Guilt under Prohibition
Baldwin, Summerfield
GUILT UNDER PROHIBITION By SUMMERFIELD BALDWIN THE language of the century-old campaign which eventuated in the Eighteenth Amendment to the constitution, like the terms of the amendment...
...No constitutional obligation rests either upon Congress or the State Legislatures to provide enforcement: fines and imprisonment for "guilty men...
...This is preeminently true of American law...
...Faustian logic views American prohibitory legislation with alarm...
...Down with King Alcohol...
...The prospect is far from disheartening to those conscientious folk who feel that the Eighteenth Amendment is a legislative monster which cannot be destroyed save by revolution...
...We must bury John Barleycorn...
...Your law is evidently not founded upon moral principle or you would abhor those who violate it...
...The hammer certainly seems to us a guilty thing at the time...
...The thing done, the fact on the one hand, the thing on the other, is what the American psychology and the American ethic regard as the ultimate datum of judgment...
...GUILT UNDER PROHIBITION By SUMMERFIELD BALDWIN THE language of the century-old campaign which eventuated in the Eighteenth Amendment to the constitution, like the terms of the amendment itself, helps to explain the futility of much of the logic which has been expended of late years to refute the principle of prohibition...
...Why were not they sufficient...
...The saloon must go...
...Even on the face of it, American law punishes drunkenness far less severely than it punishes makers of rum for the guilt of what they make...
...The will is, so to speak, the scapegoat of evil...
...Even if such an obligation did exist, no legal power can constrain any legislative body to enact what it does not choose to enact...
...The American soul has always been in what Spengler (who borrowed the term from the mineralogists) calls a pseudomorphosis...
...Surely, the Athens of Pericles was not savage or primitive...
...Who, awakening with a heavy head the morning after undue potations, will deny that the devil has certainly included his fair share of perversity in the demon rum...
...Rum is a demon...
...No one seems to have dreamed of drafting an amendment to the constitution which would read: "The imbibation of alcoholic beverages is prohibited...
...He bears the punishment of the beverage vicariously...
...Therefore, to carry your legislation to its logical conclusion, the manufacture of everything should be prohibited...
...Congress shall have power to enforce this article with appropriate legislation...
...The devil has been, perhaps still is, a great consolation to Faustian man...
...In the not very long run, one may reasonably foresee that all enforcement legislation based upon the Eighteenth Amendment will gradually disappear, that the Eighteenth Amendment will then stand all by itself, a great monument to the American legislative genius which can contrive to place the stigma of guilt upon the thing to which it belongs, and save the man from having to bear a vicarious punishment because of its guilt...
...Away with the demon rum...
...If we assume that the American soul came to birth between 1600 and 1700, the America of 1930 is culturally contemporary with the west Europe of about 1180, and with the Greece of pre-Homeric days, say about 920 B. C. Yet at the high point of the Hellenic culture in fifth-century Athens inanimate things and animals which were "guilty" of causing the death of a citizen were condemned to destruction by the Ephetae...
...This has been abundantly demonstrated in the steady refusal of Congress to reapportion itself in accord with the Census of 1920, although, in that case, the constitution did not merely empower, but commanded Congress to do so...
...The American soul, on the contrary, rejects the will from its psychology...
...You evidently attach no moral obloquy to those who break your law...
...The genius of European morality and jurisprudence, ecclesiastical and secular, has been its insistence upon the proposition that guilt is a property of the human will and of nothing else...
...All that America suffers from today is the notoriously dangerous practice of putting new wine into old legal bottles, a new cultural sense of guilt into old legal formulae according to which guilt attached to the will...
...America does not consider drinking either sinful or illegal...
...Evil is inherent in the thing...
...They really raise more questions than they answer by offering this explanation...
...It prefers to punish things, or, failing inanimate things, then material actions...
...The "American soul," of which prohibition is a juristic expression, attaches guilt not to the will of man but to objects: acts, for example...
...But even the wets of America, in their heart of hearts, consider that rum is rightly stigmatized by law as a guilty object...
...Some not too intelligent observers of this phenomenon of American life have called the disposition to attach guilt to the thing primitive, savage, have compared it to the taboo...
...But maintenance of a principle is always hard, and the European, or let us say Faustian, soul has never flinched in associating guilt with the will alone...
...But its penal code is still forced by a painful process into English and European terms...
...Hence American legislative and judicial bodies feel called upon to fix penalties upon persons who contravene the Eighteenth Amendment, though to do so is abhorrent to the American soul, whose real object in enacting the Eighteenth Amendment was not to hurt anybody but merely to stigmatize the demon rum as guilty...
...This is not hypocrisy...
...American law cannot punish a guilty will, because the American soul does not recognize the will...
