It is the principle of our modest proposal that the liquor industry should be made liable for all the damage it does, that the uses of liquor which create damage should be separated from those which are innocent by the simple device of giving damaged persons adequate rights to recover against responsible defendants.
We have successfully made use of this principle in developing the legal control of many of the newer instruments of civilization. It is a natural principle to apply whenever a given thing is capable of being used either innocently or harmfully. The application of the principle is illustrated in many branches of the law, such as employers’ liability, or carriers’ liability laws, or [p.154] anti-trust legislation. For reasons which have been developed at some length it is a principle peculiarly in harmony with our juridical and political organization.
To draw up in full all the details of the proposal at the present moment would be to violate one of the objects of the proposal itself, which is that the law should grow with experience, and should reveal a constant adaptation of means to end. This elastic quality of the proposed system of liquor law can be illustrated if the history of our legal treatment of the automobile is compared with the history of liquor legislation.
Prohibition vs. Responsibility in Motoring.
The automobile found its place quickly and easily in our social and legislative system. One might suppose that since liquor has been with us so long, and its dual qualities have been so long known to us, it would be acceptably covered by appropriate legislation, and that the tensions and strains would have been encountered in making a [p.155] place for the automobile. Exactly the reverse was the truth, because the wrong legal principles have been applied in trying to regulate liquor, the right ones in regulating the automobile.
The automobile and liquor both lend themselves either to use or to abuse. Both can be dangerous, demoralizing, wasteful of material and human energy; and both can be pleasurable and profitable. In both cases a commercial or industrial use is sharply distinguished from a recreational use. It would be possible in both cases to fix one’s attention upon the recreational use – pleasure riding or beverage alcohol – and to concern oneself especially with wrongful or noxious intemperances in uses of this class.
Liquor control, whether by Moslems or Methodists, gave all its attention to the repression of harmful uses of liquor, and did not concern itself with the development of innocent uses. That there were innocent uses was admitted in both cases. The Moslems may read in Verse 216 of the Second Surah of the Koran: [p.156]
“They will ask thee concerning wine and games of chance. Say: In both is great sin, and advantage also, but the sin is greater than the advantage.
The Methodists can read in their Volstead Act that liquor is properly to be used for medicinal purposes, and the twenty-ninth section of their law hints vaguely at innocent drinking of home fermented wine. But instead of seeking to substitute good uses for bad ones, Moslem and Methodist alike are willing to impose a dogmatic solution destroying the good uses for the sake of getting at the bad ones. In both cases this oversimple remedy has created tensions and raised protests which blare at us every day in the newspapers, and which come floating down to us from the past ages in the verses of Omar Khayyam. In neither case was the regime a complete success. The wealthy Moslem in the privacy of his home still serves the forbidden wine, justifying himself with some careful casuistry. The casuistry of drinking under the Prohibition regime in America has become as elaborate as the ritual of hospi[p.157]tality of which it forms a part. Such procedures evidence a faulty juridical situation. But the law relating to automobiles developed differently. Its primary object was always to make distinctions of degree, protecting the independence of the innocent user, and holding the culpable user responsible for his acts.
The automobile was not saved from antipathy and persecution by its intrinsic merits. If the attempt had been made to kindle fanatical attitudes of antagonism against the motor car, and to blame it as the source of vast and vague social and personal evils, the case against it could have been made as strong as the case against liquor. If legislation had been drawn up under the inspiration of such antipathies, and had then become fixed as a dogma, a “moral issue,” the resulting tensions would have been comparable to those which the Prohibition laws produce.
The indictment of liquor could be applied count-for-count to the motor car, if only we had the desire to do so. The indictment of the saloon [p.158] on religious grounds, which led to the Sunday closing laws as the first series of regulatory enactments, is much better found against the motor car than against liquor. For the saloon drew from church attendance only the men, while Sunday joy-riding takes the whole family away from the house of God. The case against liquor on moral grounds is weak and flimsy compared with the case against the automobile. Our standards of sex conduct, even in their most severely Puritan form, were created and transmitted to us in societies which used liquor habitually. It is therefore absurd to say that they are incompatible with the use of liquor. Seduction in a saloon, however effective as an anecdote to hold the breathless attention of the sex-starved Prohibition audience, was in fact rare enough to be accounted a good incident of melodrama. Seduction in an automobile is too commonplace for melodrama. The incident in which the girl is given the option of surrendering or walking home is accepted in our literature as a mild and standardized joke. Our [p.159] sex morals stood up under centuries of liquor, but broke down with two decades of motoring.
But if we speak of demoralization as something more general than the lapsing of female chastity, the case against the automobile becomes even stronger. For here one finds the prime agency in the demoralization of family life. The survey of Middletown showed that most friction between parents and children is caused either directly or indirectly by the automobile: directly in matters connected with the use of the car or the family policy of purchasing cars, or of permitting the children to own cars; indirectly in the question of the participation of the children in a social life organized around the use of automobiles. And, added to these immediate causes of dispute between parents and children, is the growing independence of the youths and maidens who by the mere control of distance can elude parental authority. In the relations of husband and wife it appears that the automobile is a disorganizing factor. Professor Roland M. Harper of the [p.160] University of Georgia, writing in the Eugenics Magazine in May, 1930, presented statistics and correlations to establish a close connection between automobile-owning and divorce. He said:
“Near one extreme at the present time is California, with about one automobile to every three persons in 1929, more than one car per family; one divorce to every 3.3 marriages, . . . . . . . near the other extreme is Georgia with about one car or truck in 7.7 persons in 1929 and one divorce in every 14 marriages.”"
The kind of statistical method which has been applied to the liquor controversy could do marvels with such material as this. And facts of common knowledge would confirm the view that family discipline survived the industrial revolution and the factory system, but came to grief when the automobile appeared.
