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Repealing National Prohibition
by David Kyvig
Copyright 1979 by the University of Chicago
Chapter 1 - Adopting National Prohibition
The crusade to abolish the use of alcoholic beverages through an amendment to the Constitution hit the United States like a whirlwind in the second decade of the twentieth century. In November 1913 the Anti-Saloon League of America first publicly appealed for a prohibition amendment. By January 1919, scarcely five years later, Congress had approved and forty-four state legislatures had ratified the Eighteenth Amendment, which proclaimed:
1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States, and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
3. The article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
A tremendously significant social reform affecting the lives of millions had suddenly become part of the nation's rarely altered basic law.
Proponents of the so-called dry law faced little organized resistance as they marched to their triumph. Only brewers, distillers, and other commercial interests made strenuous efforts to block the reform. Individuals and groups offended by the challenge to their ethnic cultural traditions or by the limitation of their right to choose what to drink objected to the national liquor ban, but they lacked the channels and agents to give their protest focus and strength. New opposition to the Eighteenth Amendment began to form, however, in the midst of the prohibitionist victory in response to the law itself the manner of its adoption, and the political assumptions upon which it was based. The reaction against this important constitutional innovation, therefore, can only be understood in light of the circumstances of national prohibition's creation.
The Eighteenth Amendment was the product of a century-long temperance crusade, the early-twentieth-century progressive environment, and a temporary spirit of wartime sacrifice. Various historians of the reform have tended to emphasize one or another of these factors.' However, it is hard to imagine national prohibition being adopted without all three interacting.
The temperance movement's long and rich history began early in the nineteenth century as clergymen, politicians, business leaders, and social reformers became concerned about American society's increased drinking.' They appealed for moderation in the use of intoxicants in the interests of health, morality, and economic well-being. From the start, evangelical Protestant churches stood in the forefront of the antiliquor movement. These churches felt that intemperance seriously interfered with their soul-saving mission because it destroyed man's health, impaired his reason, and distracted him from the love of God. Intemperance also undermined society by producing poverty, crime, and unhappy homes; this conflicted with the church's obligation to create a Christian social order. Finally, sobriety was considered to be the foundation of economic success and political liberty visible signs of God's grace. For all of these reasons, evangelical Protestants became increasingly militant temperance agitators as the nineteenth century wore on.
In the mid-1820s the Reverend Lyman Beecher and others started urging total abstinence. They had come to believe that even moderate use of liquor started people on the downward path to drunkenness. The argument that intemperance was a disease preventable only by complete avoidance of spirits became a crucial article of the prohibitionist faith. Never again would moderate liquor consumption satisfy most temperance reformers; the complete elimination of intoxicants became their goal.
By the 1840s, temperance advocates had been disappointed several times by the results of crusades to win individual abstinence pledges, and they began asking for statutory curbs. Initial efforts in Massachusetts to confine the sale of alcoholic beverages within taverns and in New York to establish local option-the right of a community to ban the sale of intoxicants within its boundaries-proved unsuccessful. Next came the first attempt at statewide prohibition, the Maine law of 1851 which outlawed the manufacture or sale of "spiritous or intoxicating liquors." A dozen states quickly followed suit, but for the moment the movement had abated. The Maine law and others imitating it were repealed before the end of the 1850s. Then, for a time, the turmoil of the Civil War diverted reformers.
A new wave of temperance agitation began with the formation of the Prohibition party in 1869 and the Women's Christian Temperance Union in 1873, two organizations which put prohibition at the top of a list of desired social and political reforms. By the 1880s their efforts had helped make prohibition a vital issue in many states and territories. Five states adopted prohibitory legislation during the eighties, though only Maine, Kansas, and North Dakota retained their laws for long. The rising tide of populism soon overshadowed and pushed aside the antiliquor crusade. Although once again aborted, the crusade for enforced temperance at this time recorded one significant achievement: the creation in 1893 of the Anti-Saloon League.'
