H.L. Mencken
Baltimore Evening Sun/March 8, 1920
I
Si mutare potest aethiops pellem suam, aut pardus varietates suas?
II.
Answer: No. The very same optimists who, down to the actual fall of the dry ax, were full of confidence that the thing was against reason and nature, that some way out would be discovered, that Woodrow would come gallantly to the rescue, that an act of God would supervene—these same fanatics of hope now console themselves with the delusion that Elihu Root and his camorra of barristers will bamboozle the Supreme Court into declaring an amendment to the Constitution unconstitutional, or that Congress will repeal the Volstead act after the next election, or that an enraged yeomanry will rise in righteous indignation and refuse flatly to submit any further to so galling a tyranny.
This last belief, if the gabble heard on all sides is to be credited, offers rather more solace than the others. It is founded upon the doctrine that the American people are, always have been and always will be free and that the man or party that tampers with their freedom is doomed inevitably to swift and condign destruction. In other words, it is founded upon a doctrine that is exactly on all fours with the doctrine that the moon is made of green cheese. The simple truth is that the American people are not free, never have been free and show absolutely no sign of yearning for freedom. On the contrary, they show every sign of desiring to get rid, as soon as possible, of the few vestiges of liberty that remain to them. The whole history of their legislation for 50 years past has been a history of listless renunciation, with only a few specialists in discontent protesting. By that route of silent complaisance they have lost in some part or wholly, every right guaranteed to them by the Constitution—the right of free speech, the right of religious liberty, the right to bear arms, the right of peaceful assemblage, the right of petition, the right to a jury trial, the right to confront their accusers, freedom from excessive and from cruel and unusual punishments, and now, at last, the inviolability of their domiciles.
III.
These fundamental rights, of course, have not been resigned in any orderly and formal process. The abandonment of them has never been a plain issue in a political campaign, openly stated and freely argued. No, the process has always been more subtle than that, and a good deal easier and more effective. The principle underlying it is the central principle of politics in a democratic society, to wit, the principle that an issue must be dramatized to make it understanded of the people. Substitute personalized for dramatized, and you have the whole story. Politics in a democracy consists primarily of the act of inventing, pursuing and scotching bugaboos. First the bugaboo is set up and made to dance. Then the populace is worked up to a frenzy of fear. Then the call is issued for all good men to join in the hue and cry, sacrificing everything else to the abatement of the common peril. Then the bugaboo is suddenly gone—and so are all the things sacrificed.
The thing began in the first days of the Republic. The Bill of Rights was ratified in 1791. Within six years the first attack was launched upon it. The bugaboo this first time wore a French cocked hat, and had foul designs, it would seem, upon the peace, dignity and autonomy of the new nation. A year or two of alarms followed, and then the mob was in motion. Out with the fire-hose! Up, guards, and at ’em! Anything to save us! The first fruit was the Alien Act of 1798, the forerunner of a series but half run. But that was not enough. There were, it appeared, foes without—pro-French scoundrels who babbled obscenely of French aid in 1776-1783, traitors with French gold in their pockets, abhorrent conspirators against the true, the good and the beautiful. To fetch them the now somewhat senile Fathers passed the Sedition Act of 1798 and at the same stroke they also fetched free speech, now just seven years old.
In those days, of course, liberty was still new, and hence precious. Therefore, when John Adams began enforcing the new acts against high and low, including even some of their chief advocates, there were loud squawks, and before long, the French bugaboo forgotten, John found that he had become a sort of bugaboo himself. It was in that character, in fact, that he went down to defeat in 1800. But the man is nothing; the principle everything. The pursuit of the French bugaboo had opened a path, showed a way, established a formula. That formula is still at the heart of all American politics, all American legislation. If you cherish a bill and would have it passed, find a bugaboo that it would scotch. Once the posse is upon the highroads everything else is forgotten. The Treasury is yours. Jobs are yours. The Constitution is yours.
IV.
Consider, for example, the second article of the Bill of Rights, now embalmed in the corpse of the Constitution as its Second Amendment. It says in plain words that “the right of the people to keep and bear arms shall not be infringed.” Nothing could be simpler or more specific. And yet, in the State of New York, there is in force a statute known as the Sullivan law, and under that statute, if the police happen to find an unloaded pistol in the house of a peaceable citizen, he may be sent to prison for 10 years. Well, how was such an idiotic and tyrannical law got upon the books? By the very easy process that I have described. First a bugaboo was invented, then a general alarm was sounded, then a huge cannon was loaded to fetch the monster—and then it was discovered that the Second Amendment of the Constitution had been shot away. In this case the bugaboo was the Italian black hand. The yellow journals discovered a “carnival of crime.” The police, too stupid for their business, bawled piteously that the laws were inadequate. The result was the Sullivan law.
