Published On: Wed, Nov 11th, 2020

Prohibition and Covid-19; Introduction, with an exploration of the embarrassment of hallowed US Constitution

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The intention is to produce a series of articles reviewing literature written about the Prohibition (of the sale, production, importation and transportation of alcohol), in the 1920s and the early 30s, in the United States of America. Comparisons will be made with the legislation in the UK that has, in these days, been instituted with Covid-19 as a pretext. Obviously, an emergency of public welfare as problem to be reacted to and solved is common to the two specimens, but the exercise will mostly focus on the economic, political and social changes that were effected in the USA, using Prohibition as cover, to serve as a demonstration as to what is and can be expected to happen in this day and age in the UK (and equally so in the USA, of course).

If one is able to see that a certain progression through history, in which there has been alteration of countries with the English liberal, capitalist tradition, so that they become socialised (being without widespread capital ownership) and then by necessity authoritarian, is something that has been happening since the first aristocratic preservationist reaction (as early as the City of London sponsored Restoration) to gentrifying (of the common) republicanism (accelerated by the English civil war), then one can see that Prohibition and Covid-19 are cut from the same template.

To begin, we are going to examine material that was written at the time of Prohibition, taken from the book, What Prohibition Has Done to America, by Fabian Franklin, first published by Harcourt, Brace & Co of New York, in 1922. Franklin devotes the opening chapters of his work to objections to be had to Prohibition in terms of its impact on the federal form of government in America, self-government by the states, and perversion of the US Constitution. Rather than use this material to discuss the specifics of the impact of Prohibition on the US system of law, and the lessons to be drawn from it and to be applied to the current situation, for the time being we are going on a slight but necessary diversion into a discussion stemming from the idea that, actually, Franklin’s complaints are based on an idealistic and deceived American view of so-called fundamental constitutional documentation. The glory attached to and worship afforded the triumvirate of nation-defining documents, the Declaration of Independence, the Constitution of the United States, and the Bill of Rights amendments to the Constitution, appears to be due to fin de siècle discovery of their value to new circumstances, with the author observing that they would have been useful at that time to buoy a sense of American identity after the Washington-based empire reasserted itself over certain states that had been seeking independent development, and to install a justifying sense of exceptionalism in the people for acquiescence as the Union was perpetually engaged in an extended project of hypocritical imperialism.

The point that we are seeking to arrive at is the clear notion that, in the time in which Fabian Franklin is writing, the constitutional arrangements couldn’t stop federal overreach, because they had been installed in order to create federal dominance. Thus, if measures inflicted universally on America in the name of Covid-19 cause the same concern that Prohibition did for Franklin in terms of constitutional integrity, then it should be plain to see by comparison that some other solution is required where appeals to the supposed sanctity of a fictional legal system would not feature, and where instead there would be reliance on the real law of self-defence, or, as we shall see, the assertion of individual independence, and the same collectively in commonwealth.

As the reader continues through this piece, he should hold in mind the current mess that is the 2020 Presidential election, and how the people of certain states of the United States have been instrumental to, and have facilitated the corruption of their method for electing the executive branch of the central government, and how the people of other states who have not degenerated in the same way yet must suffer an injury that is not deserved, but would be unavoidable for them, should a candidate who was not supported by a majority in their state win the national ballot fraudulently, and thus become their national president.

For the purposes of this study, we will look at two extracts from Franklin’s work. In the first, Franklin is arguing that national legislation that infringes individual liberty is a violation of the right of individual states to self-government :

But if there is one thing in the wide world the control of which naturally and pre-eminently belongs to the individual state and not to the central government at Washington, that thing is the personal conduct and habits of the people of the State. If it is right and proper that the people of New York or Illinois or Maryland shall be subjected to a national law which declares what they may or may not eat or drink – a law which they cannot themselves alter, no matter how strongly they desire it – then there is no act of centralization whatsoever which can be justly objected to as an act of centralization. The Prohibition Amendment is not merely an impairment of the principle of self-government of the States; it constitutes an absolute abandonment of that principle.

