TABLE OF CONTENTS
Chapter 1. Introduction: Prohibition, Now and Then - Sean Beienburg
DOI: 10.7208/chicago/9780226632278.003.0001
[federalism;marijuana;prohibition;American political thought;American political development;Gonzales v Raich;enumerated powers;non commandeering doctrine;extrajudicial constitutional interpretation;popular constitutionalism]
The recent trend of state legalization of marijuana (for medical and recreational purposes) has renewed long-standing debates about federalism and prohibition. Over fierce dissents arguing federal suppression of in-state marijuana exceeded the enumerated powers of the Constitution, in 2005 the Supreme Court case of Gonzales v. Raich upheld the exercise of federal power, setting the states and Washington on a collision course. Using the marijuana case to briefly illustrate the relevant legal controversies, such as the non-commandeering doctrine, this chapter frames the subsequent chapters on prohibition. It briefly previews the book’s major arguments and shows how reconstructing these debates helps us better understand American Political Thought, American Political Development, and legal debates on extrajudicial constitutional interpretation and popular constitutionalism. (pages 1 - 7)
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Chapter 2. Alcohol and Liberalism: Before National Prohibition - Sean Beienburg
DOI: 10.7208/chicago/9780226632278.003.0002
[prohibition;liberalism;progressivism;John Stuart Mill;American political thought;Maine Law;white supremacy;reform movements;temperance]
Before national prohibition could be implemented, completing the evolution from voluntary temperance to nationwide policy, its defenders had to reconcile the restriction of alcohol with some of the key ideological elements of American political thought. This meant that, although John Stuart Mill had long ago derided the "Maine Law" establishing prohibition, prohibitionists justified the suppression of alcohol as compatible with freedom as understood within both liberalism and progressivism. Prohibition, far from being a narrow movement imposed by rural fundamentalists, drew on a wide base of support from a variety of reform movements, including urban anti-poverty opponents, black intellectuals seeking moral uplift and the enforcement of Reconstruction, and women’s and Christian (especially Protestant) activists, to say nothing of reinforcement from business and the commitment to white supremacy anchoring Southern politics. (pages 8 - 16)
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Chapter 3. Prohibition and Federalism: The Road to the Sheppard Amendment - Sean Beienburg
DOI: 10.7208/chicago/9780226632278.003.0003
[Andrew Jackson;John C. Calhoun;Reconstruction;states rights;Anti Saloon League;single issue politics;Volstead Act;Elihu Root;National Prohibition Cases;Morris Sheppard]
This chapter summarizes the understandings of federalism which anchored the American political order since the time of the Founding, discussing its major controversies in early American history such as Andrew Jackson’s tariff battle with John Calhoun. This decentralized federalism linked a federal government limited to constitutionally enumerated powers with states exercising robust police powers on behalf of citizens’ welfare. Even after the Civil War and Reconstruction, both Republicans and Democrats shared and maintained the deep commitment to states’ rights even as they reviled nullification. That devotion to federalism initially led to the Webb-Kenyon Act, which guaranteed federal support of states’ decisions to prohibit alcohol. Aided by a unique policy window, careful efforts to reconcile prohibition to states’ rights, and mastery of single issue pressure politics, the Anti-Saloon League and its leader Wayne Wheeler achieved the Eighteenth Amendment, advanced by progressive Texas Senator Morris Sheppard. Both the amendment and the implementing Volstead Act were attacked, especially by libertarian lawyers like Elihu Root, as hostile to both the spirit and perhaps the text of the Constitution. In a perfunctory opinion that enabled a decade of intense constitutional debate, the Supreme Court endorsed the ASL’s handiwork in the National Prohibition Cases. (pages 17 - 50)
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Chapter 4. Ratifying and Implementing the Sheppard Amendment (1918–21) - Sean Beienburg
DOI: 10.7208/chicago/9780226632278.003.0004
[concurrent enforcement;prohibition;ratification;Eighteenth Amendment;the South;Oscar Underwood;William Jennings Bryan;Albert Ritchie;California;Maryland]
