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Repealing National Prohibition
by David Kyvig
Copyright 1979 by the University of Chicago
Chapter 4 - Kicking a Stone Wall
Having decided to fight, opponents of national prohibition faced the problem of how to conduct the battle. The Eighteenth Amendment appeared as impregnable as a medieval stone fortress to a band of ill-equipped foot soldiers, and complaining about its constitutional deficiencies seemed about as effective as kicking the base of the fortress wall. Initial efforts to breach the walls or circumvent the fortress proved equally futile. After a half dozen years of siege, the fortress remained unshaken, while the attackers found themselves limp from exertion, disheartened by their lack of progress, and searching for new tactics.
Nearly everyone who contemplated trying to overturn the Eighteenth Amendment became discouraged by the political requirements of repeal. Archibald Stevenson, a prominent New York attorney who joined William H. Stayton in objecting to national prohibition as an intrusion on states' rights, came by 1927 to regard as "useless" any effort to repeal the amendment. "The mechanism controlling the amending power of the Federal Constitution," he complained, "is very much like the ratchet on a cog wheel. The wheel may be turned conveniently in one direction, but it cannot be reversed."' Three-fourths of the states may effect a change in the Constitution, Stevenson pointed out, even though the remaining one-fourth contain a majority of the population. In 1926 the twelve most populous states contained over sixty-six million residents while the balance, a constitutional majority, had fewer than thirty-one million. Even if a large majority of states had second thoughts, he went on, they could not rescind their action as long as thirteen states objected. The thirteen smallest states could block repeal even though their combined population in 1920 was only five million, less than that of New York City. His mathematics and his assumption that more than enough states would choose to hold onto prohibition convinced Stevenson that a repeal campaign would have no chance of success. He was by no means alone in so thinking.'
Clarence Darrow, the famed defense lawyer and civil libertarian, objected strenuously to prohibition, but because of dry strength in many sparsely populated western and southern states, he regarded repeal as out of the question.
By whatever means it was done, and however slight may have been the understanding of the people, the fact is that Prohibition is entrenched today in the fundamental law of the nation, and, what is more important, that there are many men and powerful organizations who feel it to be their duty to enforce it. The impossibility of its complete reversal has only slowly dawned upon the American people. Even to modify the Volstead Act would require a political revolution; to repeal the Eighteenth Amendment is well-nigh inconceivable. Eleven or twelve million voters, properly distributed amongst the States that naturally support Prohibition, will suffice to keep it on the books. I
Republican Senator James W. Wadsworth of New York, who had voted against the amendment, shared Darrow's view that it was in the Constitution to stay. Samuel Gompers of the AFL conceded that repeal was "utterly hopeless." "That avenue of reform is closed," agreed Walter Lippmann, a vociferous critic of the dry law. After surveying the situation, the New York Times concluded editorially, "The Amendment is beyond effective attack."' In light of the widespread view that the Eighteenth Amendment could never be rescinded, opponents of national prohibition in the early 1920s diverted their attention toward the more modest and seemingly more attainable goal of rendering the law less obnoxious in practice. Eliminating the double jeopardy of state and federal prosecutions and changing the legal definition of intoxicating beverages to allow the use of mild beer became the two most eagerly pursued adjustments. The Moderation League of New York was formed in 1923 to work for the latter purpose. Moderation leagues were also founded in Ohio, Minnesota, and Pennsylvania.s Apparently none of these organizations attracted more than a few hundred members, though the New York league enlisted some prominent citizens, such as Elihu Root, but in itself, their emergence alongside the already organized and functioning repeal-minded Association Against the Prohibition Amendment demonstrated the pessimistic attitudes of quite a few committed antiprohibitionists.
Even as determined a constitutional opponent of national prohibition as Captain Stayton appeared in the early 1920s to bow to such discouraging appraisals. Although they never abandoned repeal of the Eighteenth Amendment as an ultimate objective, Stayton and the AAPA devoted far more attention to efforts to soften the definitions and enforcement provisions of the antiliquor laws. In April 1922 Stayton told three thousand supporters in New York's Carnegie Hall that association priorities were, first, legalization of beer and wine for home use; second, amendment or repeal of the Volstead Act; and, only third, repeal of the Eighteenth Amendment.' Defending the captain's speech in a letter to the New York Times, New York AAPA division treasurer Stuyvesant Fish justified the association's willingness to work for modification of prohibition: "The purging of the Constitution of the prohibition amendment will take time and may have to be left to our children's children to work Out. 11 7 In the meantime, modification could be achieved by a simple majority vote in Congress. An association letterhead defending modification efforts proclaimed; "WE ARE NOT FACING A HOPELESS TASKI"I The Times, responding editorially, encouraged the AAPA'S more modest efforts, while dismissing repeal as an unattainable goal: "An association for reasonable prohibition, a society for the modification of the Volstead Act, while it undertakes a mighty task, will find strong support."' Sensitive to views such as those expressed by the Times, Stayton did not claim too much for reform or repeal of the Volstead Act. He maintained only that it would be "like getting one step up the stairs." The Volstead Act, he believed, "has produced a very great evil in the country, and I think we would be very bad citizens, so believing, if we did not do all we could to secure an amendment to the Volstead Act." Furthermore, "the repeal of the Eighteenth Amendment will necessarily take years, and I think that no man is required to stand and subject himself to an injury if there is some way of remedying it."" Willingness to espouse limited, short-term goals did not cause the AAPA to forget about repeal, but it did spare the association the criticism of being totally unrealistic. Furthermore, the A"A gained a place on platforms where modification of prohibition was being discussed and won the opportunity to participate in the first successful counterattack on the dry law. This latter development, the 1923 repeal of the New York state prohibition enforcement act, gave fresh hope to all antiprohibitionists at a time of universally gloomy estimates of their prospects.
