When Booze Was Banned but Pot Was Not

What can today’s antiprohibitionists learn from their predecessors?

Last Call: The Rise and Fall of Prohibition, by Daniel Okrent, Scribner, 468 pages, $30

Of the 27 amendments to the U.S. Constitution, the 18th is the only one explicitly aimed at restricting people’s freedom. It is also the only one that has ever been repealed. Maybe that’s encouraging, especially for those of us who recognize the parallels between that amendment, which ushered in the nationwide prohibition of alcohol, and current bans on other drugs.

But given the manifest failure and unpleasant side effects of Prohibition, its elimination after 14 years is not terribly surprising, despite the arduous process required to undo a constitutional amendment. The real puzzle, as the journalist Daniel Okrent argues in his masterful new history of the period, is how a nation that never had a teetotaling majority, let alone one committed to forcibly imposing its lifestyle on others, embarked upon such a doomed experiment to begin with. How did a country consisting mostly of drinkers agree to forbid drinking?

The short answer is that it didn’t. As a reveler accurately protests during a Treasury Department raid on a private banquet in the HBO series Boardwalk Empire, neither the 18th Amendment nor the Volstead Act, which implemented it, prohibited mere possession or consumption of alcohol. The amendment took effect a full year after ratification, and those who could afford it were free in the meantime to stock up on wine and liquor, which they were permitted to consume until the supplies ran out. The law also included exceptions that were important for those without well-stocked wine cellars or the means to buy the entire inventory of a liquor store (as the actress Mary Pickford did). Home production of cider, beer, and wine was permitted, as was commercial production of alcohol for religious, medicinal, and industrial use (three loopholes that were widely abused). In these respects Prohibition was much less onerous than our current drug laws. Indeed, the legal situation was akin to what today would be called “decriminalization” or even a form of “legalization.”

After Prohibition took effect, Okrent shows, attempts to punish bootleggers with anything more than a slap on the wrist provoked public outrage and invited jury nullification. One can imagine what would have happened if the Anti-Saloon League and the Woman’s Christian Temperance Union had demanded a legal regime in which possessing, say, five milliliters of whiskey triggered a mandatory five-year prison sentence (as possessing five grams of crack cocaine did until recently). The lack of penalties for consumption helped reassure drinkers who voted for Prohibition as legislators and supported it (or did not vigorously resist it) as citizens. Some of these “dry wets” sincerely believed that the barriers to drinking erected by Prohibition, while unnecessary for moderate imbibers like themselves, would save working-class saloon patrons from their own excesses. Pauline Morton Sabin, the well-heeled, martini-drinking Republican activist who went from supporting the 18th Amendment to heading the Women’s Organization for National Prohibition Reform, one of the most influential pro-repeal groups, apparently had such an attitude.

In addition to paternalism, the longstanding American ambivalence toward pleasure in general and alcohol-fueled pleasure in particular helped pave the way to Prohibition. The Puritans were not dour teetotalers, but they were anxious about excess, and a similar discomfort may have discouraged drinkers from actively resisting dry demands. But by far the most important factor, Okrent persuasively argues, was the political maneuvering of the Anti-Saloon League (ASL) and its master strategist, Wayne Wheeler, who turned a minority position into the supreme law of the land by mobilizing a highly motivated bloc of swing voters.

Defining itself as “the Church in Action Against the Saloon,” the clergy-led ASL reached dry sympathizers through churches (mostly Methodist and Baptist) across the country. Okrent says the group typically could deliver something like 10 percent of voters to whichever candidate sounded driest (regardless of his private behavior). This power was enough to change the outcome of elections, putting the fear of the ASL, which Okrent calls “the mightiest pressure group in the nation’s history,” into the state and federal legislators who would vote to approve the 18th Amendment. That doesn’t mean none of the legislators who voted dry were sincere; many of them—including Richmond Hobson of Alabama and Morris Sheppard of Texas, the 18th Amendment’s chief sponsors in the House and Senate, respectively—were deadly serious about reforming their fellow citizens by regulating their liquid diets. But even the most ardent drys depended on ASL-energized supporters for their political survival.

