Legislators from Prophet Moses to Senator Jones have usually intended that their legislation should contribute toward the realization of the unattainable ideal of making men good. To aver that the law cannot contribute toward making men good is to assume the position known in political theory as “philosophical anarchism.” Whoever is not an anarchist will agree that laws can improve men, at least so far as external conduct is concerned. It does not follow that any item of legislation, by the mere fact that it is enacted, will necessarily result in making men better. The law itself must be good, and excellence in a law requires a certain relation of harmony with the opinion of the people, the machinery of govern[p.83]ment, and the material facts to which the law is to be applied.
Harmony of Law and Opinion.
It was once the dream of the romantic democrats of the French Revolution that they could so contrive a government that under it no legislation could come into existence unless it were in harmony with the opinion of the people. Law, under a perfect system of government, was to be a manifestation of the “general will,” which was a very different thing from the “will of all” (volunté génèrale and volunté de tous). Rousseau, familiar with an environment wherein the politically articulate public was small, addicted to theoretical discussions, and full of people who were ready to entertain one opinion in a salon conversation, while intriguing for a contrary policy at court, saw very clearly that a man’s opinion of what the country required might not coincide with his opinion of what his personal interests demanded. He had seen this small intelligentsia swept to [p.84] unanimity by vogues in thinking and talking; he dreamed of a perfect state in which legislation would result from the kind of opinion-forming that went on in the salons, where people discussed the welfare of the state in general terms. But the legislative process under democratic government was a disappointment; it did not proceed by the method of the symposium like conversation in a drawing room; it proceeded rather by the method of barter and bargain like the intriguing at an eighteenth century court. The legislation which it ground out was not a formulation of the volunté génèrale, but of the volunté de tous.
We have learned by practical experience that legislation is seldom an expression of the will of the whole people, but is usually the product of the agitation of some interest-group. Statutes do not create themselves automatically out of a consensus among citizens; they are manoeuvred and parleyed for and pushed through the legislative process by the pressure of some interest that demands this particular legislation. The legisla[p.85]tive lobby is not an exceptional and cancerous growth in the political system; it is as much a part of the real government of the country as party system and patronage.
The great bulk of legislation, like the great bulk of judicial business, has to do with other things than the expansion of criminal law. The laws which change private rights far outnumber those which strike out, as instruments of social policy, to effect an innovation in the behavior of citizens by altering the criminal code. The laws which change private rights are, in theory at least, intended to make men better. The employer’s liability law makes employers more careful of the safety of their workmen; the laws defining the liabilities of common carriers cause the railroad officials to be more watchful of the interests of shippers and passengers than they would otherwise be. Even the protective tariff, in theory, is intended to make it possible for owners of industrial plants to continue in the socially desirable practice of giving employment to American labor (a benef[p.86]icence from which foreign competition would otherwise compel them to abstain) and to restrain the ill-intentioned foreigner who would wish to supply his commodities to the American market at a low price.
The familiar pedantic theory which represents the legislative act as a restraint imposed by the citizen upon himself is very misleading. Men do not go about making laws for themselves; they make laws for each other. The interest-groups which press legislation upon a law-making body are not trying to compel themselves to do otherwise than they would wish to do. They do not expect to have their own habits and desires interfered with as the result of an enactment. They want the other people to be good. This is not only true of laws relating to property rights, which enforce themselves in the civil courts; it is also true of criminal legislation which depends for its enforcement upon the activities of police and prosecutors. The Chamber of Commerce secretary who pushes forward the cause of an anti-[p.87]syndicalist law is not legislating for himself but for others. The law will never apply to him because he will never be tempted to join the I. W. W. Similarly, the total abstainers who vote for Prohibition are not depriving themselves of anything; they are enacting a law which will not modify their own conduct at all. So definitely is this denial of self-government accepted as a part of our political system that when a man is observed to vote Dry and drink Wet he is not given any credit for trying to reform himself by legislation; he is not recognized as the only type of citizen who, with reference to liquor control, is ruling himself rather than someone else. If his vote results in an effective Dry regime, under which he can procure no liquor, he will have sacrificed something, whereas the total abstainer who votes with him will have sacrificed nothing. But public opinion gives him no credit for the sacrifice; he is disowned by all parties.
