What Prohibition Has Done to America | Page 2

part of the original instrument, the amendments just referred to are the only ones that had been adopted prior to the Eighteenth; and it happens that these amendments--the Sixteenth, the Seventeenth, and the group comprising the Thirteenth, Fourteenth and Fifteenth--deal respectively with the three kinds of things with which the Constitution was originally, and is legitimately, concerned: the division of powers between the Federal and the State governments, the structure of the Federal government itself, the safeguarding of the fundamental rights of American citizens.
One of the gravest indictments against the Eighteenth Amendment is that it has struck a deadly blow at the heart of our Federal system, the principle of local self-government. How sound that indictment is, how profound the injury which National Prohibition inflicted upon the States as self-governing entities, will be considered in a subsequent chapter. At this point we are concerned with an objection even more vital and more conclusive.
Upon the question of centralization or decentralization, of Federal power or State autonomy, there is room for rational difference of opinion. But upon the question whether a regulation prescribing the personal habits of individuals forms a proper part of the Constitution of a great nation there is no room whatever for rational difference of opinion. Whether Prohibition is right or wrong, wise or unwise, all sides are agreed that it is a denial of personal liberty. Prohibitionists maintain that the denial is justified, like other restraints upon personal liberty to which we all assent; anti-prohibitionists maintain that this denial of personal liberty is of a vitally different nature from those to which we all assent. That it is a denial of personal liberty is undisputed; and the point with which we are at this moment concerned is that to entrench a denial of liberty behind the mighty ramparts of our Constitution is to do precisely the opposite of what our Constitution--or any Constitution like ours--is designed to do. The Constitution withdraws certain things from the control of the majority for the time being--withdraws them from the province of ordinary legislation--for the purpose of safeguarding liberty, the Eighteenth Amendment seizes upon the mechanism designed for this purpose, and perverts it to the diametrically opposite end, that of safeguarding the denial of liberty.
All history teaches that liberty is in danger from the tyranny of majorities as well as from that of oligarchies and monarchies; accordingly the Constitution says: No mere majority, no ordinary legislative procedure, shall be competent to deprive the people of the liberty that is hereby guaranteed to them. But the Eighteenth Amendment says: No mere majority, no mere legislative procedure, shall be competent to restore to the people the liberty that is hereby taken away from them. Thus, quite apart from all questions as to the merits of Prohibition in itself, the Eighteenth Amendment is a Constitutional monstrosity. That this has not been more generally and more keenly recognized is little to the credit of the American people, and still less to the credit of the American press and of those who should be the leaders of public opinion. One circumstance may, however, be cited which tends to extenuate in some degree this glaring failure of political sense and judgment. There have long been Prohibition enactments in many of our State Constitutions, and this has made familiar and commonplace the idea of Prohibition as part of a Constitution. But our State Constitutions are not Constitutions in anything like the same sense as that which attaches to the Constitution of the United States. Most of our State Constitutions can be altered with little more difficulty than ordinary laws; the process merely takes a little more time, and offers no serious obstacle to any object earnestly desired by a substantial majority of the people of the State.
Accordingly our State Constitutions are full of a multitude of details which really belong in the ordinary domain of statute law; and nobody looks upon them as embodying that fundamental and organic law upon whose integrity and authority depends the life and safety of our institutions. The Constitution of the United States, on the other hand, is a true Constitution--concerned only with fundamentals, and guarded against change in a manner suited to the preservation of fundamentals. To put into it a regulation of personal habits, to buttress such a regulation by its safeguards, is an atrocity for which no characterization can be too severe. And it is something more than an atrocity; the Eighteenth Amendment is not only a perversion but also a degradation of the Constitution. In what precedes, the emphasis has been placed on the perversion of what was designed as a safeguard of liberty into a safeguard of the denial of liberty. But even if no issue of liberty entered into the case, an amendment that embodied a mere police