But was it Constitutional? Didn’t the courts upset it? I pray you, be less naive! The courts are responsive to exactly the same hullabaloo that stampedes the Legislatures. Since the Milliken case during the Civil War, I know of no leading case, save the child labor case, in which they have set any article of the Bill of Rights against a new piece of corrective legislation. On the contrary, they have done even more than the Legislatures to make the bill itself a hissing and a mocking. Time and time again, when a Legislature has sought to limit the scope of an act, the courts, by judicial construction, have widened it enormously. The Espionage Act, to take a familiar example, was rather carefully drawn, and the debates upon it show clearly that Congress intended it to apply only to persons engaged deliberately in efforts to impede the conduct of the war. But within a month after its passage the courts had begun to apply it to persons who were clearly without any such intent whatsoever, and since then most of these extensions have been upheld by the Supreme Court of the United States. A short while ago three young Russian Jews were sent to prison for 20 years for distributing handbills protesting against a wholly unauthorized and unlawful war upon Russia—a war actually abandoned, to the tune of long explanations and apologies, before they had got to jail!
V.
Even today the thing goes on under our eyes. The current bugaboo is Bolshevism, Industrial Workers of the Worldism, Redism, the alien menace. In the pursuit of this bugaboo citizens of the United States are arrested without warrants, denied the right of lawful assemblage and free speech, imprisoned without trial, denied the right of confronting their accusers, forced to submit to the unlawful violation of their homes, deprived of their property without due process of law, held in excessive bail and punished in cruel and unusual ways. All of these things have happened not once or twice but hundreds and perhaps even thousands of times. All of them are happening today. And all of them are happening without the slightest sign of a public and organized protest. Save for a few fanatics, no one remembers the Bill of Rights. It is shot to pieces daily and not a soul cries halt. Congress and the Legislatures make the laws severer and severer; the courts extend them more and more widely. And the people, lifted to a frenzy of fear by bugaboo after bugaboo, submit.
The prohibitionists are too clever to neglect the formula. In fact, they have already used it with superb effect—it was the German spy bugaboo that enabled them to saddle Prohibition upon us. Moreover, the recent news from Michigan shows them making adept use of the later Bolshevik bugaboo. All of the rebels against the Volstead Act, it appears, were foreigners, and hence bomb throwers. Very few of them could speak English. At first blush the rebellion seemed a laudable uprising of American freemen. But within 24 hours it was a loathsome conspiracy of alien and only half-human Bolsheviks. And as such it was swiftly put down.
VI.
What the next bugaboo will be once the plain people cease to believe that a few silly tailors are plotting to overthrow the Constitution God knows. But if there is no ready-made one at hand the prohibitionists will invent one—and the mob will promptly fall for it. The thing is really too easy. On the one side is the urge of fear, the fierce delight of the chase, the hot desire to save the republic. On the other side is nothing save a Bill of Rights that is already shattered, ineffective and half-forgotten. There is not the slightest visible sign of a yearning to revive it. No one complains about violations of it save a few professional libertarians—and the obscure men who suffer. For liberty as an inalienable human right, for the first Ten Amendments as a charter of freedom, for fairness and decency in the processes of the law, there seems to be absolutely no enthusiasm. Even to mention such things is to risk being accused of some unintelligible conspiracy against the Government. To demand their restoration is to be watched by secret agents, denounced as an alien and denied the use of the mails.
I see no reason to believe that the wholesale violation of the Fourth Amendment will cause any more genuine indignation than the familiar and colossal violations of the First, Sixth and Eighth Amendments. In Baltimore, a week or so ago, prohibition detectives boldly made a search without warrants and as boldly defied anyone to do anything about it. No one did anything. The business aroused scarcely more interest than an ordinary arrest. A few days later a Prohibition officer in Michigan, denied warrants by the competent authority, announced calmly that he would proceed to search houses and arrest citizens without them. What is more, he did it. What is still more, no one—save perhaps the victims—complained. What is yet more, it is at least 100 to 1 that the courts will ultimately uphold him.
The machinery for opposing such things as Prohibition has broken down, gone to pieces. To get back the liberties guaranteed by the Bill of Rights is now clearly impossible by any conceivable orderly process. The decisions against them—explaining them away, riddling them with holes, boldly flouting and destroying them—now pile up mountain high. Everything is in favor of the prohibitionists—law, courts, national customs, above all, the crowd. Let them entertain it with new and newer bugaboos—let them give it a continuous good show, with plenty of thrills—and it will be won over unanimously, glad to sacrifice what remain of its paper rights in consideration of the gaudy entertainment.
The Archive 