The ASL strategy worked because wet voters did not have the same passion and unity, while the affected business interests feuded among themselves until the day their industry was abolished. Americans who objected to Prohibition generally did not feel strongly enough to make that issue decisive in their choice of candidates, although they did make themselves heard when the issue itself was put to a vote. Californians, for example, defeated four successive ballot measures that would have established statewide prohibition before their legislature approved the 18th Amendment in 1919.

As Prohibition wore on, its unintended consequences provided the fire that wets had lacked before it was enacted. They were appalled by rampant corruption, black market violence, newly empowered criminals, invasions of privacy, and deaths linked to alcohol poisoned under government order to discourage diversion (a policy that Sen. Edward Edwards of New Jersey denounced as “legalized murder”). These burdens seemed all the more intolerable because Prohibition was so conspicuously ineffective. As a common saying of the time put it, the drys had their law and the wets had their liquor, thanks to myriad quasi-legal and illicit businesses that Okrent colorfully describes.

Entrepreneurs taking advantage of legal loopholes included operators of “booze cruises” to international waters, travel agents selling trips to Cuba (which became a popular tourist destination on the strength of its proximity and wetness), “medicinal” alcohol distributors whose brochures (“for physician permittees only”) resembled bar menus, priests and rabbis who obtained allegedly sacramental wine for their congregations (which grew dramatically after Prohibition was enacted), breweries that turned to selling “malt syrup” for home beer production, vintners who delivered fermentable juice directly into San Francisco cellars through chutes connected to grape-crushing trucks, and the marketers of the Vino-Sano Grape Brick, which “came in a printed wrapper instructing the purchaser to add water to make grape juice, but to be sure not to add yeast or sugar, or leave it in a dark place, or let it sit too long before drinking it because ‘it might ferment and become wine.’ ” The outright lawbreakers included speakeasy proprietors such as the Stork Club’s Sherman Billingsley, gangsters such as Al Capone, rum runners such as Bill McCoy, and big-time bootleggers such as Sam Bronfman, the Canadian distiller who made a fortune shipping illicit liquor to thirsty Americans under the cover of false paperwork. Their stories, as related by Okrent, are illuminating as well as engaging, vividly showing how prohibition warps everything it touches, transforming ordinary business transactions into tales of intrigue.

The plain fact that the government could not stop the flow of booze, but merely divert it into new channels at great cost, led disillusioned drys to join angry wets in a coalition that achieved an unprecedented and never-repeated feat. As late as 1930, just three years before repeal, Morris Sheppard confidently asserted, “There is as much chance of repealing the Eighteenth Amendment as there is for a hummingbird to fly to the planet Mars with the Washington Monument tied to its tail.”

That hummingbird was lifted partly by a rising tide of wet immigrants and urbanites. During the first few decades of the 20th century, the country became steadily less rural and less WASPy, a trend that ultimately made Prohibition democratically unsustainable. Understanding this demographic reality, dry members of Congress desperately delayed the constitutionally required reapportionment of legislative districts for nearly a decade after the 1920 census. “The dry refusal to allow Congress to recalculate state-by-state representation in the House during the 1920s is one of those political maneuvers in American history so audacious it’s hard to believe it happened,” Okrent writes. “The episode is all the more remarkable for never having established itself in the national consciousness.”

Other Prohibition-driven assaults on the Constitution are likewise little remembered today. In 1922 the Court reinforced a dangerous exception to the Fifth Amendment’s Double Jeopardy Clause by declaring that the “dual sovereignty” doctrine allowed prosecution of Prohibition violators in both state and federal courts for the same offense. In 1927 the Court ruled that requiring a bootlegger to declare his illegal earnings for tax purposes did not violate the Fifth Amendment’s guarantee against compelled self-incrimination. And “in twenty separate cases between 1920 and 1933,” Okrent notes, the Court carried out “a broad-strokes rewriting” of the case law concerning the Fourth Amendment’s prohibition of “unreasonable searches and seizures.” Among other things, the Court declared that a warrant was not needed to search a car suspected of carrying contraband liquor or to eavesdrop on telephone conversations between bootleggers (a precedent that was not overturned until 1967). Because of Prohibition’s demands, Okrent writes, “long-honored restraints on police authority soon gave way.” 