Nearly every state had adopted its own prohibition enforcement act, either in the days of state prohibition or immediately following the Eighteenth Amendment's ratification. The second clause of the amendment, granting Congress and state legislatures "concurrent power to enforce" prohibition, encouraged duplication. Some states passed laws even stricter than the Volstead Act, barring the possession of liquor legally acquired before the adoption of the Eighteenth Amendment or, as was the case in sixteen states, defining an intoxicating beverage at even a lower alcoholic content than the one-half percent established by the Volstead Act. State law enforcement officers carried much of the burden of policing prohibition."
Antiprohibitionists became particularly upset with concurrent enforcement provisions when in 1922 the Supreme Court announced in U.S. v. Lanza that persons could be prosecuted under both federal and state statutes for the same prohibition offense (see chap. 2). An AAPA spokesman declared that the Lanza ruling smacked of double jeopardy and undermined Fifth Amendment protections. " To end state assistance in enforcing national prohibition, efforts were made to repeal enforcement acts in New York and later in other states. Attacks on state prohibition laws had both symbolic and substantive purposes. A successful assault left the federal law untouched, but reduced resources for its enforcement. Not only would possible double jeopardy under prohibition be lifted, but victory might encourage the view that all antiliquor laws were susceptible to change.
Prohibition became an unusually partisan issue in New York state. In January 1919 a Republican majority in the legislature had ratified the Eighteenth Amendment on a straight party-line vote, despite the plea of newly elected Democratic governor Alfred E. Smith that the question first be submitted to a popular referendum. In April 1920 the legislature passed and Smith signed a bill to allow manufacture and sale within the state of beer with a 2.7S percent alcohol content. The United States Supreme Court soon validated the national. S percent limit in the National Prohibition Cases and, in 11awke v. Smith, declared referendums such as the one the governor still advocated constitutionally pointless. Smith, though he ran a million votes ahead of the national Democratic ticket, succumbed to the Harding landslide in November 1920. His successor, Republican Nathan Miller, approved the April 1921 action of an enlarged Republican majority adopting the Mullan-Gage Bill, a state prohibition enforcement law closely patterned after the Volstead Act. In 1922, however, New York Democrats won a sweeping election victory on a platform which, among other things, called for prohibition modification to allow 2.75 beer. The popular Smith easily regained the governorship and in his first message to the legislature endorsed the platform's modification proposal. The legislature, however, went much further, approving on May 3, 1923, a bill introduced by Tammany Hall spokesman Louis Cuvillier to repeal the Mullan-Gage Act."
The legislature's action placed Governor Smith in a quandary. Antiprohibitionists pressed him to follow his personal wet sentiments and sign the Cuvillier bill. Drys, meanwhile, insisted he veto the measure in order to uphold the laws and Constitution of the United States. Smith, who following his 1922 reelection was being seriously discussed as a 1924 Democratic presidential candidate, hesitated for nearly a month. He realized that either choice would antagonize large groups and damage his chances for the nomination. Earlier that spring Smith had been widely criticized after publication of a supposedly off-the-record remark he had made to a group of reporters: "Wouldn't you like to have your foot on the rail and blow the foam off some suds?" The governor realized that the stir would be nothing compared to the uproar which would follow approval of the repeal. Yet many of his faithful supporters expected nothing less. Finally, the hesitant Smith called a public hearing to air the arguments for and against Mullan-Gage repeal. 1 4
Ransom Gillett of the New York AAPA led wet forces, which also included the state AFL and the New York Molly Pitcher Club, in an effort to persuade Smith to sign the Cuvillier bill. With Smith presiding over a packed assembly chamber and giving no indication which way he was leaning, Gillett argued that the legislature's repeal vote came from representatives of seventy percent of the state's people and that the governor had no right to ignore this mandate. As long as the Mullan-Gage law was in force, Gillett pointed out, a prohibition violator in New York faced double jeopardy. Finally, he asserted, the concurrent-power clause merely authorized but did not require state action in support of national prohibition. Repeal of the state law would not nullify the Constitution, as drys argued, but would instead force Congress to accept its hitherto avoided full responsibility for enforcement of the federal law. Other proponents of repeal followed Gillett, and a letter of support from Samuel Gompers was read. When their turn came to speak, a series of prohibitionists urged a veto to uphold law enforcement."