The law by which the Drys try to improve the moral character of the Wets is not exceptional [p.88] in purpose. Like the law by which unionized labor seeks to raise the standard of behavior of the mill owners, or by which manufacturers endeavor to reform the business practices of importers, or farmers attempt to elevate the sense of social responsibility of grain dealers, it is an attempt to make somebody else be good. If the achievement of the liquor laws fell conspicuously below their intention, the fault was not in a departure from the usual purpose of law in trying to make men good, but rather that the method chosen to accomplish this normal legal object was not adapted to the end. It was adapted neither to the state of opinion, nor to the machinery of government, nor to the material facts to which it referred.
The amount of support which a law requires of public opinion is not a constant quantity. Some unpopular laws are very effective; some laws fail to have their intended effect despite a great popularity. At least two factors control the necessary ratio between public support and effectiveness. If the incidence of the law is broad, that is to say, [p.89] if it touches many people directly, the popular backing must be strong; if the enforcement of the law depends upon the actions of public officials, and is not accomplished privately in lawsuits brought by persons whose interests the law protects, a still larger claim is made upon public opinion. The Prohibition law on both of these counts required a very heavy preponderance of opinion in its favor. No mere majority would have sufficed. It probably had a majority in 1920, even though the Literary Digest poll allows it less than that today, but had it ever an adequate majority? Kansas, dryest of states, gave only a fifty-seven per cent majority for enforcement in the Digest poll. Is this a sufficient preponderance? That such majorities are inadequate is apparent when the effectiveness of the Prohibition law is compared with the effectiveness of the law controlling the use of narcotics. The incidence of the narcotics law is small; there are comparatively few drug addicts; it could be enforced with less public opinion behind it than effective Prohi[p.90]bition would require. But actually it disposes of a much stronger force of opinion than Prohibition has ever mustered.
The machinery of enforcement with respect to Prohibition makes even further demands upon public opinion. For this is a law which cannot be made effective by private enterprise, because a violation of the law ordinarily gives no injury to a third party, and seldom gives to anyone a right which it would be worthwhile to prosecute in court. It is not at all impossible that an anti-liquor law could be devised which would have a smaller incidence, for one might legislate against the use of liquor by persons who abuse it. It is equally possible that an anti-liquor law could be so drawn that it could count upon the aid of persons injured by liquor consumption to further its enforcement. Legislation, so contrived, could be made effective on a much narrower basis of public approval than the present legislation would require. The present legislation is simply out of tune with the state of public opinion. [p.91]
Liquor Legislation and Government Machinery.
That laws are more effective, regardless of public support, when they depend upon private enforcement, is in part a consequence of the peculiar nature of Anglo-Saxon administrative and judicial institutions. As Professor Esmein points out in his analysis of judicial procedure in criminal cases, there are two main approaches to the problem of controlling the criminal – the inquisitorial and the accusatory. Accusatory procedure assumes that the community is merely a referee in a dispute between two persons, one of whom declares that he has been wronged. Inquisitorial procedure assumes that the state, not leaving detection and prosecution to private initiative, accepts this double duty as its own. Of these, the Anglo-Saxon represents the accusatory type of procedure, and the European Continental the inquisitory type.
Accusatory procedure comes from early Teutonic law; inquisitorial procedure comes from Late [p.92] Roman and Church law. In accusatory procedure the injured party gathers the evidence with which he publicly confronts the accused before a jury of his peers. In inquisitory procedure public officials initiate the action, gather the evidence, and try the accused secretly before men who are not his peers, but specialists appointed by the ruler to aid in dispensing justice. In its barbarous form accusatory procedure used the ordeal, and inquisitory procedure used torture. Anglo-Saxon judicial institutions have borrowed from inquisitorial procedure the public prosecutor or district attorney, who is supposed to be the champion of the injured commonwealth engaged in a battle with an accused culprit before the judge as referee. Continental procedure in modern times has borrowed the Anglo-Saxon jury, which shares with the Continental judge some of the responsibility of coming to a decision on matters of fact. The measures proposed by our own Law Enforcement Commission to break away from jury trial in handling liquor cases are an acknowledg[p.93]ment of the lack of adaptation to our judicial institutions which characterizes the present liquor situation.
