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Overview
Sean Beienburg recovers a largely forgotten constitutional debate, revealing how Prohibition became a battlefield on which skirmishes of American political development, including the debate over federalism and states’ rights, were fought. Beienburg focuses on the massive extension of federal authority involved in Prohibition and the passage of the Eighteenth Amendment, describing the roles and reactions of not just Congress, the presidents, and the Supreme Court but political actors throughout the states, who jockeyed with one another to claim fidelity to the Tenth Amendment while reviling nationalism and nullification alike. The most comprehensive treatment of the constitutional debate over Prohibition to date, the book concludes with a discussion of the parallels and differences between Prohibition in the 1920s and debates about the legalization of marijuana today.
Product Details
| ISBN-13: | 9780226632278 |
|---|---|
| Publisher: | University of Chicago Press |
| Publication date: | 06/27/2019 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 320 |
| File size: | 1 MB |
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CHAPTER 1
Introduction Prohibition, Now and Then
Will New York secede from the union? I wouldn't care, would you? — Anonymous attendee at a dinner held for the Anti-Saloon League, protesting New York's decision to repeal its act enforcing the Eighteenth Amendment
You are making it possible for a state to secede from the Union. You are trifling with a great principle to save your political hides. — A dry Republican state senator to colleagues who approved New York's referendum against national prohibition
In the wake of Colorado's 2012 legalization of marijuana, two of its neighboring states asked the Supreme Court to strike down the Centennial State's constitutional amendment as a violation of the nation's founding charter.
According to the state attorneys general, the complex regulatory practices attached to the repeal of Colorado's marijuana laws violated the supremacy clause of the US Constitution. Article VI holds that the Constitution and all laws "made in pursuance thereof ... shall be the Supreme Law of the land" — in effect, that the Constitution and any laws that it authorizes trump any conflicting state law, including a state's constitution. Nebraska and Oklahoma v. Colorado argued that the state's marijuana amendment created such a conflict.
More specifically, Nebraska and Oklahoma charged that Colorado's regulation of a statewide marijuana industry, enacted as part of the state's repeal initiative, conflicts with the Controlled Substances Act's federal prohibition of marijuana — and, thus, that its repealing law is unconstitutional.
Colorado, for its part, insisted that the federal government remained perfectly free to enforce the Controlled Substances Act within its territory. That the federal government does not do so is, according to Colorado, the result of executive decisionmaking, not any fault of the state's law. In effect, Colorado argued that the state's marijuana amendment commits it to inaction rather than conflict, unlike the nullification doctrines of the antebellum South, which threatened military opposition to federal enforcement of congressional laws.
Nor was Colorado contesting the constitutionality of the Controlled Substances Act, which is, after all, in this instance regulating purely intrastate marijuana. That has already been tried, and the states lost. In the 2005 case Gonzales v. Raich, the Supreme Court, over fierce states' rights dissents by Justices Clarence Thomas and Sandra Day O'Connor (joined by the dying Chief Justice William Rehnquist), held that the enumerated constitutional power to regulate interstate commerce also brought with it the authority to suppress purely intrastate trafficking and even possession of homegrown medicinal marijuana. Stated another way, a state market (or nonmarket) affected the federal ability to control a national market and thus authorized congressional suppression even of a wholly instate good.
Critics have noted the strange scenario in which reliably Republican states whose officials often invoke the Tenth Amendment seem to be attacking an increasingly progressive neighbor for asserting its own sovereign prerogatives — a claim that some Nebraska and Oklahoma legislators have found persuasive in discouraging their own states' lawsuits. Taking the opposite tack, ten years earlier, the attorneys general of Alabama, Louisiana, and Mississippi explained that their states remained firmly committed to the statewide suppression of marijuana but wanted vigorously to defend California's constitutional right to experiment with medical marijuana, consistent with a narrower interpretation of the federal government's interstate commerce clause power.
Federalism complicates our usual political alliances. In this case, conservative members of Congress invoke states' rights to join with progressive colleagues invoking criminal justice in seeking to end Controlled Substances Act enforcement in pro–medical marijuana states. In Raich, Justice Thomas sided with Stephen Reinhardt, the leading left voice on the progressive Ninth Circuit, and against Justice Antonin Scalia, who backed the federal government, much to the bitter disappointment of Raich's attorney, the libertarian law professor Randy Barnett. Attorneys from the Deep South defended pot (in 2004); conservative Plains states defended federal authority (in 2015). Over the protest of Justices Thomas and Samuel Alito, the Court declined to hear the Colorado case, leaving unclear the federalism implications of such a state and federal clash.
Unusual as this may seem, all this has happened before — in the early part of the twentieth century, as the American people finally concluded the decades-long struggle toward the national suppression of alcohol: Prohibition.