The Anti-Saloon League proved the most single-minded and politically effective of all dry organizations. Established by men willing to confine their efforts solely to temperance reform, the league operated as a nonpartisan pressure group. Recognizing that whenever two political parties or two factions of the same party competed with approximate equality the support of a relatively small unattached group could be crucial, the league sought to demonstrate that it controlled enough votes to make the difference between election and defeat, thereby gaining candidates' acceptance of its program in return for its endorsement. Drawing its support primarily from the evangelical Protestant churches, the Anti-Saloon League became a political force to be reckoned with by the early twentieth century.'
Prior to 1913 the Anti-Saloon League and its allies in the temperance campaign concentrated on winning local option elections and obtaining state statutes or constitutional amendments barring liquor sales. Nine states and many communities by then had adopted some sort of prohibition, though generally their laws allowed the continued sale of beer and wine and often permitted residents to mail order distilled spirits for their own use from outside the dry district. (Only half of the twenty-six states which instituted prohibition laws before 1920 went "bone-dry," banning alcoholic beverages totally.) Encouraged by such signs of progress as six state prohibition laws since 1907 and congressional passage early in 1913 of the Webb-Kenyon Act, a long-sought federal statute against transporting liquor into states that wished to block its entry, the Anti-Saloon League declared in November 1913 that it would seek a federal constitutional amendment providing for nationwide prohibition.
An amendment to the Constitution obviously appealed to temperance reformers more than a federal statute banning liquor. A simple congressional majority could adopt a statute but, with the shift of a relatively few votes, could likewise topple one. Drys feared that an ordinary law would be in constant danger of being overturned owing to pressure from liquor industry interests or the growing population of liquor-using immigrants. A constitutional amendment, on the other hand, though more difficult to achieve, would be impervious to change. Their reform would not only have been adopted, the Anti-Saloon League reasoned, but would be protected from future human weakness and backsliding.
"Although the Eighteenth Amendment would probably never have materialized except for the [Anti-Saloon] league," observed James H. Timberlake, a perceptive historian of the prohibition movement in the 1910s, "it is equally certain that the league would never have attained its success had not temperance reform been caught up in the progressive spirit itself."' Progressivism and prohibition were, in his view, closely related middle-class reform movements seeking to deal with social and economic problems through the use of governmental power. They drew on the same broad base of support and moral idealism, and they proposed similar solutions to society's ills. Examinations of temperance campaigns in such varied states as Texas, Washington, Tennessee, New Mexico, Virginia, California, and Missouri support Timberlake's conclusion that "prohibition was actually written into the Constitution as a progressive reform."'
Progressivism, the reform spirit which gripped the United States in the early twentieth century, involved a variety of impulses, some parochial, some national, some complementary, some independent, some innovative, and some conservative. The various strands of progressivism were United, however, at the level of basic assumptions. Sensitive to the upheavals caused by the rapid industrialization and urbanization of America, Progressives rejected the populist response of opposing modernization and instead sought to impose an order on the emerging society which would be consistent with their own values and interests. Far more optimistic than the preceding generation about man's capacity to solve problems and mold a satisfactory world, Progressives believed that their goals could be reached by creating the proper laws and institutions. Whether the particular task into which they plunged was raising the quality of life for the urban working class, conserving natural resources, establishing professional societies and standards, improving governmental morality, democracy, and services, or controlling business practices, Progressives repeatedly displayed their unshakable confidence that legal and bureaucratic instruments could be found which would permanently uplift that aspect of their environment.' "They believed," as Ralph H. Gabriel put it, "that man, by using his intellect can re-make society, that he can become the creator of a world organized for man's advantage."'
From the progressive viewpoint, temperance arguments made sense. In a modern society, liquor both reduced men's efficiency and spawned a multitude of social, political, and economic evils. Such a phenomenon should be reformed or outlawed for the common good. It is wrong, suggests Paul A. Carter, to think of prohibition as "exclusively the work of moralizing Puritans compensating for the repressions of their own harsh code in a spurious indignation at the pleasure of their neighbors." In his study of progressivism within the Protestant churches, the so-called Social Gospel movement, Carter found "thousands of sincere and not particularly ascetic folk who believed that they fought liquor, not because it has made men happy, but because it has made men unhappy." He concluded that "the dry crusade spoke the language of social and humanitarian reform-and had the profoundest kinship with the Social Gospel."'
