WHEN BOOZE WAS BANNED BUT POT WAS NOT

What Can Today's Crusaders Against Prohibition Learn From Their
Predecessors Who Ended the Alcohol Ban?

Reviewed: Last Call: The Rise and Fall of Prohibition, by Daniel Okrent,
Scribner, 468 pages, $30

Of the 27 amendments to the U.S. Constitution, the 18th is the only
one explicitly aimed at restricting people's freedom. It is also the
only one that has ever been repealed. Maybe that's encouraging,
especially for those of us who recognize the parallels between that
amendment, which ushered in the nationwide prohibition of alcohol,
and current bans on other drugs.

But given the manifest failure and unpleasant side effects of
Prohibition, its elimination after 14 years is not terribly
surprising, despite the arduous process required to undo a
constitutional amendment. The real puzzle, as the journalist Daniel
Okrent argues in his masterful new history of the period, is how a
nation that never had a teetotaling majority, let alone one committed
to forcibly imposing its lifestyle on others, embarked upon such a
doomed experiment to begin with. How did a country consisting mostly
of drinkers agree to forbid drinking?

The short answer is that it didn't. As a reveler accurately protests
during a Treasury Department raid on a private banquet in the HBO
series Boardwalk Empire, neither the 18th Amendment nor the Volstead
Act, which implemented it, prohibited mere possession or consumption
of alcohol. The amendment took effect a full year after ratification,
and those who could afford it were free in the meantime to stock up
on wine and liquor, which they were permitted to consume until the
supplies ran out. The law also included exceptions that were
important for those without well-stocked wine cellars or the means to
buy the entire inventory of a liquor store (as the actress Mary
Pickford did). Home production of cider, beer, and wine was
permitted, as was commercial production of alcohol for religious,
medicinal, and industrial use (three loopholes that were widely
abused). In these respects Prohibition was much less onerous than our
current drug laws. Indeed, the legal situation was akin to what today
would be called "decriminalization" or even a form of "legalization."

After Prohibition took effect, Okrent shows, attempts to punish
bootleggers with anything more than a slap on the wrist provoked
public outrage and invited jury nullification. One can imagine what
would have happened if the Anti-Saloon League and the Woman's
Christian Temperance Union had demanded a legal regime in which
possessing, say, five milliliters of whiskey triggered a mandatory
five-year prison sentence (as possessing five grams of crack cocaine
did until recently). The lack of penalties for consumption helped
reassure drinkers who voted for Prohibition as legislators and
supported it (or did not vigorously resist it) as citizens. Some of
these "dry wets" sincerely believed that the barriers to drinking
erected by Prohibition, while unnecessary for moderate imbibers like
themselves, would save working-class saloon patrons from their own
excesses. Pauline Morton Sabin, the well-heeled, martini-drinking
Republican activist who went from supporting the 18th Amendment to
heading the Women's Organization for National Prohibition Reform, one
of the most influential pro-repeal groups, apparently had such an attitude.

In addition to paternalism, the longstanding American ambivalence
toward pleasure in general and alcohol-fueled pleasure in particular
helped pave the way to Prohibition. The Puritans were not dour
teetotalers, but they were anxious about excess, and a similar
discomfort may have discouraged drinkers from actively resisting dry
demands. But by far the most important factor, Okrent persuasively
argues, was the political maneuvering of the Anti-Saloon League (ASL)
and its master strategist, Wayne Wheeler, who turned a minority
position into the supreme law of the land by mobilizing a highly
motivated bloc of swing voters.

Defining itself as "the Church in Action Against the Saloon," the
clergy-led ASL reached dry sympathizers through churches (mostly
Methodist and Baptist) across the country. Okrent says the group
typically could deliver something like 10 percent of voters to
whichever candidate sounded driest (regardless of his private
behavior). This power was enough to change the outcome of elections,
putting the fear of the ASL, which Okrent calls "the mightiest
pressure group in the nation's history," into the state and federal
legislators who would vote to approve the 18th Amendment. That
doesn't mean none of the legislators who voted dry were sincere; many
of them-including Richmond Hobson of Alabama and Morris Sheppard of
Texas, the 18th Amendment's chief sponsors in the House and Senate,
respectively-were deadly serious about reforming their fellow
citizens by regulating their liquid diets. But even the most ardent
drys depended on ASL-energized supporters for their political survival.