On June 1, 1923, the day after the bitter five-hour debate, Al Smith signed the repeal bill. Henry Pringle, Smith's most dependable contemporary biographer, says the governor vacillated until the last minute before giving in to exhortations from Tammany Hall leaders. 'I In a 4,000 word statement defending his decision, the governor echoed the AAPA argument. The concurrent-power clause did not require the state to have an enforcement act, he said. Mullan-Gage repeal would not nullify the federal law in New York, but it would eliminate double jeopardy. Smith, obviously concerned about dry reaction, stressed that state officers would still be obliged to uphold the federal law, the only difference being that now all cases would be tried in federal court. Prohibitionists were not persuaded; they recognized that their cause had suffered a major setback. Meanwhile a jubilant Ransom Gillett exclaimed, "That lifts Governor Smith out of the class of politicians and puts him in the class with statesmen."
The repeal of the Mullan-Gage Act gave antiprohibitionists a tremendous psychological lift. The hither-to invincible forces of absolute and strict prohibition had been politically defeated for the first time. Could not other, and perhaps greater, victories be achieved with more determination and effort? Smith's decision kindled an admiration among the antiprobibitionists that would continue to grow thereafter. Smith became the first major political figure, and for a long time the only one, to jeopardize his own prospects by taking consequential action against prohibition. It was an act that the Eighteenth Amendment's opponents would never forget. AAPA endorsement of Smith's presidential candidacy the following year demonstrated the bond which had been forged. "
The New York state enforcement act battle was a unique episode in the early 1920s. Far more frequently, the A"A found itself involved, along with other antiprohibition groups, in campaigns to revise the Volstead Act's definition of an intoxicating beverage. As soon as the Volstead Act had been introduced, complaints had begun to be registered about the extremism of banning all beverages with more than .5 percent alcohol. Even if repeal of the Eighteenth Amendment was beyond reach, some prohibition critics believed it possible that the alcohol limit could be modified to permit beer and wine and render the law more tolerable. Changing the statutory definition of an intoxicant appeared constitutionally permissible. Furthermore, modification could be upheld as consistent with an interest in temperance and not an abandonment of that goal.
The AAPA was acutely aware of the widespread sympathy throughout the country for the establishment of temperance and the abolition of the social evils associated with liquor. Immoderate use of alcohol had indeed, its spokesmen concurred, ruined too many lives. Millions agreed on the need to end the abuse of alcohol, even if they differed on whether achieving that goal required total prohibition. Much initial support for the Eighteenth Amendment clearly stemmed from distaste for the saloon, seen by many as the encourager of excessive drinking and thereby a prime contributor to poverty, family neglect, and the success of unsavory political machines. AAPA leaders emphasized that they favored temperance and were "unalterably opposed to the saloon. " For some time, the association's letterhead bore the slogan, "Beers and Light Wines NOW: But no Saloons EVER. " These declarations tacitly acknowledged the impossibility, early in the twenties, of gaining support for repeal without assurance that the association had no desire for the return of the saloon and unrestrained drinking.
Urging modest change to legalize mild beer and weak wine provided a means of demonstrating loyalty to the objective of temperance. Modificationists argued that their proposed reform would lead people away from the illicit distilled spirits found mainly in speakeasies and toward less potent beverages which would legally be consumed at home. Those who wished something to drink would be harmlessly satisfied with beer. We stand just as much for temperance and law enforcement as the Anti-Saloon League, the modificationists maintained, but we are more realistic about how to achieve such goals. "The Volstead Law has been tried,-and convicted.""
The campaign for Volstead Act modification to permit beverages with a 2.75 percent alcohol content was begun by the American Federation of Labor. Samuel Gompers not only feared the loss of jobs with total prohibition, but also thought beer a refreshing, nutritious, nonintoxicating drink which would satisfy most working men." Preprohibition beer had averaged 5 percent alcohol, and its capacity to intoxicate was debated. Wartime prohibition, supposedly banning all intoxicants, had permitted manufacture and sale of 2.75 beer. Surely the latter standard would meet the requirements of the Eighteenth Amendment, labor assumed. The June 1919 AFL convention had asked that 2.75 beer be exempted from the Eighteenth Amendment's provisions. Thereafter, the AFL constantly urged Volstead Act modification. Both the 1921 and 1923 federation conventions called for legalization of 2.75 beer. The president of the photoengravers union, Matthew Woll, the AFL vice president closest to Gompers and most active in organized labor's campaign to change the prohibition laws, explained that modification would give workers "a wholesome and digestible beverage ... that they naturally crave" and that, as a result, "that big body of wage earners and citizens will have respect for the law and believe in the enforcement of the law."" In other words, workers would be more likely to obey a law which merely took away hard liquor and which allowed them a mild drink they enjoyed. Gompers' cautious successor as AFL president, William Green, held firmly to the same position after he took office in December 1924."