Arguments in behalf of national prohibition by the Reverend Charles Stelzle, a Presbyterian Social Gospeler and ardent prohibitionist, suggest some reasons why liquor reform appealed to many Progressives. Ste1zle, in a 1918 book, Why Prohibition!, held that banishing alcohol was essential for the material advancement of American society. Drinking, he asserted, lowered industrial productivity and therefore reduced wages paid to workers; it shortened life and therefore increased the cost of insurance; it took money from other bills and therefore forced storekeepers to raise their prices in compensation; and it produced half of the business for police courts, jails, hospitals, almshouses, and insane asylums and therefore increased taxes to support these institutions."
Stelzle held that the burden of these social and economic costs for the whole society outweighed any individual right to use intoxicants and legitimized the restriction of personal liberty. "There is no such thing," he wrote, "as an absolute individual right to do any particular thing, or to eat or drink any particular thing, or to enjoy the association of one's own family, or even to live, if that thing is in conflict with the law of public necessity." Antiprohibitionists would charge drys with insensitivity to individual rights and liberties, but this was not the case. Prohibitionists simply felt that social betterment outweighed other factors. "The first consideration," Stelzle argued, "is not the individual, but society. Therefore, whatever injures society is not permitted." Small sacrifices of personal liberties may significantly enhance the common good. Therefore, he concluded, "You may exercise your personal liberty only in so far as you do not place additional burdens upon your neighbor, or upon the State.""
In insisting that the requirements of modern life necessitated an end to the use of alcohol, Stelzie reflected the position of many progressive advocates of prohibition in the 1910s. The doctrine of environmentalism pervading much of progressive thought held that poverty, child neglect, crime, vice, and other social evils largely resulted from the unfavorable setting in which an individual lived. Corrupt urban political machines, for instance, relied upon saloons as bases of operations and election-day recruitment centers where drinks bought votes. The solution of a wide variety of problems lay in the improvement of the environment, usually by legislative action. Outlawing saloons would allow the political system to function more democratically. Calling alcohol "the mother of felony," a writer in The American Journal of Sociology argued that in its use and traffic alcohol appears as a powerful antisocial force. Especially is it a social menace with respect to crime. The results of the most cautious research show that it is a producer of criminals and of crime on an enormous scale. What else could one expect. Has not the scientific laboratory proved that the habitual use of alcohol, in whatever quantity, disintegrates the moral character? It impairs the judgment, clouds the reason, and enfeebles the will; while at the same time it arouses the appetites, inflames the passions, releases the primitive beast from the artificial restraint of social discipline. 11
The only responsible course, he concluded, was to close the saloon and ban the use of alcoholic beverages. Many social workers and economists of a progressive inclination joined the chorus of voices demanding suppression of the saloon and adoption of prohibition for the health of society."
Businessmen and manufacturers often favored prohibition in the belief that it would increase industrial efficiency and reduce accidents. They felt that drinking even a small quantity of alcohol impaired a worker's mental and physical faculties, made him more careless, and lessened his productivity. Following the lead of the railroads, a number of firms, including the Henry C. Frick Company and the American Sheet and Tin Plate Company, forbade their employees to drink alcohol either on or off the job. Other companies strictly prohibited drinking during working hours." Inevitably, many businessmen turned from their individual efforts to enforce sobriety to the attempt to achieve abstinence through law. Their enthusiasm for prohibition had a deep tint of self-interest but clearly shared the progressive attitude that rational men should use the power of the state to promote the general good as they understood it.
Not all Progressives felt it wise to banish intoxicants. In particular, eastern urban Progressives who represented alcohol-using ethnic groups opposed antiliquor legislation. Yet for the most part, prohibition drew upon the same broad base of support as other progressive reforms. Most Progressives in Congress voted to pass the Webb-Kenyon Act over President William Howard Taft's veto in February 1913. " The pattern continued when the Anti-Saloon League began asking for constitutional action.