Immortalized since Dashiell Hammett's contemporary hardboiled short stories of the Continental Op(erative) (a thinly fictionalized Pinkerton agent) and other toughs navigating rum-soaked San Francisco or "Izzard, Arizona," or the formative years of Hollywood, from the original Scarface to The Untouchables to Boardwalk Empire, Prohibition still casts a long shadow over American popular culture. But, while the popularity of gangster fiction in the national imagination comes and goes, the impact of prohibition on America's legal order was even stronger. In a call to arms later widely popularized as "the noble experiment," Herbert Hoover's 1928 speech accepting the Republican nomination for president recognized the stakes of prohibition: "Our country has deliberately undertaken a great social and economic experiment, noble in motive and far-reaching in purpose."
It was equally far-reaching in effect. Prohibition's creation of a national law enforcement regime altered not only the relationship between the states and the federal government but also that between the government and the individual. David Kyvig observes: "National prohibition was arguably the most radical and significant constitutional reform ever adopted. Only the Thirteenth Amendment ... rivals it." That is, both interjected the federal government directly into individual conduct, destroying property interests, and pulling power from the states. Implementation by the Department of the Treasury's "prohis" (pronounced "prohees") and their state allies triggered a variety of controversial changes, including warrantless searches of cars and tapping of phones, prosecutions by both state and federal prosecutors despite double jeopardy protections, and other contested applications of constitutional guarantees. The creation of the vast new national powers that so unnerved states' rights constitutionalists seemed especially jarring in an era otherwise recoiling from the expansion of national power during World War I. According to Lisa McGirr's history of the war on alcohol, Prohibition drastically built the power of the American state, injecting the federal government into the traditional domains of state authority such as policing and criminology, and working to build a nationalized and professionalized carceral and law enforcement state — one that survived the fall of the Eighteenth Amendment. Prohibition was thus, in the words of James Morone, "American government's overlooked growth spurt," one that would drastically "rewrite American federalism, criminal justice, the courts, civil liberties, crime-fighting, crime families, and national attitudes."
If its implications for national power were long overlooked by scholars, they were not at the time as prohibition launched a decades-long debate on states' rights, one that took place largely outside the courts.
As the major political issue of the 1920s, national prohibition offered a battlefield on which many of the core questions of American political development were fought — of race, of the allocation of federal and state powers, of popular sovereignty, and finally of constitutional obligation and judicial supremacy — as elected officials on both sides mobilized a popular constitutionalist campaign around the noble experiment. As a result of that campaign, the Eighteenth Amendment bears infamy as the only amendment to be formally repealed.
Despite most of American government operating at the state level, previous accounts of prohibition, like much of the political science literature on American political development, have generally focused on national institutions, though recent work in constitutional development has illustrated the potential weaknesses of such a purely or even predominantly national account. Such state-centered scholarship has helped show, for example, the constitutional tradition that provides for vigorous use of the states' police powers to supplement the more limited and jealously guarded powers exercised by the federal government.
By using state legislative journals and newspapers, this book builds the first extended state-level constitutional history of the fight against national Prohibition. Such a history reveals a widespread and aggressive mobilization of states' rights thinking. Especially as Americans undertake the first steps in an analogous state-by-state campaign to legalize marijuana use under a regime of national control, such a constitutional and political history of state prohibition illuminates several underappreciated features about the legal order before the New Deal as well as offering instructive contrasts with the contemporary movement.
First, the constitutional politics of Prohibition were about politics, not just judicial filings and rulings. Although generating court cases in secondary issues like the aforementioned searches, the primary constitutional battlegrounds of Prohibition were in the state halls and ballot boxes, through gubernatorial addresses and legislative action and referenda, as states struggled with whether they had a constitutional obligation to enforce Prohibition against individuals — or the sovereign prerogative not to. During the decade and a half following the implementation of the Eighteenth Amendment, states, not the Supreme Court, served as the primary sites of constitutional deliberation.
Second, and relatedly, unlike our current-day politics, in which nonjudges cede constitutional argument to courts in a realm of judicial exclusivity and judicial supremacy, noncourt actors took constitutional politics seriously. Governors and legislators struggled against one another by citing specifically constitutional arguments, often elaborating them in extremely thoughtful, detailed, and widely publicized discussions that provided valuable civic education, especially when contrasted with the Supreme Court's muddled and unclear justifications of its pro-prohibition interventions.
Elected state officials openly appealed to their constitutional oaths in defending policies they personally opposed and, more importantly, knew their constituents opposed, hoping that such claims would immunize them by appealing to the people's faith in the Constitution. In some cases, such behavior was clearly principled, and constitutional beliefs constrained behavior, as political leaders reversed their preamendment views and became ardent, though unhappy, prohibitionists. Other cases were more clearly electorally focused, trying to avoid the wrath of the Anti-Saloon League (ASL), the most powerful lobbying organization in the country with its leader, Wayne Wheeler, perhaps the most feared man in politics. Still others, especially wet Democrats, sought to use prohibition as a new crosscutting issue during a regime of Republican dominance. But, whether owing to electoral or to conscientious reasons, these officials engaged in model constitutional dialogues of precisely the sort popular constitutionalists and other scholars of extrajudicial constitutional politics envision.