The AAPA began publicly endorsing 2.7S modification in 1922. In an April speech, Captain Stayton identified it as a primary goal, and the association campaigned for it during the fall elections. When they met briefly with President Coolidge in January 1924, association leaders made Volstead modification their principal request. The AAPA called on both major political parties to endorse modification in their 1924 platforms, but to no avail. Nevertheless, the association's public statements continued to stress modification during 1925 and 1926.11
A shared interest in modifying the Volstead definition of an intoxicant drew various antiprohibition groups together. During a January 1924 "Face the Facts" conference to publicize its objections to national prohibition, the AAPA announced formation of the Joint Legislative Committee, an alliance with the American Federation of Labor, the Moderation League of New York, and the Constitutional Liberty League of Massachusetts to seek modification. The joint committee brought together the largest organizations opposing prohibition, the four-million-member AFL and the three antiprohibition societies who together claimed (with undoubted exaggeration) a million members." This alliance was forged to present a united front to Congress. The joint committee quickly arranged for the first full-scale review of the prohibition situation. Fifty-nine sympathetic congressmen introduced identical bills calling for legalization of 2.75 beverages, and hearings on the proposal were scheduled. The joint committee had little hope for immediate favorable action but sought maximum publicity for its viewpoint." The House Judiciary Committee offered a congenial forum, since chairman Andrew Volstead had been defeated for reelection in 1922 and succeeded by a sympathetic Philadelphia Republican, George S. Graham."
The modification hearings of April and May 1924 provided the first serious congressional consideration of national prohibition since adoption of the Volstead Act. Julian Codman, a Boston attorney who headed the Constitutional Liberty League and served as counsel for the Joint Legislative Committee, marshalled a small army of witnesses favoring modification. Generally, their presentations stressed that existing prohibition laws had proved ineffective in reducing drinking and crime and that they bred corruption and helped create a general disrespect for law. Legalization of 2.75 beer, committee witnesses argued, would improve law observance and reduce public tensions. Codman, in his introductory remarks, made no mention of the constitutional issues involved in national prohibition which so concerned Stayton and others. He presented modification as the cure for undesirable conditions. "
Samuel Gompers, a prime witness for the Joint Legislative Committee, asserted that legal mild beer would ween people away from illicit hard liquor and increase their confidence in the country's laws and institutions. The president of the Illinois Federation of Labor argued that working men enjoyed and needed a refreshing glass of beer after work. If allowed 2.75 beer, they would be satisfied and unwilling to violate the law in order to obtain stronger drink. Matthew Woll pointed out that the prohibitionists' appeal for ratification of the Eighteenth Amendment had centered on criticism of saloons and hard liquor and had not foreshadowed the subsequent absolute ban on even mild alcoholic beverages. The Volstead Act's .5 percent limitation violated public trust and stirred popular revolt. Modifying the definition of an intoxicating beverage, said Woll, would restore confidence in government and produce law observance based on a belief in its justice and morality. Modification would foster temperance and morality, which had suffered setbacks with passage of the Volstead Act."
Spokesman for the AAPA, Captain Stayton and Missouri division chairman Henry S. Priest, endorsed modification without concealing their fundamental objections to prohibition. Priest contended that prohibition was being ignored because the public did not recognize the conduct proscribed by the law as criminal. Though he hoped it would not be, he maintained that if the Eighteenth Amendment was retained, its enforcement act should be changed to conform with popular attitudes regarding intoxicants and to carry out the benevolent purposes of the amendment: eliminating saloons and ending intemperance. Stayton pictured national prohibition as destroying both temperance and law observance, and he described modification as a legitimate and helpful corrective.'O
Women from the Philadelphia Molly Pitcher Club endorsed modification as a means of curbing some evil aspects of national prohibition-growing intemperance, especially among young people, and increasing disrespect for law. The Molly Pitcher Clubs were not abandoning their opposition to the Eighteenth Amendment, they said, but at the moment the question was one of improving conditions under the law. After a series of witnesses had made similar statements, Codman concluded the Joint Legislative Committee's presentation by submitting several documents: legal opinions that 2.75 beverages were not in fact intoxicating and therefore could be constitutionally allowed; medical opinions that 2.75 beer would not be harmful; and letters from ministers, employers, and union leaders saying that modification would make prohibition enforcement easier and would satisfy workingmen. "
The joint committee's presentation was sharply disputed by the prohibitionists, to whom the latter half of the hearing was given. They argued that any amount of alcohol was harmful and that any existing problems with prohibition could be eliminated through proper enforcement of the law. The debate did not persuade Congress to take any action, but it did publicize the modification argument throughout the country."
After the 1924 hearings bad failed to move Congress, the campaign to modify prohibition languished for nearly two years. The first serious effort to revive it came from New Jersey Senator Walter E. Edge, a good friend of the AAPA. In a major Senate speech on December 15, 1925, Edge lamented the growing failure of prohibition and increasing evidence of alcoholism and crime. While he preferred repeal of the Eighteenth Amendment, he conceded that that would take years. Congress could, however, improve conditions immediately by allowing 2.75 beer." Edge and his colleague and fellow AAPA supporter, William Cabell Bruce of Maryland, then conferred with Captain Stayton. They asked Stayton to present the antiprohibitionist case to a Senate subcommittee. Under Stayton's leadership the Joint Legislative Committee was reorganized early in 1926 to represent the critics of prohibition at the hearings. "
The Senate hearings of April 1926 marked the high point of modification efforts. A subcommittee of the Committee on the Judiciary was studying a variety of proposals to amend the Eighteenth Amendment so that states could exempt themselves from national prohibition, to change the Volstead Act's definition of an intoxicating beverage, to allow freer medicinal use of intoxicants, and to hold a national referendum on modification or repeal of national prohibition. Reforms in prohibition enforcement were also being considered. Julian Codman, who again served as the Joint Legislative Committee's spokesman while Stayton remained in the background, concentrated on Volstead Act modification from the outset. Codman asserted that the Volstead Act had exceeded the mandate of the Eighteenth Amendment by defining as intoxicating, beverages which in fact were not intoxicating, and furthermore, that the law had failed to prevent drinking or decrease crime. Rather, he said, the Volstead Act had done incredible harm by promoting bootlegging, destroying the standards of youth, and creating universal contempt for law."