It is the automobile, moreover, which has given the criminal a technological advantage over the agencies for the suppression of crime. Violence and brigandage of a type once to be met with only [p.161] in frontier areas, where the police organization of the modern state had not been set up, now comes back into the most highly policed cities. The criminal can count on getting away from the scene of the crime so quickly that pursuit is vain. The murderer can be across two state lines before his victim’s body is cold. The police authorities are helpless with their local jurisdictions and their limited responsibilities inherited from a time when criminals were run down with the hue and cry. The police organization availed easily to apprehend criminals whose offenses were due to liquor. But the modern criminal works when he is sober and uses a high-powered car. The decades of the twentieth century which saw the simultaneous advance of Prohibition and the automotive industry saw not only an increase in criminal activity, but also an increase in the elusiveness of criminals. Liquor crime was never as much of an evil as automobile crime.
The demoralization which is the characteristic quality of automotive civilization is manifested [p.162] not only in the moral but also in the economic sphere. For the automobile has notoriously and continuously caused people to make expenditures they could not afford. The sacrifice of more substantial things for the sake of an automobile has been a scandal ever since the marketing of machines on the installment plan was begun. This is more serious than the unwise expenditure fostered by liquor because the amount is larger, and the mortgage on the future more oppressive. And when there comes into the reckoning the use of the car as a mere index of rank in the community, for the value of the prestige it gives, the wastage is so excessive as to dwarf by comparison the losses that used to be charged to drinking, when one maintained his prestige by “treating” his companions. The wastefulness of automobiles is great enough from the personal standpoint; from the social point of view it is scandalously prodigal. The junking of cars that are not half used up, and the making of cars that are to be used to answer a fashion need rather than a trans[p.163]portation need are intolerable practices that none but a spendthrift society would permit. The drain is made not only upon the energies of labor and capital, but what is more important, upon the irreplaceable natural resources of the country. The liquor industry used only the products of the soil, perennially replaceable, but the automotive industry is gutting the continent of oil coal, and metals at a rate which our posterity will not condone.
There is certainly an economically justified commercial use of automotive transportation, which critics of the automobile should take into account, just as critics of liquor take into account the commercial and industrial uses of alcohol. The wasteful public is the joy-riding public. But the joy-rider gets no true pleasure from his ride, any more than he gets pure air from his outing. Auto-riding is to walking as wine is to water; it exhilarates only those whose natural healthful tastes are spoiled. The fresh air which is thought to be within the reach of the motorist reeks with [p.164] carbon monoxide. To get really fresh air one must walk far from the highways. But with the decrease of walking, and the disappearance of footpaths, there are no longer any places for pedestrians except the perilous and poisonous edges of the highways. Thus the automobile has taken away our birthright of health. For automobile-driving is not only intoxicating; it is also habit-forming, and the habit spreads so rapidly and takes hold so firmly that millions of men, once normal healthy human beings, are now so circumstanced that they will never walk for pleasure again.
It is impossible to calculate the exact extent of the damage to health ascribable to the automobile, but that small proportion of the damage which can be established statistically is already appalling. This is the death rate from automobile accidents. Whereas alcoholism accounted for a death rate of six per one hundred thousand in 1900, and accounts for four today, the death rate from automobile accidents stands at twenty, and [p.165] is steadily rising. An American is five times as likely to be killed in an auto accident as to die of alcoholism. But the death rate from accidents tells only part of the story, for there are countless injuries, more or less serious, and more or less permanent, taking their toll of human happiness every day.
This indictment of the automobile uses no new nor unfamiliar material. The most important counts are already widely discussed. But they are never brought together to make a case for the prohibition of automobiles. There was a time, early in the history of the industry, when widespread public antipathy to the motor car was manifest. Juries were merciless; speed laws were oppressive and ill adapted to the mechanical needs of automobile operation. The expression “joyriding” threatened to take on a meaning conveying reproach. Many a teamster cursed the horseless carriage with a full heart. The farmer whose chickens were run over boiled with rage. But this attitude of hostility died down rapidly because [p.166] the automobile paid its way, the law was intelligently developed to discourage abuses but to encourage rightful use of the new invention, and a large automobile-owning public appeared. A way was found to maintain responsible driving.
The importance of identifying car and driver in order that responsibility for damage might be fixed led early to the visible license plate. For a long time it was assumed that anyone who owned a car was likely to be wealthy enough to pay compensation for any damage he might do, but when this ceased to be true, legislatures began to study projects for compulsory public liability insurance. Since the automobile owners were using the roads heavily, and demanding more and better roads, taxation was devised by which they could pay for what they wanted. As the increased weight of traffic on the roads and the improved condition of the roads created serious traffic problems, these were studied without prejudice. The old principle that safe driving was necessarily slow driving was discarded, and it was found that on certain [p.167] highways the slow driver, not the fast one, was the dangerous man. The common sense distinction between the careful driver and the negligent one had received all along its due legal recognition; the former was protected and the latter mercilessly subjected to civil and criminal penalties. The system of licensing drivers was introduced in order that persons unable to drive safely might be kept off the roads. Systems of car inspection are now being worked out which will diminish the risk of accidents due to bad mechanical conditions in a car. The technique of traffic control is being mechanized and standardized, traffic signals are becoming better known, and the relative rights of those who wish to park their cars beside the road and those who wish to keep a broad highway clear are being adjusted on principles of maximum social good. Legislation keeps in touch with enforcement possibilities, and both are in harmony with the system of civil-law liability. The driver who has no accident and violates no traffic rule is never asked about his driver’s license. The man [p.168] who suffers damage while driving on the wrong side of the road prejudices his right to collect compensation. The most serious criminal offense is the failure to stop after an accident, for the hit-and-run driver is escaping from civil liability for his conduct. There is constant experiment with automobile regulation; public opinion provides a continuous flood of criticism; the law never becomes committed blindly to a dogma. This branch of our law is a living and growing thing which adapts itself to its environment; the liquor law, on the contrary, is dead.
The Principles of a Living System of Liquor Law.
A living system of liquor law could grow from very modest beginnings. As in the case of the automotive industry, the attempt might be made to make the industry pay its way. This attempt, consistently followed, would lead to the evolution of a whole system of law, a few elements of which it will be possible to suggest by way of prophecy. There is no need for a special and exceptional [p.169] theory of liquor control; it is necessary rather to cease thinking of liquor as a special and exceptional subject, and to make a thoroughly competent attempt to apply to liquor the principles of human relationship which are found throughout our legal system.
