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Repealing National Prohibition
by David Kyvig
Copyright 1979 by the University of Chicago
Chapter 2 - America Sobers Up
When the Eighteenth Amendment took effect on January 17, 1920, most observers assumed that liquor would quickly disappear from the American scene. The possibility that a constitutional mandate would be ignored simply did not occur to them. "Confidence in the law to achieve a moral revolution was unbounded," one scholar of rural America has ' pointed out, explaining that "this was, after all, no mere statute, it was the Constitution."' The assistant commissioner of the Internal Revenue Service, the agency charged with overseeing the new federal law, predicted that it would take six years to make the nation absolutely dry but that prohibition would be generally effective from the outset. Existing state and federal law enforcement agencies were expected to be able to police the new law. Initial plans called for only a modest special enforcement program, its attention directed to large cities where the principal resistance was anticipated. I Wayne Wheeler of the Anti-Saloon League confidently anticipated that national prohibition would be respected, and estimated that an annual federal appropriation of five million dollars would be ample to implement it. The popular evangelist Billy Sunday replaced his prohibition sermon with one entitled "Crooks, Corkscrews, Bootleggers, and Whiskey Politicians-They Shall Not Pass."' Wartime prohibition, which only banned further manufacture of distilled spirits and strong beer (with an alcohol content exceeding 2.75 percent) had already significantly reduced consumption.' Few questioned the Volstead Act's capacity to eliminate intoxicants altogether. Americans accustomed to a society in which observation and pressure from other members of a community encouraged a high degree of conformity did not foresee that there would be difficulties in obtaining compliance with the law. They did not realize that the law would be resented and resisted by sizable elements in an increasingly urban and heterogeneous society where restraints on the individual were becoming far less compelling.'
Within a few months it became apparent that not every American felt obliged to stop drinking the moment constitutional prohibition began. In response to consumer demand, a variety of sources provided at first a trickle and later a growing torrent of forbidden beverages.' Physicians could legally prescribe "medicinal" spirits or beer for their patients, and before prohibition was six months old, more than fifteen thousand, along with over fifty seven thousand pharmacists, obtained licenses to dispense liquor. Grape juice or concentrates could be legitimately shipped and sold and, if the individual purchaser chose, allowed to ferment. Distributors learned to attach "warning" labels, reporting that United States Department of Agriculture tests had determined that, for instance, if permitted to sit for sixty days the juice would turn into wine of twelve percent alcohol content. The quadrupled output and rising prices of the California grape industry during the decade showed that many people took such warnings to heart.'
Other methods of obtaining alcoholic beverages were more devious. Some "near-beer," which was legally produced by manufacturing genuine beer, then removing the three to five percent alcohol in excess of the approved one-half percent, was diverted to consumers before the alcohol was removed. In other instances, following government inspection, alcohol was reinjected into near-beer, making what was often called "needle beer." Vast amounts of alcohol produced for industrial purposes were diverted, watered down, and flavored for beverage purposes. To discourage this practice, the government directed that industrial alcohol be rendered unfit to drink by the addition of denaturants. Bootleggers did not always bother to remove such poisons, which cost some unsuspecting customers their eyesight or their lives.
Theft of perhaps twenty million gallons of good preprohibition liquor from bonded warehouses in the course of the decade, as well as an undeterminable amount of home brewing and distilling, provided more palatable and dependable beverages.- By 1930 illegal stills provided the main supply of liquor, generally a high quality product. The best liquor available was that smuggled in from Canada and from ships anchored on "Rum Row" in the Atlantic beyond the twelve-mile limit of United States jurisdiction. By the late 1920s, one million gallons of Canadian liquor per year, eighty percent of that nation's greatly expanded output, made its way into the-United States. British shipment of liquor to islands which provisioned Rum Row increased dramatically. Exports to the Bahamas, for example, went from 944 gallons in 1918 to 386,000 gallons in 1922. The tiny French islands of St. Pierre and Miguelon off the coast of Newfoundland imported 118,600 gallons of British liquor in 1922, "quite a respectable quantity," a British official observed, "for an island population of 6,000."' Bootlegging, the illicit commercial system for distributing liquor, solved most problems of bringing together supply and demand. Government appeared unable - some claimed even unwilling - to halt a rising flood of intoxicants. Therefore, many observers at the time, and increasing numbers since the law's repeal, assumed that prohibition simply did not work.
Did national prohibition fail? Answering this question is a bit like deciding whether a glass is half-full or half-empty. One's response depends on certain value judgments regarding the relative importance of the degree of progress toward an objective versus the extent to which the advance falls short of the goal. Views differ as to what constitutes success or failure. National prohibition substantially reduced, but did not altogether eliminate, the use of alcoholic beverages. Thus, depending on their own values, observers at the time and later drew differing conclusions regarding the dry law's success. In order to understand both positive and negative reactions to national prohibition, it is important to examine the manner in which the law functioned, the extent to which it reduced the consumption of intoxicants, and the image of the law's operation derived by the contemporary public. What people thought was happening with national prohibition proved at least as important as what actually took place.
