Unenforceable Laws Against Pleasure

The 100th anniversary of Prohibition is a reminder of how hard it is to regulate consumption and display

ILLUSTRATION: THOMAS FUCHS

This month we mark the centennial of the ratification of the Constitution’s 18th Amendment, better known as Prohibition. But the temperance movement was active for over a half-century before winning its great prize. As the novelist Anthony Trollope discovered to his regret while touring North America in 1861-2, Maine had been dry for a decade. The convivial Englishman condemned the ban: “This law, like all sumptuary laws, must fail,” he wrote.

Sumptuary laws had largely fallen into disuse by the 19th century, but they were once a near-universal tool, used in the East and West alike to control economies and preserve social hierarchies. A sumptuary law is a rule that regulates consumption in its broadest sense, from what a person may eat and drink to what they may own, wear or display. The oldest known example, the Locrian Law Code devised by the seventh century B.C. Greek law giver Zaleucus, banned all citizens of Locri (except prostitutes) from ostentatious displays of gold jewelry.

Sumptuary laws were often political weapons disguised as moral pieties, aimed at less powerful groups, particularly women. In 215 B.C., at the height of the Second Punic War, the Roman Senate passed the Lex Oppia, which (among other restrictions) banned women from owning more than a half ounce of gold. Ostensibly a wartime austerity measure, 20 years later the law appeared so ridiculous as to be unenforceable. But during debate on its repeal in 195 B.C., Cato the Elder, its strongest defender, inadvertently revealed the Lex Oppia’s true purpose: “What [these women] want is complete freedom…. Once they have achieved equality, they will be your masters.”

Cato’s message about preserving social hierarchy echoed down the centuries. As trade and economic stability returned to Europe during the High Middle Ages (1000-1300), so did the use of sumptuary laws to keep the new merchant elites in their place. By the 16th century, sumptuary laws in Europe had extended from clothing to almost every aspect of daily life. The more they were circumvented, the more specific such laws became. An edict issued by King Henry VIII of England in 1517, for example, dictated the maximum number of dishes allowed at a meal: nine for a cardinal, seven for the aristocracy and three for the gentry.

The rise of modern capitalism ultimately made sumptuary laws obsolete. Trade turned once-scarce luxuries into mass commodities that simply couldn’t be controlled. Adam Smith’s “The Wealth of Nations” (1776) confirmed what had been obvious for over a century: Consumption and liberty go hand in hand. “It is the highest impertinence,” he wrote, “to pretend to watch over the economy of private people…either by sumptuary laws, or by prohibiting the importation of foreign luxuries.”

Smith’s pragmatic view was echoed by President William Howard Taft. He opposed Prohibition on the grounds that it was coercive rather than consensual, arguing that “experience has shown that a law of this kind, sumptuary in its character, can only be properly enforced in districts in which a majority of the people favor the law.” Mass immigration in early 20th-century America had changed many cities into ethnic melting-pots. Taft recognized Prohibition as an attempt by nativists to impose cultural uniformity on immigrant communities whose attitudes toward alcohol were more permissive. But his warning was ignored, and the disastrous course of Prohibition was set.

WSJ Historically Speaking: Juries, From the Ancient Athenians to ‘12 Angry Men’

A scene from the 1957 version of ‘12 Angry Men’: From left, John Fiedler, Lee J. Cobb, Henry Fonda, E.G. Marshall, Jack Klugman, Edward Binns and George Voskovec. PHOTO: EVERETT COLLECTION

On jury duty this month, I’ve had plenty of time to reflect on the meaning of the 1957 film “12 Angry Men.” Law schools still use the 60-year-old courtroom drama about a biased and easily swayed jury as a teaching tool. The question remains: Does the movie prove or disprove Mark Twain’s characterization of trial by jury as “the most ingenious and infallible agency for defeating justice that human wisdom could contrive”?

Jurors are all too human, something the ancient Greeks tried to mitigate by allowing some jury panels to have 1,000 or more citizens at a time. To prevent malicious plots and ensure a broad mix of people, every juror received half a drachma a day—enough to feed a poor man and his family. But such precautions failed to save Socrates from his enemies in 399 B.C. An Athenian jury, egged on by an anti-Socrates faction, convicted him of “impiety” and “moral corruption of the young” by a majority of 280-221. Continue reading…

WSJ Historically Speaking: When Justice Drowns in the Law

Photo: ARTHUR GIRON

Photo: ARTHUR GIRON

In “The Federalist Papers,” No. 62, James Madison warned his readers against drawing up laws that were unnecessarily dense or complicated: “It will be of little avail to the people…if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”

Congress largely heeded Madison’s advice until World War II, when the average bill was still only 21/2 pages long. But today, 1,000-page spending bills routinely pass through Congress. President Bush’s 2007 budget bill counted 1,482 pages, while the 2010 Affordable Care Act ended up at almost 1,000 pages.

According to Philip Howard, the author of “The Rule of Nobody: Saving America from Dead Laws and Broken Government,” the chief problem with laws that rival “War and Peace” in length is that the rule of law suffers. Instead of being the facilitator for civil society, he warns, the law can become an instrument of paralysis.

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WSJ Historically Speaking: A Brief History of Avoiding Exercise

Photo: THOMAS FUCHS

Photo: THOMAS FUCHS

Winter storms have become so frequent in the U.S. that they now have names, like hurricanes. This week saw the arrival of Seneca, making for a touch-and-go race about which will run out first: the alphabet or the jet stream. The weather in the eastern U.S. has been brutal enough this year that millions of Americans have been confined to their homes. In a country where, according to the Centers for Disease Control and Prevention, only one in six of us does anything like the recommended amount of physical activity, “Snowmaggedon” is a danger to the country’s health as well as its roads.

The ancients knew well that people will use any excuse to avoid exercise—bad weather, of course, being among the most popular. To counteract the natural human tendency toward inertia, the Greeks had their Olympics, the Chinese their tai chi and the Indians their yoga. The Romans went so far as to make exercise a legal requirement for all male citizens age 17 to 60. With the exception of Thomas Aquinas, who was colossally fat, lack of exercise was rarely a problem in the Middle Ages. Few people had time for aerobics when survival was the order of the day.

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