IX - THE PROPOSED ALTERNATIVES TO THE PRESENT SYSTEM
Proposals other than for going ahead substantially as things are may be considered under four heads:
(1) To repeal the Eighteenth Amendment, (2) to repeal or modify the National Prohibition Act, leaving the Eighteenth Amendment as it is, (3) to cure proved defects in the National Prohibition Act and supplemental legislation by further legislation, to go on with the development and improvement of the organization and personnel of federal enforcement, and to await results, and (4) to revise the Eighteenth Amendment.
1 - REPEAL OF THE EIGHTEENTH AMENDMENT
Herein before we have given our reasons for the conclusion that repeal of the Eighteenth Amendment is not advisable. We are convinced that it would be a step backward, that it would not conserve the achieved benefits of national prohibition, and that it would be likely to lead to conditions quite as bad as those we are seeking to escape,
2 - REPEAL OR MODIFICATION OF THE NATIONAL PROHIBITION ACT
Repeal of the National Prohibition Act would a-mount to nullification of a constitutional provision, As the efficacy of the Eighteenth Amendment depends so much upon the action of the states, it is evident that repeal of the federal statute in effect would put things back where they were before the amendment, leaving it to each state to provide such system of prohibition, or regulation, or want of regulation, as it chose, subject to the difficulty that any system of state regulation must not be in conflict with the federal Constitution. Thus, as a practical matter, the states would be left to choose between state prohibition, state hands-off and a free traffic, or a camouflaged state regulation, not subject to attack as in conflict with the Eighteenth Amendment, and yet effectively substituting the regime which the amendment is designed to supersede. The bad features and bad possibilities involved in such a course are manifest. In our opinion it is even less to be thought of than repeal of the amendment. It would not be honest.
Many plans have been submitted for modification of the National Prohibition Act so as to permit the manufacture and sale of beer of an alcoholic content of not more than 2.75 per cent. by volume, and of licht wines. There is much evidence that beer of this content may reasonably be pronounced not intoxicating. Undoubtedly, within considerable limits. the definition of intoxicating is a legislative question. Hence, there are no serious constitutional difficulties in the way of such a modification. It has been urged strongly by the American Federation of Labor and otlier organizations, and has been presented to us with much ability. Undoubtedly the fixing of the alcoholic content of intoxicating liquor at one-hialf of one per cent. went much beyond the facts and has been a source of resentment on the part of many men who have felt that the proviso in Section 29, apparently allowing home making of wine of much higher content -while forbiddance the making of beer -was an unfair discrimination. But important as it would be to allay this resentment, we think the disadvantages of the proposal outweigh that advantage and such advantage as would be, derived from taking the making and distribution of beer out of the illicit traffic. To take the making, transportation, and sale of 2.75%, beer out of the scope of the National Prohibition Act would involve either leaving them wholly to the states, or to the states subject to national laws in aid of those preferring to exclude beer. Legislation of this kind would be hard to draw and harder to execute. But without it, states having complete prohibition would be greatly embarrassed by an illicit traffic having a legal basis beyond the state line. Also there would be nothing to prevent beer saloons in states which chose to allow them and thus the chief gains of national prohibition would be imperiled.
As to the answer that states would set up dispensary systems, it may be replied: (1) that there would be nothing to insure this, and (2) that in any event, in our opinion after study of the different systems of liquor control, no modification should be permitted which would allow either the state or federal governments as such to go into the business of malting or selling liquor in any form.
There would be need of affirmative federal legislation to prevent state dispensaries and the return of the saloon. The mere exclusion of beer of a definite content from the purview of the National Prohibition Act will not suffice.
As to the argument, which undoubtedly has much force, that relaxation of the law by allowing a nonintoxicating beer of low alcoholic content will promote temperance and relieve the strain on enforcement of the National Prohibition Act as to spirits, there are three answers:
(1) Experience before national prohibition makes it at least doubtful whether beer will replace spirits in general consumption to any degree. It must be remembered that before national prohibition increase in the per capita consumption of beer was accompanied by no decrease in the consumption of spirits.
(2) The use of illicit liquor has developed a taste for intoxicating beverages to an extent which makes it very doubtful whether a light beer would be widely accepted as a substitute therefor.
(3) If the beer made and sold is not intoxicating, it is unlikely to be a substitute for intoxicating drink in communities where enforcement gives the most difficulty, while if it is, there would be a palpable violation of the Constitution.
As to the proposed exception of light wines from the operation of the National Prohibition Act, the same considerations apply. But it should be said, also, that the anomalous provision in Section 29 of the Act, heretofore discussed, is closely related to this proposal. If that section, as construed, is to stand, it would probably achieve most of what the advocates of legal making of light wines are seeking.