To be subject to abuse as well as to innocent use is so common to material things that the peculiar problems of liquor control do not derive from this aspect of the nature of liquor. The peculiarity about liquor is rather that the damage which results from its abuse is not easily indemnified. The man who uses liquor to the harm of another person is often unable to make good the damage. If the injury is done to a member of his family, then it is impossible for him to make amends by paying for the damage, for that is only robbing Peter to pay Paul. Sometimes the essence of the grievance is poverty induced by drunkenness, in which case no indemnity can be found so long as there is only the pauper to pay it. Therefore, just as recourse in industrial accidents has [p.170] been shifted from the “fellow servant” who actually causes the accident to the employer who is actually innocent, so in liquor law, recourse for damage done must be shifted from the drinker to the dealer in liquor.
To shift the incidence of liability from drinker to dealer is the first step in applying ordinary principles of civil justice to the problem of liquor control. It is necessary, of course, to make sure that the dealer will be solvent, and able to indemnify any damage done by his liquor. And beyond that a special type of control is demanded, comparable to the licensing of automobiles and drivers. For it will be necessary to establish such a definite connection between a particular drinker and a particular dealer that the procedure of finding the dealer responsible for any item of damage will be simple and direct.
If we, then, pick up the old civil-damage laws where they were left by public indifference a generation ago, the next step in their development is marked out for us. The liability placed upon the [p.171] seller must be made effective. As to how it can be made effective, the history of the automobile industry suggests the end, and the organization of the liquor business under the Volstead Act foreshadows the means.
In the history of our civilization the theme is recurrent that a doomed institution, in fulfilling the conditions of its own inner development, prepares for the new institution which will take its place. Feudal society created the condition which made democracy possible, just as tribal society had created the conditions that made feudalism possible. The ponderous trend of history seems to move toward its destiny with complete contempt for our shouting and explaining and theorizing. The First French Republic, while sputtering its hatred of monarchs, carried France forward in the thoroughly monarchical policies of internal centralization and foreign expansion for which the monarchs themselves had striven. One of the greatest of modern economic historians1 believes [p.172] that negro slavery in the South would have developed naturally, without the intervention of violent abolitionist action, into the same system of semi-serfdom by negro renters, share-farmers and farm laborers in which the contemporary South has brought its agrarian economy to equilibrium. The movements of industrial expansion, consolidation and super-organization which are directed in America from Wall Street, in Russia from the Kremlin, shout out against each other as if they were mortal enemies. The time may come when we will regard them as two examples of the same trend which worked out their common destiny together, regardless of the system of names by which men chose to call them.
The development of the liquor industry under the Prohibition regime assumes from this standpoint a curious aspect. It seems to have been preparing itself for control by civil-damage actions, even while the shouting on both sides ignored the civil-damage principle entirely. The legal and illegal branches of the liquor industry [p.173] developed parallel systems of registration and control, tightening the nexus between buyer and seller. The lawful dealer in liquor made his register of sales and customers in compliance with the Volstead Act; the illicit dealer kept his list and scrutinized his customers carefully to avoid undercover agents. The lawful purchaser got a permit or a doctor’s prescription; the illicit buyer had a bootlegger’s card. The net result in both cases was to set up the very type of machinery of administration which the principle of civil damage, developing without the interference of Prohibition agitation would have been required to create. Perhaps there is a subtle destiny which, in ruling that the clear definition of rights must precede their effective protection, mocks the plans of Wets and Drys alike.
The Drinkers’ Registration and the Dealer’s Bond.
A system of responsible drinking could begin with the equipment already in existence: the civil-damage laws on the statute books, the arrange[p.174]ment for the bonding and for the guaranteed financial responsibility of liquor dealers under the revenue laws, and the registration devices worked out under the permissive section of the Volstead Act and in the informal folkways which govern the relation of bootleggers and patrons. These elements need not be invented; they require only to be combined and standardized in a registration system with the double object of making possible the tracing of any liquor damage to some definite dealer, and assuring the ability of the dealer to pay for the damage caused.
Liquor registration cards would be issued ordinarily to any adult. Under the present system a man who wants liquor gets a special kind of permit or introduction for every type of use. For manufacturing, a permit from the Prohibition administrator, for medicine, a prescription from a physician, for drinking at a party, an introduction to a good bootlegger. The procedure in establishing relations with a bootlegger is not standardized, and is usually quite as simple as the proce[p.175]dure in establishing relations with a bank. One receives a number or a signed card or has his name entered in a book. The procedure under the Prohibition administration on the contrary is quite complex. The following rules are quoted from Page 69 of Treasury Department Regulations No. 3, issue of 1927:
If the application is approved by the administrator he will endorse his approval on three copies of form 1447 and before issuance of permit, will forward such copies, with reports of investigating officers, all supporting documentary evidence submitted with the application and the duplicate bond, to the commissioner, except in case of renewal of permits now outstanding. The fourth copy of Form 1447 will be retained by the administrator to be used for preparing verified copy for transportation purposes. …
(The purchaser is still a long way from having his alcohol even when he has the verified copy of Form 1447.)
The effect of standardizing registrations would be to increase somewhat the formality of the regis[p.176]tration of the beverage purchaser, and to simplify some of the rigmarole which the purchaser for other purposes must go through. The issuing of cards and registering of names, instead of being divided between bootleggers and government officials, would be concentrated in the hands of the officials.
The prospective purchasers of beverage liquor, in accordance with established customs, would naturally get themselves introduced to liquor dealers. The liquor dealers would be hesitant to sell to strangers, for reasons which will presently appear.