The principle [of state self-government]… is abandoned altogether if we accept the Eighteenth Amendment as right and proper; and if everybody imagines that the abandonment of the principle is of no practical consequence, he is woefully deluded.

In the second extract, Franklin is arguing that an infringement of individual liberty should not be ensconced in the national, or federal Constitution. He appears to think that an individual state’s constitution is not so inviolate – “State Constitutions are full of a multitude of details which really belong in the ordinary domain of statute law” – but then the argument could be advanced that if states didn’t have a superior national constitution (which is what the US one is), they would look to their own constitutions as being as equally definitive (and in fact, by the accounts of them, documents of this kind produced by older commonwealths were used as exemplars):

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 natural 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 this denial 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… [the Constitution] 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.

If Franklin has doublethink about the American system of government, it would most likely be due to an inherent bias caused by being overawed by the mythology. In that respect, he would be like millions of other Americans. The guard against a national law that infringes civil liberties must be the constitution of an independent state, and it must be superior to a national constitution. Franklin thinks the former is true, but would not accept the other because to him the national constitution is a “true constitution [unlike that of the states’] – concerned only with fundamentals, and guarded against change in a manner suited to the preservation of fundamentals”. There is nothing, then, in a state constitution that could contradict anything in a national constitution.

However, the national constitution can be altered when a majority in the two houses of national government want it, and then when a majority of states ratify it. And Prohibition perfectly illustrated that the US Constitution is not the vestal virgin that Americans want it to be, but is instead a whore. In fact, when Franklin complains about the corruption of the Constitution because of Prohibition, suggested to us is that the objection is a matter of offended faith, like Franklin is a Catholic who won’t hear that Mary could have had relations with Joseph to produce other children. In fact, what was being revealed with Prohibition was the nature of the beast.

The argument for a code of rights for individuals on a national or federal basis is that a federal government must, by dint of its vastness, have to deal with more variation in the constituencies that it rules, and is therefore somehow better at having a care about preserving the rights of the minority from the majority. But again, this would be a job that a state constitution should be able to do. And on the other hand, if a state constitution gave more rights to one sort of people than another, then it would be its right as an independent state to do so; if it subsequently wasn’t fit to be in a union with other states, then so be it. But the United States has never allowed this leeway. “The United States” says section 4 of Article IV of the Constitution, “shall guarantee to every State in this Union a Republican Form of Government, and shall protect each… against domestic Violence”.   Section 8 of Article I says “The Congress shall have Power… To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”. The right of the people to keep and bear arms specified in the Second Amendment is not about preserving states’ rights. The New Jersey plan for federal government proposed at the Constitutional Convention in Philadelphia would explicitly have the federal executive use force to compel obedience to laws and treaties of the federal legislature, and although the plan was rejected, the sentiment whereby force would be meted out to opposition was clearly retained.

What the Constitution boiled down to was a few federalists (or imperialists) across the union, and in its elite, jostling the states so that the ways and means could be established to have certain capability of and for control across the territory. The Constitution primarily established the Federal Government, and allows it to bristle with power. Indeed, if the War of Independence (the more apt title is the Revolutionary War) was strictly about independence from Britain, then there perhaps shouldn’t have been an American invasion of Canada at the same time. We must note also that the Constitution had articles at its conception in anticipation of new territory joining the Union. Clearly, when one looks at it, the US Constitution reveals itself to be a measure for consolidating imperial power, and then expanding it. To cap it all, it was created in a den of freemasons who drew it up in secret session: delegates who had authorisation only, by Congress, to revise the Articles of Confederation, or the administrative ways and means by which the United States was a league of independent nations.

Indeed, when American independence was declared, if the reader would like to check a copy of the document, it was done so on behalf of the FREE AND INDEPENDENT STATES, giving them…

Full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and do all other Acts and Things which INDEPENDENT STATES may of right to do.

However, the Constitution, generated by the same class of people, if not the exact same clique, who contrived the Declaration of Independence, famously begins “We the people of the United States… do ordain and establish the Constitution for the United States of America”. Article I of the Constitution then proceeds to allow Congress to act as the national government of each and every state, and to deny to individual states power to do those “Acts and Things” that hitherto it was thought “INDEPENDENT STATES may of right to do”.

