Void Where Prohibited

In the 1860s, the Supreme Court of the United States heard the case of McGuire v. Commonwealth. Mr. McGuire was prosecuted and convicted for retail distribution of liquor in Massachusetts, where the so-called “temperance movement” had taken hold. Regardless of his federally issued license to sell liquor, Mr. McGuire was indicted and convicted of selling liquor in violation of state law. At the Supreme Court, his attorneys argued that the federal power to sell licenses for the wholesale of liquor preempted the power of the Commonwealth of Massachusetts to effectively nullify those licenses by prosecuting those who attempted to use them. If the states could do so, they would essentially hold the power to excuse themselves from the authority of Congress on any taxation and licensing issue. Their arguments were not availing.

Although the heart of the legal issue was the relationship between federal and state power, Messrs. Cushing and Richardson, the attorneys, were at their best in arguing against temperance laws on their own merits. They argued persuasively (especially to those of us with the benefit of hindsight) against prohibition. Many of their points are worth consideration for how prescient they were and how applicable they remain.

1. It is not true, as alleged, that wines, fermented liquors, or even distilled spirits, are poisons of themselves, otherwise than that everything we eat or drink may be deleterious if used in excess.

It is always striking how the word “temperance” is always used to mean “abstinence”, while the word itself surely implies “moderation.” And not only is alcohol not an evil in itself, it has health benefits as will be seen later.

2. In view of the example and injunctions of our Saviour and his Apostles, in this respect, it cannot be true that the use of wine is immoral of itself.

Rumor has it that there are actually certain Christian sects that claim that when Jesus turned water into wine that it was non-alcoholic because it did not have time to ferment. As if Jesus’s power was limited to changing water into grape juice and was insufficient for turning sugar into alcohol and carbon dioxide.

3. It is not true, as pretended, that it is our duty to abstain utterly from any object of health or enjoyment because others may abuse it. The effect of this doctrine would be to deprive us of everything desirable, even the dearest of all human relations; since nothing exists for the use of man which some men will not abuse.

This is a very similar argument to the one made in an earlier post on this blog about prohibitions on gambling. Viz. the fact that some people are unreasonable is not a sufficient reason to ban reasonable people from X.

4. It avails nothing to make war on the sale of distilled spirits; for spirits may be distilled in every man’s kitchen, by means as cheap, as accessible, and as manageable as the preparation of a cup of tea or coffee; and if it were not so, other anaesthetic agents exist, which the law cannot reach, such as opium and bang, the familiar means of intoxication used by more than half of the human race, to say nothing of the professed anaesthetic medicaments.

There are two arguments here, both of which are commonly advanced regarding the prohibition on hemp. 1. Despite the insane amount of money spent on the “war on drugs”, hemp is still easy to grow or otherwise obtain, and 2. cracking down on any given drug drives people to other drugs, often more dangerous ones. Many people have observed that if hemp were more available and accepted, that would be a tremendous step toward overcoming the current opioid crisis.

5. The universal prevalence of the use of one or another object of this nature, in all ages, all countries, and all states of society, serves to show that they satisfy a physical exigency of man’s organization as imperative as that of food, and of course laws cannot eradicate, although they may regulate, such use.

Ah yes, the biological imperative to get impaired. People have always self-medicated for depression, anxiety, and all of the other conditions for which we have only lately had names. Wine may not be the best medicine for these maladies, but it is also far from the worst.

6. It shocks the sense of mankind, to prohibit absolutely by law the use of wines, fermented liquors, and distilled spirits as a healthful beverage in moderation of use; and the effect of such laws, if rigidly enforced, would only be to introduce by the side of the vice of drunkenness, the worse one of universal hypocrisy.

Again, the parallels with arguments over legalized hemp are stunning. Several states have decriminalized hemp specifically for medicinal use. Those who would impose a total ban on hemp “for the public health” are surely hypocrites in this regard.

7. It confounds all distinction of right and wrong, in the acts of instructed men, and in the conscience of the less instructed, to seek to elevate the use of wine to the dignity of an illegal and immoral thing, for the suppression of which all the energies of society should be tempestuously exerted.

There is a lot going on here. In the first place, there is an important misrepresentation of the law. The laws of prohibition (be they alcohol, hemp, opium, etc.) traditionally do not criminalize the use of the product. It is not illegal to consume hemp, it is illegal to have hemp. This distinction is important because laws properly curtail actions rather than things. One should always remember that when a law purports to ban a thing, it is actually banning you from doing something. All bans are essentially limits on personal freedom.