Matthew Woll appeared before the subcommittee to express the AFL'S continuing interest in modification. He reported that there was great resentment against the Volstead Act's definition of intoxicants. Workers, he said, regarded the definition as "unsound, illogical, and in contravention of the intent and spirit of the Eighteenth Amendment," and they thought that a beverage of 2.75 percent alcohol content was not an intoxicant "but merely a stimulant." Popular resentment had increased, Woll continued, because safeguards against unjust search and seizure and against double jeopardy had been cast aside by the courts, while at the same time glaring evidence appeared of corruption and malfeasance by public officials. The AFL Spokesman saw the Volstead Act rather than the Eighteenth Amendment as the source of the problems, and therefore he felt that modification would provide a solution."
General Lincoln B. Andrews, the Assistant Secretary of the Treasury who supervised prohibition enforcement, strengthened the antiprohibitionist case when he admitted to the subcommittee that prohibition agents had engaged in a considerable amount of bribe-taking, corruption, and intoxication. Furthermore, proper enforcement could not be accomplished with current resources, he maintained. Under questioning by Codman, Andrews admitted his personal belief that modification to allow the sale of light beers, not to be consumed in saloons, would aid in promoting temperance and eliminating the illicit liquor traffic." This startling revelation from the federal government's chief prohibition enforcement officer cheered antiprohibitionists and led the Anti-Saloon League to demand Andrews' dismissal." Emory R. Buckner, U.S. district attorney for the Southern District of New York, buttressed Andrews' much-publicized testimony by telling the senators that the country was being flooded with illegal liquor and that either Congress would need to modify the law or spend incalculable sums to enforce it."
Such statements by high government officials directly involved in law enforcement gave credence to the Joint Legislative Committee's assertions that prohibition was not working and was producing undesirable conditions. The Senate subcommittee, however, was not impressed. It gave both the Eighteenth Amendment and the Volstead Act resounding endorsements.
We believe this Amendment to be morally right and economically sound.
So long as this Amendment is part of our fundamental law, it is the duty of all officers Legislative, Executive, and Judicial to aid in its enforcement.
The advocates of modification of the present Prohibition Laws propose to weaken the same. They seek to directly or indirectly authorize the manufacture and sale of intoxicating beverages. This is contrary to the spirit and intent of the Eighteenth Amendment."
Thereupon, at the subcommittee's recommendation, all modification proposals were dropped.
Having presented to Congress what they regarded as their strongest case for moderate reform, antiprohibitionists had gotten nowhere. One obvious reason for such total failure had been their inability to convince politicians of either party that prohibition reform had any chance of passage or that its advocacy would attract more votes than it would cost. From his office across the street from the Capitol, Wayne Wheeler continued to cultivate the Anti- Saloon League's reputation of being able to produce enough votes to sway an election. Therefore, except in clearly wet districts, candidates in 1926, as they had in 1920, 1922, and 1924, generally sought to avoid identification with prohibition repeal or even modification. Perhaps the clearest indication of how politicians assessed the strength of the antiprohibition movement emerged from the national party conventions of 1924.
Four years earlier the new national prohibition law had not been a significant issue at either Republican or Democratic convention. The Republicans in 1920 had adopted a platform containing an innocuous pledge of "unyielding devotion to the Constitution. " The Democratic platform committee had preferred to say nothing at all regarding prohibition. The committee and later the full convention had overwhelmingly rejected both William Jennings Bryan's proposal favoring effective enforcement of prohibition and a Tammany counterproposal for Volstead Act modification to allow beer and wine." By 1924, however, national prohibition had become a more serious issue to both parties.
As the party in power, and carrying the burden of the various Harding administration scandals, the Republicans in 1924 were extremely sensitive to criticism of their conduct of government. Though Republicans had not initially advocated national prohibition any more than Democrats had, they had become its custodians by virtue of their holding office since 1920. The Anti-Saloon League, through its Washington representative, Wayne Wheeler, had kept in close touch with the administration, pressing for appointment of its candidates to positions in the Prohibition Bureau and offering regular reminders of the danger of offending the drys. Though reluctant to increase the federal enforcement budget, both the late President Harding and his successor Calvin Coolidge had deemed it appropriate to make speeches urging Americans to uphold the law and expressing their own commitment to that end.
When the 1924 Republican convention met in Cleveland, a series of witnesses from more than twenty organizations urged the platform committee to endorse strict prohibition enforcement. Calling it the president's duty to enforce the law and the platform's responsibility to support his efforts, Wheeler pointed out that the league would work to defeat wet candidates, including modificationists. The only contrary voices among the witnesses belonged to AFL secretary Frank Morrison, advocating 2.75 beer, and Captain Stayton, who decried the need to "bow down and worship one law" and called for Volstead Act modification to make the drastic law more workable. The vote-conscious committee ignored Stayton and adopted a "law and order" plank. Following Wheeler's advice, party draftsmen avoided direct reference to the dry law, but left no doubt as to the Republican position.