Congress first took up the amendment question in December 1914. The resolution won a narrow majority in the House of Representatives, but not the necessary two-thirds for submission of an amendment to the states for their approval. During the next two years the resolution failed to come to a vote. In 1916 considerably more supporters of constitutional prohibition were elected to Congress, and drys became more optimistic.
The entry of the United States into World War I produced an atmosphere in which enthusiasm for prohibition accelerated. The need to sacrifice individual pleasure for the defense and improvement of society became a constant theme. The war centralized authority in Washington, loosening restraints on activity by the federal government. The importance of conserving food resources became apparent, and drys seized the opportunity to emphasize the waste of grain in the production of alcoholic beverages. Finally, the war created an atmosphere of hostility toward all things German, not the least of which was beer.
Called into special session to declare war in April 1917, the new Congress adopted temporary wartime prohibition as a measure to conserve grain for the army, America's allies, and the domestic population. The Lever Food and Fuel Control Act of August 1917 banned the production of distilled spirits for the duration of the war. The War Prohibition Act of November 1918 forbade the manufacture and sale of all intoxicating beverages of more than 2.75 percent alcohol content, beer and wine as well as hard liquor, until demobilization was completed. Although some regarded these measures merely as ploys to speed the imposition of national prohibition, they reflected the depth of concern generated by the war and the prevailing belief that alcoholic beverages ought to be sacrificed under the circumstances."
In the midst of the wartime emergency, Congress took up the proposal for constitutional prohibition. The brief debate over the prohibition-amendment resolution repeated long-standing arguments and centered around four issues: revenue, property rights, the effectiveness of statutory prohibition, and the wisdom of increasing the power of the federal government. The debate proceeded along conservative-progressive lines. Opponents of the amendment argued that an end to liquor taxes would eliminate about a third of the federal government's revenues and cause a corresponding increase in general taxation. Proponents pointed to the existing prosperity and the new federal income tax to undercut this argument. Destroying the value of liquor-industry property without compensation was criticized as unjust and as setting a bad precedent. Drys replied that property injurious to society's health and welfare had long been subject to confiscation. Besides, they pointed out, the liquor industry would have one year to liquidate its property, between the amendment's ratification and the date it took effect. Skeptics questioned whether people accustomed to drinking would obey the law, but prohibition advocates argued that violations of criminal laws had never been a sufficient reason for abandoning them and that, furthermore, the overwhelming sentiment for prohibition would make the law enforceable. Some southern conservatives expressed concern about the growing power of the federal government and the intervention of that government into local affairs. Prohibition supporters generally ignored this argument, although they tried to blunt it somewhat by conceding that state governments would have concurrent enforcement powers. Clearly, the debate changed few minds. I I
By 1917 so many congressmen were prepared to vote for a constitutional amendment that the doubters found themselves brushed aside. On August 1, 1917, by a vote of 65 to 20, the Senate approved an amendment prohibiting the manufacture, sale, transportation, import, or export of intoxicating liquors. The House, after revising the resolution to specifically grant state and federal governments concurrent power of enforcement, approved it 282 to 128 at the end of one afternoon's discussion on December 17. Senate acceptance of the House alterations on December 22 sent the proposed Eighteenth Amendment to the state legislatures for their consideration.'s
Partisanship was notably absent from congressional action on prohibition in 1917. The Anti-Saloon League had asked legislators, whatever their positions on other issues, to endorse national prohibition in return for its support. This pressure apparently influenced many individual congressmen without having any noticeable effect on either major political party. In the Senate, 29 Republicans and 36 Democrats voted for the resolution; 8 Republicans and 12 Democrats voted against it. In the House, 137 Republicans, 141 Democrats, and 4 independents supported the proposed amendment, while 62 Republicans, 64 Democrats, and 2 independents stood opposed. More than a decade would pass before the major parties adopted distinguishable positions on the liquor question.
Some Senate opponents of the amendment, rather than attacking it outright, had sought to sabotage the proposal by requiring that it be ratified by the states within seven years. They assumed that the twenty-six states which by then had adopted total or partial prohibition laws would not be joined by ten other states in ratifying the amendment within that time span. This proved a major miscalculation. By January 16, 1919, little more than a year after the amendment was placed before the state legislatures, it had been fully ratified.