The dealers, on their part, would also combine the two present systems of organization and discipline into one. There is at present one class of liquor dealers heavily bonded, registered by the government, and kept in line by the threat of revocation of license. The other class of dealers, especially in the cities, participate in an underground organization which is more highly disciplined in some respects than legitimate industry. [p.177] The penalties for disregard of the rules are often more severe in the illicit organization than in the legal one. The non-conforming bootlegger may lose his protection and go to jail, or he may be “taken for a ride.” A unified registration system covering both the industrial and beverage industries, and under the control of the government, would divert to more socially useful channels the sums now paid for racketeering and graft.
Then these two registration systems, of dealers on the one hand and drinkers on the other, must be coordinated. Two devices for coordination suggest themselves. One of them resembles the method used in controlling the retailing of poisons: every purchase must be recorded and signed for in the dealer’s register. This is the system used in the industrial alcohol business under the Volstead Act. The other device resembles the method used in banking operations: each drinker has a definitely established connection with a dealer who knows and trusts him. The mutual confidence developed between bootlegger and drinker, in which [p.178] the seller trusts the customer not to betray him, and the buyer trusts the bootlegger not to poison him, resembles somewhat the relationship of confidence necessary in financial operations. Whether the coordination of the registration of purchaser and dealer is to be patterned on the example of the legitimate or illicit trade is of no consequence, provided the end is obtained that for every liquor purchase there is some definitely responsible and solvent sponsor able to pay for all the damage the liquor may do, and provided that the procedure for establishing this responsibility be simple and direct.
The categories of damage for which the liquor dealers will be held liable can begin with those which are set forth in the existing civil-damage laws. They might properly be extended to cover damages in the moral and psychological category. The statutory rates of damage should be high enough to render the actual pursuit of the rights of aggrieved parties a practicable and even a profitable undertaking, and to make the avoidance of [p.179] damage suits the first endeavor of the liquor dealer. The most prosperous dealer would be the one who had the fewest claims against him; it would hardly be a sound business policy for him to take money from men whose families were suffering for lack of it, or to sell liquor to a person likely to get drunk, or to sell to minors. A good method for working out the categories of damage would be the following: take a package of propaganda literature of the Anti-Saloon League and an equal package of the literature of the Association Against the Prohibition Amendment. Make from the Anti-Saloon League literature a list of all the types of damage alleged to be caused to innocent parties by drinking in the saloon, and from the other literature a list of all the types of damage which are said to result directly from drinking under Prohibition. These two lists would be the basis of the statutory schedule of indemnification. To keep the law nicely adjusted to its purpose, both as to matters of substance and matters of procedure, would be a problem requiring constant [p.180] study and experiment. The result would be a healthy growth of a sound legislation which would not only conform to the convictions of the mass of the people, but would create vested interests committed to its perpetuation and development.
There would certainly spring up a whole race of rascals who would endeavor by various frauds and wiles to create fictitious rights of action against liquor dealers, just as accident sharks make money by suing traction companies. The liquor-dealers would protect themselves against these tricksters in exactly the same way that speakeasies protect themselves against prohibition agents, or grocers against bad credit accounts. Such a situation might render it as hard for a stranger in a town to buy liquor as it is for him now to cash a check. The situation would, in this respect, be a new adaptation of the one with which we are already familiar: that scoundrels assist in the enforcement of the law. The activities of these “confidence” men would render the running of the old-fashioned open-house saloon both risky and unprofitable. [p.181]
The inconvenience resulting from the registration requirements would sit lightly upon people who were in their own communities, but would become galling to the traveler. The principles of the modest proposal indicate, however, that anyone willing and able to pay all the costs that may result from his conduct should be permitted to assume the risks of his drinking, and to relieve the dealer of liability. The method used might well be the posting of a bond to cover the dealer for all costs arising under the civil-damage laws. A certificate not unlike a letter of credit could be issued upon this bond, increasing the drinking freedom of those who were able to pay for it. This is a perfectly logical element of the plan, because the only reason for shifting the incidence of the liability from drinker to dealer was the imputed inability of the drinker to pay. The regime would thus prolong indefinitely into the future the advantages in drinking which wealth confers at present. The difference would be that whereas under the present system wealth enables a man [p.182] more effectively to evade the law, in the future it would enable him more effectively to comply with it.
The problem of enforcement under these conditions would be primarily the problem presented when some damage recognized as such in the statutory schedule should result from drinking, and yet there should be no way of tracing the damage to its source. The logic of the system would require that even in such a case the injured parties should be indemnified, possibly at the charge of a fund maintained by the whole liquor industry. But such cases of untraceable damage could not occur except where there had been an evasion of the registration laws. And such evasions would be penalized, whether drinker or dealer were the guilty party.
Certainly there will be bootleggers and blind pigs just as there were in the old days of the licensed saloon, and just as there are under Prohibition. But they will be more easily dealt with than they were in the old days because of the [p.183] double segregation of legitimate from illegitimate drinker as well as legitimate from illegitimate dealer. Public opinion will defend neither the drinking rights of those who cannot drink responsibly, nor the selling rights of those who seek to evade ordinary civil liability for damage. The energies of the police will be focussed upon that part of the drink problem which really requires police attention, namely, the noxious conduct of the intemperate drinker and the irresponsible dealer.
The profit in bootlegging will be ruinously reduced. The responsible and legitimate dealer, with his register of patrons, his sales book and his bond for the satisfaction of claims against him, will have the most profitable and valuable trade. And if irresponsible retailers spring up to peddle liquor to people whom no responsible dealer would trust with it, their course will be more difficult than that which lies before the present day bootlegger. They will have no rich clientele. If any of their patrons become drunk or cause damage, they are likely to [p.184] be discovered and punished. The wholesalers will not only refuse them supplies, but will try to run them out of business because every damage claim which arises out of unregistered drinking will be levied upon the industry as a whole. Not only will they lack the support of public opinion, but they will have no access to “important money,” and no cooperation from the large-scale industry.
“Enforcement” and Possible Development toward Limited Prohibition.
It is at this point that the police power enters the scene. It gives its aid to the maintenance of discipline in the liquor industry, and serves the most wealthy branch of the industry, as at present. But it will be acting within the law rather than contrary to it. The unregistered and illicit dealer would occupy in the trade the uncomfortable position of a speakeasy proprietor who has not seen the right people or paid the right protection.