Ratification of the Eighteenth Amendment proved surprisingly easy in most of the country, which forced state legislators, governors, and others to try to understand the constitutional obligations of states under the cryptic “concurrent enforcement” clause of the new amendment. With few exceptions, states in the South, West, and Midwest quickly instituted regimes of concurrent enforcement by which states additionally helped to enforce the Eighteenth Amendment, with William Jennings Bryan serving as a roving national ambassador for prohibition. The South’s reputation for states’ rights proved especially hollow, with Governor Albert Ritchie’s Maryland the only southern state to resist instituting state enforcement, much to the consternation of Alabama’s Oscar Underwood, the rare southern states’ rights anti-prohibitionist and who lamented his region’s hypocrisy and enthusiasm for national power. California prohibitionists, reeling from repeated referenda against statewide prohibition, began reformulating the issue to be not pro-or-anti prohibition but fidelity to the Constitution, modeling the prohibition legalism and constitutional obligation that later proved so effective in maintaining prohibition. (pages 51 - 75)
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Chapter 5. Ratifying and Implementing II (1918–21): The Northeast - Sean Beienburg
DOI: 10.7208/chicago/9780226632278.003.0005
[Calvin Coolidge;Al Smith;Nathan Miller;Henry Cabot Lodge;intoxicating liquors;prohibition;Volstead Act;constitutional oath;Edward Edwards;Anti Saloon League]
In the Northeast, where opposition to prohibition was most intense, governors and state legislators fiercely debated the extent to which states’ rights enabled states to choose how to enforce the Eighteenth Amendment. Henry Cabot Lodge, who had been one of the fiercest opponents of the amendment, illustrated the underappreciated New England commitment to states’ rights. Although both Governors Calvin Coolidge (MA) and Nathan Miller (NY) opposed prohibition on federalism grounds, with their electorates similarly opposed to the Amendment, both believed that their constitutional oaths required them to enforce the amendment as strictly as the national standard announced in the Volstead Act. New Jersey’s Edward Edwards and New York’s Al Smith, by way of contrast, agreed that their oaths prevented nullification but they sought to maintain as much state sovereignty as possible, for example by disputing the meaning of “intoxicating liquors” so as to have the states ban only harder liquors. In New York, the Anti-Saloon League concluded its non-partisan strategy was not viable and began its slow takeover of the state’s Republican Party. (pages 76 - 99)
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Chapter 6. The Dry Tide Recedes (1922–23) - Sean Beienburg
DOI: 10.7208/chicago/9780226632278.003.0006
[popular constitutionalism;secession;nullification;Warren Harding;Al Smith;John Blaine;Anti Saloon League;prohibition]
Prohibitionist strength reached its apex in 1922 and 1923, as the Anti-Saloon League and its allies convinced most American politicians that their oaths to the Constitution required state enforcement of prohibition. Even as many criticized the Eighteenth Amendment for undermining states’ rights and local government, government officials, many who shared those views (such as Wisconsin Governor and former prohibitionist John Blaine), defended enforcement of the Sheppard Amendment on grounds of constitutional fidelity. With the exception of the West, where prohibition discussion was more likely to be conducted independently of constitutionalism, state debates offered impressive examples of popular constitutionalism, with public discussions on American federalism. In considering whether to repeal New York’s concurrent enforcement law, the politically progressive but constitutionally conservative Al Smith debated these nuances of federalism with not only other members of New York state government but also Warren Harding, insisting on his obligation to engage in constitutional interpretation rather than simply leave these issues to the courts. Initially hesitant due to the difficulty of ensuring his deep commitment to states’ rights did not cross from the American federalist consensus into discredited nullification or secession, Smith’s stance made him become arguably the leading anti-prohibition politician in the country. (pages 100 - 134)
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Chapter 7. Constitutional Obligations (1923–24) - Sean Beienburg
DOI: 10.7208/chicago/9780226632278.003.0007
[Warren Harding;Calvin Coolidge;1924 presidential election;William McAdoo;Al Smith;Albert Ritchie;John Davis;Anti Saloon League;Ku Klux Klan;Oscar Underwood]
