Prohibition Battle in Arkansas: Local Control or Individual Rights?

On Tuesday Arkansas voters decide whether to end prohibition in the state


On Tuesday the voters of the state in which I dwell, Arkansas, will be asked to vote yes or no on this:

A proposed amendment to the Arkansas Constitution to provide that, effective July 1, 2015, the manufacture, sale, distribution and transportation of intoxicating liquors is lawful within the entire geographic area of each and every county of this state; … that the manufacture, sale, distribution and transportation of intoxicating liquors may be regulated, but not prohibited, by the General Assembly; and that all laws which conflict with the amendment, including laws providing for a local option election (wet-dry election) to determine whether intoxicating liquors may be sold or not sold, are repealed to the extent that they conflict with the amendment.

After national Prohibition ended in 1933, the Arkansas General Assembly passed a law permitting counties to go "dry," that is, to prohibit the manufacture and sale of alcoholic beverages. Even within "wet" counties, individual communities can vote to be "dry." (To get on the ballot, an alcohol-related question needs signatures totaling at least 38 percent of the number of votes cast in the previous gubernatorial election; that's more than three times the percentage required  for other kinds of ballot questions.) As of today, according to (the place for comprehensive information about referendums nationwide), 37 of 75 Arkansas counties are "dry," the rest being "wet" or mixed, which means communities within a "wet" county have voted to go "dry."

My county of residence (Faulkner, for the next few days) is dry, except that the increasingly liberal "club" provision has led to an abundance of restaurants free to serve alcohol by the drink. This has resulted in a new category of county: "damp." Nevertheless, liquor stores and supermarket alcohol aisles are forbidden.

When I first moved to this county 13 years ago, few establishments had a club license to sell alcohol by the drink. In the ensuing years more licenses were issued. When the Outback Steakhouse opened a few years back, patrons "joined" by paying $5 annual dues, and each person was issued a membership card and number. But the $5 was promptly refunded with a discount off the first check. Each time a "member" went to the restaurant, he was asked to sign a book and record his membership number. Some restaurants had drinking and nondrinking sections.

It was a sham. Everyone knew these were not really clubs. The club provision was just a way to relax prohibition without acknowledging it. (Business associations and others around the state understood that prohibition discourages people and firms from relocating to Arkansas.) Nowadays restaurants don't even go through the motions, and nobody seems to cares.

There is no better example of how government treats adults like children than the laws governing beer, wine, and spirits. The range of regulation, all the way to prohibition, is large, but in no state is alcohol free of regulation. (Not that any trade is truly free of government intrusion.)

What is interesting about the referendum campaign is how each side has argued for its position. Proponents, led by Let Arkansas Decide, don't avoid the issue of individual liberty, but it's not front and center either. Instead, the organization has emphasized the creation of local jobs, the increase in local-government tax revenues, and the safety that would result from obviating the need for long drives on the interstate to an adjacent county to buy liquor.

Opponents of the measure have tried to scare the voters. They warn that local liquor stores would mean more drunk driving.

But which sounds safer: People walking or driving a few blocks to buy alcohol, or driving to the county line at 70 miles an hour for 20 or more miles on I-40?

Opponents have also said that legalization will put liquor stores across the street from schools. Proponents counter that the state already prohibits liquor stores within a thousand feet of schools and churches. (More on such regulations later.)

A major opposition talking point has been that the statewide referendum intrudes on a local prerogative and — get this — freedom of choice. The voters of each county, it is said, should decide for themselves. This is also the editorial position of the state's major newspaper, the Democrat-Gazette.

"It's not fair to take away our right to vote on this on a local level," said Brian Richardson of Citizens for Local Rights. "We think it's too important of an issue to not have a local voice in this."

Richardson argues that the people of, say, Pulaski County, where Little Rock sits, should not be able to dictate liquor-store policy to the people of dry (or damp) counties.

To this I say that so-called local control actually constitutes a violation of the most local prerogatives of all: those of the individual. By what right does anyone prohibit an individual from engaging in peaceful commerce? If a minority of the residents of a county want to buy or sell alcohol, why should their neighbors—no matter how many—have the legal power to stop them? (And how long would a liquor store last in a town where no one drinks?)