The enforcement of the registration of drinkers [p.185] would resemble the enforcement of the laws requiring drivers’ licences. There would be no prowling breath-smellers asking people to show their papers. But if something should happen calling for police protection, and liquor should be involved in any way, the normal thing would be to ask for the display of one’s drinking license. When the neighbors call the police to quiet a party, or when there is an accident on the street and someone involved has liquor on his breath, or a complaint comes into headquarters about disorderly conduct, then the drinker who has not registered will find himself in trouble. If a drinker should be unregistered for the whole length of his life, but should never cause any harm to any other person by his drinking, nor become involved in any incident of disorder, the evasion of the registration law would not defeat the general purpose of liquor regulation. The total abstainer would not need to trouble himself about the regime; the moderate drinker would prudently provide himself with a card as a protection against annoyance if [p.186] occasion should arise for its production. The toper would find the regime an inconvenience, just as the reckless driver regrets the existence of the driving license system.
Police interference to prevent unregistered drinking would be in the background of the liquor policy; the pressure of ordinary business interest would be in the foreground. This is the same kind of restraint that makes it difficult for the man without money in the bank to cash a check. The police stand ready to arrest him for forgery if he succeeds in cashing it. This may be an effective deterrent. But even more effective is the unwillingness of people with money to advance it in large amounts to unknown persons upon a personal check. A stranger to our civilization who should see someone make a purchase and sign a check for it might wonder how restrictions could be invented to keep anyone from signing and negotiating checks of any amount whatsoever. The forger’s ability to cash a check is limited primarily by the financial and economic system and only in [p.187] the second place by the activities of the police. So also the most effective limitation upon the purchase of liquor by drunkards would be the establishment of a system which made it profitable to sell to moderate drinkers, and costly to sell to drunkards. Toward the creation of such a system the civil-damage laws point the way.
If, then, at some future time it should be desired to introduce the principle of direct police supervision over the conduct of drunkards, the drinker’s register would serve as a starting point for such an enterprise. The revocation of permits could be imposed as a consequence of misuse of liquor. The distinction could then be made systematically in criminal law between noxious and innocent uses of liquor, and between the moderate drinker and the toper. Such a police regime would tend to develop toward Prohibition for some persons, but not for all.
The principle that the government may discriminate between its citizens, extending to some civil rights which it denies to others, is already [p.188] practiced in many departments of political life. The permission to carry firearms is regularly controlled by the State in such a way as to deny permits to those who, in the opinion of the authorities, would make wrongful use of their weapons. The regime governing the issue of automobile and aeroplane operators’ licenses is intended to protect the public from unskilful drivers. The only objections to the extension of this principle are administrative difficulties, not political principles.
If the State possessed the administrative machinery to carry its desires into effect, there is almost no limit to the use that might be made of the principle of the legal distinction between the qualified and unqualified person. The censorship problem would disappear if it were possible to give prospective readers a purity test. A man who wanted to read Candide or The Decameron would have only to provide himself with the necessary credentials. This regime is already in existence with respect to certain classes of books sold only to doctors and lawyers. There are some who argue [p.189] that intelligence tests, aptitude tests, and perhaps sanity tests should be more generally given, so that it would be possible for the average citizen to prove by documentary evidence his intelligence or sanity. Certainly the capacity test for drinkers would be a useful addition to the list of legally established inequalities before the law. And the system of responsible drinking would in fact operate as a capacity test, which could be utilized for police purposes. The system of responsible drinking is not essentially police-controlled except in its registration features, but it offers the prospect of developing the basis of a reasonable type of police control if the evolution of the legal system should come to require it.
If the development of direct police intervention in drinking should happen to take the road toward partial Prohibition, it would find the traces of earlier legislation along the way. For the liquor regulation policies of colonial times, insofar as they concerned themselves with the problem of drunkenness, were invariably based upon distinc[p.190]tions of persons. In colonial Boston it was against the law for the innkeeper to sell to a toper, and for the toper to buy. Prohibition against the sale to Indians, one of the few relics of the older type of legislation that has survived, was a common regulation in colonial times, and is still a Federal law. Prohibitions were also directed against the buying of liquor by apprentices or slaves without the permission of the master. This type of prohibitory law was undermined in the movement toward equality of rights of which Jacksonian Democracy marks one crisis, and the Emancipation Proclamation another. The present intent of some of the nullifiers of the Prohibition law, and the probable intent of some of the voters and legislators who passed it, was to reproduce a control of this type. There is a difference, however, between restrictions based on class distinctions and restriction based on individual qualification. Responsible drinking, if it ultimately develops into a type of limited Prohibition, will be more consistent with equalitarian ideals than were the old laws against liquor-pur[p.191]chase by apprentices, indentured laborers and slaves.
Any liquor regime, Wet or Dry, which makes no distinction between competent and incompetent drinkers creates a legitimate grievance in one or another element of the population. The grievances so created are sufficiently important to account for the instability of Wet and Dry regimes alike. Prohibition wrongs those who know how to use liquor without abusing it, while anti-Prohibition, as at present proposed, wrongs those who suffer from the abuse of liquor. If everyone were temperate in the use of liquor, or if everyone injured his fellowmen by over-indulgence whenever given the chance, there would be an underlying rationality in the Wet and Dry regime which would sooner or later win general consent. The principle that men as drinkers are equal is as baneful a fiction as the notion that liquor can be “intoxicating” in itself, regardless of its use. is the first step in making the distinction between men as drinkers. It is most easily conceived as a system [p.192] of law which depends primarily upon litigation for enforcement. And if there ensues a utilization of police power for the further protection of rights which litigation will have defined, then liquor control will be but following the beaten path marked out by the normal growth of every branch of jurisprudence.
The Hope of Ending Controversy.
