The long lens on Prohibition and the United States Supreme Court

We've had an entire series of articles up recently on Prohibition, as any reader here knows, as today marks the centennial of Wyoming's law banning booze coming into effect.

In our made up myths on Prohibition, one popular one here is that Wyoming went into it kicking and screaming.  Far from it. Wyoming voted itself into Prohibition in advance of the Federal requirement to get there.  It was nonsensical in a way, as the passage of the 18th Amendment made it inevitable anyhow. . . although as we all know, that inevitability was rather temporary.  At any rate, Wyoming could have just waited for the Volstead Act to cause Federal Prohibition to become permanent, but it chose to get there first, and deeper, than the Federal law would require.

Even at that, Wyoming pushed the Volstead Act over the top, as the deciding vote for that law came by way of Francis E. Warren, who proudly took that act that determined that the US would go dry in 1920.

So what's the point here in the modern context?

Just this.

The United States Supreme Court has never, at least up until now, had a problem with the individual states prohibiting or allowing various substances. There were dry states prior to Prohibition coming into effect, and Wyoming would be one of them.  There were wet states right up until the Volstead Act came into full effect.  By the same token, there are states that ban marijuana, on the state level, today, and those which allow it.  That's always been the state of the law and it remains the presumed state of the law today.

Indeed, this fact allowed Wyoming's state Prohibition to become an odd sort of success . . .in its gradual repeal.

When the 18th Amendment was repealed by the 21st on December 5, 1933, by way of the vote of the State of Utah's delegees to a constitutional convention that pushed the 21st Amendment over the top, Wyoming stepped out of Prohibition in stages, putting in place a new system of heavily regulated alcohol sales and direct state involvement.  Similar processes were put in place all over the United States.

And now the United States Supreme Court has upset the apple car by way of its ruling a new case striking down Tennessee's two year residence requirement in order to hold a liquor license.

The decision is the wrong one.

It's hard to see where such decisions go, but this decision fits into a series of new decisions in which the United States Supreme Court is becoming, once again, hyperactive in asserting Federal dominance over everything, which is a bad trend. 

There's no real reason to suppose that that there's any Constitutional protection to alcohol dealers who wish to operate across state lines.  Yes, yes, we know the Commerce Clause and all of that, but for eons the law has supposed that on certain topics states have been free to regulate, and this is one of them.  If state's can be completely dry, they can certainly impose heavy restrictions on licensing dealers to sell and distribute alcohol.

And not just alcohol. At one time licensing requirements that featured absolute residency were common for all sorts of activities that involve an element of risk.  It was common (and also stricken down) for states to impose residence requirement for practicing law, for example. 

Beyond that, there are an entire series of areas which the United States Supreme Court previously maintained were really state matters entirely.  Defining marriage was one, for example.  Now that's gone by the wayside with Obergefell.

At some point the net result of all this is a sort of super-libertarian concept of everything.  States must not impose any local requirements on anything, it would seem, save for one certain thing we'll deal with in a moment, as that impedes . . . well it impedes.  No matter if states wish to impede. They can't.

And that's not so much a Constitutional view, as a libertarian view of the world.  Uniformity of regulation and law through its absence, more or less.

Except in political matters. As we've also seen from this session, the one area a legislature can act is in political boundaries.  Oddly, that's something that the Constitution does address in requiring the states to have a "republican form of government".  Gerrymandering, the common name for messing with those boundaries, defeats that.

The Court is comfortable allowing that to go forward, however.

For Wyoming the question now becomes what the state can do with certain liquor related practices.  Wyoming allows out of state liquor dealers, so that's not an issue, but they must have an instate presence.  Wine vendors have violated this in the past with direct sales of wine.  Beer vendors started to, and about at that point the state clamped down and reminded everyone that you can't ship wine through the mail to end users and you can't have wine marketing parties on the model of Tupperware parties and the like. 

Or can you?

Well, it does impede interstate commerce and the wine industry has threatened to take it on.

