CHAPTER
15

The Eighteenth and Twenty-First Amendments: Prohibition and Repeal

In This Chapter

• The Eighteenth Amendment: Prohibition
• Alcohol in America
• The Volstead Act
• The Twenty-First Amendment: repeal

It’s difficult today to imagine a United States in which drinking alcohol would be so widely criticized that the federal government would try to outlaw it entirely. But that’s exactly what happened in the early part of the twentieth century—with disastrous results and a classic lesson in what happens when a government tries to go too far in regulating personal behavior in a democracy founded on individual liberty.

The Eighteenth Amendment: Prohibition

“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.

“The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

“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 thereof to the States by the Congress.”

The Prohibition Amendment was unusual in that its wording portended the uncertainty and controversy over trying to impose a national ban on alcohol. For one thing, the wording recognized the challenges of implementing and enforcing the ban on alcohol: it gave a year’s grace, sort of like a national “last call,” before Prohibition would go into effect. For another, the amendment set a 7-year self-destruct deadline: if it proved so difficult to enact that it took 7 years, it would fail.

At the time the Constitution was being written and ratified, George Washington and other leaders were lamenting the way that drinking, often to excess, had become such a part of daily life. Many workers, for example, routinely took a late-morning break—“elevenses,” they called it—for a stiff whiskey or two.

Temperance groups that campaigned against alcohol—some against drinking too much, some against drinking at all—began rising in influence in the early 1800s. A religious revival that disparaged alcohol use swept across the country in the 1820s and 1830s, led by prominent Methodists. In 1846, Maine became the first state to prohibit alcohol. President Abraham Lincoln, pressed for federal funding before there was an income tax, resorted to higher taxes on liquor and beer to defray the costs of the Civil War. After the war, however, the temperance movement grew through the Prohibition Party, the Woman’s Christian Temperance Union (WCTU), and the Anti-Saloon League.

The WCTU reflected the growing political influence of women in American society; they could not yet vote, but they could influence public policy by marching and speaking out against the harm that alcohol abuse wreaked on marriages and families. The problems were heightened by industrialization and urbanization as more men began working in factories and drinking in nearby bars before and after their shifts. And established society came to see drinking as an immigrant problem, with the Irish and Germans devoted to their beer and the Italians to their wine. Many Protestants saw use of alcohol as a Catholic frailty. The Anti-Saloon League, formed in 1893, fought against the growing power of big-city political machines that were based on cronyism that stretched from the neighborhood tavern to city hall and beyond.

By the turn of the century, temperance education—classes in which students were taught the evils of demon rum—were standard in schools across the country. Support for a total ban on alcohol across the country grew, particularly as anti-German sentiment swelled in World War I, when there was a temporary period of Prohibition to preserve grain for food supplies. Even many drinkers favored a ban on public alcohol sales, including wealthy and upper-middle-class people who believed they would be able to continue to enjoy their decent wines in their homes while the unwashed masses would be better off without their cheap beer, gin, and whiskey. Some reasoned that less alcohol would increase productivity in the factories—and besides, the lower classes simply didn’t have the self-control to handle their liquor.

As Congress was considering the constitutional amendment to impose Prohibition nationally, Republican Senator Warren Harding proposed the first time limit for ratification: if the states did not ratify within 7 years, the amendment was dead. Harding, who was elected president not long after Prohibition went into effect, was known to enjoy his whiskey, but his home state, Ohio, was a hotbed of temperance. The time limit was challenged, but the Supreme Court upheld it in Dillon v. Gloss in 1921.

We the People

Republican strategists pushed Warren G. Harding to head the ticket in 1920 because he looked presidential, and he won easily. A critic said his cliché-ridden speeches were like “an army of pompous phrases moving over the landscape in search of an idea,” and his brief administration, rife with scandal, ended when he died of a heart attack in San Francisco in 1923.

The Volstead Act

Congress approved the Eighteenth Amendment and sent it to the states in January 1918. Many of the state legislatures were dominated by rural lawmakers who were generally more antialcohol than city politicians, and the amendment was ratified a year later.

Scholars say the Eighteenth Amendment was one of only two amendments—the other being the Thirteenth, banning slavery—that specifically outlawed personal behavior. Subsequent challenges, all futile, argued that the amendment was illegal because it amounted to legislation, while the Constitution was supposed to offer only general guidance and principles and amendments were not supposed to break new ground but rather only clarify or rectify preexisting portions of the Constitution.