Other plans for legislation, leaving the Eighteenth Amendment as it stands, propose state option as to prohibition, evasion of the intent of the amendment by allowing beverage liquor under the exemption of medicinal liquor, evasion. by Congressional definition of intoxicating liquor so as to exclude liquor which is in f act intoxicating, and statutory exemption of all home manufacture for home use.
These proposals involve pro tanto nullification of the Eighteenth Amendment. The proposal as to state option is open to the objections to the repeal of the Eighteenth Amendment already considered, with the added objection that it would in substance leave it to the states, to determine whether a general provision of the federal Constittition should obtain within their borders. Evasion of the federal Constitution by specious definitions of " intoxicating " or of "medicinal liquors " or by specious revisions for the procuring of medicinal liquor, undermining by legal action respect for the fundamental law, is quite as destructive of respect for law as the things sought to be avoided. As to home manufacture, the difficulties in differentiating between manuf acture for domestic and for commercial purposes and of detecting commercial manufacture in homes, would make such a system as hard to maintain as the present one.
3 DEVELOPMENT AND IMPROVEMENT OF ORGANIZATION AND PERSONNEL
In a number of particulars it must be pronounced that there has not been the kind of test of enforceability of national prohibition which would have been desirable. As has been said, enforcement started out with the idea that a federal law would largely command observance, and hence no adequate provision was made for a task of such magnitude as it has proved to be. It began by using methods and agencies which had proved effective in four generations of federal government under the Constitution. The assumption was that any strain upon these methods would be taken care of by the concurrent enforcing jurisdiction of the states. Thus the mechanics of enforcement fell short of the requirements of the task in three respects: (1) the organization, personnel, and training of the agents of enforcement; (2 the federal prosecuting organization and organization of the federal courts; (3) the means of insuring concurrent or cooperative action by the states.
At the outset, the best part of the enforcement organization was made up of those who had been in the Internal Revenue service, or some like service, before prohibition. But development of methods of manufacture of alcohol speedily outgrew the experience and training of storekeeper-gaugers brought up under the old method of distilling. The development of illicit distilling soon quite outstripped the experience of those who had had to do with preprohibition moonshining. Organized smuff ling quickly outgrew the experience and equipment of those who had been trained under the old conditions in the customs service. The organization, mode of selection and recruiting, personnel management and personnel, and the mode of training in the services char(yed with or having to do with enforcement of national prohibition, as they were at first, were not equal to the demands of these rapid developments of organized law-breaking.
It is worth while to repeat that changes in the fundamental organization, fluctuating personnel, low salaries, methods of appointment and recruiting ill adapted to the work to be done, and lack of adequate training led to bad results at the start of enforcment the effects of which are still manifest in some quarters.
Again it was only perceived gradually that there was need of special activity in coordinating the federal services directly and indirectly engaged in enforcing prohibition and of special effort to bring about coordination between them. Past experience with other laws had not indicated the need of such things. It was not until after the Senate investigation of 1926 had opened people's eyes to the extent of law-breaking and corruption that serious efforts were made in this direction. In the past few years, a great deal has been achieved toward coordination of and cooperation between the several administrative agencies. In the meantime organized law-breaking had grown strong and much mischief had resulted.
In view of this bad start of the defective organization, unsatisfactory personnel. and insufficient equipment, and of the want of coordination among the agencies concerned, it is no wonder that there was a steady decline in the enforcement of prohibition from 1921 to 1927. Unfortunately, this steady decline gave an impetus to the illicit traffic which makes it hard for any organization and personnel to cope with it.
It may be urged that the bad features of enforcement, or nonenforcement, which obtain today may be obviated with the lapse of time and certain improvements in the machinery of enforcement, through improved enforcement personnel, divorce of enforcement from politics, provision of more men, more money, and better equipment for the enforcing agencies, and certain amendments of the statutes and of the administrative regulations.
On the other hand it may be urged that the primary difficulties in the way of enforcement lie deeper than these things. The statute has been in force for a decade with large majorities in Congress pledged to give effect to it and militant organizations pushing to that end. There has been more sustained pressure to enforce this law than on the whole has been true of any other federal statute, although this pressure in the last four or five years has met with increasing resistance as the sentiment against prohibition has developed. No other federal law has had such elaborate state and federal enforcing machinery put behind it. That a main source of difficulty is in the attitude of at least a very large number of respectable citizens in all communities and of a majority of the citizens in most of our large cities and in several states, is made more clear when the enforcement of the National Prohibition Act is compared with the enforcement of the laws as to narcotics. There is an enormous margin of profit in breaking the latter. The means of detecting transportation are more easily evaded than in the case of liquor. Yet there are no difficulties in the case of narcotics beyond those involved in the nature of the traffic because the laws against them are supported everywhere by a general and determined public sentiment. Hence a program of improvement should be directed also toward a more favorable public opinion.