The lop-sided vote of Congress in submitting the resolution, and the rapid ratification of the Eighteenth Amendment by state legislatures provides an indication of the wide acceptance of the prohibition concept. In only thirteen months, forty-four state legislatures gave the proposal their endorsement, making it one of the most rapidly approved of all amendments. The absence of a direct national referendum or reliable public opinion survey makes it impossible to judge precisely the degree of popular support for the new law. Yet the very requirements for a constitutional change-approval by two thirds of each house of Congress and ratification by the legislatures of three fourths of the states-suggests that the assent of a major portion of the body politic and not just the enthusiasm of an aroused minority was involved. Confirmation can be found in the results of referendums on statewide prohibitory measures held in twenty-three states during the five years preceding ratification of the Eighteenth Amendment. The issues voted upon differed in detail, as did the circumstances surrounding each election. Nevertheless, only in California and Missouri did voters persistently reject prohibitory legislation by wide margins, in both states doing so more than once. In three close elections, Ohio voters twice turned down and then adopted statewide prohibition. In Iowa and Vermont state prohibition was narrowly defeated. But in eighteen other states, majorities ranging from 52 percent in Colorado up to 73 percent in Utah and 76 percent in Wyoming approved varying degrees of prohibition. " While votes on state measures ought not to be considered as identical to endorsement of a national law, these returns provide impressive evidence that liquor bans enjoyed broad support in the 1910s.
The adoption of the Eighteenth Amendment did not complete the creation of national prohibition. One of the most critical steps followed. The constitutional decree needed enforcement legislation to become effective. Congress in 1919 approved a strict enforcement act drafted by the Anti-Saloon League's general counsel, Wayne Wheeler, but known by the name of its sponsor, the chairman of the House Committee of the Judiciary, Andrew J. Volstead of Minnesota. The Volstead Act established procedures and agencies for enforcement and, in its most controversial section, defined intoxicating beverages as any containing more than one-half of one percent of alcohol. The .5 percent provision-advocated by the Anti-Saloon League and other militant drys-surprised considerable numbers of persons who assumed that, as had been the case with many state laws, only distilled spirits would be banned. Even beer and wine were outlawed under the terms of the Volstead Act.
President Woodrow Wilson, a temperance advocate but an opponent of prohibition, maintained an absolute neutrality toward the Eighteenth Amendment as it progressed through Congress and the state legislatures. Wilson disliked the drys' use of the continuing technical state of war as an excuse to implement prohibition even before the amendment was due to become effective on January 17, 1920, and gave this as his reason for vetoing the Volstead Act on October 27, 1919. Only a month before, however, the president had collapsed while campaigning for the Versailles peace treaty, and he was in no condition to fight for his beliefs regarding prohibition even if he had been willing to risk his little remaining political capital in such a battle. Congress immediately overrode the presidential veto by a vote of 176 to 5 in the House and 65 to 20 in the Senate. The Volstead Act, with its extreme program for implementing national prohibition, became law."
A brief summary can only hint at the rich history of the crusade which led to the passage of the Eighteenth Amendment and the Volstead Act. Nevertheless, it should make several points apparent. The idea of incorporating prohibition into the Constitution to protect against a legislative reversal arose only in the final stages of temperance agitation. The banning of liquor had long been discussed, trials had been undertaken on the local and state level in many parts of the country, and extensive support had accumulated. Progressive attitudes regarding the purpose and possibility of reform reinforced earlier temperance notions and created new sympathy for a dry law among those who previously had little interest in it. A wartime atmosphere of self-sacrificing patriotism provided a final boost. A righteous spirit of reform carried national prohibition into the Constitution of the United States.
As soon as the Eighteenth Amendment was adopted, some troublesome legal and philosophical questions which earlier had been glossed over began to surface. Several important challenges to the national dry law came before the Supreme Court just as the law was taking effect. Although the high court's reaction further demonstrated the support which national prohibition initially enjoyed, the arguments and decisions in these cases drew attention to some disturbing implications of this major constitutional innovation. Even as the adoption of the law received final confirmation by the Court, its popularity began to erode.