If as a system of liquor control is to commend itself to the sound sense of the country, it must offer the prospect of quieting agitation on both sides, and of leaving the people free to devote their constructive political energies to more important matters. To accomplish this necessary stabilization, it must promise so effectively to put an end to grievances that the conscience of the country will accept its results. The psychic energy which is now given so prodigally to the campaign for and against Prohibition must be diverted to a more constructive channel, where well intentioned efforts will accomplish positive re[p.193]suits, and give rise not merely to countervailing movements, so that the two forces cancel each other.
What are the existing grievances on both sides of the liquor question? They are divided into two classes: those arising from suffering directly experienced under the Dry regime on one hand or because of the saloon on the other and, second, those inflated grievances which are developed by both sides as part of the technique of political agitation, and which are magnified by the method of tracing indirect causal sequences. By making use of this method the most extravagantly evil consequences can be attributed to liquor on the one hand, and to Prohibition on the other.
Just as the Anti-Saloon League used to hold the saloon responsible every time a girl “went wrong,” or a man deserted his family, or a family was reduced to poverty, or a boy went to jail, so now the Wets try to hold Prohibition responsible for these same things. The Wets declare that Prohibition is the cause of the crime wave and of racketeering, just as the Drys used to declare that [p.194] the saloon was the cause of crime and political corruption. Both types of complaint involve exaggerations which deprive them of all but propagandist value.
As typical illustrations of this tracing of indirect consequences it is worth analyzing two of the principal arguments of this type, one of the Wets, the other of the Drys.
The Wets claim that Prohibition has increased criminality. This is true, of course, to the extent that a new class of crimes has been created. But the idea that a general contempt for government and law has resulted from the Prohibition enforcement situation is an error in reading the thought of the people. There has already been occasion to explain (in Chapter III) the fact that people do not transfer their attitude toward Prohibition to other laws; they distinguish very consciously between the laws they respect and those they ignore. The racketeering technique, conspicuous as a means of discipline in the illicit liquor trade, actually evolved in the building trades before Pro[p.195]hibition, and extends itself today to fields totally unconnected with liquor. Political corruption in the last few years has smelt at least as strongly of oil as of alcohol.
A typical prohibitionist “long-range” argument runs to the effect that liquor is incompatible with the Machine Age. This dictum has the same dogmatic appeal that attaches to Mr. McBride’s view that Prohibition expresses the Divine Will. It is impossible to prove and difficult to test. But such tests as we have available throw doubt upon it. With respect to the relation of liquor and industrialization we have what we call a “control,” namely, certain highly industrialized countries which permit liquor. The large scale economic phenomena, such as business cycles, trends toward consolidation, variations in price level, displacement of hand labor by machinery, or the phenomenon of over-production, manifest themselves in the different countries of the world without any notable correlation between prosperity and liquor regime. [p.196]
In America itself, the areas which are most definitely committed to Prohibition, and in which the Prohibition regime has come to be most effective, are the very areas which are least touched by industrialization, namely the countryside and the small towns. The 1918 Wet-Dry map indicates clearly that the most highly industrialized areas were precisely the ones least willing to ban liquor. If industrialization compel Prohibition as its necessary consequence, and the liquor industry were a correlate of rural life, then we should expect to see the great urban industrial centers forcing Prohibition upon a reluctant and rebellious area of farms and villages as excise taxation was forced upon the mountaineers, or the industrial tariff on the middle western farmers. Henry Ford declares that the manufacture of automobiles is incompatible with a liquor regime, and Anti-Saloon League literature argues that the use of automobiles means Prohibition as its inevitable corollary. But actually Ford’s foreign factories function without the aid of Prohibition, and the center of the automo[p.197]bile trade is so far from being Dry at the present time that the Supreme Court, in Carrol & Kiro vs. U. S. (267 U. S. 132) took judicial notice of the fact that Detroit is “one of the most active centers of the illicit liquor trade,” and the U. S. Circuit Court in a Detroit insurance case (Lula Anders v. Title Guaranty and Casualty Co.) ruled that a speakeasy is not a place of peril, and took judicial notice that “prohibition in law is not prohibition in fact” and that liquor is served “not only in blind pigs and kindred establishments, but that it is also at times illegally possessed, served and consumed in almost every sort of place where human beings foregather in the large cities of this country, with the exception possibly of religious edifices, court rooms, cemeteries, school-rooms, prisons, reformatories and W. C. T. U. headquarters.”
These arguments, intended to establish the indirect evils of the saloon or of Prohibition, belong at the present state of our knowledge to the domain of rhetoric rather than to the domain of science. They contain an intrinsic fallacy which [p.198] in social thinking is the mark of the crank and the agitator. They assume that there is only one significant variable in the total social and economic situation, and that all changes can be referred back to that variable. Of course, the fact is that organized society shows a multiplicity of variables and a reciprocity of causes and effects. For this very reason the crank can always establish a connection between his own little pet cause and a great budget of vast effects. The same thing will be treated by one agitator as a cause, by another as an effect. The Prohibitionist says abuse of liquor causes poverty; the socialist says poverty causes the abuse of liquor. Both are right. One reformer will ascribe all significant evils to capitalism, another will attribute them to irreligion, another will maintain that they result from immigration, others will blame them upon defects of the educational system. It is because the forces at play in society are so infinitely interrelated that cranks are able to make out plausible cases for the wide ramification of some particular evil which [p.199] seems to them of transcendent importance.
But when they come to evaluate results of their pet reform, they forget the complexity of this interrelation of forces in society. The prohibitionist argument that prosperity is due to Prohibition carries to the limit of absurdity this ridiculous parody of science. Speculation as to the indirect grievances arising out of Prohibition, or resulting from the liquor traffic, is not sufficiently well grounded in exact information to make it worthy of consideration as a basis for sound statesmanship.
But with direct damages it is otherwise. No speculative theses are required to prove that the man who is in jail on a Prohibition conviction is a criminal because of Prohibition; no far-fetched analogies or strained statistics are needed to demonstrate that the man who wants good liquor, and gets poisoned liquor, bad liquor, or no liquor, is directly affected by the Dry regime. No devious chains of causation need be traced in order to show that a wife whose husband is squandering [p.200] in a saloon the money needed by his family (and any individuals injured in comparable ways) has a direct and legitimate grievance against the liquor industry. If we can contrive a regime which will allay these direct, individual grievances against Prohibition on one hand and the saloon on the other, the indirect and speculative grievances would probably be insufficient to maintain a political cause.