The difference between the two types of procedure is paralleled in a difference between the elaborate police and detective organization maintained by European governments, and the primitive and uncoordinated police organizations of America. Just as some religions lend themselves better than others to the effective use of persuasion in influencing drinking habits, so some police systems are better adapted than others to the enforcement of criminal legislation of the type represented by the Prohibition law. This was illustrated in the measures taken in Europe and America respectively, to meet the problem of food control during the world war. The Europeans had their thorough system of police registration to serve as a starting point in food administration. They issued food tickets for every controlled product, and ran the whole enterprise as a branch of their normal supervisory police activity. The Ameri[p.94]can food control system could not depend upon the use of police registers, but had to be built up with volunteer organizations warmly supported by public opinion. Americans in their own country enjoy a freedom of movement which astonishes a European. There is no running down to the police station to register every change of address, no taking out of cards and permits in order to secure oneself the right to exist. We have the Prohibition law, and they have the type of police system best equipped to enforce it.
The governmental machinery best suited for Prohibition enforcement would possess not only an elaborate supervisory police force, but also a well integrated union of Church and State. Successful dietary taboos usually depend upon a religious sanction. The Catholic Church of the Counter Reformation, with its system of auricular confession on the one hand, and its courts of the Inquisition on the other, was in a position to exercise an effective morals police. It enjoyed the fullest co-operation of the State. With its powers [p.95] of persuasion and punishment it could control not only overt behavior, but even inward attitudes. The Calvinist Puritans were handicapped in the supervision of conduct because they had given up one of the most effective weapons of morals police ever invented – auricular confession. When the Methodist Board of Temperance and Morals asks the aid of the “secular arm,” it repeats the tactics of the Counter-Reformation and the Inquisition, but without the ability to obtain their results. They cannot secure universal membership in their Church, or even effective control of the conduct of Church members through Church agencies. The Methodists would be willing to tighten their alliance with the State, but they have nothing to offer the State. They would be willing to increase the severity of the legal penalties to anything short of burning at the stake. But they lack the highly integrated organization which would make effective their co-operation in an inquisitorial institution.
To obtain optimum conditions for Prohibition [p.96] enforcement, great and profound changes in government would have to be made. Our judicial procedure is accusatory; it should be inquisitorial. Our government is federal; it should be centralized. Our police system is protective and local; it should be supervisory and general. Our State is separated from the Church; it should be united therewith, having membership in both incumbent upon all. We have neither the courts, nor the police, nor the jails, nor the habits in matters of government, which would make it possible to carry out easily the intention of the law to transform bad Wets into good Drys. It is for this reason that the liquor laws place so great a strain upon our government.
The Liquor Laws and Natural Facts.
Not only the state of public opinion and the character of the government, but even the material facts to which the law relates mark out the present liquor legislation as ill adapted to the purpose of making men good. The law is con[p.97]fused and uncertain because of the elusive character of the facts to which it relates.
The Eighteenth Amendment prohibits the manufacture, transport, and sale of intoxicating beverages. Every term of this formula generates ambiguity and confusion because of a lack of harmony with the facts. The very concept of an “intoxicating beverage” is a legal fiction, while the prohibitions of transport and sale for beverage purposes are roundabout ways of controlling drinking itself, which by its nature tends to elude police supervision.
What is an intoxicating beverage? Is a beverage to be called “intoxicating” when it does not actually intoxicate? The courts answer this question by taking judicial notice that certain liquids are “intoxicating beverages” and refuse to permit the introduction of evidence to show that in the particular case they did not actually intoxicate. But will liquor ever intoxicate if used in moderation? The court ruled in Wadsworth vs. Dunnan, 98 Alabama 610 that intoxication could re[p.98]suit only from the unreasonable use of liquor.
“Intoxication by means even of those liquors which the law itself recognizes as per se intoxicating in general acceptance, is produced by their unreasonable, inordinate, immoderate or excessive use, and to say that no liquor is intoxicating unless its moderate and reasonable use will produce inebriety is to declare that no liquor whatsoever is intoxicating.”
This ruling is sound. The very concept of “intoxicating beverage” implies a presumption of unreasonable use. The fictitiousness of this legal presumption is so patent that it stultifies the attempt to interpret anti-liquor laws consistently. An entirely different concept of intoxication – “intoxication-in-fact” – which assumes a presumption of reasonable and moderate use of liquor, is expounded by the Prohibition Administration in interpreting Section 29 of the Volstead Act, which permits the home manufacture of “non-intoxicating” cider and fruit juices.