At almost the same time that the Volstead Act was being passed, a controversy erupted over Ohio's ratification of the Eighteenth Amendment which undermined the image of substantial majority support for the liquor ban. In November 1917 Ohio voters, at the same election in which they narrowly approved a statewide prohibition law, adopted overwhelmingly (508,282 to 315,030) a state constitutional amendment reserving to themselves the power to review the general assembly's action on federal amendments. This plan, placed on the Ohio ballot by opponents of national prohibition, stipulated that no ratification of a federal amendment by the legislature should go into effect for ninety days. During that time, a petition signed by six percent of the state's voters could be filed to force a referendum, and the assembly's ratification would then not take effect unless approved by a majority of those voting. "
On January 7, 1919, the Ohio General Assembly, by a vote of 20 to 12 in the senate and 85 to 29 in the house, ratified the national prohibition amendment. Governor James M. Cox forwarded the joint resolution to Secretary of State Robert Lansing, who counted Ohio among the thirty-six states having ratified when he proclaimed the Eighteenth Amendment adopted as of January 16, 1919. On March 11, 1919, opponents of national prohibition filed a referendum petition with Ohio Secretary of State Harvey C. Smith. Thereupon Smith ordered a referendum at the November 1919 general election on the state's ratification of national prohibition.
George S. Hawke, a Cincinnati attorney and prohibitionist, immediately sought an injunction to prevent Smith from spending public funds for a referendum which, said Hawke, was unconstitutional. The Ohio courts refused Hawke's request. On November 4, 1919, Ohio voters rejected the national prohibition amendment by the slender margin of S00,4-50 to 499,971. The first state referendum ever held to consider ratification of' a federal constitutional amendment had overturned the action of the starts legislature, or so it appeared."
Had Ohio ratified the national prohibition amendment? George Hawke immediately asked the United States Supreme Court which was valid: the Ohio General Assembly's "yes" or the voters' "no." When the Court heard the case on April 20, 1920, Hawke and his attorneys, including Wayne Wheeler of the Anti-Saloon League, argued that the legislative ratification should stand and that the referendum was unconstitutional. Article V of the U.S. Constitution specified that amendments proposed by Congress were valid "when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths there of, as the one or the other mode of ratification may be proposed by the Congress." Ohio could not, they asserted, impose any limitation upon the ratification process set forth in the federal Constitution."
Defenders of the Ohio referendum contended that the Constitution did not require states to have any particular form of legislature. Indeed the people of a state had the right, if they wished, to abolish their representative assemblies and take all legislative matters into their own hands. Or more practically, the people had the power, affirmed by the Supreme Court in another case brought by Ohio in 1916, to suspend legislative acts pending a referendum vote to accept or reject them. In other words, the argument ran, the term "legislature" included the entire legislative power of the state, not only the two houses of the general assembly but also the popular will as expressed in a referendum."
Wets and drys alike awaited the outcome of Hawke v. Smith with great interest. Referendums on national prohibition had been sought in other states besides Ohio. In Maine and Oregon, courts had refused to sanction them, while in California a referendum bill failed in the legislature. In Washington state, wets obtained a mandamus order from the state supreme court ordering acceptance of a referendum petition on the legislature's unanimous ratification of the Eighteenth Amendment, but all went for naught as the secretary of state then found the petition lacking sufficient signatures to place the question on the ballot. If the Supreme Court upheld the Ohio referendum, antiprohibitionists indicated they would probably seek referendums in several states in the hope of invalidating enough legislative ratifications to bring the total below the required three-fourths of all states. Encouraged by the referendum defeat of national prohibition in Ohio, even though by only 479 votes, wets felt they might still overturn the Eighteenth Aniundment."