Third, for all their disagreement, most "wets" resisting Prohibition and "drys" backing it shared a remarkably consistent constitutional vision that enabled such meaningful dialogue. Unlike often sharply polarized contemporary debates in which legal practitioners seem to speak about two different Constitutions, agreement on the constitutional framework meant that both sides in the prohibition debate generally talked to, rather than past, one another.
What becomes immediately apparent from those debates is how aggressively most of the participants tried to claim the same middle ground of centrist federalism at the core of pre–New Deal constitutionalism. Participants worked to situate themselves as faithful guarantors of both enumerated powers and constitutional obligations because they believed such fidelity to be both required by their principles and rhetorically powerful. Those who defended national Prohibition and state cooperation with it constantly tried to defend this as the consequence of a specific textual amendment — in effect, they remained committed to originalism and federalism. By contrast, those who wanted the states to refrain from enforcement repeatedly denied that they were engaging in nullification and instead asserted what we would today call the noncommandeering doctrine, in which states were not required to be administrative agents of a different sovereign. This, wets repeatedly insisted, was a far cry from Calhounian obstruction, and any resulting failures of implementation were the fault of the federal government. In short, prohibitionists denied that they were nationalists while alleging that wets were nullifiers, with antiprohibition forces reversing the claims.
Only a few outliers — largely southern Democrats and a handful of progressives detached from the parties — were outside the postbellum settlement that embraced states' rights but rejected both nationalism and nullification, leading both camps to place themselves within a centrist federalism. As will become apparent, part of this was ideological and part of it structural, with prohibition's internal division within the parties intentionally cultivated by the leading prohibition group in America. At least through 1928, the ASL's careful and conscious effort to keep prohibition a nonpartisan issue foreclosed a nascent political realignment that perceptive observers began to see. Ambitious politicians prepared for prohibition as the first stage of a conflict that would eventually reorient the basic divide of American politics.
Rather than having the parties internally divided between a more libertarian-, states' rights–oriented bloc and a progressive, nationalist wing, the new party system would make support for the size of the federal government the new electoral fault line. Prohibition seemed an especially popular and fitting vehicle to help achieve this. But these policy entrepreneurs ended up twice surprised: not only did the Democrats not end up as the antistatist party, but the defeat of prohibition also did not herald the Tenth Amendment paradise they had longed to see. With the eventual repeal of national prohibition by the Twenty-First Amendment, the libertarian activists at the core of the opposition to national prohibition declared victorious the cause of states' rights and, refashioned into the Liberty League, hoped to turn their influence against the growing federal power of the New Deal — only to be disbanded in disgrace.
Of all the constitutional issues that generated states' rights conflicts between Reconstruction and the New Deal, only prohibition approached race in either intensity or longevity. But, similar as the furor may have been, the participants could not have been more dissimilar. Southern opposition to prohibition was nearly nonexistent in state houses, while it was northerners (and Marylanders) who tended to condemn the nationalizing policy.
Prohibition's state legislative opponents were mildly more likely to be Democrats than Republicans, but the invocation of states' rights in the period was a decidedly northern phenomenon. This proved baffling to contemporary observers, who, growing up during the high point of Lost Cause mythology, repeatedly but inaccurately understood the nation's constitutional fault line as a continuation of a Civil War waged between states' rights southerners and nationalist Yankees, something earlier northerners, including the quintessential Boston Brahmin Henry Adams, had rejected in ardently embracing federalism themselves.
After situating prohibition within the contours of American political thought and offering a brief account of the early state temperance and prohibition movement in the nineteenth and early twentieth centuries, this book turns to a discussion of American federalism and the political drive culminating in the passage of national prohibition. With that background material laid, the primary focus is on the decade and a half after the ratification of the Eighteenth Amendment as activists and political entrepreneurs successfully turned states into battlegrounds and used federalism to their advantage both institutionally and rhetorically. By removing states from the machinery of enforcement, antiprohibitionists helped destroy prohibition's effectiveness. At the same time, while perhaps not as powerful as its practitioners thought, an appeal to deep American principles of constitutional federalism served as a powerful rhetorical tool that opponents of the national marijuana regulatory regime might do well to emulate.
(Continues…)
Excerpted from "Prohibition, the Constitution, and States' Rights"
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Table of Contents
AcknowledgmentsChapter 1 Introduction: Prohibition, Now and Then
Chapter 2 Alcohol and Liberalism: Before National Prohibition
Chapter 3 Prohibition and Federalism: The Road to the Sheppard Amendment
Chapter 4 Ratifying and Implementing the Sheppard Amendment (1918–21)
Chapter 5 Ratifying and Implementing II (1918–21): The Northeast
Chapter 6 The Dry Tide Recedes (1922–23)
Chapter 7 Constitutional Obligations (1923–24)
Chapter 8 Taking Alcohol to the People of the States (1925–28)
Chapter 9 The Noble Experiment (1929–31)
Chapter 10 The Dam Breaks (1932–33)
Chapter 11 Conclusion: Prohibition and American Constitutionalism
Coda Pot and Popular Constitutionalism: Prohibition’s Lessons for the Marijuana Legalization Debate
List of Abbreviations
Notes
Index
An online appendix is available at https://press.uchicago.edu/sites/beienburg/.