Laws, it is important to remember, seldom enjoy absolute compliance, and indeed a society expects a certain rate of violation of its behavioral codes. Communities create law enforcement agencies in anticipation that laws occasionally will be disregarded. The degree of coercive enforcement varies among societies, just as does the law-making authority. Yet to a considerable degree in every society public acceptance and voluntary compliance determine a law's success. Coercive power has limits; if enough dissenters refuse to obey a law, it cannot be imposed upon them. The acceptable limits of coercion vary, of course, from one society to another and one law to another. In the United States, where hostility to official coercion has a long history, a fairly high degree of voluntary compliance is usually regarded as necessary to a law's success. Thus the question of whether prohibition succeeded or failed involves more than simply determining whether more people obeyed than violated the law. It requires assessing the law's effect in relation to expectations, society's view of an acceptable level of violation, and the tolerable limits of enforcement to produce compliance.
The Volstead Act specified how the constitutional ban on "intoxicating liquors ... for beverage purposes" was to be enforced.9 What the statute did not say had perhaps the greatest importance. While the law barred manufacture, transport, sale, import, or export of intoxicants, it did not specifically make their purchase or use a crime. This allowed continued possession of intoxicants obtained prior to prohibition, provided that such beverages were only for personal use in one's own home. Not only did the failure to outlaw use render prohibition harder to enforce by eliminating possession as defacto evidence of crime, but also it allowed the purchaser and consumer of alcoholic beverages to defend his own behavior. Although the distinction was obviously artificial, the consumer could and did insist that there was nothing illegal about his drinking, while at the same time complaining that the failure of government efforts to suppress bootlegging represented a breakdown of law and order.
Adopting the extreme prohibitionist view that any alcohol whatsoever was intoxicating, the Volstead Act outlawed all beverages with an alcoholic content of .5 percent or more. The .5 percent limitation followed a traditional standard used to distinguish between alcoholic and nonalcoholic beverages for purposes of taxation, but that standard was considered by many to be unrealistic in terms of the amount of alcohol needed to produce intoxication. War-time prohibition, after all, only banned beer with an alcohol content of 2.75 percent or more. Many did not associate intoxication with beer or wine at all but rather with distilled spirits. Nevertheless, the only exception to the .5 percent standard granted by the Volstead Act, which had been drafted by the Anti-Saloon League, involved cider and fruit juices; these subjects of natural fermentation were to be illegal only if declared by a jury to be intoxicating in fact. The Volstead Act, furthermore, did permit the use of intoxicants for medicinal purposes and religious sacraments; denatured industrial alcohol was exempted as well.
The Eighteenth Amendment specified that federal and state governments would have concurrent power to enforce the ban on intoxicating beverages. Therefore the system which evolved to implement prohibition had a dual nature. Congress, anticipating general compliance with the liquor ban as well as cooperation from state and local policing agencies in dealing with those violations which did occur, created a modest enforcement program at first. Two million dollars was appropriated to administer the law for its first five months of operation, followed by $4,750,000 for the fiscal year beginning July 1, 1920. The Prohibition Bureau of the Treasury Department recruited a force of only about fifteen hundred enforcement agents." Every state except Maryland adopted its own antiliquor statute. Most state laws were modeled after the Volstead Act, though some dated from the days of state prohibition and several imposed stricter regulations or harsher penalties than did the federal statute. " State and local police forces were expected to enforce these laws as part of their normal duties. Critics at the time and later who claimed that no real effort was made to enforce national prohibition because no large enforcement appropriations were forthcoming need to consider the assumptions and police practices of the day." No general national police force, only specialized customs and treasury units, existed. Furthermore, neither federal nor state officials initially felt a need for a large special force to carry out this one task. The creators of national prohibition anticipated only a modest increase in the task facing law-enforcement officials.
Most Americans obeyed the national prohibition law. Many, at least a third to two-fifths of the adult population if Gallup poll surveys in the 1930s are any indication, " had not used alcohol previously and simply continued to abstain. Others ceased to drink beer, wine, or spirits when to do so became illegal. The precise degree of compliance with the law is difficult to determine because violation levels cannot be accurately measured. The best index of the extent to which the law was accepted comes from a somewhat indirect indicator.
