Dwight morrow, when he was campaigning in New Jersey for the United States Senate, proposed that the matter of liquor prohibition be returned to State jurisdiction. President Hayes, in withdrawing Federal troops from the South during the reconstruction period, suggested that the matter of Negro suffrage be left to the States. This was more than a coincidence. It was perhaps the least significant of a series of similarities between the two eras. A consideration of these points of likeness may help to clarify the controversy now engrossing Washington and the whole United States.
Both reconstruction and prohibition had their origin with New Englanders. Both were reform movements, animated by the best intentions and advocated on high moral grounds. Both have revealed how lightly the electorate of this country can regard constitutional amendments. Both so dominated public thought and emotion that sinister official abuses went for long periods unnoticed, first in Grant’s and then in Harding’s administration. The reconstruction amendments were not repealed, as Mr. Morrow suggests for the Eighteenth Amendment; they were nullified, even before the enabling legislation behind them was repealed.
Reconstruction, of course, was an aftermath of secession. Now we have the threat of revolution and secession as an aftermath of prohibition. It is an open and public threat, and has gone unwhipped, although zealous New York policemen club male and female Communists into insensibility for discussing recognized political theories without the slightest hint of violence or of armed revolt. Obviously no Communist is quite respectable. Therefore the skulls of all such are fair meat for the patrolman’s nightstick; whereas those who boast of rebellion if their thirst be unassuaged first issued their treasonable ultimatum from the sacrosanct walls of Faneuil Hall, undeservedly known as the cradle of American liberties. As a fact those liberties were cradled in the Virginia House of Burgesses, with Patrick Henry, Thomas Jefferson, James Madison, and George Washington, then and later, as their lustiest minnesingers. The spirit of revolt against George III was born long before the old market house in Boston resounded to its cries. But Faneuil is an honored name, and the ancient myth of its function as an incubator of emancipation lent a certain substantiality, as well as respectability, to the vaporings about revolution against law-enforcement. Was not our first war with Great Britain a revolution against the enforcement of laws our forebears did not like?
Thus when New England wets, forgetful that our first total abstinence society was formed in Boston in 1824 and required a century to mature into a “noble” national experiment in abstinence by legislation, voiced a demand for revolution, they extended by indirection a noteworthy parallel. Let us trace the lines briefly.
We have seen that the prohibition movement sprouted in New England. The chief spokesmen for reconstruction were Thaddeus Stevens and Charles Sumner. Although Stevens represented Pennsylvania, first as a Whig and then as a radical Republican, he was a Vermonter by birth. Sumner was what Irvin Cobb has called a twice-laid egg: he was born in Boston and educated at Harvard. He too was a Whig for a time, but he went to the Senate by a combination of Free Soil and Democratic votes. “This,” says Henry Adams, “was the boy’s first lesson in practical politics, and a sharp one; not that he troubled himself with moral doubts, but that he learned the nature of a flagrantly corrupt political bargain in which he was too good to take part, but not too good to take profit.” As a leading opponent of slavery and advocate of the vote for the newly freed Negro, however, Sumner was on a lofty moral pedestal. So was Stevens. So were their followers. They were a minority, but they, had their way.
Minority? Why, the very States which had fought to preserve the Union had no thought of enfranchising the freedmen. Even Indiana, with twenty-five thousand Negroes who could read and write, refused them the ballot or the right to testify in court. Connecticut, New Jersey, Ohio, and Pennsylvania, as well as other northern States, still excluded Negroes from the suffrage. Three States which had not seceded even rejected the Fourteenth Amendment when first it was offered; it was not adopted until the Reconstruction Act of 1867 refused to the Southern States readmission to the Union unless they would ratify it, and threatened the alternative of martial law.
Martial law there was, in spite of the fact that the defeated Confederacy knuckled under and made the amendment possible, and martial law continued until Hayes saw that enforcement was demoralizing and futile. Yet the minority of “radical” Republicans which had put through the amendments and the supporting statutes won their victory on moralistic grounds. They, said that the economic and civil rights of the freedmen must be placed forever beyond the reach of an ordinary majority, and that the Negro, liberated at an incalculable cost of sweat and tears and blood, must be protected against the rapacity and rancor of his former master. To accomplish this, three amendments to the Constitution were adopted, followed by three “force bills,” the last fragment of which was not repealed until 1894.
It is not necessary here to go into the legal details of reconstruction. I am concerned with its emotional background and its points of similarity with the prohibition movement. From the outset the most elaborate section of the Fourteenth Amendment was nullified, because northern States which were not ready to admit Negroes to the polls would not consent to the limitation of congressional representation as provided in case the Negro were excluded. Both north and south, restrictions were placed on the ballot by literacy and property qualifications. Yet it is only fair to remember that the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments, whatever the bitterness toward a vanquished foe, was promoted by a sincere and high-minded sense of duty toward the unfortunate race which had just been emancipated.