That tendency has a familiar ring to anyone who follows Supreme Court cases growing out of the war on drugs, which have steadily whittled away at the Fourth Amendment during the last few decades. But unlike today, the incursions required to enforce Prohibition elicited widespread dismay. Here is how The New York Times summarized the Anti-Saloon League’s response to the wiretap decision: “It is feared by the dry forces that Prohibition will fall into ‘disrepute’ and suffer ‘irreparable harm’ if the American public concludes that ‘universal snooping’ is favored for enforcing the Eighteenth Amendment.”

The fear of a popular backlash was well-founded. From the beginning, Prohibition was resisted in the wetter provinces of America, where the authorities often declined to enforce it. Maryland never passed its own version of the Volstead Act, while New York repealed its alcohol prohibition law in 1923. Eleven other states eliminated their statutes by referendum in November 1932, months before Congress presented the 21st Amendment (which repealed the 18th) and more than a year before it was ratified.

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  • ||

    Drink!

  • Suki||

    +1

  • Old Mexican||

    Of the 27 amendments to the U.S. Constitution, the 18th is the only one explicitly aimed at restricting people’s freedom. It is also the only one that has ever been repealed. Maybe that’s encouraging, especially for those of us who recognize the parallels between that amendment, which ushered in the nationwide prohibition of alcohol, and current bans on other drugs.

    But... But Jacob, please! Don't you see drugs are different? They make people do bad things! Which is why politicians did not even bother to ammend the Constitution to constitutionally justify their persecussion and abuse of otherwise non-violent drug users, just going ahead with it! Because drugs are badder!

  • Almanian the Counselor||

    Old Mexian, drugs are bad, mmmkay?

  • Old Mexican||

    Not bad. Badder. Otherwise, there would not be a boot-stomping department with cool-sounding acronym like the DEA.

  • ||

    take ur objections up w the protestant church which formed the temperence movement.

  • ||

    I did. They still haven't replied.

  • Old Mexican||

    Re: OhioOrrin,

    take ur objections up w the protestant church which formed the temperence movement.

    "the us public scool system taugt m t read an wrte."

  • Ska||

    lol u nub u dont even speak txt

  • Lamer Nazi||

    n00b*

  • Almanian||

    yaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaawn

  • Dip Shit||

    I would rather take it up with you and your progressive masters who actually passed prohibtionist policies.

    Sorry, I fed it.

  • ||

    no the religious right, ur brethern, owned prohibition.

  • ||

    The Religious Left as well, OhioOrrin. William Jennings Bryan, for example, Populist, Democrat, Religious Left, Prohibition supporter.

  • Hurr||

    durr hurr! hurr durr hurr durr hurrr!

  • Time||

    But he was religious AND leftist... its almost like political coalitions have changed in the last 80 years.

    I feel sorry for this issue. Its one where the far right and far left agree with each other 100% but still can't get stop attacking one another long enough to figure that out.

  • ||

    Got an address for "The Protestant Church"?

  • ||

    look-up the SBC & go fm there.

  • Hurr||

    durrr hurrr! hurrr hurr durr huurr!!

  • Lutherans||

    Sect-ist!

  • Presbyterians||

    What they said!

  • Methodists||

    What, no love?

  • United Spongebobians||

    Not for you. YAY!

  • Congregationalists||

    Put down the Demon Rum and pick up the Bible!

  • robc||

    As the president of the Southern Baptist Homebrewers Association, you should really shut the fuck up about things you know nothing about.

    Alcohol isnt even mentioned in the Baptist Faith & Message.

  • robc||

    Huh, the B F&M is now available in arabic.

  • T||

    Wait, there's a Southern Baptist Homebrewers Association?

  • Brett L||

    You don't want to pass another Baptist coming out of liquor store. How embarrassing would that be?