The problem of discriminating between potential and actual intoxication arose in the inter[p.99]pretation of Moslem law, just as it arises under the Eighteenth Amendment. The word of Allah, as spoken to the Prophet in Surah V, 92 of the Koran is as follows:
“Oh, true believers, surely wine and gambling are an abomination of Satan, therefore avoid them, that you may prosper … In those who believe and do good works it is no sin that they have tasted wine or gaming before they were forbidden.”
The material facts which derive from the nature of liquor were just as obstinate to the Moslems as to us. Was it intended in these verses to prohibit all wine, no matter whether it was used moderately or excessively? The ninth century commentators, Jalalu’d-din al Mahalli and Jalalu’d-din as Suyuti, interpreted the passage to mean: “Only that wine is forbidden which intoxicates the brain and affects the steadiness of the body.” So also the Prohibition administration tries to rule that in certain cases (where home manufacture is involved) it will use the factual definition of intoxication, but in cases involving manufacture and sale it [p.100] will use the legal-fiction definition. But the orthodox Moslem doctrine did not accept the commentator’s modification, and it does not seem that the privileged position of home-manufactured liquors is at all secure in the present Prohibition system.
If the Eighteenth Amendment means to use the words “intoxicating liquors” in the legal-fiction sense, then it is an arbitrary act of nullification for the Prohibition commissioner to permit legally intoxicating liquors to be manufactured in the home. When Commissioner Doran declared, as he repeatedly declared, that he would not try to interfere with homebrewing (which is definitely prohibited by law) or winemaking (which is ambiguously prohibited), he was doing exactly the thing that President Hoover declares will cause “our whole system of government” to “crumble”; he was an official electing what laws he will enforce. But if the Eighteenth Amendment means only actual and not fictional intoxication, then the concept of intoxication-in-fact should be applied to all liquors, whether manufactured in the place [p.101] of consumption, or manufactured for sale. So interpreted, the Eighteenth Amendment creates no constitutional right to interfere with any beverages which are reasonably used.
But disregarding the distinction between actual and fictional intoxication, some fluids are being prohibited by statute although no possible use, moderate or immoderate, could render them intoxicating. A beverage which is just over the one-half of one per cent limit in its alcoholic content is no more capable of causing drunkenness than is fresh milk. The definition was taken from the revenue laws, where the intent was to prevent tax-free manufacture of weak brews and carried over into the criminal law, where the intent is to describe a natural process of which the law takes cognisance. An Act of Congress can no more render a one per cent drink intoxicating than it can cause Washington weather to be cool in July. These are natural facts which impress themselves upon the liquor situation, regardless of the legal or social context of the policy of regulation. [p.102]
The Prohibition administration thus exceeds the limits set by the Eighteenth Amendment on one hand, and nullifies the Amendment itself on the other. This disharmony is further accentuated when the activities of other branches of the government are taken into account. The Supreme Court, in a sweeping decision attacking the raw materials and equipment used in liquor manufacture, empowers the Prohibition administration to campaign against the dealers in bottles, corks, barrels and home-brewing supplies. This is simply carrying one step further the principle already invoked in the attempt to prohibit the serving of ginger ale and ice water to guests at hotels. There are prohibited not only the things which may intoxicate, but the things which may be used to produce the things which may intoxicate. The question of how the liquor is actually used, the most important question from the standpoint of common sense, falls beyond the cognisance of the law.
But while the Supreme Court is implementing [p.103] the drive on the makers of liquor, the Department of Agriculture continues to instruct American citizens how to use the forbidden barrels which the ’ Commissioner wants to seize, in making the forbidden wine which the Commissioner chooses to permit. And the Farm Board offers government money to help in financing the juice-grape farmers of California, who are marketing their entire product to wine-makers and selling the grapes and grape-juice publicly in carload lots all over the country.