Secondly, they touch on the amount of government effort that would be required to actually suppress the consumption of alcohol. The combined effect of alcohol prohibition and the “war on drugs” set back society immeasurably, if only because of the tremendous waste of money and manpower on the (attempted) enforcement of these laws.

The so-called temperance agitation has effected no abatement, in the whole, of the use or abuse of intoxicating drinks, and in the end will probably produce, by recoil, a state of things worse than that which existed before the agitation. No superiority then over the nation is due to those legislators of Massachusetts, who pretend to be “more powerful than Nature, wiser than Truth, better than God.”

Hear, hear!

Beer of the week: Lakefront IPA – It is a new year, but not a new beer. I’ve had this Milwaukee brew several times, and occasionally on-site at the Lakefront Brewery. The head leaves plenty of good lacing on the glass. The flavor is quite balanced, with a solid malt body layered with plenty of juicy hops. Lakefront are certainly doing good work.

Reading of the week: McGuire v. The Commonwealth, 70 U.S. 3 Wall 387 (1866) – There are some people who think that government regulation is the solution to every societal problem. But positive law is extremely limited in what it can accomplish. As the learned counsellors argue: “English and American society has been floundering along from one folly to another in the paths of false theory and unphilosophical legislation, under the influence of the idea that statute law is the all-sufficient remedy of every sort of human infirmity; an idea which is itself the special human infirmity of the well-intentioned people of New England.”

Question for the week: The temperance movement was led by Christians. What is the strongest scriptural basis for a policy of teetotaling?



This is the second in a series on Franklin’s moral improvement plan, the rest of the posts will be available here.

TEMPERANCE:  Eat not to dullness; drink not to elevation.
– Franklin

As applied to food, the notion of “all things in moderation” is sorely abused. There are certainly some foods that one can healthily do without entirely. Indeed, there are foods that one ought to live without. So recommending that all foods be consumed in moderation is not quite right.

For example, one can eat candy from time to time without any serious threat of injury. But it would be absurd to recommend consumption of a moderate amount of candy. A better recommendation would be the total avoidance of candy, and if one does eat candy, to keep it at a minimum.

Because of this distinction, it is important to be able to tell between those foods that should be avoided, but may be consumed in small quantities, and those foods that are salubrious, but should be consumed moderately.

In Marlowe’s Doctor Faustus, the character Gluttony describes his lineage: “My grandfather was a Gammon of Bacon, my grandmother a Hogshead of Claret-wine; my godfathers were these, Peter Pickleherring, and Martin Martlemas-beef.” And Gluttony’s godmother was Mistress Margery Marchbeer. The choice of food and drink associated with Gluttony is quite interesting: cured pork, pickled fish, and dried beef, together with red wine and märzen beer. (To say nothing of the fact that the meat is masculine and the drink is feminine.)

Because the play is from the late 16th century, it goes without saying that there was no refrigeration. So during much of the year, preservation of meat through curing, pickling, or drying was essential if one was to have meat at all. Additionally, beer and wine both served as valuable dietary supplements, and were recommended for a great number of health benefits. So to Marlowe, gluttony is about the over-consumption of healthful foods, not the consumption of foods that are inherently bad for you.

Then again, Marlowe could hardly have imagined the concoctions that pass for food these days.

Beer of the week: Flag Spéciale – This Moroccan beer is brewed in Fez, and is ultimately uninspiring. It is pretty darn bland. On the plus side, the only ingredients are water, malt, and hops; no refined sugars, or anything that should be avoided altogether. Boring though it may be, it is refreshing. And when combined with a bit of atmosphere on a hot day, it is even delightful. And because it comes in a 24 cl bottle, there is little chance of “drinking to elevation.”

Reading of the week: The Tragical History of Dr. Faustus by Christopher Marlowe, Scene VI – In this scene, Lucifer introduces Dr. Faustus to the Seven Deadly Sins. Faustus says to Lucifer that seeing the Sins in their true form “will be as pleasing unto [him], As Paradise was to Adam the first day Of his creation.”

Question for the week: The proposed distinction between foods that are salubrious and foods that should be avoided entirely is clearly problematic. For example, vegans say all meat should be avoided. Teetotalers say all alcohol should be avoided. Are their any truly clear divisions than can be made?