Here we see the central flaw in the democratic dogma. It is often said that under democracy, the majority rules but the rights of the minority are respected. How can both be true? If the rights of the minority are respected, then the majority does not rule. And if it does rule, then the rights of the minority are not respected.

Anyone who believes in the natural and inalienable rights to life, liberty, and the pursuit of happiness is obliged to accept that individuals have the right to buy and sell alcohol. That's why all the regulations that people take for granted—the restrictions on hours of operation, the ban on Sunday sales, the minimum distance from schools and churches, the minimum age, and the protection of local wineries from competition by wineries in other states—are illegitimate.

The local-control issue is a red herring. If people statewide vote yes on the question, they would not be interfering with local power; rather they would be affirming the right of individuals to make their own decisions free of their neighbors' meddling.

Fundamentally, this is a classic case of "Bootleggers and Baptists," a phenomenon identified by economist Bruce Yandle. The biggest opponents of the freedom to buy and sell liquor in Arkansas's dry counties are religious authorities who want to force their moral views on others and the owners of liquor stores in neighboring wet counties, where dry-county residents must go to buy their alcohol. The Arkansas Beverage Retailers Association worked with store owners to keep the question off the ballot and named its committee "Let Local Communities Decide for Themselves." A letter from the association stated, "Obviously this would be catastrophic for county line liquor stores around the state." (Emphasis added.) It also expressed concern about competition from big chain stores like Kroger and Walmart.

Alliances between moralists and rent-seekers, which used to be covert but now are quite open, have been common throughout American history. No one really believes people will drink less if they can't buy alcohol in their home county. But if the law remains as it is, some people will feel guilty about their drinking (and perhaps donate more heavily to their churches?), and liquor-store owners across the county line will continue to reap illegitimate profits because government has suppressed their potential competitors.

As a libertarian, of course, I believe there should be no need for a referendum on liquor sales because there should be no prohibition to abolish. But given prohibition, I'm hoping that "yes" prevails.

This article originally appeared at the Future of Freedom Foundation.

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  1. Alcohol legalization is a gateway drug to freedom.

  2. Slightly OT.

    re the catcalling video, which I just got around to looking at:

    Feminists are outraged that if a hot young woman walks through a crowded urban city in the Northeast, that some of the thousands of men she passes will turn out to be arseholes, and act accordingly?


    If you want polite, have her walk through a crowded city in the South, preferably open carrying.

    1. No, no, you’re misrepresenting the narrative.

      A racist white woman walked through predominantly ethnic neighborhoods and edited down ten hours worth of footage into a few minutes of black and latino gentlemen catcalling a white gentrifier.

      1. She looked kinda latina to me, but sure.

        1. “White hispanic.”

    2. She only got two minutes of catcalls. I would get twenty five minutes of people asking me for money.

      1. Ha ha that’s the fuckin’ truth.

    3. I guess I’m being victimized every time I go jogging at night and a bunch of drunk girls in a car yell sexually obscene remarks to me…


      1. Remarks are only obscene when men shout them. Those women are being flirty.

      2. And you don’t take them up on it? Turn in your man card.

    4. By the way, when I first saw this video when it came out, I though the woman walking was the woman blogger creating the narrative.

      Then I realized she hired an actress. I wonder why they had to hire an actress?

      Hmm, can’t think of a reason why.

    5. I thought being sexually attractive was supposed to be good. If it were bad, why would people take such efforts to make themselves such?

      So you’re supposed to want them to want to react, but not to actually react?

  3. The amendment ending prohibition let lots of rule making to the states.Carry outs will be located in areas close to the dry line and pull in people from those counties.Worked like that in Belpre ,Ohio for years.Also,people will drive farther to bars and that will cause a spike in DUI enforcement.People will still drink.

  4. Columbia, South Carolina gets its earliest measurable snowfall in record history, 18 states already have snow cover.

    How’s that “global warming” working out for y’all down south?

    1. Climate change means never having to admit you were wrong.

    2. It’s climate weirding you teahadist.

      Any weird weather, especially record cold, proves AGW.

      1. Yep. The jetstream has been displace due to climate change, therefore more extreme weather events will start popping up.