This is indeed a curious situation. The Farm Board offered twenty million dollars to help market the crop provided the grape growers would sign up 85% of their acreage under contracts providing for a tax on the crop, to be used for buying up the surplus tonnage and converting it into “by-products.” Public-spirited citizens throughout the grape district cooperated in the drive to sign up the acreage. The last phase of the campaign was characterized by night riding and terrorism to coerce obstinate growers. One [p.104] man was killed and two wounded. But the drive succeeded. The marketing of the crop is now going forward under government auspices; the wine grape industry has been protected from ruin, the supply of raw material for the bootleg wine industry has been stabilized; the manufacture of grape jams (sold for winemaking) is adequately financed. And at the other end of the line officials of another branch of the government are trying to confiscate the barrels, bottles and corks! The government advances money to the man whose product goes into the barrels which the Supreme Court has empowered the enforcement officials to seize.
These observations are not offered in a spirit of captious criticism; they are intended simply to show the intrinsic difficulty in applying legislation of the Prohibition type, which takes no account of the distinction between noxious and innocent uses, to facts as complex as those involved in the liquor problem.
It is not only the difference between natural fact [p.105] and legal theory as to the process of intoxication that creates anomalies in the administration of the law; there is also a disharmony between the legal and factual character of the manufacturing process. In common usage we think of manufacturing as a process in which the ingenuity of man is occupied on some more or less complicated manipulation to create some new product. Such treatment is not required to cause fruit juices to ferment, but only to keep them from fermenting. The Department of Agriculture is aware of this aspect of the manufacturing problem. In the bulletin in which it gives disguised instruction in wine making it advises: “fermentation is prevented by keeping the temperature of the liquid below 50 degrees F., or by adding potassium metabisulphite to the juice at the rate of 2 to 5 ounces per gallon.” However, it admits that in “small scale homework it is neither advisable nor convenient to control fermentation by the cold or chemical treatment.” The citizen can draw his own conclusions. [p.106]
The wife of the ex-Prohibition Commissioner has been working out recipes for fresh-fruit-juice drinks, which she recommends as substitutes for liquor. A jug full of one of Mrs. Doran’s fruit punches could violate the law overnight while its owner sleeps. If Clarence True Wilson served some of this recommended beverage to Bishop Cannon and Mr. McBride of the Anti-Saloon League, and then forgot to pour the surplus supply into the drain, the ubiquitous micro-organisms would soon be at work creating an alcoholic content of more than one-half of one per cent. The Prohibition administration takes cognisance of this fact by establishing the executive policy of refusing to enforce the anti-manufacturing law against those who make liquor in the home. The Volstead Act in Articles 29 and 33 provides that no penalties shall attach to the manufacture without permit of “non-intoxicating cider and fruit juices exclusively for use in the home.” The instructions issued by Commissioner Doran on August 6, 1929, order his agents [p.107] not to interfere “with such manufacture and use in the home, unless upon satisfactory evidence of the unlawful sale of such non-intoxicating cider or fruit juices. . . But if the cider or fruit juices are really”non-intoxicating," it is not under any circumstances unlawful to sell them. Clearly the law is creating a fictitious non-intoxicating home-made wine which is just as unreal a substance as the “intoxicating” one-half of one per cent near-beer (which is unlawful, even when made at home). The anomaly in a law which does not take into account the fact that home-fermented fruit juices may become intoxicating was glossed over by Commissioner Doran in the policy which left it to the local authorities to formulate their own policies of control relative to such home manufacturing. Thus the double meaning given to the word “intoxicating,” which is interpreted sometimes to refer to an alcoholic content, and sometimes to a result of intemperate use, introduces into the law an elusive metaphysical uncertainty which was played upon by Representative Fort in his [p.108] defense of home manufacture, and which is solved in practice by administrative nullification.
In the shifty interpretation of the Prohibition law the Wets and Drys find a common meeting ground. Fort, who ran on the Dry ticket in New Jersey meets La Guardia, a leader of the Wets in Congress. In his famous speech of February 1930, Fort expressed his doubt whether the language of the law could be stretched to legalize home-made beer, but went on to advise:
“To those who want beer and light wines I suggest that they forget the wish to buy, and be content with what they can make.”
La Guardia sends out to his constituents, enclosed with the above-quoted bulletin of the Department of Agriculture on wine making, an instruction leaflet of legal advice:
“The beverage may be called wine or beer, but must not be labelled as such. . . . The question of the intoxicating character of the beverage is not determined by any fixed or arbitrary content. . . . the average home-made wine may be considered as [p.109] non-intoxicating within meaning of the law. . . . It cannot be given to strangers; it cannot be sold to friends. Even though the beverage is non-intoxicating, it loses its legal character if sold.” Thus fiction is piled upon fiction. A liquid does not become intoxicating by reason of its use, nor its alcoholic content, but by reason of its transportation outside the home or its sale; however excellent the wine may be, the law will tolerate it only under the fictitious name of “Non-intoxicating fruit juice”; beer must be presumed to be a fruit juice, not a malt liquor. How Alice in Wonderland would have enjoyed it!