Know Thy Beer!

A post by a facebook friend of mine notified me that it was Fasnacht Day (also called Shrove Tuesday, Fat Tuesday, Carnival or Marti Gras.) Unfortunately, I am some 14 time-zones ahead of that friend, so I was already in Ash Wednesday. Ever the rules lawyer, I bought a box of donuts Ash Wednesday morning on the grounds that it was still Fasnacht Day in my home town. In case you were meaning to give something up for Lent but haven’t gotten around to it, I have another loophole ready for you; according to the Orthodox Christians, Great Lent doesn’t start until Clean Monday! That’s right, you can be as intemperate and gluttonous as you want this weekend, just settle down in time for Vespers on Sunday evening.

If you don’t observe Lent (because you are a Mennonite or Atheist or Sihk) that is no reason that you should not take this opportunity to reflect a bit on the subject of temperance. We could all use a bit of temperance now and then. But not too much, that would be intemperate. Maybe. I am not even totally sure what temperance is.

In the Socratic dialogue Charmides, Critias proposes a definition of temperance as “self-knowledge.” Socrates proceeds to thoroughly  tear Critias apart, but only after slyly replacing “temperance” with “wisdom” and getting Critias to shift from “self-knowledge” to “the science which has itself as its object.” And then at the end, there is a very awkward back and forth between Socrates and Charmides that makes it really look like they are about to have sex. But ignoring all of these shenanigans, let’s consider on our own what it would mean for temperance to be self-knowledge.

Temperance has, on occasion been used to mean something like total avoidance. The so-called “temperance movement” was organized for the total ban of alcohol. Various religious groups have used the word temperance in conjunction with sexual abstinence. However, temperance is more commonly understood as moderation. This understanding is very much in line with the idea that temperance is self-knowledge.

Take, for example, drinking beer. It will be generally agreed that moderation is the best course with regard to this action. (We take for granted here that totally abstaining from beer is no virtue and drinking to excess is a vice.) Still, it takes a deal of self-knowledge to stay in control of the situation, especially as the more beer one drinks, the less important moderation seems.

The same is true of almost everything. Many great minds have recommended “moderation in all things,” but think of how much self-knowledge is required to know what a “moderate amount” is. So this is temperance: know thyself! And here is where the concept becomes difficult.

When you “know” that you shouldn’t eat that last donut, but you can’t help yourself, you don’t really know it. If you really had full knowledge of yourself and your situation (something that seems impossible,) you would never knowingly act in a way that is to your own detriment. I can feel you objecting through the internet. Seriously though, it is only a lack of knowledge that makes you act in ways that hurt yourself. People act this way all the time, but if they really honestly new better, they wouldn’t. Even if you say to yourself every single day “I know I should go to the gym” but you never actually get there, it isn’t because you are lazy. (Well, not only because you are lazy.) It is because you don’t really know that working out will improve your life any more than lying around in your pajamas watching an entire season of whatever television shows you watch entire seasons of. In fact, it is possible that you are wrong for feeling guilty about not going to the gym; maybe what you are doing instead really is better for you and you are more self-aware than you think.

In the end, the more self-knowledge you have will lead to choices that are more advantageous. And in general, these decisions will tend to be moderate since extremes are rarely the best choices. The better you know yourself the more moderate you will be. And, in the end, the healthier and happier you will be. Once you know yourself, being moderate is much less of an effort, it is only doing what you know is in your best interest.

PS. Only eating a box of donuts all day Wednesday was NOT the action of a temperate man. Hopefully I learned something about myself and will be more temperate in the future.

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Beer of the Week: KEO Premium – KEO is the perfect beer to celebrate the arrival of Great Lent because KEO’s majority owner is the Orthodox Church of Cyprus. This is an exceptionally pale and clear beer. Slight malt and just a hint of noble hops on the nose. Good white head. There is something oddly familiar about the taste of this beer but what is familiar is unclear and not good. The finish is light but distinct and slightly sweet, with very soft notes of lemon and vanilla.

Reading of the week: Charmides by Plato – Here, Critias does what I wish more Socratic interlocutors would do; he admits that Socrates has somehow trapped him and simply says that if any of the things that he assented to lead to a contradiction, he is willing to “withdraw them.” But he still asserts that it is not clear whether Socrates or he is “more right.”

Question of the week: How close can one get to perfect self-knowledge? What about perfectly right self-opinion?