We must have respect for law. We must have observance of law. We must have enforcement of law. The very existence of the Government depends upon this. The substitution of private will for public law is only another name for oppression, disorder, anarchy and the mob rule.
Every Government depends upon the loyalty and respect of its citizens. Violations of the law weaken and threaten government itself. No honest Government can condone such actions on the part of its citizens. The Republican party pledges the full strength of the Government for the maintenance of these principles by the enforcement of the Constitution and of all laws."
Of course, the platform offered no specifics as to how prohibition might be enforced, but party leaders judged that there was no prospect of changing the law and that even to hint at the possibility would offend many supporters as well as outrage the Anti-Saloon League. The modificationist Joint Legislative Committee had written to every Republican delegate, "The political party that is tied up with the Anti-Saloon League and its prohibition law that has spread corruption like a blight across the continent and rocked the faith of the people in the integrity of their Government will undoubtedly face an embarrassing situation in November."" Clearly, few Republicans placed any stock in such dire warnings.
The Association Against the Prohibition Amendment expected better treatment at the hands of the Democratic convention meeting in New York, in part because Alfred E. Smith was a leading candidate for the party's presidential nomination. Even before the Republicans had adjourned, Charles S. Wood, AAPA Pennsylvania state director, predicted that, although the association's 500,000 members were about equally divided between Republicans and Democrats, 90 percent would vote for Smith, should he be nominated. The association, said Wood, could also support another nominee, such as former Secretary of War Newton D. Baker or Maryland governor Albert Ritchie, who held satisfactory views on prohibition, but they clearly favored Smith, the hero of Mullan-Gage repeal."
On the eve of the Democratic convention, the AAPA held a rally in a New York hotel attended by 1,500 people, including some delegates. Resolutions adopted termed prohibition a violation of the "liberties of the individual citizen and the rights of the several states," and a "plainly apparent" failure. The gathering demanded a change in the Volstead Act, returning enforcement responsibility to the states as the first step toward repeal of the Eighteenth Amendment. The same day Stayton asserted that the AntiSaloon League had come to New York seeking a prohibition-enforcement plank to hamstring the Democrats. The league, he charged, was allied with the Republican party."
Although there was more antiprohibitionist sentiment in the New York convention than there had been in Cleveland (the AAPA claimed that 135 delegates, 10 percent of the convention's total, were members), dry sympathies dominated. A convention majority sufficiently nativist and fundamentalist to be unwilling to condemn the Ku Klux Klan was not about to take a stand against the Eighteenth Amendment. While platform statements on the League of Nations and especially the Klan prompted fierce battles, the delegates quietly approved a plank representing the same tacit acceptance of prohibition found in the Republican document, a pledge to respect and enforce the Constitution and all laws. The Democratic platform did also include a plank calling for the preservation of states' rights and an end to centralizing tendencies. Stayton immediately hailed the latter plank, saying that it expressed the fundamental principles in the fight against the prohibition tyranny. He made no mention, however, of his disappointment with the law-enforcement plank." Before long the A"A was claiming that it had influenced the Democrats and the Republicans as well. "Neither party dared to offend the 'wet' vote by any pronouncement in favor of prohibition." These brave words, however, masked considerable disappointment."
The defeat of Al Smith in the epic 103-ballot struggle for the presidential nomination constituted another setback for the antiprohibition cause. Smith represented urban, new immigrant, northern wet Democrats while his opponent, William G. McAdoo, championed rural and small-town, oldstock, conservative, dry Democrats from the South and West. Neither faction had the power to control a convention governed by a two-thirds rule for nomination, but each had the strength to block the other. Antiprohibition sentiment, while present, was insufficient to produce an acceptable platform or nominee at Madison Square Garden in July 1924. The Democrats' compromise presidential selection, John W. Davis, though accused of wet sympathies by the Anti-Saloon League, faithfully defended the party's enforcement plank. Davis's prohibition position may have driven many wet workingmen to support the independent progressive candidacy of Robert La Follette." Disappointed officers of the AAPA announced that since neither party had put forth an acceptable platform or candidate, the association would take no part in the national campaign but would confine its efforts to those congressional elections where the issue was clearly drawn.
Frustration with the unresponsive political system caused some antiprohibitionists to abandon all hope of normal reform and to openly discuss the possibility of ignoring the law. The increasingly firm belief that the Constitution could not be changed was reinforced by the unwillingness of either party even to discuss slight relaxation of the Volstead Act. Wayne Wheeler had called the antiprohibitionists' one modest victory, the repeal of the New York State enforcement act, "attempted nullification of the Constitution" and "a direct encouragement to lawlessness."" Before long, some discouraged antiprohibitionists came to feel that real nullification, the simple nonobservance and nonenforcement of a law which remained on the books, offered the only escape from prohibition.