Consumption of beer, wine, and spirits prior to and following national prohibition was accurately reflected in the payment of federal excise taxes on alcoholic beverages. The tax figures appear reliable because bootlegging lacked sufficient profitability to be widespread when liquor was legally and conveniently obtainable. The amount of drinking during prohibition can be inferred from consumption rates once alcoholic beverages were again legalized. Drinking may have increased after repeal; it almost certainly did not decline. During the period 1911 through 1915, the last years before widespread state prohibition and the Webb-Kenyon Act began to significantly inhibit the flow of legal liquor, the per capita consumption by Americans of drinking age (15 years and older) amounted to 2.56 gallons of absolute alcohol. This was actually imbibed as 2.09 gallons of distilled spirits (45 percent alcohol), 0. 79 gallons of wine 0 8 percent alcohol), and 29.53 gallons of beer (5 percent alcohol). In 1934, the year immediately following repeal of prohibition, the per capita consumption measured 0.97 gallons of alcohol distributed as 0. 64 gallons of spirits, 0. 36 gallons of wine, and 13.58 gallons of beer (4. 5 percent alcohol after repeal). " Total alcohol consumption, by this measure, fell by more than 60 percent because of national prohibition. Granting a generous margin of error, it seems certain that the flow of liquor in the United States was at least cut in half. It is difficult to know whether the same number of drinkers each consumed less or, as seems more likely, fewer persons drank. The crucial factor for this discussion is that national prohibition caused a substantial drop in aggregate alcohol consumption. Though the figures began to rise almost immediately after repeal, not until 1970 did the annual per capita consumption of absolute alcohol reach the level of 1911-15. In other words, not only did Americans drink significantly less as a result of national prohibition, but also the effect of the law in depressing liquor usage apparently lingered for several decades after repeal.
Other evidence confirms this statistical picture of sharply reduced liquor consumption under prohibition. After the Volstead Act had been in force for a half dozen years, social worker Martha Bensley Bruere conducted a nationwide survey of drinking for the National Federation of Settlements. Her admittedly impressionistic study, based upon 193 reports from social workers across the country, focused on lower-class, urban America. Social workers, who generally favored prohibition, perhaps overrated the law's effectiveness. Nevertheless, Bruere's book provided probably the most objective picture of prohibition in practice in the mid-1920s.
The Bruere survey reported that adherence to the dry law varied from place to place. The Scandinavians of Minneapolis and St. Paul continued to drink. On the other band, prohibition seemed effective in Sioux Falls, South Dakota. In Butte, Montana, the use of intoxicants had declined, though bootleggers actively plied their trade. Idaho, Oregon, and Washington had generally accepted prohibition, and even in the West Coast wet bastion, San Francisco, working-class drinking appeared much reduced. The Southwest from Texas to Los Angeles was reported to be quite dry. The survey cited New Orleans as America's wettest city, with bootlegging and a general disregard of the law evident everywhere. In the old South, prohibition was said to be effectively enforced for Negroes but not whites. Throughout the Midwest, with some exceptions, residents of rural areas generally observed prohibition, but city dwellers appeared to ignore it. In the great metropolises of the North and East, with their large ethnic communities-Chicago, Detroit, Cleveland, Pittsburgh, Boston, New York, and Philadelphia-the evidence was overwhelming that the law was neither respected nor observed."
Throughout the country, Bruere suggested, less drinking was taking place than before prohibition. Significantly, she reported the more prosperous upper and middle classes violated the alcoholic beverage ban far more frequently than did the working class. Illicitly obtained liquor was expensive. Yale economist Irving Fisher, himself an advocate of prohibition, claimed that in 1928 on the average a quart of beer cost 80C (up 600 percent from 1916), gin $5.90 (up 520 percent), and corn whiskey $3.95 (up 150 percent) while average annual income per family was about $2,600. " If nothing else, the economics of prohibition substantially reduced drinking by lower-class groups. Thus prohibition succeeded to a considerable degree in restraining drinking by the very social groups with whom many advocates of the law had been concerned. The Bruere study, therefore, offered cheer to drys. Yet her report also demonstrated that acceptance of prohibition varied with ethnic background and local custom as well as economics. Community opinion appeared more influential than federal or state laws or police activity. People in many parts of the United States voluntarily obeyed the Eighteenth Amendment, but elsewhere citizens chose to ignore it. In the latter part of the decade, violations apparently increased, both in small towns and large cities. In Detroit it reportedly became impossible to get a drink "unless you walked at least ten feet and told the busy bartender what you wanted in a voice loud enough for him to hear you above the uproar.""
Any evidence to the contrary notwithstanding, national prohibition rapidly acquired an image, not as a law which significantly reduced the use of alcoholic beverages, but rather as a law that was widely flouted. One Wisconsin congressmen, writing to a constituent after a year of national prohibition, asserted, "I believe that there is more bad whiskey consumed in the country today than there was good whiskey before we had prohibition and of course we have made a vast number of liars and law violators through the Volstead Act."" In part this commonly held impression stemmed from the substantial amount of drinking which actually did continue. Even given a 60 percent drop in total national alcohol consumption, a considerable amount of imbibing still took place. Yet the image also derived in part from the unusually visible character of those prohibition violations which did occur.