By 1919, the year the Eighteenth Amendment went into effect, 26 states had their own Prohibition laws. Congress enacted the Volstead Act, which gave enforcement teeth to the amendment. However, like the Eighteenth Amendment itself, it did not define intoxicating liquor or prohibit the purchase, possession, or consumption of alcoholic beverages. The act, named after Andrew Volstead, the Minnesota Republican congressman who introduced it, also allowed small quantities of wine for personal consumption and slightly alcoholic drinks, such as near beer, that were no more than .5 percent alcohol. The Volstead Act also allowed people to keep and enjoy alcoholic beverages they had purchased before the amendment was ratified.

The penalties for selling liquor—brandy, whiskey, rum, beer, gin, ale, porter, wine—ranged from 30 days in jail to 5 years in prison and fines of $500 to $10,000.

We the People

Andrew Volstead, a lawyer, was the mayor of Granite Falls, Minnesota, before he was elected to Congress in 1903. One of the few congressmen who favored a federal law against lynching, he was typical of the progressives who thought Prohibition would be good for the country’s morals and morale. As public opinion turned against Prohibition, he was defeated in his 1922 reelection bid.

The most ardent temperance leaders exulted in Prohibition. Evangelist Billy Sunday held mock funerals for John Barleycorn and announced, “The slums will soon be only a memory. We will turn our prisons into factories and our jails into storehouses and corncribs.” Indeed, absenteeism at factories declined and the welfare rolls shrank. Police received fewer calls for domestic disturbances, delinquency, disorderly conduct, vagrancy, assault, and other crimes.

The Downside of Dry

But the general public soon became disenchanted. The idea of a dry nation was more palatable than actually going without a drink. And instead of giving up booze, Americans were simply doing it more surreptitiously, and paying more for it.

California’s vineyards expanded during Prohibition, and retailers legally sold “blocks” or “bricks” of dehydrated “grape juice” that carried wine names. One set of instructions read: “After dissolving the brick in a gallon of water, do not place the liquid in a jug away in the cupboard for 20 days, because then it would turn into wine.” Another set of instructions reminded customers it was legal to drink wine in their own homes but not to transport it.

Illegal booze was readily available at parties where so-called gin was made in bathtubs; in the tens of thousands of speakeasies that popped up everywhere, including in private homes; and through the untold numbers of rumrunners, moonshiners, and gangsters who found a new way to make a living. Much of the money for illegal booze went to smugglers such as Al Capone, who earned tens of millions annually for several years from his Chicago headquarters. As a result, some believe Prohibition was the breeding ground for organized crime in the United States.

Enforcement was a problem as well. Both the state and federal authorities had enforcement authority, but neither seemed to want it very much. With their own laws, some states were more strict than others, but enforcement also varied from city to city, judge to judge, prosecutor to prosecutor, and even cop to cop.

Awash in money, the gangsters could bribe entire police departments. One magistrate in Philadelphia collected $88,000 in bribes in less than a year on the bench, and in South Jacksonville, Florida, virtually the entire city administration, including the mayor, chief of police, president of the city council, and even the fire chief, were indicted for corruption by a federal grand jury. One study reports that from 1921 to 1923 7,000 Prohibition-related arrests were made in New York City but only 27 convictions. In Chicago, the Untouchables, the famous crime fighters led by Eliot Ness, were celebrated as much for not taking bribes as for the arrests they made.

As the gangsters fostered violence and corruption, the bodies and the bribes both led to public disregard for government and the law. President Harding noted that Prohibition had become a divisive class issue: “Many citizens, not teetotalers in their habits, lawfully acquired stores of private stocks in anticipation of Prohibition … so there are literally American millions who resent the lawful possessions of the few, the lawless practices of a few more, and rebel against the denial to the vast majority.”

We the People

Alcohol was not illegal in Canada during Prohibition, and great quantities of quality, brand-name liquor—as opposed to the often-dubious homemade stuff—were smuggled across the border. One of the most notorious smugglers was Bill McCoy, and speakeasy operators would assure customers their drinks were the “real McCoy.”