Arthur R. Hadley, president emeritus of Yale University, in a November 1925 Harper's Magazine article, published the first serious proposal for nullification of prohibition. Laws were observed, Hadley argued, because the vast majority of people voluntarily accepted them, not because police compelled obedience. "Conscience and public opinion enforce the laws," he said; "the police suppress the exceptions." Voluntary observance of law was an essential of self-government; without it anarchy would result. Hadley saw tyranny replacing democracy when a government went beyond what public sentiment would support and adopted laws at the demand of pressure groups. When an unsatisfactory law could not be removed, the remedy lay with the people. "If any considerable number of citizens who are habitually law-abiding think that some particular statute is bad enough in itself or dangerous enough in its indirect effects to make it worthwhile to block its enforcement, they can do so." Hadley labeled such widespread disobedience "nullification, " claiming that the North had nullified the Fugitive Slave Law and the South had nullified the Reconstruction Acts. This was not revolution, Hadley maintained, but rather the members of a community deciding not to obey the laws they regard as bad or inconvenient, while continuing to observe others. "The officials charged with the enforcement of the law simply see that it is beyond their power to secure obedience to it. If those who passed the law or secured its passage are wise," counseled Hadley, "they will acquiesce in this result. If the police look the other way when such a law is broken, its bad effects are avoided without much harm to anybody." It would be better if legislatures avoided enacting bad laws by developing clearer ideas of public opinion and the limits of government, for with nullification, "if a good man breaks a bad law under pressure of necessity, it will encourage another man who is not so good to break several other laws which may not be so bad at all." In the face of unwise legislation, however, nullification was an obvious, indeed sometimes the only, remedy. "it is the safety valve which helps a self-governing community avoid the alternative between tyranny and revolution. It reduces the tension; it gives a warning to those in authority which they disregard at their peril.""
Hadley remained vague on such points as the percentage of violations sufficient to turn dangerous lawlessness into acceptable nullification and whether all laws, or only particular ones, could be so overturned. Still, this was not a simple and irresponsible call for lawbreaking. Its distinguished author was seeking a rational escape from the dilemma of a law unpopular with at least a very large minority of the American people and yet apparently beyond change. Other respectable voices soon took up the idea of nullification. " Walter Lippmann, for one, thought nullification offered a way out of an impossible situation in which a majority opposed but could not repeal an amendment. "This is a normal and traditional American method of circumventing the inflexibility of the Constitution," he wrote. "When the Constitution has come into conflict with the living needs of the nation, and when amendment was impossible, the method of changing the Constitution has been to change it and then get the very human Supreme Court to sanction it." Lippmann pointed out that the Fourteenth and Fifteenth Amendments had been effectively nullified and Southern majority opinion served by election laws which ignored the Constitution and disfranchised the Negro. The same could be done with prohibition. "A community has not ceased to be essentially law-abiding merely because it refuses to practice literal obedience. There is such a thing as orderly disobedience to a statute, a disobedience which is open, frankly avowed, and in conformity with the general sense of what is reasonable."" Clarence Darrow, Brand Whitlock, and others presented similar arguments in their desire somehow to be rid of the unwanted law. " Catholic moral theologian Father John A. Ryan did not overtly advocate nullification, but by 1927 he abandoned his earlier position that citizens were obligated to obey laws as long as they were enacted in good faith to achieve a valuable social purpose. Ryan, an influential liberal Catholic scholar, concluded that prohibition lacked public acceptance, excessively restricted individual liberty, proved harmful in practice, and therefore was no longer morally valid or binding.
The rather twisted reasoning of the nullification argument reflected the anguish of those who offered it. People like Lippmann and Darrow earlier in their careers had expressed great faith that law could be an engine of progressive social reform, causing people to behave more nobly than they would otherwise. Nullification took the position that only laws which reflected a social consensus were enforceable. Their willingness to adopt this viewpoint suggests how frustrated they were about the prospects of change through the normal political process and how intensely they felt the need to end national prohibition.
The leaders of the AAPA emphatically rejected the nullification proposal. "I should be greatly alarmed, " wrote Stayton, "at any official recognition of the existing unofficial hypocrisy."" Julian Codman did flirt with the idea of nullification, which at least partly explains Stayton's growing disenchantment with the Massachusetts attorney." A deep attachment to the idea of law observance, and complaints about an unreasonable, frequently violated law producing disrespect for all laws did not prepare the AAPA to advocate ignoring any law, however offensive. Furthermore, unlike the nullificationists, they were beginning to feel some optimism regarding the possibility of reform. By the end of 1926 several signs that public sentiment was shifting had appeared.
The Literary Digest had conducted the first large-scale national opinion survey on prohibition during the summer of 1922. Although unsophisticated by modern standards, the Digest's mail poll of its subscribers offered the best available picture at that time of middle-class opinion. Of more than 900,000 ballots returned, 38.6 percent favored enforcement of existing laws, 40.8 percent preferred Volstead Act modification to allow light wines and beer, and only 20.6 percent favored repeal of the Eighteenth Amendment. A special tally of women's ballots showed a slightly higher portion for enforcement, while a tabulation of factory workers found less than 9 percent for enforcement, nearly 30 percent for repeal, and an overwhelming 62 percent for modification." While the Digest poll did not reveal how many of those surveyed had originally favored the Eighteenth Amendment, it suggests that by 1922 a majority accepted the principle of prohibition. They thought the law should be enforced as it stood or, at most, changed to remove the ban on the mildest alcoholic beverages.