Drinking by its very nature attracted more notice than many other forms of law-breaking. It was, in the first place, generally a social, or group, activity. Moreover, most drinking took place, Bruere and others acknowledged, in urban areas where practically any activity was more likely to be witnessed. Bootleggers had to advertise their availability, albeit carefully, in order to attract customers. The fact that the upper classes were doing much of the imbibing further heightened its visibility. Several additional factors insured that many Americans would have a full, perhaps even exaggerated, awareness of the extent to which the prohibition law was being broken.
The behavior of those who sought to profit by meeting the demand for alcoholic beverages created an indelible image of rampant lawlessness. National prohibition provided a potentially very profitable opportunity for persons willing to take certain risks. "Prohibition is a business," maintained the best known and most successful bootlegger of all, Al Capone of Chicago. "All I do is supply a public demand."" Obtaining a supply of a commodity, transporting it to a marketplace, and selling it for an appropriate price were commonplace commercial activities; carrying out these functions in the face of government opposition and without the protections of facilities, goods, and transactions normally provided by government made bootlegging an unusual business. Indeed bootleggers faced the problem--or the opportunity -that hijacking a competitor's shipment of liquor often presented the easiest and certainly the cheapest way of obtaining a supply of goods, and the victim of such a theft had no recourse to regular law enforcement agencies. Nor, for better or worse, could bootleggers expect government to restrain monopolistic practices, regulate prices, or otherwise monitor business practices. Consequently, participants in the prohibition-era liquor business had to develop their own techniques for dealing with competition and the pressures of the marketplace. The bootlegging wars and gangland killings, so vividly reported in the nation's press, represented, on one level, a response to a business problem.
Certain activities beyond the pale of the law, but for which there existed a substantial consumer demand-gambling, prostitution, and narcotics in particular-had been organized in a businesslike fashion well before the 1920s. Those involved in these fields were reluctant to risk their positions in new ventures. Those who became important bootleggers tended to be persons who had obtained some low-level experience in such criminal businesses and aspired to advance. Bootleggers tended to be young men from recent immigrant groups, Italians, Poles, and Jews especially, who were looking for economic opportunity and found traditional routes, legal or criminal, blocked by established entrepreneurs. Of 58 leaders of bootlegging organizations in ten major cities in 1931, after eleven years of prohibition, two thirds (39) were still under forty years of age, and several were still in their twenties. Al Capone was only thirty-two when he went to prison for income tax evasion in 1931. Many of these aggressive young men had belonged to youth gangs in New York or elsewhere. They were willing to engage in any profitable activity and to defend their interests by violent means if necessary. National prohibition offered them an unparalleled opportunity."
Violence was commonplace in establishing exclusive sales territories, in obtaining liquor, or in defending a supply. In Chicago, for instance, rival gangs competed intensely. Between September 1923 and October 1926, the peak period of struggle for control of the large Chicago market, an estimated 215 criminals died at the hands of rivals. In comparison, police killed 160 gangsters during the same period. Although by conventional business standards the violence level in bootlegging remained high, it declined over the course of the 1920s. Consolidation, agreement on markets, regularizing of supply and delivery all served to reduce turbulence. John Torrio and Al Capone in Chicago, Charles Solomon in Boston, Max Hoff in Philadelphia, the Purple Gang in Detroit, the Mayfield Road Mob in Cleveland, and Joseph Roma in Denver imposed some order on the bootlegging business in their cities. The more than a thousand gangland murders in New York during prohibition reflect the inability of Arnold Rothstein, Lucky Luciano, Dutch Schultz, Frank Costello, or any other criminal leader to gain control and put an end to (literally) cut-throat competition in the largest market of all."
The nation's press drew a vivid picture of a disregarded law. Newspapers constantly carried reports of police raids on stills and speakeasies. Such stories, along with reports of the many gangland killings in New York, Chicago, and elsewhere, of course represented legitimate news, but their impact far outweighed the statistical evidence of reduced drinking nationwide. The exploits of prohibition enforcement agents, particularly a few colorful figures in the early years of prohibition, received considerable press attention. New York City's Izzy Einstein and Moe Smith proved masters of disguise, which allowed them to infiltrate speakeasy after speakeasy to obtain evidence and make arrests. Their imaginative and colorful tactics (for example, dressing as wagon drivers to gain entry to working class bars or appearing in outlandish garb representing their idea of Texas ranchers in order to claim to be out-of-towners looking for a place to get a drink) contributed to their success and made them good news copy as well. Izzy and Moe's efforts were so widely reported that they were forced to keep changing their ploys, and by 192S they were compelled to retire."