The formerly wet Warren Harding increasingly felt obligated to shore up prohibition enforcement on grounds of constitutional fidelity. However, his death elevated Calvin Coolidge, a libertarian-leaning states’ rights conservative who, like Harding, nonetheless believed the amendment made an exception to that rule, albeit one whose enforcement he sought to foist on the states or underlings whenever possible. The bitterly fought Democratic primary in the 1924 presidential election became infamous for going to 103 ballots, as anti-prohibition, libertarian leaning Democrats like Oscar Underwood sought to suppress the influence of the Ku Klux Klan. The southern prohibitionist and Anti-Saloon League and Klan-favored William McAdoo fought the anti-prohibitionist and aggressively states’ rights candidates Albert Ritchie and especially Al Smith to a standstill. Deadlocked Democrats thus nominated lawyer John Davis, whose views were quite similar to Coolidge and whose selection illustrates the bipartisan hold of both federalism and constitutional obligation: both were states’ rights politicians who nonetheless defended enforcement of the Eighteenth Amendment. Coolidge’s victory over the equally constitutionally conservative Davis brought with it a clear increase in prohibitionist members of Congress. (pages 135 - 148)
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Chapter 8. Taking Alcohol to the People of the States (1925–28) - Sean Beienburg
DOI: 10.7208/chicago/9780226632278.003.0008
[AAPA;Anti Saloon League;Calvin Coolidge;Herbert Hoover;Al Smith;William Borah]
With the Anti-Saloon League having demonstrated its strength in leveraging both electoral and intellectual support for prohibition enforcement by elected officials, the Association Against the Prohibition Amendment (AAPA), a states’ rights committed anti-prohibition group, turned toward popular referenda proposing repeal of the Eighteenth Amendment, which it carefully justified on almost exclusively federalist grounds. These referenda proved wildly successful, but still many elected officials, including opponents of prohibition such as Wisconsin’s Fred Zimmerman, enraged constituents by blocking efforts to liberalize prohibition between the presidential elections. With little separating the two 1928 presidential candidates, both of whom were arguably constitutionally conservative and politically progressive, the election quickly became a de facto referendum on prohibition. Even though he pledged to faithfully enforce the Constitution until amended, Democratic nominee Al Smith drew the support of bipartisan prohibition opponents and, though losing much of the historically Democratic South, made inroads in the anti-prohibitionist Northeast. By way of contrast, candidate Herbert Hoover, with the assistance of powerful states’ rights progressive Senator William Borah, pledged vigorous enforcement of the Constitution and its so-called “noble experiment,” branding the Republican Party as the clearly prohibitionist party in a way it never was under Calvin Coolidge. (pages 149 - 175)
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Chapter 9. The Noble Experiment (1929–31) - Sean Beienburg
DOI: 10.7208/chicago/9780226632278.003.0009
[Herbert Hoover;Wickersham Commission;Eighteenth Amendment;concurrent enforcement;Franklin Roosevelt;nullification;AAPA;WONPR;Pauline Sabin]
Herbert Hoover’s more aggressive enforcement helped inflame anti-prohibition sentiment, contributing to several states’ decisions to revoke their own concurrent enforcement laws even as they carefully disavowed any effort to obstruct national enforcement. As part of the renewed law enforcement regime, Hoover created the Wickersham Commission to assess implementation of prohibition. Unhappily for Hoover, the Commission reported rather negative results even as it agreed that constitutional obligation required enforcement before repeal of the Eighteenth Amendment in order to avoid nullification. Hoover’s insistence on redoubling the effort harmed his credibility and spurred not only the growth of the Association Against the Prohibition Amendment (AAPA) but the rapid rise of Pauline Sabin’s Women’s Organization for National Prohibition Reform (WONPR). Aided by the influx of wet Smith allies, Democrats taking advantage of Hoover’s weakness on the issue became increasingly hostile to prohibition and sophisticated in defending anti-prohibition efforts as within the realm of state sovereignty allowed by the Constitution. New York Governor Franklin Roosevelt, a former Smith advisor, followed his own political advice by avoiding firm commitments on prohibition even as he endorsed the broad platitudes of states’ rights en route to being the party’s frontrunner. (pages 176 - 212)
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Chapter 10. The Dam Breaks (1932–33) - Sean Beienburg
DOI: 10.7208/chicago/9780226632278.003.0010
[Herbert Hoover;Albert Ritchie;Al Smith;Franklin Roosevelt;Twenty First Amendment;Volstead Act;Cullen Harrison Act]