In fact, there is nothing quite like a closer look at the concept of independence in relation to definitions of American nationhood to get a handle on the real nature of the relationship between state and federal government, and how it crucially represents and extends that between individuals, their personal liberties, and federal government.

George Mason, a Virginian planter, in his country’s bill of rights, asserted “That all men are by nature equally free and independent”, and he wrote something that served as an exemplar for the drafters and editors of the Declaration of Independence; but at that later stage, it was turned into “that all men are created equal”. Note, Mason would refuse to put his own “Jonn Hancock” to the Constitution document. The problem that led to the scrubbing of the word “independent” from the national document is most adequately illustrated by the cases of the slaves in Massachusetts who had been winning their freedom in court using their country’s own bill of rights, which used the same phrase as the Virginian version, arguing that being born independent was not compatible with being a slave. We can imagine the argument that such a claimant would submit. A slave captured into the predicament will have had the dignity of being born independent only to be made into a dependent. A slave born in the Americas could only be born into dependency, but nevertheless must be born independent.

However,  we should note that section 2 of Article IV of the Constitution reads as follows:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Conseqence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

So, potentially, the Constitution actually asserted the rights of slave owners, or vested interests, over the rights of a slave, who had been freed in a state where it could be done, by overriding the law of the state. Clearly, everything that Franklin complains about regarding what Prohibition does to the right of the states to self-govern and the integrity of the Constitution was actually inherent to it in its original manifestation. Moreover, the Constitution says that there is no protection, in other states travelled to, for crimes committed in a particular state of origin. This disallows independence of meaningful law making, because if the crime was trivial and not thought fit to be punished, or indeed was not really a crime, the destination state’s law cannot save a fugitive from what it deems to be an injustice.

While we are on this point, can there be any surprise about Abraham Lincoln’s villainy when the Constitution clearly states:

The Privilege of the Writ of Habeas Corpus shall never be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. (May really means will).

One man’s terrorist, of course, is another’s freedom fighter, and the Declaration of Independence, famously does instruct that “whenever any Form of Government becomes destructive of these Ends [life, liberty and the pursuit of happiness], it is the Right of the People to alter or abolish it”. Thus, the suspension of Habeas Corpus is arguably never justified in a case of domestic violence, to use a term we’ve seen before, and as civil war or inter-state conflict could be characterised.

So, striking out the individual’s independence in the nation-defining documents is about knowingly overriding the local law that should watch over his rights, and indeed inspire his loyalty. The individual independent state, after all, is an expression of the sovereignty of the people – the Constitution of the Commonwealth of Massachusetts was ratified at town hall level – and the keyword is indeed “commonwealth”, which is a state where the people are sovereign. The Americans, of course, didn’t invent this, but inherited it from England where there was a commonwealth after the abolition of the Crown.

Franklin captures this relationship of the independent state as extension of the independent individual when he says that “the personal conduct and habits of the people of the State” is the business of the state. Centralised government has no business with it. And to introduce the centralised American government in this context was like to introduce in England a construct and a fiction called the Crown, but in fact was the Corporation of London (making it superior over every corporation in each town in the land, and way out of its jurisdiction).

In the end, it is crucially important for perception of the primacy of national government that the idea of independence disappears as a characteristic of a free man. And this is all deliciously ironic. In the Declaration of Independence, it is the people of the thirteen colonies who are clearly represented by the title FREE AND INDEPENDENT STATES. Those who produced the declaration called themselves “the Representatives of the UNITED STATES OF AMERICA, in GENERAL CONGRESS”. Here is the legal fiction claiming to act on behalf of a sovereign, independent people, who are in fact not independent because their states are not independent, and therefore only relatively as free as central government permits.

The key, then, in effective response to central government legislating measures that would infringe individual rights, is for individuals to assert their independence as the bedrock and justification for all else that follows in law. If arrangements of government do not suit this scheme, it is not the scheme that is at fault; it is not the scheme that should be replaced.

 

[History and text from The Declaration of Independence and The Constitution of the United States with an Introduction by Pauline Maier, Bantam Books, July 1998].

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