On Tuesday, June 1, 1920, a unanimous Supreme Court upheld the ratification of the Eighteenth Amendment by the Ohio General Assembly:
Ratification by a State of a constitutional amendment is not an act of legislation within the proper sense of the word. It is but the expression of the assent of the State to a proposed amendment.... It is true that the power to legislate in the enactment of the laws of a State is derived from the people of the State. But the power to ratify a proposed amendment to the Federal Constitution has its source in the Federal Constitution. The act of ratification derives its authority from the Federal Constitution to which the State and its people have alike assented. "
In the opinion of the Court, when the Congress stipulated that a constitutional amendment be ratified by state legislatures, it neither authorized nor permitted a referendum. Six days later the Supreme Court firmly reiterated its view that state referendum provisions could not constitutionally be applied to the ratification process."
Regardless of the logic and legal soundness of the Supreme Court's ruling in 11awke v. Smith, the Ohio referendum controversy left an impression in some minds that national prohibition had been foisted on an unwilling American people by a crafty, well-organized minority using undemocratic means. Will Rogers, the widely read humorist, wrote, "Ohio was voted wet by the people and dry by their misrepresentatives. "" The image of a reform achieved by undemocratic means would fester and grow. The validity of legislative ratification in other states would be brought into question by the disparity between the lopsided general assembly action and the close but contrary popular vote in Ohio. The results of many earlier referendums on state prohibition in other states would be largely forgotten, as would the fact that the Eighteenth Amendment had been ratified by the same procedure as all previous constitutional amendments. Instead people would remember that the Eighteenth Amendment became part of the Constitution without a direct popular vote in most states and despite a hostile majority in its only test of public acceptability.
Brewers, distillers, and liquor distributors desperately challenged the legality of the Eighteenth Amendment and the Volstead Act in the courts. Employing some of the best legal talent in the country, these opponents of prohibition questioned the constitutionality of the amendment as well as the validity of the Volstead Act. The Supreme Court, reflecting the widespread support for national prohibition, peremptorily rejected their plea on all counts.
The strength of the Court's defense of prohibition can best be appreciated by examining the details of the appellants' arguments and of the Court's judgments. The first challenge to the law came from a New York brewer, Jacob Ruppert, who sought an injunction to restrain the federal government from enforcing, prior to the effective date of the Eighteenth Amendment, the wartime prohibition sections of the Volstead Act which forbade the manufacture and sale of beer with a 2.75 percent alcohol content. On the Supreme Court upheld the act as within the government's war powers and, very significantly, affirmed the right of Congress to limit the alcoholic content of beer by defining as intoxicating all beverages of more than one-half of one percent alcohol. This opinion was considered so broad as to leave little hope that other objections to prohibition would be sustained."
The Supreme Court issued its most sweeping decision concerning the Eighteenth Amendment in June 1920. Seven cases, each raising fundamental questions concerning the constitutionality of the amendment, were consolidated by the Court and labeled the National Prohibition Cases. A host of highly regarded attorneys, including Elihu Root, William D. Guthrie, and Levy Mayer, as well as Herbert A. Rice and Thomas F. McCran, attorneys general for Rhode Island and New Jersey respectively, represented the appellants. The oral arguments lasted for five days, an unusually long time for even the most important cases.
Attorney General Rice began by arguing that the amendment invaded the sovereignty of Rhode Island and her people, an invasion not contemplated by the amending clause of the Constitution. Rhode Island had not ratified the Eighteenth Amendment. The amending power, Rice contended, was provided to allow for the correction of errors in the fundamental instrument of government. The first ten amendments were adopted to insure against the encroachment by the federal government upon state functions and powers. If the amending power were to be construed as to allow any type of amendment, the boundary between federal and state authority could be shifted at will, and the people of a state would be at the mercy of others in matters of political institutions and personal rights. Attorney General McCran, arguing along the same lines, stressed tha4 the Tenth Amendment reserved all unenumerated powers to the states and to the people. The right to surrender such rights and powers, McCran contended, belonged exclusively to the people themselves and not their legislative representatives."