It soon became clear that Prohibition was a failure—an expensive mistake. Even industrialist John D. Rockefeller, a teetotaler who had donated hundreds of thousands of dollars to the temperance movement, called for an end to Prohibition. President Herbert Hoover called it “the great social and economic experiment, noble in motive and far reaching in purpose,” but agreed that it had failed. In 1932, the Democratic Party made repeal a plank in its national campaign platform, and when the Democrats swept into office, the street bands blared, “Happy Days Are Here Again.”

The Twenty-First Amendment: Repeal

“The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

“The transportation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws, thereof, is hereby prohibited.

“This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.”

After President Franklin Delano Roosevelt (FDR) took office, one of the first acts of the new Congress was to approve the Twenty-First Amendment. A few months later, Utah became the thirty-sixth and final state needed for ratification, and Prohibition ended. The Eighteenth Amendment became the only one ever repealed by another amendment, and the Twenty-First was the only one approved by state conventions rather than by legislatures; Congress had stipulated state conventions out of fear that rural-dominated legislatures would vote to keep Prohibition.

The Ontario, California, Daily Report newspaper noted: “A lot of factors went into the decision to do away with Prohibition. None, however, was quite as important as the nation’s desire to get out from under the speakeasy and the rumrunner. They were a load too heavy to be carried any farther. We have dropped them.”

The Supreme Court ruled that the Twenty-First Amendment made the Volstead Act invalid, but a number of states retained Prohibition. Mississippi was the last state to lift its complete ban on alcoholic beverages, in 1966.

We the People

In his 1934 State of the Union speech, FDR said: “The adoption of the Twenty-First Amendment should give material aid to the elimination of those new forms of crime which came from the illegal traffic of liquor.”

If you look at the Twenty-First Amendment, you’ll note that repeal is taken care of succinctly in the 15-word opening clause. The third and final clause deals with the 7-year time limit for ratification, which was not a factor because the states voted for repeal so quickly. However, the second phrase of the amendment, prohibiting transportation or possession into any state “in violation of the laws, thereof,” would appear to give broad powers to the states to regulate alcohol. That’s certainly the way the Supreme Court has interpreted it.

There have been tensions and potential conflicts with other parts of the Constitution, including free speech and interstate commerce, and the Supreme Court has indicated there must be a balancing act on a case-by-case basis. But for the most part, states have wide latitude in regulating alcohol sales and distribution.

An exception was a 2005 case, Granholm v. Heald, which looked at Michigan and New York laws allowing in-state wineries to ship wine directly to in-state residents but prohibiting out-of-state wineries from shipping directly to their respective resident customers. The two states maintained that the second clause of the Twenty-First Amendment gave them unlimited authority to regulate wine sales and distribution in their states, but the Supreme Court disagreed. In a 5–4 decision, the high court said the laws were unconstitutional because they violated the Constitution’s protections for interstate commerce.

A number of Supreme Court rulings relating to the Twenty-First Amendment have dealt with topless or nude dancing, pornographic movies, and sexual activities in bars and taverns. In California v. LaRue in 1972, New York State Liquor Authority v. Bellanca in 1981, and City of Newport v. Iacobucci in 1986, the Supreme Court said the states can ban or regulate nude or partly nude dancing as part of the power to regulate alcoholic beverages under the Twenty-First Amendment.

In other cases, the Supreme Court has said that performers may be enjoying their First Amendment rights of expression but made a distinction between dancing topless in a bar where drinks are served and appearing nude in a serious theater presentation. In 44 Liquormart v. Rhode Island in 1996, the Supreme Court said, “Entirely apart from the Twenty-First Amendment, the state has ample power to prohibit the sale of alcoholic beverages in inappropriate locations” and “to restrict the kind of ‘bacchanalian revelries’ described in the LaRue opinion regardless of whether alcoholic beverages are involved.”

Cases

Barnes v. Glen Theatre, Inc. (1991): Two bars, claiming that dancing nude represents freedom of expression, challenged an Indiana state law requiring dancers to wear at least a G-string and pasties. The Supreme Court turned down the appeal and held that “the enforcement of Indiana’s public indecency law to prevent totally nude dancing does not violate the First Amendment’s guarantee of freedom of expression.”

Subsequently, however, the Supreme Court put some limits on state and local regulation of topless and nude dancing, sometimes requiring proof that the dancing would have harmful effects on the community.