        1. 1) The Jet stream was never stationary

          2) Extreme weather events are not increasing in number or intensity

    3. You have to love a religion that calls people racist for being against racial preferences, and will use cold temperatures as validation for their global warming theory.

  5. Kentucky has similar laws. I lived in Elizabethtown (very briefly) and still remember my first day there, going out looking for a place to buy some beer for my very empty refrigerator… ended up going to the county line. The restaurants also served beer, which is great if you’re trying to encourage drinking and driving.

  6. I thought “dry” counties were just a myth used to scare children.

  7. Are there moist counties?

    1. Not necessary in KY.

      1. You get the golf clap.

        1. I get it, golf clap.

          1. Keep your putter covered.

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  9. After living in a county surrounded by 5 dry counties, I get to see the free market at work. This county has more business and industry than the surrounding counties. If they want to be dry, go ahead.

    And “as a libertarian”, I believe that the locals should be able to vote on what they want their community to look like. And if you don’t like a dry area, no one is forcing you to live there.

    Forcing a statewide view on a local view is not a libertarian position.

    1. Its not ‘forcing a statewide view’, its forcing a more liberty friendly set of laws.

      *Removing* this restriction on alcohol sales is not *forcing* the sale of alcohol. If these people truly want a dry county/municipality then they will have one – through revealed preference, ie, voting with their wallets. If no-one buys alcohol within the county limits then alcohol will not be sold (for very long).

      OTOH – if they *do* want alcohol sales, then alcohol will be able to be sold. All without any need for legislation to force the situation.

      1. Its not ‘forcing a statewide view’, its forcing a more liberty friendly set of laws.

        maybe I am over-thinking this, but forcing liberty seems a bit of an oxymoron.

        1. A blanket repeal of all zoning regulations would be like a blanket repeal of all “dry county regulations.”

          Let individuals use other legal means to enforce their views, like real covenants that run with the land.

          I doubt all these “dry country votes” needed a supermajority, so it is likely just a case of the 51% forcing the 49% to do (or not to do) something.

        2. You’re going to be free, young man, and you’re going to like it.

    2. Forcing a statewide view on a local view is not a libertarian position.

      No, majoritarianism is not a libertarian position. ‘Counties’ don’t ‘want’ to go dry or anything else. Counties don’t have rights. Only individuals can make decisions.

      1. Yeah, the ultimate argument here is that if the residents and business owners of the county actually wanted it to be dry, then they wouldn’t build or patronize any bars or liquor stores in the county.

        There is nothing magical about the lines dividing counties, although I agree with the broader point that local laws are better than state laws (are better than federal laws…) and I see zoning as one of the less infringing things that can be done w/r/t to property. The only thing that really irks me about zoning is how the rules can be changed unilaterally by the zoning boards and local governments.

        If you move into a county knowing it’s dry then you can’t really complain about being unable to build a bar or liquor store. On the other hand, if you move into a wet county and they won’t give you a liquor license, then I think a strong case can be made that your freedom is being restricted.

        1. Also, Ichabod above has a good point. Covenants/contracts are superior to zoning laws because they bind only the individuals involved and generally can’t be modified unilaterally.

        2. While living in Denver many years ago, I moved into a new loft apt downtown. I had a regular 9-5 type job. My first night there, at about 2 AM, the connecting building next to my bedroom turned into an informal nightclub. This kept up. I made certain inquiries and found out that the neighborhood was not zoned for residential, so there was nothing I could legally do. I ended up moving into my living room and going over to the place next door whenever I could, until my lease was up when I moved.

          1. In the future, when I am Ruler, this will be considered an implicit contract violation by the apartment owner. Unless explicitly stated otherwise, it is assumed that the apartment shall be liveable i.e. you can sleep in it at normal hours and the owners shall do what they can to enforce that. You would have been in your rights to go downstairs and fiddle with the electrical to end your neighbours parties.

        3. If you move into a county knowing it’s dry then you can’t really complain about being unable to build a bar or liquor store.

          Oh yes I can, though granted that’s partly because I’m a jerk. But a righteous jerk. Those laws are violation of my liberty.