Four 1922 state referendums, taken as a group, reflected a similar view. In California a state prohibition-enforcement act was approved by a small majority after having been defeated two years earlier. Ohio voters rejected by a substantial margin a proposal to modify the state prohibition law to legalize beer and wine. In Illinois, on the other hand, a modification referendum carried by two to one, while the Massachusetts voters refused fourto-three to approve an enforcement act. Altogether voters in 1922 divided fairly evenly between enforcement and modifications Presumably some preferred repeal to modification, but a large share accepted prohibition as it stood.
By mid-decade, popular attitudes appeared to be changing. In 1925 Collier's magazine interviewed 263,583 men and women across the country regarding prohibition. Asked, "Are you satisfied with conditions as they are?" 68 percent said no and only 32 percent said yes. Thirty-nine percent felt the law was being enforced locally, while 61 percent thought not. Such questions emphasized discontent, while a more neutral query showed that 61 percent considered prohibition enforceable and only 39 percent disagreed." The Collier's survey did not inquire directly whether people favored repeal, modification, or continuation of the present law. But a substantial majority of those polled clearly did not approve of current conditions.
In 1926 eight state referendums provided the decade's largest sample of public opinion regarding prohibition. The questions varied, however, and did not always offer a clear indication of support for the liquor ban. In New York nearly two and a half million voters approved by a margin of better than three to one a proposal to legalize beverages above .5 percent alcohol content. In Illinois and Wisconsin similar modification referendums carried easily. Fifty-four percent of Montana voters approved repeal of the state enforcement act. Meanwhile a Nevada referendum calling national prohibition a failure and requesting that Congress call a convention to repeal or amend the Eighteenth Amendment passed three to one. Offsetting these five endorsements of modification or repeal, voters in California, Colorado, and Missouri solidly rejected proposals to repeal state enforcement laws. The contemporary appraisal of these returns-that opponents of prohibition had gained considerable popular backing although they had little support in state and federal legislatures-appears accurate." Public opposition to prohibition would increase greatly in later polls and referendums, but by 1926 signs of a shift away from acceptance of the law, whether as a boon or as a fait accompli, had begun to appear.
Some opponents of the dry law, for example, Senator William Cabell Bruce and the judges of a Hearst newspaper contest for the best essay on how to achieve temperance, maintained that modification offered the only attainable solution." But the Association Against the Prohibition Amendment gradually began to shift its course. In part, changes in AAPA activities and tactics may have resulted from a recognition that previous efforts had led nowhere. Citizens' rallys in Carnegie Hall, Brooklyn, Pittsburgh, and elsewhere, a meeting in St. Louis of AAPA representatives from around the nation, two well-attended "Face-the-Facts" conferences in Washington, and cross-country speaking tours by Captain Stayton and others all generated publicity." Neither the arguments presented nor the resulting growth of membership rolls produced any positive revision of the law. In fact, the number of sympathetic congressmen fell in 1924 and again in 1926. 11 Only a few congressmen, such as Representatives Fiorello LaGuardia of New York, Adolph J. Sabath of Chicago, John Philip Hill of Baltimore, and Edward Voigt of Wisconsin, and Senators Walter E. Edge and Edward 1. Edwards of New Jersey, James A. Reed of Missouri, William Cabell Bruce of Maryland, and James W. Wadsworth of New York spoke out against national prohibition frequently and loudly.
The attempt to modify the legal alcohol limit and the system of concurrent federal and state enforcement had absorbed much energy and produced only state enforcement-act repeal in New York and Montana. Modification referendums, of course, could have no effect unless Congress acted. Congress in 1926 firmly rejected all proposals for significant relaxation of the Volstead Act. Hopes for a compromise solution based on modification waned even further as it became clear that drinking habits were changing among those Americans who defied the law. Whereas before national prohibition, beer had been the predominant alcoholic beverage of choice, imbibers appeared to be turning increasingly to distilled liquors served in mixed drinks, or as was becoming the fashionable term, cocktails. Doubts increased that those who wanted to drink would be satisfied by weak 2.75 beer.
Those who opposed national prohibition for reasons other than their own thirst saw less and less to recommend modification. Concerns about the rising rate of crime, corruption of government officials, or spreading disrespect for law could not be relieved by either modest reform or the radical step of nullification; these expedients would lead to continued violation of the law. Neither modification nor nullification were at all palatable to those, like Stayton, who regarded the improper presence of the prohibition edict in the Constitution as the real problem.
The leaders of the AAPA gradually came to realize during the middle years of the twenties that only repeal would do. Their own arguments against prohibition pointed to such a conclusion. The task was clearly enormous, but little purpose was served by seeking halfway solutions. The organization was gaining new members whose interests, as will be seen, would not be served by mere modification. Both the results of polls and referendums and the evidence of widespread drinking indicated the growing unhappiness of many Americans with prohibition. Frustration with past failures to move the obstacle confronting them, as well as optimism about future prospects for success, caused the AAPA to redirect and intensify its campaign. New resources and a changing national mood encouraged those who continued to attack the hitherto impregnable defenses of national prohibition.
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