The argument of Elihu Root attracted the most attention. The former Secretary of War, Secretary of State, and senator represented a New Jersey brewer. Drys jested that "Hires Root Beer" had been changed to "Beer Hires Root," but they were clearly worried about the impact this distinguished attorney might have on the Court. Root asserted that the Eighteenth Amendment was simply unconstitutional. The substantive portion of the so-called Eighteenth Amendment, he said, did not relate to the powers or organization of government, as constitutional provisions ordinarily do. Rather, it was a direct act of legislation. He denied that the amending provision of the Constitution, Article V, authorized this type of amendment. Root pointed out that if the validity of the prohibition amendment were to be upheld, its repeal could perpetually be prevented by a minority. Repeal could be accomplished only by the passage of another constitutional amendment which, of course, would require the approval of three-fourths of the states. He distinguished between a constitutional amendment which granted the Congress power to prohibit the use of intoxicating liquors and an amendment which required such a prohibition. An amendment of the former sort would leave the question within the control of a majority of the people, but one of the latter type, such as the current amendment, thwarted the democratic process. Finally, Root contended, the Eighteenth Amendment undermined a fundamental principle of the federal system by directly invading the police powers of the states and encroaching upon the right of local self-government. If the amendment were upheld, he told the Court, the states would no longer be indestructible and the federal system of government could be completely subverted. "
Root from the outset opposed the form, spirit, purpose, and effect of the Eighteenth Amendment. He told friends that its denial of personal liberty, its potential for eroding respect for law, and its alteration of the balance between local and national government alarmed him." Most members of the bar, however, did not share Root's belief that the amendment was unconstitutional. Even his colleague William D. Guthrie thought his argument weak." But Root gave a memorable peroration:
If your Honors shall find a way to declare this so-called Amendment to the Federal Constitution valid, then the Government of the United States as it has been known to us and to our forefathers will have ceased to exist. Your Honors will have discovered a new legislative authority hitherto unknown to the Constitution and quite untrammelled by any of its limitations. You will have declared that two thirds of a quorum of each House of the Congress, plus a majority of a quorum of each of the two Houses of the Legislatures of three fourths of the States, may enact any legislation they please without any reference to the limitations of the Constitution, including the Bill of Rights itself. In that case, Your Honors, John Marshall need never have sat upon that bench."
Neither Root's reasoning nor his emotional oratory moved the Court. On June 7, 1920, it rejected every argument of the appellants in the National Prohibition Cases. Unanimously upholding the constitutionality of the Eighteenth Amendment, the justices also approved the method by which the state legislatures had ratified it. They held that the prohibition embodied in the amendment was within the power to amend reserved by Article V of the Constitution, and that therefore the amendment must be respected and observed. Commenting upon the role of the states under the amendment, the Court declared that the phrase 'concurrent power to enforce" did not include the power to defeat or frustrate prohibition. Concurrent power did not mean joint power or divided power, nor did it require that congressional legislation to enforce the amendment be approved by the states. The power to prohibit granted to Congress was not exclusive; it could be exercised by the states as well, but the law did embrace the entire territory of the United States and could not be avoided by any state. " The National Prohibition Cases decision, therefore, resoundingly endorsed the new and untried law.
The announcement of the Supreme Court decisions of June 1920 completed the process of embedding national prohibition in the law of the United States. Drys, as they won victory after victory in the Congress, in the state legislatures, and in the Supreme Court, easily brushed all opposition aside with compelling arguments about the benefits to be obtained from the reform. The prohibitionist success seemed total and permanent. Elihu Root had pointed out to the Supreme Court that once the amendment was emplanted in the Constitution, removing it would probably be impossible. No amendment to the Constitution, once adopted, had ever been repealed. Both supporters and critics of the law recognized this. To its advocates, the reform brought joy. Their arguments appeared to have the support of legislatures, courts, and the masses. To opponents of prohibition, the loss seemed irrevocable. Their objections had been ignored; their influence appeared nonexistent.
National prohibition took effect at midnight, January 16, 1920, one year after ratification of the Eighteenth Amendment. America entered the new age quietly, accepting the law as a great step forward or as a fait accompli and in either case believing that its reversal was quite out of the question. The following morning the New York Times reported, "John Barleycorn Died Peacefully At The Toll of 12. " Had Mr. Barleycorn been in a position to reply, he might have chosen Mark Twain's famous response, "The reports of my death are greatly exaggerated."
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