The actual purpose of the law is not mentioned in the Constitutional Amendment or in the National Prohibition Act, except in that clause which provides that the provisions of the Act shall be interpreted liberally because the intention of the Act is to put an end to the drinking of liquor. There is no prohibition of drinking, either in the Constitution or in the Volstead Act, despite the fact that it is only in the drinking that a beverage [p.110] becomes intoxicating. The Supreme Court has ruled that a liquor buyer cannot be convicted for failure to register his purchase, but the question is still open whether he can be convicted for conspiracy to violate the law. If the legal status of liquor purchase is doubtful, the status of liquor possession is certain. It is unlawful to possess liquor illegally obtained. But the one act against which the whole machinery of legislation is directed, namely, the drinking of liquor, especially in immoderate quantity, remains the privileged act. which is still lawful no matter how many illegalities surround it. There are good reasons for this kind of indirection in the approach made by the liquor law toward its object. But the fact that such indirection is necessary should serve as a warning that the material with which liquor laws deal is not perfectly analogous to the material dealt with by other criminal laws. Legislation which must seek to accomplish its object by a combination of indirection and fiction is at a practical disadvantage. [p.111]
If the legislators have not attempted to make drinking illegal, and the administrators of the law have given up the attempt to prevent home-brewing, in order to concentrate their attention upon commercial manufacture and sale, they are still unable to cope with the difficulties which come to them by virtue of the circumstances under which the law is violated. For every illicit sale of drink is a secret conspiracy between the parties engaged therein. The crimes of robbery, rape, murder, forgery – all the crimes that are usually admitted as felonies – are committed by a criminal against a victim. But when a bootlegger sells to a purchaser there is no victim. The crime is completed, and each one has done no more than to receive what he desired. On the other hand, police regulations, such as traffic rules, apply to offenders who injure no one in particular, but in these cases the purposes of the law are adequately met when the manifest and open violations are repressed. The fewer the witnesses to a traffic rule violation, the less is the significance of the violation itself. [p.112] The speeder in crowded traffic is guilty of much more reprehensible conduct than the unseen speeder on a lonely road, and he is more easily apprehended and punished for his violation.
If the government were content to repress only the liquor transactions in which one party was a victim of the other (as in methyl alcohol poisoning cases), or where the conduct took place in public, or where the result of the use of liquor was public drunkenness, its policy of making men good by law would have better chances of success. But it does not have sufficient machinery to make the ferreting out of secret liquor offenses successful. The Manchu Emperors of China were able to give effective enforcement throughout the Empire to their edict regulating the style of hairdressing (the long queue) for their Chinese subjects because compliance or violation was openly and automatically manifested. But against opium smoking the Imperial Government was helpless, not only because of the resistance of the British opium interests, but also because [p.113] of the lack of an adequate inquisitorial staff.
The standards of goodness which the liquor laws demand are, of course, like any legally established standards of behavior, set by the makers of the law for the governance of those who oppose the law. The law is sponsored by total abstainers for the benefit of topers. It imposes no restrictions which fall upon the sponsors; the sacrifices are made by the moderate drinkers, that is to say, the only people who really know the uses of liquor. It confers no rewards which appear to its beneficiaries as blessings; the blessings are perceived to be such by the sponsors of the law, the only people whose conduct is unaffected thereby. Thus A compels B to sacrifice himself for the sake of C. Such a three-cornered tension of interests and desires is sufficiently precarious to jeopardize the success of any law. It leaves all interests ill-defined. In the maze of inconsistencies and contradictions in the regime, the essential distinctions are not made. The distinction between public and private conduct, between conduct harmful to a [p.114] neighbor and conduct which does not affect a neighbor, and between using and abusing liquor is nowhere clearly drawn.
A simpler regime, imposing a clearer standard of good behavior, and better adapted to the state of public opinion, the character of the government, and the natural facts to which it applies would stand a much better chance of making men good by law. [p.115]