The ASL strategy worked because wet voters did not have the same
passion and unity, while the affected business interests feuded among
themselves until the day their industry was abolished. Americans who
objected to Prohibition generally did not feel strongly enough to
make that issue decisive in their choice of candidates, although they
did make themselves heard when the issue itself was put to a vote.
Californians, for example, defeated four successive ballot measures
that would have established statewide prohibition before their
legislature approved the 18th Amendment in 1919.

As Prohibition wore on, its unintended consequences provided the fire
that wets had lacked before it was enacted. They were appalled by
rampant corruption, black market violence, newly empowered criminals,
invasions of privacy, and deaths linked to alcohol poisoned under
government order to discourage diversion (a policy that Sen. Edward
Edwards of New Jersey denounced as "legalized murder"). These burdens
seemed all the more intolerable because Prohibition was so
conspicuously ineffective. As a common saying of the time put it, the
drys had their law and the wets had their liquor, thanks to myriad
quasi-legal and illicit businesses that Okrent colorfully describes.

Entrepreneurs taking advantage of legal loopholes included operators
of "booze cruises" to international waters, travel agents selling
trips to Cuba (which became a popular tourist destination on the
strength of its proximity and wetness), "medicinal" alcohol
distributors whose brochures ("for physician permittees only")
resembled bar menus, priests and rabbis who obtained allegedly
sacramental wine for their congregations (which grew dramatically
after Prohibition was enacted), breweries that turned to selling
"malt syrup" for home beer production, vintners who delivered
fermentable juice directly into San Francisco cellars through chutes
connected to grape-crushing trucks, and the marketers of the
Vino-Sano Grape Brick, which "came in a printed wrapper instructing
the purchaser to add water to make grape juice, but to be sure not to
add yeast or sugar, or leave it in a dark place, or let it sit too
long before drinking it because 'it might ferment and become wine.' "
The outright lawbreakers included speakeasy proprietors such as the
Stork Club's Sherman Billings-ley, gangsters such as Al Capone, rum
runners such as Bill McCoy, and big-time bootleggers such as Sam
Bronfman, the Canadian distiller who made a fortune shipping illicit
liquor to thirsty Americans under the cover of false paperwork. Their
stories, as related by Okrent, are illuminating as well as engaging,
vividly showing how prohibition warps everything it touches,
transforming ordinary business transactions into tales of intrigue.

The plain fact that the government could not stop the flow of booze,
but merely divert it into new channels at great cost, led
disillusioned drys to join angry wets in a coalition that achieved an
unprecedented and never-repeated feat. As late as 1930, just three
years before repeal, Morris Sheppard confidently asserted, "There is
as much chance of repealing the Eighteenth Amendment as there is for
a hummingbird to fly to the planet Mars with the Washington Monument
tied to its tail."

That hummingbird was lifted partly by a rising tide of wet immigrants
and urbanites. During the first few decades of the 20th century, the
country became steadily less rural and less WASPy, a trend that
ultimately made Prohibition democratically unsustainable.
Understanding this demographic reality, dry members of Congress
desperately delayed the constitutionally required reapportionment of
legislative districts for nearly a decade after the 1920 census. "The
dry refusal to allow Congress to recalculate state-by-state
representation in the House during the 1920s is one of those
political maneuvers in American history so audacious it's hard to
believe it happened," Okrent writes. "The episode is all the more
remarkable for never having established itself in the national consciousness."

Other Prohibition-driven assaults on the Constitution are likewise
little remembered today. In 1922 the Court reinforced a dangerous
exception to the Fifth Amendment's Double Jeopardy Clause by
declaring that the "dual sovereignty" doctrine allowed prosecution of
Prohibition violators in both state and federal courts for the same
offense. In 1927 the Court ruled that requiring a bootlegger to
declare his illegal earnings for tax purposes did not violate the
Fifth Amendment's guarantee against compelled self-incrimination. And
"in twenty separate cases between 1920 and 1933," Okrent notes, the
Court carried out "a broad-strokes rewriting" of the case law
concerning the Fourth Amendment's prohibition of "unreasonable
searches and seizures." Among other things, the Court declared that a
warrant was not needed to search a car suspected of carrying
contraband liquor or to eavesdrop on telephone conversations between
bootleggers (a precedent that was not overturned until 1967). Because
of Prohibition's demands, Okrent writes, "long-honored restraints on
police authority soon gave way."

