Prohibition Henry W. Jessup (1923)

Prohibition Henry W. Jessup (1923) begins his article, "State Rights and Prohibition" by considering the issue of slavery in terms of the Constitution. The author points out that no citizen is above weighing the costs and benefits of disobeying laws that they do not see as fair or morally correct. As such, those who felt that slavery did not constitute a democracy, disobeyed the laws relating to slavery by means of actions such as helping slaves to escape or harboring them in their homes.

Jessup uses this as a basis for his observations on the Prohibition and the use of Constitutional amendment to enforce the prohibition of alcohol in the country. In considering the use of the Constitution to enforce legislation such as the Prohibition, Jessup (63-64) foresees that this may entirely change the relationship of citizens to their Government. Indeed, it is a departure from legislation that had been passed thus far. The author does not believe that such an action is justified in a democratic country.

In addition to being fundamentally unconstitutional in its nature, the author points out several shortcomings of the legislation. Firstly, there are several elements of the legislation that are arbitrary rather than delineated clearly in terms of defining the term "intoxicating," and physicians of the time were also prohibited from prescribing alcohol containing medicines. Furthermore, specific enforcing events and agents were not honestly conducted, defeating the purpose of the law in the first place.

Jessup therefore believes that using the Constitution in order to enforce the Prohibition was fundamentally wrong for several reasons. Most importantly, the law related to an arbitrary issue that could be subject to opinion. At the beginning of the article, Jessup notes that clearly immoral or wrong actions enforced by the law, such as theft or murder, are generally accepted by society.

The Prohibition however is a matter of contest between two camps in the United States, and resulted in a black market and organized crime around drinking until it was removed from the Constitution. Current Issues: Gay Marriage; Abortion Like the alcohol issue during the 1920s, the issues of gay rights and the right of women to have an abortion, are both arbitrary issues that are subject to considerable opinion and debate. Lie the prohibition, religion also plays a role in this debate.

Fundamentalist Christians for example believe that both gay marriage and abortion are wrong and should not be allowed in society. On the other hand, there are those who are raped, cannot afford another child, or would like to be married to make their love official, although they are both men or both women. The problem with using Constitutional amendment to prohibit any form of human rights is that such legislation becomes self-contradictory. The Constitution guarantees human rights, while amendments to prohibit these are unconstitutional.

Like the prohibition, it is more likely than not that problems will ensue when prohibiting the right of human beings to conduct their lives in a certain way. This is particularly true of gay marriage. Those who are against it generally hold their opinions for aesthetic or religious reasons, and certainly this is their right. While abortion is a somewhat more controversial issue, it is still not something that should be decided by ignoring the opinion of a major sector of American society.

Doing this will result in the country no longer being a democracy in which people have fundamental rights of lifestyle and living. Furthermore, like the Prohibition, amending the Constitution to deny citizens certain rights is likely to result in black market, lawless, and dangerous.