As to the possibilities of a much better personnel, it should be noted that improvement has been made of late. But there is a difference of opinion as to how far the requisite personnel will be possible, as something enduring and continuous, under our polity. It is to be wished that a divorce from politics might be brought about in large measure as to all enforcement of law. But, as a thoroughgoing change in our established methods, it must come slowly as to any of the activities of government. The methods, so well developed in recent years, which are practicable in a private industrial organization are not wholly applicable in the management of political affairs of 120,000,000 people.
More men, more money, and more and better equipment for the enforcing agencies would undoubtedly achieve much but no improvement in machinery will avail without cooperation from the states. This state cooperation will ultimately depend upon local public opinion. So long as public opinion is adverse or indifferent in large cities and in many states, so long as there is no practicable means of reaching home manufacture (which may easily run into commercial manufacture), and so long as the margin of profit remains what it is, serious obstacles in the way of satisfactory enforcement will continue to be beyond the reach of improved organization personnel and equipment and tightened statutory and administrative provisions.
4 REVISION OF THE EIGHTEENTH AMENDMENT
A great variety of detailed plans, assuming modification or revision of the Eighteenth Amendment, have been proposed or submitted. In general they are of four types. One type contemplates federal control, whether by legislation, by a permit system, by a federal bureau or by a federal commission, and manufacture, distribution and sale by a federal monoply or by general and local corporations under federal control. A second type contemplates state option under federal control. A third type contemplates state control by allowing the states to define the meaning of "intoxicating liquor". A fourth type contemplates a dispensary system or some equivalent system of distribution.
Plans of the third type are objectionable as allowing the return of saloons in states choosing to permit a high alcoholic content, since the liquor being legally declared non-intoxicating would not be subject to the police power and so to regulations as to sale and consumption.
We do not consider sale or distribution directly by the government or immediate governmentaI agencies expedient in the United States and are opposed thereto. The best showing of results is made by the system in force in Sweden. Obviously no system such as would be practicable in that country could be imported as it stands and made workable with us. But there are things to be learned from this system should it become possible for the states which do not acquiesce in national prohibition to try some plan adapted to their conditions and to local public opinion. In this connection the experience of federal control by Commissions of important activities which had presented grave problems is suggestive. The Interstate Commerce Commission, and the Federal Reserve Board show the possibilities of such a method of adjusting federal control to subjects to which rigidly detailed legislation is not applicable. It will not do to say that American statecraft is not equal to devising some plan which will conserve the benefits thus far achieved and do away with or minimize the bad effects of national prohibition as it stands. Much of the difficulty comes from the rigidity of the Eighteenth Amendment and of the National Prohibition Act, which prescribe 1 5 one unbending rule for every part of the country and every type of t community without regard to differences of situation or conditions or to public opinion.
If there is to be revision of the Eighteenth Amendment, the following requirements should be met:
(1) The revision should be such as to do away with the absolute rigidity of the amendment as it stands. It should give scope for trying out further plans honestly with some margin for adjustment to local situations and the settled views of particular communities. It should admit of different modes or types of prohibition, or control in diffierent localities in case Congress approves. It should aim at keeping control in the nation, and committing details and initia- tive to the states. (2) It should be such as to conserve the benefits of the present situation by national and state repression of saloons and open drinking places and yet permit, where demanded by public opinion, an honest, general or local control of manufacture or importation and distribution, consistent with the minimum demand which otherwise, in very many localities at least, will tend to bring about a regime of nullification or defiance of law. (3) It should allow of attempts by general or nationally approved local systems of control to do away with the enormous margin of profit which is at the bottom of wide-spread corruption and general lawlessness. (4) It should allow of allaying the sources of resentment and irritation directly and in accord with the spirit of the law instead of impelling to courses inconsistent with the spirit, if not also the letter of the law, and inviting disrespect for the legal ordering of society. (5) It should allow of adjustment to local public opinion so as to do away with the strain on courts and prosecuting machinery involved in the attempt to force an extreme measure of universal total abstinence in communities where public opinion is strongly opposed thereto, while subjecting the means of adjustment to national approval
and so insuring against the return of the saloon anywhere. (6) It should involve a minimum of interference with the existing system and a possibility of retaining it or returning to it as communities are or become ready for or reconciled to it.
It would seem wise to eliminate the provision for concurrent state and national jurisdiction over enforcement contained in the second section as the amendment stands. This provision has not accomplished what was expected of it, and there are no signs that it will ever do so. It is anomalous to have two governments concurrently enforcing a general prohibition. Action on the part of the states cannot be compelled. If it comes, it will come voluntarily by .state enactment and enforcement of state law. The states can do this without any basis in the federal Constitution.