That tendency has a familiar ring to anyone who follows Supreme Court
cases growing out of the war on drugs, which have steadily whittled
away at the Fourth Amendment during the last few decades. But unlike
today, the incursions required to enforce Prohibition elicited
widespread dismay. Here is how The New York Times summarized the
Anti-Saloon League's response to the wiretap decision: "It is feared
by the dry forces that Prohibition will fall into 'disrepute' and
suffer 'irreparable harm' if the American public concludes that
'universal snooping' is favored for enforcing the Eighteenth Amendment."

The fear of a popular backlash was well-founded. From the beginning,
Prohibition was resisted in the wetter provinces of America, where
the authorities often declined to enforce it. Maryland never passed
its own version of the Volstead Act, while New York repealed its
alcohol prohibition law in 1923. Eleven other states eliminated their
statutes by referendum in November 1932, months before Congress
presented the 21st Amendment (which repealed the 18th) and more than
a year before it was ratified.

This history of noncooperation is instructive in considering an
argument that was often made by opponents of Proposition 19, the
marijuana legalization initiative that California voters rejected in
November. The measure's detractors claimed legalizing marijuana at
the state level would run afoul of the Supremacy Clause, which says
"this Constitution, and the laws of the United States which shall be
made in pursuance thereof...shall be the supreme law of the land."
Yet even under a prohibition system that, unlike the current one, was
explicitly authorized by the Constitution, states had no obligation
to ban what Congress banned or punish what Congress punished. In
fact, state and local resistance to alcohol prohibition led the way
to national repeal.

That precedent, while encouraging to antiprohibitionists who hope
that federalism can help end the war on drugs, should be viewed with
caution. For one thing, federalism isn't what it used to be. Alcohol
prohibition was enacted and repealed before the Supreme Court
transformed the Commerce Clause into an all-purpose license to
meddle, when it was taken for granted that the federal government
could not ban an intoxicant unless the Constitution was amended to
provide such a power. While the feds may not have the resources to
wage the war on drugs without state assistance, under existing
precedents they clearly have the legal authority to try.

Another barrier to emulating the antiprohibitionists of the 1920s is
that none of the currently banned drugs is (or ever was) as widely
consumed in this country as alcohol. That fact is crucial in
understanding the contrast between the outrage that led to the repeal
of alcohol prohibition and Americans' general indifference to the
damage done by the war on drugs today. The illegal drug that comes
closest to alcohol in popularity is marijuana, which survey data
indicate most Americans born after World War II have at least tried.
That experience is reflected in rising public support for legalizing
marijuana, which hit a record 46 percent in a nationwide Gallup poll
conducted the week before Proposition 19 was defeated.

A third problem for today's antiprohibitionists is the deep roots of
the status quo. Alcohol prohibition came and went in 14 years, which
made it easy to distinguish between the bad effects of drinking and
the bad effects of trying to stop it. By contrast, the government has
been waging war on cocaine and opiates since 1914 and on marijuana
since 1937 (initially under the guise of enforcing revenue measures).
Few people living today have clear memories of a different legal
regime. That is one reason why histories like Okrent's, which bring
to life a period when booze was banned but pot was not, are so valuable.

Reflecting on the long-term impact of the vain attempt to get between
Americans and their liquor, Okrent writes: "In 1920 could anyone have
believed that the Eighteenth Amendment, ostensibly addressing the
single subject of intoxicating beverages, would set off an avalanche
of change in areas as diverse as international trade, speedboat
design, tourism practices, soft-drink marketing, and the English
language itself? Or that it would provoke the establishment of the
first nationwide criminal syndicate, the idea of home dinner parties,
the deep engagement of women in political issues other than suffrage,
and the creation of Las Vegas?" Nearly a century after the war on
other drugs was launched, Americans are only beginning to recognize
its far-reaching consequences, most of which are considerably less
fun than a dinner party or a trip to Vegas.