It is a peculiarity of the Prohibition regime that it seems to be concerned much more definitely with the indirect than with the direct grievances arising from the liquor problem.
What can the regime offer to meet the complaints of the moderate drinker? It can only express the hope that it can educate him toward total abstinence. If it could so educate him, the grievance would disappear. But the argument against moderate drinking cannot make its way against the resistance offered. The attempt is made to prove that moderate drinking is harmful to the drinker, but it is impossible to make out a [p.201] conclusive case to this end except by ignoring the aesthetic side of life. There is also cited the exhortation to self-sacrifice according to the teaching of St. Paul that “if meat causeth my brother to offend I will eat no flesh while the world standeth lest it cause my brother to offend.” But there is not enough of the saintly spirit in America to make the benevolent program of St. Paul a practicable one. The argument that total abstinence is imposed by the Machine Age, and not by the whim of faction or party, is ineffective, because the Machine Age itself delivers its verdict ambiguously. It puts its slaves to a nervous strain which, for all we know, may create an urgent need for strong stimulants, artificiality in the environment calling for artificiality in the diet. It may be that this nervous strain, which the bucolic peasants do not know, accounts for the stubborn resistance which liquor offers to the efforts made to eradicate it from the cities, where the seal of the Machine is most definitely set upon life. Neither the argument for self-interest, nor the [p.202] argument for charity, nor the argument of inevitability can be quite conclusively made out. But as long as the moderate drinker remains unpersuaded, his grievance will persist, and the Prohibition regime will rest upon the principle of constraint, lacking the free consent of those whose conduct it modifies.
If the direct grievances of the moderate drinker remain outstanding under Prohibition, what is to be said of the direct complaints of those who are injured by the liquor industry? An example of the kind of satisfaction which the sufferers from liquor get under Prohibition is given in a monograph published by Prohibition Commissioner Doran on June 1, 1930, explaining the difficulties of enforcement in cities. It appears from his statement that in New York “there come to the Prohibition administrator’s office daily many complaints made by citizens of liquor-law violations and the resulting nuisances . . . they are investigated by the Federal investigators as rapidly as possible. There are only eight investigators in [p.203] the local office, and much of their time is spent on the larger phases of the work.” The following is a sample of the letters sent to the Prohibition Administrator:
Dec. 28, 1929.
Dear Sir:
I am notifying you of a place at [address withheld], between Second and Third avenue. The name of the owner is ……; he also has a partner, but I can’t recall his name. In this place he keeps a boarding house and a gambling house.
He has thirty barrels of whisky and he has a cellar rented right up next to the store at …. East Thirty-Ninth St. where he keeps the wine. He sells this wine to the men that go there. The whisky he keeps in the kitchen in the closets and other places.
He was arrested and put under bail once before for keeping this speakeasy, but that doesn’t seem to bother him at all. When you go there do not let him bulldoze you about this place. I know what is going on, as I am a married woman with five children and he takes my husband away from home so as to go there and gamble his pay and drink.
So I made up my mind that this had to stop, as [p.204] I can hardly afford to buy a piece of bread for my children. He sells wine and whisky from morning till night. . .2
This is not an unusual situation under the present regime. It is exactly the condition that Prohibition was intended to prevent, but by extreme indirection. Of the 168 men on the New York Prohibition Administrator’s force, the great majority are at work trying to stop large scale operations in liquor, some of which is destined to be used without damaging any innocent parties, and some of which is going into “joints” such as the one described in this letter. What direct remedy does this poor woman have? The administrator turns a photostat copy of her complaint over to the New York City police. The police department returns it to him without comment, and takes no action. His eight investigators may ultimately be able to spare enough time from other work to make this investigation. They may arrest the owner and his partner once more, and put him “under bail,” but there will still be doubt whether it “will [p.205] seem to bother him at all.” If they jail him, seize his liquor and close the speakeasy, the complainant’s husband will have no difficulty in finding another speakeasy in the same block. To remedy this grievance by the Prohibition method you must dry up New York, and even then you are giving the sufferer no indemnity for her wrongs. Prohibition is a policy of all or nothing.
If liquor control legislation had developed along the line of responsible drinking, this woman could appeal to some legal aid society, or make an arrangement with a lawyer, even a shyster or an ambulance chaser, and then, on the facts as given above, obtain from the owner of the speakeasy, or his partner, or the proprietor of the premises upon which it is situated, or as a last resort from the indemnity fund of the New York liquor industry, enough money to buy bread for her five children for a year.
Incredibly, the Prohibition leaders have never sought to organize effective relief on the litigation level. The slur which Emmet McBride cast upon his brother, F. Scott McBride of the Anti-Saloon [p.206] League, “He has no lively conscience against the evils of the liquor traffic and little heart interest for those who suffer from drink,”3 characterizes the result if not the intention, of the Prohibition policy itself. The policy reaches out toward distant and obscure objectives, not being concerned with the objects which are more immediate and clearer. It seeks to remedy indirect and far-fetched evils, and leaves the direct, individual grievances without a remedy. This fact accounts for the exasperation of those who complain, seemingly against their real interests as drinkers, that they object to Prohibition because it doesn’t prohibit. Neither the grievances of the moderate drinkers nor of the sufferers from intemperance are allayed by the Prohibition system. Under the system of the moderate drinkers would be satisfied at once, and those injured by liquor would be able to obtain a focussing of attention upon their interests and adequate indemnities for their injuries. [p.207]
Reforming the Prohibitionist.