Magazines such as Literary Digest, The New Yorker, and H. L. Mencken's American Mercury frequently referred to drinking by the Eastern upper classes and, by assuming that what could be observed of one class in one region was equally true for all social strata throughout the country, exaggerated the overall level of prohibition violation. Mencken, whom Walter Lippman called "the most powerful influence on this whole generation of educated people,"" in particular pictured prohibition as a futile attempt to prevent drinking. Prohibition provided a central example for his endlessly repeated argument that a puritanical and hypocritical rural Protestant "boobus Americanus" was seeking to block the development of sophisticated, cosmopolitan society in the United States. Prohibitionists were attempting, as Mencken put it, "to punish the other fellow for having a better time in the world.""
Motion pictures, already popular by the start of the 1920s, became even more so after "talkies" began to appear in 1927. By 1930 an average of ninety million tickets a week were being sold to a population of 123 million Americans." Films helped shape perceptions of what was taking place in American society beyond the individual's immediate experience, contributing among other things to the impression of widespread prohibition violation. Although few films in the early twenties dealt with drinking or bootlegging, by mid-decade moviegoers were being subjected to a wave of films on uninhibited, youthful, jazz-age "flapper" society. "No such picture would be considered properly finished," commented a New York Times film reviewer, "without a number of scenes depicting the shaking up and drinking down of cocktails and their resulting effect on those who partake of them."" A content analysis of 115 films, a representative sample for 1930, found liquor referred to in 78 percent and drinking depicted in 66 percent. A further examination of 40 of these same films revealed that while only 13 percent showed male villains drinking and 8 percent female villains doing likewise, in 43 percent the heroes drank and in 23 percent the heroines used intoxicants. "
A spate of gangster films, most set in New York or Chicago, overtook more old-fashioned murder mysteries by the early 1930s. Bootlegging provided the background for The Doorway to Hell, The Widow from Chicago, Little Caesar, City Streets, Public Enemy, The Secret Six, Enemies of the Law, Scarface: Shame of a Nation, and other pictures. In such films, criminal figures invariably came to a bad end-indeed the Motion Picture Producers and Distributors of America practically demanded it-but some nevertheless portrayed bootleggers as honorable, even noble characters. Alcohol became the engine of personal ruin in social melodramas from Prodigal Daughters (1923) and Wine of Youth (1924) to Young Man of Manhattan (1930) and Are These Our Children (1931). Despite the overt message of moral condemnation in cinematic treatments of liquor, films conveyed an image of a society which frequently used alcohol and patronized bootleggers."
Ironically, the federal government in its efforts to enforce national prohibition often contributed to the image of a heavily violated law. Six months after the Eighteenth Amendment took effect, for example, Jouett Shouse, an Assistant Secretary of the Treasury whose duties included supervising prohibition enforcement, announced that liquor smuggling had reached such proportions that it could no longer be handled by the 6,000 agents of the Customs Bureau. Shouse estimated that 35,000 men would be required to guard the coasts and borders against the flood of liquor pouring into the country. The Assistant Secretary attributed the problem to an unlimited market for smuggled whiskey and the 1,000 percent profits which could be realized from its sale. 29
During the 1920 presidential campaign, Republican nominee Warren G. Harding pledged to enforce the Volstead Act "as a fundamental principle of the American conscience," implying that the Wilson administration had neglected its duty." Despite his known fondness for drink, Harding attracted dry support with such statements while his opponent, the avowedly wet James A. Cox, floundered. Once inaugurated, President Harding tried to fulfill his campaign promise but met with little success. He explained to his wet Senate friend, Walter Edge of New Jersey, "Prohibition is a constitutional mandate and I hold it to be absolutely necessary to give it a fair and thorough trial."" The president appointed the Anti-Saloon League's candidate, Roy A. Haynes, as commissioner of prohibition and gave the corpulent, eternally optimistic Haynes a generally free hand in selecting personnel to wage battle against bootlegging. Harding began to receive considerable mail from across the country complaining about the failure of the dry law. As reports of prohibition violations increased, Harding became more and more disturbed. Never much of a believer in prohibition himself, Harding had, nevertheless, been willing as a senator to let the country decide whether it wanted the Eighteenth Amendment, and now as president he deplored the wholesale breaking of the law. In early 1923, having gradually realized the importance of personal example, Harding gave up his own clandestine drinking." In a speech in Denver just prior to his death, Harding appealed vigorously for observance of prohibition in the interest of preventing lawlessness, corruption, and collapse of national moral fiber. "Whatever satisfaction there may be in indulgence, whatever objection there is to the so-called invasion of personal liberty," the president asserted, "neither counts when the supremacy of law and the stability of our institutions are menaced."" Harding's rhetoric, although intended to encourage compliance with prohibition, furthered the image of a law breaking down.
A report by Attorney General Harry Daugherty to President Calvin Coolidge shortly after Harding's death suggested the extent to which the Volstead Act was being violated in its early years of operation. Daugherty indicated that in the first forty-one months of national prohibition, the federal government had initiated 90,330 prosecutions under the law. The number of cases had been rising: 5,636 were settled in April 1923, 541 more than in the initial six months of prohibition. The number of new cases doubled between fiscal 1922 and fiscal 1923. The government obtained convictions in 80 percent of the terminated cases. These figures showed, the attorney general argued, that prohibition enforcement was becoming increasingly effective." They could just as well be seen, however, as an indication of an enormous and increasing number of violations.