As for the violation of the Eighteenth Amendment, now practically a dead letter in some of our larger cities, there is good reason to doubt whether sumptuary laws can ever be enforced against the customs even of a large minority; and there is no reason at all to doubt that the attempt at enforcement has resulted, in some quarters, in a futility and demoralization such as Hayes perceived in the attempt to enforce reconstruction.
It must be admitted that under local option and statewide prohibition somewhat the same evils existed. Maine violated her prohibition law for half a century. Some twenty years ago I was assigned by a newspaper to inquire into the Kansas situation; and although I found many, facts in favor of statewide prohibition, I found also, in every city and village I visited—more than a dozen—that I could buy whiskey in packages, sometimes bottled beer. In those days there was no Federal protection against shipments of liquor from nearby wet States, as was proposed by Dwight Morrow, in case the States take charge. But the proprietors of blind tigers, predecessors of our present speakeasies, corrupted the local police, even as Federal agents are corrupted now and were corrupted during reconstruction.
Every post-bellum period finds the uplifter in clover. The wave of high emotion which has been blown up by war propaganda recedes, to be replaced by general boredom and cynicism, so that those few who are aflame with evangelical impulses the more easily have their way. The philanthropy of a small group toward the freedmen had the same advantage as the messianic movement of the Methodist Board of Temperance and Morals; both became operative in full force during the ethical deflation and fatigue following a war.
And in both cases the public mind was so preoccupied with the main issue that it ignored as long as it could scandalous goings-on at Washington. It was not until 1876 that the full iniquity of the Grant administration was generally known. Let me quote, for comparison with the 1924 Democratic platform, a plank of the Democratic platform of that earlier year:
When the annals of this republic show the disgrace and censure of a Vice-President; a late Speaker of the House of Representatives marketing his rulings as a presiding officer; three Senators profiting secretly by their votes as lawmakers; five chairmen of the leading committees of the House of Representatives exposed in jobbery; a late Secretary of the Treasury forcing balances in the public accounts; a late Attorney General misappropriating public funds; a Secretary of the Navy enriched or enriching his friends by percentages levied off the profits of contractors with his department; an Ambassador to England censured in a dishonorable speculation; the President’s private secretary barely escaping conviction upon trial for guilty complicity in frauds upon the revenue; a Secretary of War impeached for high crimes and misdemeanors . . .
The comparison lies, of course, only in that both revelations of corruption were belated, because the dominant issue, reconstruction in one case and prohibition in the other, had served to obscure for a time the graft at the capital. The sum of money involved in the Teapot Dome and kindred scandals may have been larger, but the spread of evil certainly was more restricted, fewer officials were besmirched, and on the whole the situation was less degrading. It is unnecessary to recapitulate further details; the only point I wish to emphasize is that general engrossment in an overwhelming issue is a menace. For widespread tumult over a single question is permitted to obscure matters of vital importance, even if not of greater importance.
Nothing could be more important, one may suppose, than a respectful regard for the Constitution of the United States, of which each amendment becomes an integral part. Every one knows that the Eighteenth Amendment has transmuted millions of substantial and respected persons into deliberate law-breakers. The reconstruction amendments were flouted on both sides of the Mason and Dixon line. It is not accurate to say that they have been discarded in their entirety. They were nullified only in their main purpose of conferring upon Negroes complete social, economic, and political equality. Into the Fourteenth Amendment there was slipped a singular clause, intended not for the protection of freedmen only, but of all persons, whether corporate or in the flesh. It reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any, State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” This clause is still active as a salve for lawyers defending men they know to be guilty, as a sanctuary for felons on trial, and as a buckler of corporation dividends.
It is worth while to pause a moment and observe just how this clause found its way into the amendment. Its author was Representative John A. Bingham of Ohio, a successful railroad attorney, and he explained on the floor of the House, a few years later, that its real purpose was an extension of Federal control. He reminded his fellows that the first ten amendments, the “Bill of Rights,” put limitations on Congress but not on the States, and that the purpose of the clause was to remedy in some degree this condition. Roscoe Conk-ling, who served with Bingham on the joint committee which accepted the clause, said even later, confirming this statement, that those who devised the amendment “wrought in grave sincerity.”
Now, the actual effect of this clause was greatly to extend the scope and powers of the Supreme Court of the United States; and the actual effect of the Eighteenth Amendment has been the same. By the Bingham, clause local ordinances and State measures, an so far as they might touch the rights of persons or corporations and the security, of property, were subjected to review by the highest tribunal; and this amplified power has given rise to a situation which drew the fire of Justices Holmes, Brandeis, and Stone, in the case of Baldwin vs. Missouri. Mr. Justice Holmes, who wrote the outspoken dissenting opinion, said in part:
I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions.
