Road to Hell
The 18th Amendment wasn't passed with good intentions
This is part of a series I’m writing analyzing the Constitution of the United States. You can find the start of the series here.
Now to turn our attention to the only constitutional amendment the United States has ever repealed. So, why is it still in the Constitution? Because Americans can admit mistakes publicly and leave it there for future generations to see that we can address errors in judgment.
Text of the 18th Amendment
Section 1
After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2
The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
Section 3
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
The 18th Amendment prohibited “the manufacture, sale, or transportation of intoxicating liquours” but not the consumption, private possession, or production for one’s own consumption.
Did you know that? I actually didn’t know that until I started this series.
In contrast to earlier amendments to the Constitution, the Amendment set a one-year time delay before it would be operative, and set a time limit of seven years for its ratification by the states. Its ratification was certified on January 16, 1919, and the Amendment took effect on January 16, 1920.
Ratification of the 18th Amendment then needed Congress to pass a bill defining the prohibitory terms of the Amendment. The National Prohibition Act, better known as the Volstead Act, passed on October 28, 1919, charging the U.S. Treasury Department with enforcement of the new restrictions, defining which “intoxicating liquours” were forbidden, and which were excluded from Prohibition (mainly, alcoholic beverages used for medical and religious purposes). President Woodrow Wilson vetoed the bill, but the House of Representatives overrode the veto, and the Senate followed suit the next day. The Volstead Act set the starting date for nationwide prohibition for January 17, 1920, which was the earliest day allowed by the 18th Amendment.
Generally, as you know, I distain Wilson and his presidency, but vetoing the Volstead Act was probably the one thing he did right in eight years.
The Amendment was in effect for the next 13 years, finally being repealed in 1933 by ratification of the 21st Amendment. This was the one time in American history that a constitutional amendment was repealed in its entirety. We’re going to discuss the 21st amendment when we get to it. For now, just pretend we’re still in 1919 and don’t know what we know today.
Powerful Tides of Nannyism
Five distinct, if occasionally overlapping, components made up an unspoken coalition driving Prohibition. You might be surprised to learn that almost none of them were the evangelical Christians who typically opposed alcohol consumption today. These prohibitionary groups were:
racists
progressives
suffragists
populists (including a small subset of socialists), and
nativists
Adherents of each group might have been opposed to alcohol for its own sake, but the groups they were affiliated with used the prohibitionary impulse to advance their ideologies and causes only tangentially related to alcohol.
Apex of Progressivism
The 18th Amendment needs to be understood in its historical context. The greatest burst of constitutional activity since the Bill of Rights occurred between 1913 and 1919 as amendments establishing the income tax, direct election of senators, Prohibition, and woman suffrage were all engraved into the nation’s organic law.
All of these amendments have had long-reaching and seemingly harmful influence on our country’s governance.
Passed in 1913, the Amendment establishing the income tax removed the practical obstacle to Prohibition. Prior to the income tax, government revenues relied on taxes on alcohol to a large degree. Ending this business would eliminate historically important federal revenue. With the income tax constitutionally established, Prohibition became financially feasible, and the coalition supporting it could achieve its ends without needing to overcome that obstacle. Whether its ends were justifiable or worth the price paid for its enforcement is debatable and we’ll discuss that later.
Justification
There were sound and shaky reasons to favor enactment of the 18th Amendment, and there were good reasons to oppose it.
The good reasons to favor enactment derived from recognizing that drunkenness and alcohol addiction were responsible for countless personal catastrophes and widespread social pathologies. These forces are still at work today. These catastrophies and pathologies include illnesses such as cirrhosis of the liver, accidental deaths and injuries, violence (including domestic violence), unemployability and poverty, homelessness, and parental and other forms of personal irresponsibility and family abandonment. Honorable supporters of alcohol prohibition believed a nationwide ban on the manufacture, sale, and transport of beverage alcohol would significantly reduce alcohol consumption, abuse, and addiction, resulting in fewer alcohol-related illnesses and accidents, and a reduction of alcohol-fueled violence and other social evils.
Worthy goals! As someone whose life has been affected by someone else’s alcohol addiction, I fully support ending the damages. If only prohibition had worked.
The frankly dishonorable reasons some Americans favored the 18th Amendment were rooted in racism, ethnic and religious bigotry, and nativism. These prohibitionists identified drinking and alcohol with blacks, Catholics, and immigrants from Southern and Eastern Europe and, in the wake of World War I, those great beer-brewers, Germans. Many of these prohibitionists hoped enactment of the 18th Amendment would make the United States less attractive to the kinds of people they deemed undesirable.
The good reasons to oppose the 18th Amendment’s enactment had to do with concerns Prohibition would fail, mainly because the law would be widely defied and difficult to enforce. Some opponents accurately predicted Prohibition would be a boon to criminals who would handsomely profit from a black market in alcoholic beverages and deploy some of their earnings to corrupt law enforcement officials, prosecutors, and judges. Some even foresaw lax or selective enforcement of Prohibition, together with corruption of public officials, would bring the legal system into disrepute and erode respect for the authority of law generally.
These people were prescient!
Although few Americans at the time publicly stated this, Americans harbored a libertarian belief that people have a right to drink, and even to get drunk, and therefore the law has no legitimate authority to forbid the production and sale of alcoholic beverages or other intoxicants, even for the sake of ameliorating the social ills resulting from its widespread abuse. Libertarianism was not often publicly stated in that era, but it may have played a much larger role in the flouting of Prohabition’s restrictions than many observers want to admit. It certainly seems to inform our views on substance abuse policy today.