...Rum will never have the stigma of guilt removed from it and neither will the saloon...
...Ardent spirits must go...
...It must expiate its guilt by being poured down a sewer...
...Preeminent among guilty things is, in the American ethic, the alcoholic beverage...
...but, even more profoundly, inanimate objects...
...Despite the ranting of legislators, nothing in the constitution can be said to provide for the punishment of manufacturers, transporters, sellers of the guilty substance...
...It was an American wit who first called attention to the diabolical perversity of inanimate objects...
...Prohibition is one of the first great legislative products of a cultural spirit radically opposed to the European...
...The morality of western Europe (what Spengler would call the "Faustian" ethic) has, from the beginning, attributed to the drunkard a guilty will...
...Meanwhile, to rail at American hypocrisy is absurd...
...Its maker must be subjected to fine or imprisoned not because he is guilty but because it is guilty...
...To attribute a guilty will to the man through whose negligence a brick falls and damages a passerby is a hard thing...
...The campaign was directed against inanimate objects...
...It is the concern of ethics and jurisprudence to put him out of business...
...Christianity has supplied the devil, conceived in earlier Christian times as the corrupter of the world, but by Faustian man as the corrupter of the human will...
...Many of its purest products have been forced to crystallize themselves in alien, European forms...
...To Hellas, the body was all things—among the rest, the natural bearer of guilt...
...The Faustian soul uses the human will as the formula...
...American law does not and, it is safe to predict, will never punish the buyer or drinker of rum, though, according to English common law ideas, he is clearly accessory to a criminal sale...
...Another line of reasoning proceeds from observed facts: "You patronize bootleggers...
...It is irredeemable in its guilt...
...The plain fact is that these and kindred arguments utterly miss their mark...
...We may be perfectly certain that when enforcement legislation has fallen into abeyance, all agitation for the repeal of the Eighteenth Amendment will cease...
...We may say, then, that in its disposition to associate guilt and inanimate objects, the American cultural style approximates rather to the Hellenic than to the west European, without adding that this tendency is savage or primitive...
...Spengler was right in calling west European culture after the legendary type of man bargaining with the devil about his will...
...The American thinks of the devil not as the corrupter of the will, for there is no will, nor as the corrupter of the world, "for the world is what we make it," but as the manufacturer of a certain number of guilty things...
...This doctrine has, naturally, involved difficulties...
...To understand this ethic, we must recognize that every soul, the real one of the individual, the figurative one of the culture, must somehow achieve a formula in which the existence of that which offends and is regarded as bad is so brought into adjustment with life as to make life endurable...
...It is destiny...
...True enough, these persons are making something which a guilty will can turn to guilty uses, but in the final analysis, there is nothing which cannot be guiltily used...
...You should, for example, forbid the manufacture of automobiles, which are guiltily used every year to kill many thousands of innocent human beings and maim thousands of others...
...Culturally, fifth-century Athens would be contemporary with the Europe of 1700-1800, the America of 2450-2550...
...The campaign was never directed against drinkers...
...Surely one is entitled to inquire whether this jural theory may not have something in it...
...How then can you punish them by sending them to prison...
...We laugh at children for addressing reproaches to the thing that hurts them, but in our very next breath we hurl imprecations at the hammer which has been guilty of hitting us on the thumb-nail...
...The moral theologian has insisted that deliberate overindulgence in intoxicating liquor is a sin...
...It is thus, for example, that we can explain the popularity of pragmatism and, later, of behaviorism, in America...
...Many things have, or have had, guilt attached to them: playing cards, dice, other gambling implements (even poker chips), cigarettes, tobacco in all forms, all pictures of naked human beings (even those innocent in intention), all books referring to the phenomena of sex (regardless of the author's will) and so forth...
...The statute law of England has long penalized drunkenness as a misdemeanor, and colonial America borrowed this legislation from the mother country...
...Life becomes endurable because the Faustian man can always imagine the innocency of the will in others, or even in himself...
...Hellenic jurisprudence and ethic reflected the Hellenic style of growth...
...Might the American people not go on legislative record to that effect without being called hypocrites...
...You are attempting a patent absurdity," it insists, "when you attempt to attach guilt to the manufacturer of alcoholic beverages, or even to the man who carries or sells them...
...You had your laws against drunkenness ; you had your laws regulating and taxing a luxurious trade...
...The mens rea, to this day, is what the common law convicts and punishes...
...The present state of affairs, which both opinions admit to be disgraceful, is, at bottom, the result of a conflict of jural theories...
...Delicts arising from negligence, for example, have called for much that we may designate as legal fiction in order to make deterrent punishment possible...
Vol. 12 • August 1930 • No. 17
