the technical rights over the person of the offender that would be acquired by an officer who witnessed a burglary. If the felon flees, refusing to halt when called upon to do so in the name of the law, the officer may kill him. The law will describe the deed as [p.48] justifiable or excusable homicide. It may happen that the victim flees because he wrongly believes the pursuing officer to be a thug. Even this circumstance may not make the homicide a crime. But such acts, though legalized by statute, will be resented by the community as if there were no statute. A community terrorized by repeated outrages of this kind would probably develop such a temper that juries would acquit persons who killed Prohibition-enforcement officers, or the offending officials might be subjected directly to mob vengeance. Fortunately, the adjustment of law enforcement to public sentiment takes place by way of the autonomy of the local community, and nullification of the statute. The legislature cannot really give effect to its formal act to legalize murder, any more than it can make effective its enactment to legalize theft.

Judge Louis Fitzhenry, of Peoria, Ill., contributed to clear thinking on this problem when he declared on November 22, 1929, that “anyone knowing of a friend, relative or neighbor possess[p.49]ing liquor in violation of the Jones law,” unless he reports his knowledge to the proper authorities, is himself a felon under a statute of 1790 which makes a felon out of anyone failing to report a felony. Certain distinguished Drys, notably Senator Sheppard and Dr. Clarence True Wilson, were reported to be “enthusiastic” about Judge Fitzhenry’s discovery. But it is a discovery which reduces the doctrinaire view of the criminal law to an absurdity. Imagine a corps of officials who should try to carry out President Hoover’s advice by punishing all felons, indiscriminately, whether their felonies were defined by the Jones Law or the law of 1790! A fantasy, of course, but an instructive fantasy. Such action would tend much more to the destruction of our system of government than to its maintenance.

This experience with Prohibition seems to demonstrate that there is something in the nature of law that a log-rolling legislature cannot touch by means of a statutory enactment. But the doctrinaire will still bring forth the objection that if [p.50] everyone chooses which laws he will obey, the consequence is anarchy.

This is another of the objections based upon fiction – in this case, a fictitious notion of human nature. For human beings are not rational atoms, each utterly independent of the other and capable of entertaining any view, believing any doctrine, upholding any cause, that a speculative mind might invent for him. The opinions of men cannot be plucked up arbitrarily from their deep background. The same resistance that is offered to an unconsidered legislative act will also check these supposed attempts towards an anarchistic choice of laws to be obeyed or ignored.

The problem of law enforcement is so serious that we cannot afford to let our thought upon it derive from discredited doctrines of politics and law, or from fictitious notions of human nature. The claim that disregard of one law induces contempt for all is misleading both as to the nature of law and the facts of human behavior. Just as the logicians of Galileo’s day argued that there [p.51] could be no mountains on the moon since the moon was a heavenly body, the heavenly bodies were perfect, and the form of perfection was a sphere, so the contemporary doctrinaire contends that there is no such thing as justifiable nullification, since the law is what is enacted by the legislature, the legislature is the voice of the sovereign, and the sovereign cannot be guilty of self-contradiction.

No wise or practical policy is likely to arise from a theory that does not take account of justifiable nullification as an inherent feature of the total legal and political process. But on the other hand, it does not appear that nullification is a practical and efficient way of ending the controversy over liquor policy.

Why Nullification Will Not End the Controversy

For there are special reasons, operative in the case of Prohibition, which render it unlikely that nullification will bring the liquor question to [p.52] equilibrium. For nullification quiets a question only when the dominant political authorities are all of one mind with regard to it. This is the way the nullification of the Fifteenth Amendment is carried on in the South today. It was the way the Negroes were deprived of their franchise in Pennsylvania a hundred years ago. But in most parts of the United States nullification will not put an end to Prohibition agitation because the Wets and Drys are not sufficiently segregated from each other. There are cities and states in which Wet sentiment is overwhelmingly preponderant, and in these nullification has a chance of ending controversy so far as local politics is concerned. But most communities contain a mixed population. This much, at least, was proved by the Literary Digest poll.

To solve the liquor problem by nullification is therefore not unlike trying to solve the nationalities problem by drawing new boundaries. No frontier can be drawn that will put all the Hungarians on one side, all the Rumanians on the [p.53] other. Only the drastic measure used after the Greco-Turkish War – the exchange of populations – would render nullification a satisfactory solution. If the Wets should be segregated in certain states, and the Drys in others, there would result a situation in which the Eighteenth Amendment in the Wet state could be treated as the Fifteenth Amendment has been in the South.

We have also in prospect a kind of nullification which will exempt certain social classes from the operation of the law, while requiring other classes to obey it. Country clubs often have good bars though the nearby villages be dry. The liquor laws of the South are both in practice and intention directed against consumption of liquor by Negroes, not whites. Had it not been for the Fifteenth Amendment, the South would have passed laws making it a crime to sell liquor to a Negro, as it is a crime under Federal law to sell it to an Indian living on a reservation. Out of formal respect for the Fifteenth Amendment, the legislation had to take the form of general [p.54] Prohibition, although it was intended that enforcement would discriminate between whites and blacks. Thus the Fifteenth Amendment helped to bring on the Eighteenth Amendment, and the gulf between legislation and administration of law was made wider.

This type of nullification, which was expounded by Senator Blease when he declared that his constituents expected him to vote Dry and drink Wet, and that he would do as they expected, is practicable only in places where the privileged class is in complete control of the machinery of government. Elsewhere it encounters obstacles similar to those which face regional nullification. Agitators will protest and bring it about that the clubs of the wealthy are raided and the cellars of the country estates are searched. The interception of supplies destined for the poor will embarrass the bootleggers who are catering to the rich. The kind of class rule which would permit discriminatory nullification is unstable save in the South. [p.55]