Responsible drinking, by its sheer directness and simplicity, offers a prospect of ending the immediate evils of drink. This is the sine qua non of any adequate liquor policy. The failure to meet this requirement condemns alike National Prohibition and the anti-Prohibition policies which are opposed to it. But would the elimination of the direct evils of drink end the Prohibition agitation? Is the Dry movement sufficiently a product of reason that it can be expected to die down when its reasonable demands are met? If it has enough psychological momentum it can run on without the impulsion of a serious grievance against liquor. The passions inherited from its own history may be sufficient to stimulate it from within even when no open saloons stand at the street corners to stimulate it from without. It may continue to incite agitation over phrases and slogans even when the phrases have become hollow and the slogans out of date. There are some as[p.208]pects of the Prohibition movement which must be explained and controlled psychologically rather than logically. The existence of the movement is a psychological fact, to be taken into account quite independently of the just grievances out of which it arose. Therefore, a liquor control scheme which would end liquor agitation and put the whole question on the shelf must do more than reform the drinker and the dealer; it must reform the prohibitionist as well.
What is meant by reforming a Prohibitionist? Merely to cause him to drink is not to reform him. It is plausibly asserted that many prohibitionists are already clandestine drinkers. The attempt to bring them to change their public profession would only stir up needless and bitter opposition. Equally vain would be the attempt to bring them to assume a broad attitude of tolerance. It is just as hard to get the Prohibitionist to imitate the tolerance of Jesus as it is to get the moderate drinkers to imitate the self-sacrificing abstinence of St. Paul. The true attitude of tolerance is something in the fibre [p.209] of a personality that is not easily counterfeited under the pressure of persuasion. To reform the Prohibitionists is not to annihilate them; their characteristic antipathy and intolerance may remain with them. But this attitude may be redirected, and the corresponding energies rechanneled, so that they are more constructively engaged than at present. It is one of the curious qualities of the scheme of that it invites this redirection of the psychic force of Prohibitionism by offering to the anti-liquor campaigners important and remunerative posts in the liquor control scheme.
For there is room in the system of responsible drinking for strong anti-liquor associations which will make it their business to help sufferers from drink in litigation against the liquor industry. Such associations might well be exempted from the law of barretry and permitted to solicit business. The connection of the organization with the government might continue to be no less intimate than it is at present, but with this difference: whereas [p.210] the Anti-Saloon League at present spends its time bedeviling legislators, and tries to control the government, in the future it would spend its time attacking actual wrongdoers, and trying to serve the government. The organized anti-liquor forces should be invited to aid in the drive to make the liquor industry pay every cent of its debts. The resulting disposition of forces would be in harmony with present tendencies in government, would be helpful to those who are most in need of help, and attractive to those who must be attracted away from Prohibition campaigning if the liquor controversy is to be ended.
The place of a special protective association in the field of liquor control is marked out for it by the general development of the so-called functional organization of society, which tends to replace the omni-competent local or territorial community with a whole array of specialized associations. These groups into which are organized men of like mind or like interest over the whole national area appear in our political life not only [p.211] as the sources of pressure in lobbying, and in the making of rules or setting of standards which have within the association the force of law, but also as the commissioned enforcers of one or another part of the general legal system. The Society for the Prevention of Cruelty to Animals, the Watch and Ward Society, the American Civil Liberties Union, are conspicuous instances of a type of organization which is becoming more and more common in government. The modern police force is itself highly specialized, with its traffic squad, which cooperates with the Automobile Association, and its homicide squad, which cooperates with the gangsters. It would not greatly strain our imagination to picture a regime in which the duty of preserving and enforcing the whole legal system of the country would be divided on the basis of interests rather than on a local and territorial basis.
This type of activity could be made irresistibly attractive to the paid personnel of the Anti-Saloon and Prohibition organizations. It would be a [p.212] lucrative type of social work, involving ample opportunities for entering into the affairs of other people, and for inducing others to adopt one’s own standard of conduct. The administration of drinking permits would make it possible for the Anti-Liquor Organization to invoke directly against city drunkards the kind of individual surveillance which under present conditions is effective only in the small towns. The law controlling the dealers would be enforced, like most civil laws, at the expense of the dealers themselves. The consequent contact with a definite source of income of this character would not appear to the professional agitators as a drawback, but might even seem to be an advantage.
While the anti-liquor group would be able to strike much more effectively than at present at noxious uses of liquor, it would have a benign as well as a grim aspect. For, as a part of its ordinary routine of business, it would be a Lady Bountiful. It would dispense charity at the expense of its enemy, the liquor industry, thus win[p.213]ning friends with subsidies taken from its foes. In the charity system of the modern city it would fill a long-felt want: it would be the only charitable organization which would prefer the undeserving to the deserving poor. Wives such as those who under the present system can appeal only to have speakeasies closed could then obtain tangible and adequate protection for their rights. By the time the Prohibition movement had lost those of its members who were concerned about the real, and not the fanciful evils of drink, and had then suffered the further loss of those who would be drawn into the new type of liquor control work, there would not be enough membership left to maintain a significant agitation. Prohibition, with its reasonable followers converted away from it, and its prejudiced followers diverted to another use of their passions, would be no more effective a disturbing factor in the political system than vegetarianism of today.
It is not unreasonable to look forward to an equally significant redirection of energy on the [p.214] part of the drinker. The moderate drinkers have great responsibilities which they will be in a position to fulfil only when the crude protection of the right to drink no longer occupies the forefront of their thought. There are accessible in contemporary America many elements which can be combined to give liquor a place of beauty and dignity in American civilization, comparable to that which wine holds in the better circles of French society. The avoidance of inebriety – the supreme aim of temperance movements – is only the beginning of the discipline which invites development. Never was there a society more sensitive than American society of today to leadership in matters of taste and form. Never was there a continent more thoroughly equipped with the apparatus of cultural contact – radio, magazine, newspaper and movie. There is an evident yearning toward improving the tone of life, evidenced by the unparalleled college enrollment at one end of the scale, and by the success of snob advertising at the other. Much of the leadership that America receives in matters [p.215] of taste and art is far below the level to which the people are entitled by their energy and enthusiasm for new and good things. When we have banished liquor as a problem of politics, we will receive it back as a problem of art, a thing to be fitted to the ritual and rhythm of our national life. I do not doubt that in this enterprise adequate leadership will be found, and sane attitudes toward liquor will come to prevail.