The prohibition cases brought into federal court most certainly represented only a small fraction of actual offenses. They nevertheless seemed to be more than the court and prison system could handle. In 1920, 5,095 of the 34,230 cases terminated in the federal courts involved prohibition violation; during 1929, 75,298 prohibition cases alone were concluded. In 1920, federal prisons contained just over 5,000 inmates; ten years later they contained over 12,000, more than 4,000 of whom were serving time for liquor violations. The courts were so overworked that they frequently resorted to the expedient of "bargain days." Under this system, on set days large numbers of prohibition violators would plead guilty after being given prior assurance that they would not receive jail sentences or heavy fines. By 1925, pleas of guilty, without jury trials, accounted for over 90 percent of the convictions obtained in federal courts. The legal system appeared overwhelmed by national prohibition. "
As president, Calvin Coolidge found prohibition enforcement to be the same headache it had been for his predecessor. Like Harding, Coolidge was constantly under pressure from Wayne Wheeler and other dry leaders to improve enforcement. He received hundreds of letters deploring the rate of Volstead Act violations and urging forceful action. Coolidge merely acknowledged receipt of letters on the subject, avoiding any substantial response." As it did with many other issues, the Coolidge administration sought to avoid the prohibition question as much as possible. Other than seeking Canadian and British cooperation in halting smuggling, and holding White House breakfasts for prestigious drys, few federal initiatives were taken while Coolidge remained in office." The picture of rampant prohibition violation stood unchallenged.
Congress, once having adopted the Volstead Act and appropriated funds for its enforcement, assumed its job was done and avoided all mention of prohibition during the law's first year of operation. Evidence of violations, however, quickly provoked dry demands that Congress strengthen the prohibition law. Whenever Congress acted, it drew attention to the difficulties of abolishing liquor. When it failed to respond, as was more frequently the case, drys charged it with indifference to law breaking. Whatever it did, Congress proved unable to significantly alter prohibition's image.
After Harding's inauguration, Congress learned that retiring Attorney General A. Mitchell Palmer had ruled that the Volstead Act placed no limit on the authority of physicians to prescribe beer and wine for medicinal purposes." Senator Frank B. Willis of Ohio and Representative Robert S. Campbell of Kansas moved quickly to correct this oversight by introducing a bill that would forbid the prescription of beer and rigidly limit physicians' authority to prescribe wine and spirits. Only one pint of liquor would be permitted to be dispensed for a patient during any ten-day period, under their plan. Well-prepared dry spokesmen completely dominated the hearings on the Willis-Campbell bill, insisting that this substantial source of intoxicants be eliminated. Physicians and pharmacists protested that beer possessed therapeutic value and that Congress had no right to restrict doctors in their practice of medicine. Nevertheless, in the summer of 1921 the bill passed the House by a vote of 250 to 93, and the Senate by 39 to 20." The Willis Campbell Act reflected congressional determination to shut off the liquor supply, but like the Volstead Act, it did not resolve the problem of imposing abstinence on those willing to ignore the law in order to have a drink.
For years, Congress continued to wrestle with the problem of creating and staffing an effective federal enforcement organization. The Volstead Act delegated responsibility for implementing national prohibition to an agency of the Bureau of Internal Revenue in the Department of the Treasury. The act exempted enforcement agents from civil service regulations, making them political appointees. The Anti-Saloon League, through its general counsel, Wayne B. Wheeler, relentlessly pressed Harding and Coolidge to name its candidates to positions in the enforcement agency. The prohibition unit, beset by patronage demands and inadequate salaries, attracted a low caliber of appointee and a high rate of corruption. By 1926 one out of twelve agents had been dismissed for such offenses as bribery, extortion, solicitation of money, conspiracy to violate the law, embezzlement, and submission of false reports. A senator who supported prohibition argued lamely that this record was no worse than that of the twelve apostles, but he could not disguise the enforcement unit's very tarnished reputation."
Even if the agency had been staffed with personnel of better quality, its task would have been overwhelming. It received little cooperation from the Department of Justice, with which it shared responsibility for prosecuting violators. Furthermore, the prohibition unit lacked both the manpower and the money to deal with the thousands of miles of unpatrolled coastline, the millions of lawbreaking citizens, and the uncountable hordes of liquor suppliers. The agency focused its efforts on raiding speakeasies and apprehending bootleggers, but this task alone proved beyond its capacity and discouraged a series of prohibition commissioners.