          1. The ownership of real property is not absolute. There are easements, eminent domain, property taxes, etc. This is not a justification of zoning per se, but insofar as your ownership is not absolute, if you agree to the terms at the point of sale then you have to abide by them, or else face the penalty you owe to the binding party. Accordingly, zoning and other restrictions on property ownership should be pushed to the lowest level possible. A statewide law banning certain uses of property is going to affect many more people (often, millions more), than a single town’s ordinances or a small community’s covenant.

            Of course, I also think there should be a restoration of allodial title. If you can afford it, you should be able to buy property free of taxes, zoning restrictions, and the risk of eminent domain. However, you would also incur significantly greater liability for any externalities you impose upon others through your use of said property.

    3. It’s not a position compatible with federalism, but it is compatible with libertarianism for the same reason that outlawing slavery (or rape, or murder) would be.

      Most of the time federalism and libertarianism can get along. Not here.

  10. “the manufacture, sale, distribution and transportation of intoxicating liquors is lawful ”

    What about drinking it ?

    That’s a loophole that any local lawyer/politician do gooder could drive a prohibition truck through.

    Stone cold sober of course.

    1. Stone cold sober of course.


  11. Having vacationed in a dry town I have mixed feelings about this.
    It did seem more family oriented, with less loud partying visible, although we did have a well stocked bar in our rental.
    If I were forced to choose, I would go with a “YES” vote, simply because the objection that alcohol would be sold “near schools” raises my hackles.
    Anytime I hear the argument that we need to do this for the children I suspect a con job.

    1. Sounds boring.

    2. We need to structure alcohol education for our children the way sex education is: predicated on the fact that the kids are going to to it anywha.

  12. Here we see the central flaw in the democratic dogma. It is often said that under democracy, the majority rules but the rights of the minority are respected. How can both be true? If the rights of the minority are respected, then the majority does not rule. And if it does rule, then the rights of the minority are not respected.

    If we teach our kids anything, it should be this.

    The universal worship of “democracy” is one of the worst features of the progressive and post-progressive eras, as it takes for granted that unconstrained democratic elections are somehow superior to a system that protects individual choice to even a modest extent.

    1. No, I think what it takes for granted is that there will always be rule, and therefore that it’s better everyone take part equally in ruling rather than have a king or aristocracy lord over us. Empirically it does seem to be the case that individual choice is protected more in democracies than in oligarchies or dictatorships.

  13. Everyone knew these were not really clubs.

    Well, now wait a minute…what’s a club? Aren’t there buyer’s clubs & discount clubs for all sorts of things? A club doesn’t have to be a thing where you wear beanies and elect the Supreme Squiggle to clean the spitoons. How about Diner’s Club? The Club of Rome? Career Club? Club Soda? Club Sandwich?

  14. I’m an Arkansan and I spent my college years in a dry county, the same one Sheldon mentioned living in in this article. I’ve lived in Little Rock for the last 20 years and voted “yes” on this amendment for the exact same reasons. I’ve had this discussion several times over the last few weeks with friends who insist “let the communities decide” is the libertarian position. Not buying it. Here’s to hoping Lake Liqour loses it’s shirt after election day!

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  16. I grew up in a DRY county in AR. I now live in a very WET county in Arkansas. I did not move to avoid [p]rohibition but feel that the First Amendment freedom to associate with kindred spirits demands no larger than county level [p]rohibition. I helped defeat the referendum to prohibit [p]rohibition in all of Arkansas because I ONLY reside in parts of one county and would never presume to force those in a DRY county to permit alcohol sales. I am not a lawyer but sought/seek to require the FCC to regulate “online” as the Title II Common Wire Carrier it has always been. GOOG alleges to have spent half-a-million opposing me and offered 5 million if I would cease entirely. I won’t ever, but U.S. judges are too culturally senile and too addicted to pornography to follow U.S. laws.
    I will not dignify the elderly SCOTUS with another appeal if the Eighth Circuit rules against me AGAIN due to hate. leaves the prayer on page 11 now pending to be ignored.

    See the last filing with LIVE PDF links added by FCC ECFS slitting their own throats. See #1 the NOTICE, #2 Exhibit LINKs where the URLs in the PDF created by the FCC – WILL ALL WORK.

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