While disagreeing on whether constitutional obligations required them to administer prohibition before repeal, nearly all northeastern states, and a handful of others, forcefully protested against the Eighteenth Amendment as a violation of states’ rights, and polling data indicated a nationwide collapse in support for prohibition. After posing as a “moist” candidate to retain southern support against Albert Ritchie and Al Smith, Franklin Roosevelt committed the Democratic Party firmly for repeal. The Republicans under Herbert Hoover accepted the need for a referendum reassessing popular support and considering repeal and the restoration of states’ rights. Roosevelt’s overwhelming victory, coupled with clear support in both congressional and referendum elections, signaled the inevitability of prohibition's repeal. But as ratification of the Twenty-First Amendment would take some time, Roosevelt and his allies modified the Volstead Act with the Cullen-Harrison Act, allowing consumption of low alcohol-by-volume drinks in the interim. (pages 213 - 228)
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Chapter 11. Conclusion: Prohibition and American Constitutionalism - Sean Beienburg
DOI: 10.7208/chicago/9780226632278.003.0011
[Liberty League;Wickard v Filburn;extrajudicial constitutional interpretation;popular constitutionalism;judicial supremacy;non commandeering doctrine;Printz v United States;nullification;enumerated powers]
After successfully mobilizing on behalf of states’ rights, the AAPA evolved into the Liberty League seeking to stop Franklin Roosevelt’s New Deal, which it considered a betrayal of their support. Roosevelt’s success in defeating them, and ensuing Supreme Court precedents like Wickard v. Filburn, ushered in an expansive understanding of federal power rendering superfluous future efforts to augment national authority via constitutional amendment. After concluding that history, the chapter assesses the prohibition debates as an application of various legal theories. Prohibition offers a model example of extrajudicial constitutional interpretation, with thoughtful, careful, public deliberation by state elected officials rather than simply deference to judicial supremacy. Perceived constitutional obligations often constrained their behavior even at great political cost. Though less obviously, prohibition also arguably serves as an example of popular constitutionalism. Far from lawlessly insisting on alcohol, American citizens arguably got the Constitution right in rejecting both nullification and state concurrent enforcement laws, effectively adopting the non-commandeering doctrine illustrated by later cases like Printz v. United States. As both our contemporary indifference to citing (and being constrained by) the enumerated powers and flirtations with nullification attest, the era’s sophisticated constitutional dialogue has not always been the norm in American history. (pages 229 - 240)
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Coda Pot and Popular Constitutionalism: Prohibition’s Lessons for the Marijuana Legalization Debate - Sean Beienburg
DOI: 10.7208/chicago/9780226632278.003.0012
[marijuana legalization;Gonzales v Raich;states rights;Webb Kenyon;Twenty First Amendment;William Rehnquist;Sandra Day O Connor;Clarence Thomas]
The growing trend of state marijuana legalization is recreating the federalist constitutional controversies raised by the Eighteenth Amendment, though there are several important differences. Most obviously, there is the lack of an explicitly authorizing amendment and the language of concurrent enforcement (though, Gonzales v. Raich, decided over dissenting votes from William Rehnquist, Sandra Day O’Connor, and Clarence Thomas, enables much of the same federal authority.) Some states’ decisions to take proactive steps to regulate marijuana markets plausibly roams from inaction into nullification. And, unlike in the 1920s, where a robust climate of constitutionalism and federalism unified Americans regardless of ideology, today both are far more divisive, illustrated by the difference between anti-prohibition groups’ commitment to states’ rights and contemporary marijuana activists’ indifference to it. The divorcing of progressivism and decentralization means those seeking legalization have lost access to a potentially powerful rhetorical tool. To the extent marijuana advocates want to eliminate federal regulations, they would do well to imitate the 1920s and appeal to pivotal states’ rights Republicans who support marijuana regulation but oppose it at the national level: seeking in effect, a marijuana regime like that created by Webb-Kenyon and the Twenty-First Amendment. (pages 241 - 250)
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