Now, our platform orators and editorial writers, whether for or against prohibition, are eloquent in describing the extended authority of the Supreme Court in the interpretation of the Volstead Act, which is the enabling act or “force bill” of the Eighteenth Amendment. The Supreme Court has indeed been kindly to Congress in approving measures for enforcement, although it has implied that no duty rests upon the States to assist in enforcement. There is still some doubt as to whether the Court means to take this stand outright, and some dispute as to whether a legal duty rests upon the States; but that the powers of the Court have been enlarged cannot be disputed.
As a fact the Civil War, reconstruction, and prohibition all have resulted in the confiscation of property, whatever the Fourteenth Amendment may, say. By the Emancipation Proclamation slave property was taken from Southern planters, during the post-bellum period other property and many political rights were taken from them, and under the Eighteenth Amendment the brewing and distilling industries found their holdings left on their hands, almost without value. The lines still run to all intent parallel.
At the polls and with the shotgun Southerners resisted the enforcement of reconstruction, until it became necessary to establish martial law for the protection alike of the Negro and the carpetbagger. Then was born the Ku Klux Klan, a desperate resort to violence and terrorization on the part of a prostrate and disfranchised aristocracy. Himself disfranchised, the planter saw the polls crowded for a time with inexperienced and ignorant voters under the protection of Federal bayonets. Until the “radical” Republicans took the saddle it had been the common notion, especially in the North, that there should be a period of education and probation before the freedmen were allowed to vote. This notion was overridden by philanthropic hoofs; and the result was governmental maladministration, economic disruption, and social distress.
At the polls and with the shotgun the enforcement of prohibition is resisted. Voters oppose it when they elect wets to legislative, executive, and judicial posts. Rum-runners and high-j ackers offer armed resistance. Martial law has not been established, unless revenue agents may be regarded as an extension of the Federal armed forces, but our coasts are guarded by armed cutters. In effect this amounts almost to a state of war, in which the toll of human life has been considerable; and this is not altogether surprising when we remember that prohibition was made effective without adequate education of the public. In some areas, to be sure, there had been a measure of education through local option and statewide abstinence, or laws looking to abstinence; but the country as a whole was unprepared for the sudden and drastic demand that it change its habits and traditions. Nowadays we are hearing more and more of the need for educational efforts in this field. We have a greater number of lawful organizations openly pledged against the Eighteenth Amendment, and their membership embraces many conspicuous figures in our political and financial life. The present governmental maladministration and social distress, I hasten to say, cannot compare with those conditions as they prevailed in the South at the height of carpetbag tyranny; nevertheless they are here, and are a cause of common comment.
If the Southern planter cried that his civil rights were being trampled in the dust in an attempt to convey fictitious civil rights upon his former slaves, how much oftener do we hear now the cry that prohibition is an invasion of personal liberty! Not only personal but State’s rights were involved in both instances. At the famous Cooper Union meeting during President Johnson’s administration, John A. Logan supported the Chief Executive’s policy toward the secessionist States.
“I disagree,” he said, “with those who think these States are but territories. We fought . . . upon the theory that a State cannot secede.” As for extending suffrage to the freedmen, he vowed the President had no right to declare that Negroes might vote. “If he does, he does it in the teeth of the Constitution.” The States only, he said, had that power. And General Sherman wrote his brother: “My belief is that to force the enfranchised Negroes as ‘loyal’ voters on the South will produce new riot and war, and I fear that Sumner, Wilson and men of that school will force it on the Government or prolong the war ad infinitum. . . . My army will not fight in that war. The slaves are free, but not yet voters.” The General held that State’s rights were involved.
Throughout the agitation over prohibition, the question of State’s rights has been to the fore; and the proposal of D wight Morrow was a recognition of the fact, although Mr. Morrow is a Republican and not in that Democratic tradition which exalts State’s rights. His plan of reconstruction is too recent to require a summary here, but it was notable because he perceived the difficulty of enforcing by, the distant hand of the Federal Government a ruling traversing the habits of an electorate differing widely in its views. President Hayes saw the difficulty of attempting to enforce by the Federal power laws traversing the social and political dogmas of the South.
Lest these comparisons seem to some invidious, it should be said that there are conspicuous differences between the prohibition and reconstruction eras. The lines do not always run parallel. The Eighteenth Amendment, for example, was not motivated in any degree by bitterness toward a vanquished foe. The reconstruction period produced no such widespread crime and corruption as have resulted from prohibition. There are many minor differences, some already noted. Yet the two disastrous experiments may well be compared, for it is possible that, after a fashion, history may repeat itself. Despite the clamorous demand for repeal of the prohibition amendment, it may follow the reconstruction amendments into a limbo of neglect. Even those drys who believe that the individual should prohibit for himself, and not by legislative fiat, might countenance a tacit nullification. Heaven forefend that I should set myself up as a prophet. But I suggest, in the light of historic precedent, that this may happen.