  • Robert||

    I didn't know you could brew Baptists.

  • cynical||

    I was in an SBC church as a kid, but they weren't particularly puritanical about alcohol or dancing or whatever the stereotypes were; nor were the others in town I was familiar with. They were the larger churches, though; maybe prohibition was a niche taste.

    At any rate, I think (like a lot of the Middle Eastern cultural shit that gets associated with Islam), that it had more to do with the local culture at the time than the actual tenets of the religion.

  • Anonymous Coward||

    Learn Social Gospel, troll.

  • Cecil||

    At least they had the decency to pass an amendment to actually give them the authority to ban alcohol. But now we know the Constitution doesn't count because it's 100 years old, or something.

  • Old Mexican||

    Re: Cecil,

    But now we know the Constitution doesn't count because it's 100 years old, or something.

    Not only that: The text itself is confusing because it was written 100 years ago... or something.

    http://tv.breitbart.com/libera.....years-old/

  • Ezra Klein||

    Hey! don't make fun, numbers are confusing...I mean, math was invented...like...200 years ago.

  • +-/*||

    We should all know that Math is a Muslim conspiracy to enslave us.

  • Cecil||

    Yeah, it contains phrases like "shall make no law" and "shall not be infringed". Whatever could that mean?

  • ||

    "Shall make any law" and "Shall be infringed"?

  • Cecil||

    Thank God we have our betters to interpret for us!

  • Ray||

    "Of the 27 amendments to the U.S. Constitution, the 18th is the only one explicitly aimed at restricting people’s freedom."

    The 16th amendment called.

  • ||

    Exempting federal income taxes from the apportionment requirement is not really "explicitly aimed at restricting people’s freedom".

    While one could argue that, in a sense, all taxes are a restriction on economic freedom; the issue was not "taxes versus no taxes". It was always the case that Congress had the power to impose taxes and would do so; it was only a question of what kind of taxes would be imposed. I fail to see why income taxes are, in principle, more restrictive of freedom than most other possibilities - such as excise taxes.

  • ||

    As did the 22nd Amendment.

  • Doktor Kapitalism||

    That limits government power. It was designed to prevent long term presidents like FDR.

  • Doktor Kapitalism||

    *Explicitly* is the key word here.

    Plus, no one actually thought 42 of 48 states would actually ratify it.

  • Old Mexican||

    The fear of a popular backlash was well-founded. From the beginning, Prohibition was resisted in the wetter provinces of America, where the authorities often declined to enforce it. Maryland never passed its own version of the Volstead Act, while New York repealed its alcohol prohibition law in 1923. Eleven other states eliminated their statutes by referendum in November 1932, months before Congress presented the 21st Amendment (which repealed the 18th) and more than a year before it was ratified.

    But only because there was no Southern Poverty Law Center to shame the states by accusing them of practicing Neo-Confederacy!

  • Longfellow||

    ^^^ THIS ^^^

    State rights are sooooooo racist!

  • cynical||

    Speech rights are racist too, otherwise, why would the ACLU be defending the speech of neo-Nazis?

  • ||

    another illiterate mexican like Jared Loughner said.

  • Pip||

    Asshole much?

  • Old Mexican||

    Re: OhioOrrin,

    another illiterate mexican like Jared Loughner said.

    and the us public scool sysem taut me proper gramar

  • Jared Loughner||

    I'm glad to see the quality of my followers is so consistent, Orrrrrrrin

  • ||

    I'm not encouraged, because the amendment process has been ashcanned by a totalized Commerce Clause.

    You can't conclude anything positive from the fact that we haven't had any amendments restricting people's freedoms in the last 80 years. Given the laws that have been passed restricting freedom, this merely demonstrates that we no longer live in a constitutional republic of limited, enumerated powers.

  • sarcasmic||

    "general welfare ... regulate commerce ... necessary and proper"

    Congress has the power to do anything necessary and proper to promote the general welfare and regulate commerce.

    No limits.