Congress steadily increased enforcement appropriations but never enough to accomplish the goal." In 1927 prohibition agents were finally placed under civil service, and in 1930 the Prohibition Bureau was at last transferred to the Justice Department." As useful as these congressional steps may have been, they came long after the enforcement effort had acquired a dismal reputation and doubts as to whether prohibition could possibly be effective had become deeply ingrained.
Early in 1929 Congress made a determined effort to compel greater adherence to national prohibition. A bill introduced by Washington senator Wesley L. Jones drastically increased penalties for violation of the liquor ban. Maximum prison terms for first offenders were raised from six months to five years, and fines were raised from $1,000 to $10,000.41 The Jones "Five-and-Ten" Bill, as it was called, passed by lopsided majorities in Congress and signed into law by Coolidge days before he left office, did not improve prohibition's effectiveness but strengthened its reputation as a harsh and unreasonable statute.
During the 1920s the Supreme Court did more than either the Congress or the president to define the manner in which national prohibition would be enforced and thereby to sharpen the law's image. As a Yale law professor, and earlier as president, William Howard Taft had opposed a prohibition amendment because he preferred local option, disliked any changes in the Constitution, and felt national prohibition would be unenforceable . 44 But when the Eighteenth Amendment was ratified, Taft, a constant defender of the sanctity of democratically adopted law, accepted it completely and even became an advocate of temperance by law. He condemned critics of national prohibition, saying, "There isn't the slightest chance that the constitutional amendment will be repealed. You know that and I know it."" As chief justice from 1921 until 1930, he sought to have the prohibition laws strictly enforced and took upon himself the writing of prohibition decisions .41 The opinions handed down by the Taft Court during the 1920s greatly influenced conceptions of the larger implications of the new law as well as the actual course of prohibition enforcement.
In 1922 the Supreme Court heard the case of Vito Lanza, who had been fined for manufacturing and transporting liquor in violation of a Washington state prohibition law and who was now being prosecuted for the same act under the federal statute. Lanza's attorneys argued that such a prosecution violated the Fifth Amendment guarantee against double jeopardy. The Court held that while the Eighteenth Amendment established prohibition as a national policy, the "concurrent power to enforce" clause gave each state the right to exercise an independent judgment in adopting measures to enforce prohibition as long as such laws did not contradict the federal statutes. The rights of states did not derive from the Eighteenth Amendment, but from powers originally belonging to them; the concurrent power provision merely insured that this power would not be denied. The state and the federal government each possessed an independent authority to punish prohibition violations as offenses against its peace and dignity, Chief Justice Taft explained. The Fifth Amendment only barred repeated proceedings by the federal government and did not apply to a situation of this sort. Therefore the Court unanimously upheld the second prosecution of Vito Lanza." Since nearly every state in the union either had a state prohibition law prior to the adoption of the Eighteenth Amendment or had passed one immediately after ratification, the Lanza decision meant that prohibition violators could be indicted and punished twice for almost every offense.
Next the court sought to strike a blow at bootlegging. In December 1921, federal prohibition agents patrolling the highway between Detroit and Grand Rapids, Michigan, stopped an automobile driven by George Carroll and John Kiro. Two months earlier the agents had arranged to buy whiskey from Carroll and Kiro, but the two suspected bootleggers had failed to reappear with the liquor. When they recognized the car, the agents admittedly had no evidence that it carried liquor; indeed, they had not anticipated seeing Carroll and Kiro. The agents nevertheless proceeded, without a warrant, to search the car. They found sixty-eight bottles of whiskey and gin concealed behind the upholstery. When Carroll and Kiro were convicted, their attorneys appealed, claiming that the evidence used against them had been seized in violation of the search and seizure provision of the Fourth Amendment. The Supreme Court noted that the Fourth Amendment prohibited only "unreasonable" searches and seizures and held that this case did not involve such an unreasonable act. Speaking for the Court, Taft explained that, since a vehicle could depart before a warrant could be obtained, in order to protect the public interest, officers having reasonable cause could legally search an automobile without a warrant. The defense protested that the officers lacked sufficient grounds for conducting a search since the car did not appear to be carrying liquor and since the agents had never actually purchased liquor from the defendants. The Court, however, held the officers' suspicions reasonable and the obtaining of a search warrant impracticable. By a vote of seven to two, the justices upheld the conviction." The Carroll decision of March 2, 1925, greatly expanded the search and seizure powers of prohibition enforcement agents and indeed of all police dealing with automobiles.