  • Doktor Kapitalism||

    That's true. The constitution is very vague on many matters, especially on the narrow or broad interpretation issue, which would have solved a lot of the problems.

    I would support a new constitutional convention to take care of the mess.

  • Old Mexican||

    In 1922 the Court reinforced a dangerous exception to the Fifth Amendment's Double Jeopardy Clause by declaring that the "dual sovereignty" doctrine allowed prosecution of Prohibition violators in both state and federal courts for the same offense.

    The effects of which (the 'dual sovereignty doctrine') are still suffered today.

  • Mensan||

    Military personnel may even get to experience triple jeopardy, because they can additionally be tried by courts-martial if the offense also violated the UCMJ.

  • Blah||

    also resulted in a terrible movie that is not accurate of the legal system at all. "Double Jeopardy"

  • ||

    Can you imagine the media circus that would go on regarding an amendment to the constitution if one were attempted now? Katrina, the Tucson shooting; that shit would look like a slow news day in comparison. I think the hyperbole alone that would be employed would cause the entire Earth to be destroyed, and possibly the moon as well.

  • ||

    Yeah, allofasudden the Constitution would be a "sacred text" rather than a "living document".

  • ||

    I have a feeling it would get far, far stupider than just a 180.

  • Brett L||

    Conservatives are trying to Constitutionalize bigotry!!1! This will LITERALLY lead to slavery and quite probably babies being eaten!

  • Somalia||

    It's all falling into place.

  • ||

    I'm fairly certain that reaction has already occurred to Randy Barnett's Repeal Amendment. (Two-thirds of states can repeal a federal law.)

    Morons like E.J. Dionne said it was betraying all the Right's talk about the Constitution and respecting the Founding Fathers. Even though, say, thanks to direct election of Senators states have less power over federal laws than when the Constitution was adopted.

  • ||

    And I thought it was due to Lincoln saying states had no right to leave the union. Along with the reconstruction congress forcing amendments at the point of a gun.

  • robc||

    Has that much changed since the 27th Amendment passed? There was barely a whisper when it happened.

  • Doktor Kapitalism||

    That's because the 27th limited Congress' ability to give itself a pay raise. Hardly big news, and a bit more fiscally responsible, too, which won't set anyone off.

  • ||

    We still have prohibition for 18-21 year old adult citiznes.A person can vote,be sentenced to death,or get killed in a war at 18 but they are considered to young to drink a can of beer.

  • ||

    remember states rights? some states tried lowering the age to 18. the resulting traffic carnage forced the change back. >funny how reality trumps ideology.

  • robc||

    You really are an idiot. I dont think any states "lowered" the age to 18. It was always there for those states.

  • ||

    look at my screen name & try reaally hard to figure it out. jeesch...

  • George Santayana||

    Those who cannot remember the past are condemned to repeat it.

    I.e. prohibition, and responding to this poormans troll's comments.

  • Hurr||

    durr hurr. durr hurr hurr durr hurrrr!

  • ||

    Hard to know how much you're just a troll, and how much you're a moron.

    It's not that "some states tried lowering the age," it's that the Federal Government passed a law in the '80s forcing states to raise the age. Actually, they conditioned Highway Trust Fund monies on raising the age. It's true that some states took the case to the Supreme Court, but the law was upheld.

    There was no "traffic carnage," and no step change in traffic accidents or fatalities.

    Reality trumps ideology in the real world, but not in the twisted mind of OhioOrrin.

  • sarcasmic||

    "Hard to know how much you're just a troll, and how much you're a moron."

    Moron. Definitely a moron.

  • JD||

    I'm becoming convinced he's just a sock puppet. Nobody could be this stupid and still be capable of feeding themselves.

  • Almanian||

    Boy, the stupid is deep in this one. What John Thacker said, re: "no traffic carnage", etc. etc.

    Dumbass...

  • ||

    "the resulting traffic carnage forced the change back"

    Citation needed.

    I'm pretty sure some state, Louisiana for instance, always allowed 18-year olds to drink, and only changed that law when the federal government threatened to take away their highway funds if they didn't change the law.

  • Brett L||

    LA actually held out until the 90s. I have a friend who is about 35 who could drink legally for 2 years, until the law changed when she was 20.

  • ||

    Wouldn't she have been grandfathered in under the old law? I seem to remember that happening in states that jumped to 21, but I could be wrong.

  • sarcasmic||

    I had a couple friends in CO who were grandfathered in.

  • robc||

    Kansas didnt grandfather. A friend of mine was 19 when the law changed.

  • Brett L||

    According to her, not in LA.

  • Old Mexican||

    Re: OhioOrrin,

    remember states rights?

    Remember your brain?

  • ||

    how can i since im a product of eeevil public education by union thugggs

  • nekoxgirl||

    More like states were threatened with no highway funds unless they changed the drinking age back to 21.

  • ||

    The only outcomes of lowering the drinking age was that the federal government pulled away highway funding to states that weren't 21.

  • Doktor Kapitalism||

    France has basically no drinking age (with cigarettes the rule of thumb is: if you can see over the counter, go ahead), and their traffic isn't too bad, considering their road system.

  • Almanian||

    But they can vote for Hope and Change™!

    It's the Voice of a New Generation®!

    So, whatever...

  • ||

    FWIW, You can be sentenced to death and killed in a war before the age of 18.

  • robc||

    But you need parental permission.

  • Almanian||

    And a letter of recommendation from your school counselor

  • Mensan||

    You need parental permission to be sentenced to death?

  • Doktor Kapitalism||

    Some parents would give a glowing recommendation.

  • ||

    uh, I've got a note from my mom

  • JD||

  • cynical||

    Legal discrimination is acceptable, except when people arbitrarily decide that it isn't.

  • Mojo Nixon||

    you can get married and screw
    yourself up real good
    but ya can't buy beer

  • Paul||

    What can today’s antiprohibitionists learn from their predecessors?

    That with the right combination of laws, enforcement and bitter determinaton that this time prohibition will work.

  • MMS||

    I demand the right to make bad decisions unto myself!

  • Doktor Kapitalism||

    As long as I don't have to pay for you're mistakes, I'd rather not pay to prevent them.

  • ||

    remember states rights? some states tried lowering the age to 18. the resulting traffic carnage forced the change back. >funny how reality trumps ideology.

    [facepalm]. I miss Lonewacko.

  • Steve||

    Indeed, the legal situation was akin to what today would be called “decriminalization” or even a form of “legalization.”

    As a supporter of drug "decriminalization," I propose that the government take NO position on the ingestion of foreign substances.

    Therefore, the government is not empowered to act. The government does not need to actually do anything to make it legal, it just needs to take no action.

  • STEVE SMITH||

    I'M EMPOWERED TO RAPE, MUST TAKE ACTION TO LEGALIZE RAPE AND DRUGS!!!! DECRIMINALIZATION FOR FAGGOT CANADIANS!

  • Doktor Kapitalism||

    I'm not sure that any fragment of that made since.

  • Mensan||

    "Canadians" did...I think.

  • Charles Novins||

    One major difference to note regarding Prohibition (large P) versus modern prohibition is that (as many correctly noted, without benefit of lawful authorization,) Prohibition focused solely on alcohol, whereas the modern variety prohibits EVERY molecule which can produce intoxication of any sort. Our new and sick regime even features "pre-emptive" laws for molecules similar to existing intoxicants. The modern "drug war" is a war on any chemically derived pleasure whatsoever, with only alcohol exempted, presumably because the only "lesson" learned from Prohibition is that alcohol is not a viable political target anymore. Does government asserting control over all molecules portend the end of freedom and privacy? Ya think?

  • Doktor Kapitalism||

    Completely.

    The government has bitten off more than it can chew with this one. Regulating molecules is a bit too much.

  • nike running shoes||

    is good

  • Scarpe Nike Italia||

    is good

  • tory burch||

    Not bad, The point of view is good.

  • saily||

    good

  • feng||

    like

  • alipay||

    ThAnK

  • wubai||

    ThAnK

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