Objections by the medical profession to the restrictions of the prohibition laws increased with the 1921 passage of the Willis-Campbell Act. Physicians continued to claim that the Eighteenth Amendment did not permit Congress to interfere with the practice of medicine. In June 1924, however, the Supreme Court unanimously upheld the right of Congress to proscribe the medicinal use of beer." Even more significant was the Court's response to a suit brought by a group of prominent New York physicians led by the Dean Emeritus of the College of Physicians and Surgeons of Columbia University, Dr. Samuel W. Lambert. In 1923 Dr. Lambert obtained a District Court injunction forbidding the local prohibition director from interfering with his prescription of wines and spirits. He claimed that the Willis-Campbell Act's prescription limitation of one pint in ten days for any patient was arbitrary and interfered with his constitutional rights as a physician to treat his patients according to his judgment and training. In 1926 the Supreme Court, by a five to four vote, ruled the power to limit medicinal use of liquor a legitimate part of the power to enforce the prohibition against the beverage use of alcohol. In the Court's view, the one-pint-in-ten-days limitation was not arbitrary; it reflected the opinions of many physicians as to the marginal value of liquor as medicine. Furthermore, the Court held the right to practice medicine to be subordinate always to the police power of the state. Dissenting justices asserted that the Eighteenth Amendment placed a prohibition only on beverage alcohol and could not properly be applied to medicinal liquor, but they were outvoted.10 The Lambert case represented an almost even division of opinion within the Court, but as did earlier decisions, it strengthened the government's hand in enforcing prohibition.
The last major Supreme Court decision concerning prohibition enforcement became in many ways the most controversial and significant. It grew out of a 1925 case in the state of Washington where Roy Olmstead, a major smuggler of Canadian liquor, and seventy-four other persons were convicted on the basis of evidence obtained by tapping their telephones. The wiretaps had been made without trespassing upon any property of the defendants. However, a state statute made wiretapping a misdemeanor. In appealing the case to the Supreme Court, the defense argued that the evidence had been criminally obtained and that telephone tapping violated the rights granted by the Fourth and Fifth Amendments against unreasonable search and seizure and self-incrimination." Led by Chief Justice Taft, who had no sympathy for lawbreakers and whose crusade for stricter enforcement of prohibition reached its zenith in this case, a majority of the Court disagreed. Taft declared that, since no trespass was involved and since no material things were searched or seized, the Fourth Amendment had not been infringed. Nor had the Fifth Amendment guarantee against self-incrimination, since the defendants had not been compelled to talk over the telephone but had done so voluntarily. Finally, under the common law, the admissibility of evidence was not affected by the fact it had been illegally obtained."
Justices Holmes, Brandeis, Stone, and Butler vigorously dissented from the Olmstead decision. Brandeis argued that wiretapping, although dressed in the garb of new technology, remained illegal search and seizure. Any unjustified intrusion by the government upon the privacy of the individual, by whatever means, violated the right of privacy guaranteed by the Fourth Amendment. Holmes and Brandeis both protested the use of evidence obtained by a criminal act. Holmes stressed that the government should not foster crime as the means to obtain evidence regarding other crimes. Brandeis declared that the government must observe the same rules as the citizen if it expected to command respect. In one of his most ringing and oft-quoted dissents, Brandeis concluded,
In a government of law, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. "
Despite the dissenters' warnings, a majority of the Court upheld the use of wiretapping. The opinions of Holmes and Brandeis upset Taft, who saw automobiles and telephones as new and powerful weapons in the hands of criminals. The Chief Justice felt that to adopt the position taken by Holmes and Brandeis would be to facilitate crime and furnish immunity from conviction. The Court, in Taft's opinion, must support the efforts of lawenforcement officials in combating criminal activity."
Throughout the 1920s the Supreme Court clearly followed Taft's line of thought. The Court's opinions substantially strengthened the machinery for enforcing law and order and upholding the Eighteenth Amendment. When implementation of the new amendment conflicted with the apparent restraints of older ones, a majority of the justices preferred to see the recent addition well launched. Court decisions and dissents made those who paid attention aware that prohibition would have far-reaching ramifications on legal rights. The image of a government prepared to engage in more aggressive and intrusive policing practices than ever before in order to enforce a particular law was being created by Lanza, Carroll, Lambert, and Olmstead at the same time that the impression was being generated of widespread disregard for that law.
While in reality national prohibition sharply reduced the consumption of alcohol in the United States, the law fell considerably short of expectations. It neither eliminated drinking nor produced a sense that such a goal was within reach. So long as the purchaser of liquor, the supposed victim of a prohibition violation, participated in the illegal act rather than complained about it, the normal law enforcement process simply did not function. As a result, policing agencies bore a much heavier burden. The various images of lawbreaking, from contacts with the local bootlegger to Hollywood films to overloaded court dockets, generated a widespread belief that violations were taking place with unacceptable frequency. Furthermore, attempts at enforcing the law created an impression that government, unable to cope with lawbreakers by using traditional policing methods, was assuming new powers in order to accomplish its task. The picture of national prohibition which emerged over the course of the 1920s disenchanted many Americans and moved some to an active effort to bring an end to the dry law.
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Marihuana, A Signal of Misunderstanding - The Report of the US National Commission on Marihuana and Drug Abuse
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Medical Marijuana Throughout History
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Marijuana, the First 12,000 Years
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