All of which gets back to something else.  Local requirements may not be the most efficient things in the world, but they do reflect the local.  There's something to be said for that.

Some notes on Prohibition on its centennial in Wyoming

We've been running some items on prohibition as we've run up to its centennial in the state.  In doing that, we noted some of the myths associated with it.  Indeed, we noted a bunch of them yesterday, so we'll re-post those here and fellow with a little additional commentary:

The movement to ban alcohol had been growing strength for years prior to World War One, inspired in no small part by the fact that the "Saloon Trade" was unregulated.  Widespread unregulated drinking was a huge social problem that had reached the point of disgusting a lot of people. There's only so many drunk seven year olds, basically, that you can take.

In addition to that, however, the Temperance Movement was boosted by the fact that it was a Progressive movement, and one of many.  Often missed in the story of any one movement is that movements tend to travel in packs, and indeed the limit of their success usually is the enactment of a bad idea into law that was travelling along with other movements that were good or better ideas. Then the reaction sets in.

The Laramie newspaper addressed the national law but, oddly, not the local one.

In this case, Prohibition oddly has a fairly straight line back to the mid 19th Century when the movement to abolish slavery reached full steam and ultimately success, albeit due to the Civil War.  Abolitionist typically had that as their focus, but some were generally fairly "progressive" in the modern context on other issues as well.  Quite a few of those individuals went right from the Abolitionist movement to the the issue of full franchise for women which, as we've seen, also just achieved success in 1919.

With those movements came also Temperance, which was thought of by many as being a generally a progressive platform.  As the country entered World War One it received a big boost for an interesting mix of reasons.

In contrast to nearby Laramie, Cheyenne's headlines featured Wyoming going dry.

One reason was that it consumed a lot of grain, and there was a genuine desire to conserve grains during the stretched wartime years.  That lead to the law that came into effect today, which brought distilling. . . and maybe brewing and vinting, illegal during the war.  Ironically the date that law came into effect was June 30, 1919.  I.e., the last legal day for hard alcohol nationwide, and maybe beer and wine, was this day.  July 1 was sort of dry.

Maybe.  As can be seen, the Federal government was having a hard time figuring out what the law actually applied to.

Sheridan, which like Cheyenne, had a military post claimed that Cheyenne had already depleted its stores of alcohol.

In addition to that, there was a visceral reaction to all things German, which beer was conceived of being, during the war and Prohibitionist took advantage of that to boost their cause.  As we've seen here earlier, there were a lot of accusations against brewers, some backed by Prohibitionist, claiming they were funded by or in league with the Germans.  The whole thing seems silly now, but it was front page news then. 

Indeed the war had the effect of actually effectively destroying German culture in the United States as many German institutions came to an abrupt end.  For many urban German Americans there had been a long tradition (as indeed their had been in England prior to the Reformation) of gathering after church for fellowship of one kind or another.  In rural areas that included such things as summertime shooting events of a special type, called a Schützenfest.  These events would feature shooting from special precision rifles, but also a fair amount of beer drinking.

Whimsical road sign in contemporary Germany put up for a From Wikipedia Creative Commons, with a special sign for a Schützenfest.  MalteFilmFan

https://commons.wikimedia.org/wiki/File:Sign_-_Attention_%22Sch%C3%BCtzenfest%22_.jpg.  Use restricted in accordance with license.

While the tradition was just as strong, it might be noted, in the Irish American culture, the war did not impact the Irish culturally the same way. As part of the United Kingdom they were, of course, on the winning side of the war and, more importantly, on the same side as the United States, and they were also used to being a struggling minority.  It'd take economic success to really put a dent in Irish culture.

Compounding the story, quite a few Americans, and the United States was a more rural nation at the time with many more small communities that were more stable and less mobile than they are now, were horrified by the thought of their young men going over to booze drenched France, where they'd be confronted, they supposed, with gallons of wine and French women of questionable virtue.  That seems extreme, of course, and I'm putting it in that fashion clearly, but you can find examples of statements to just that effect.  One Wyoming legislator, for example, stated that he'd rather is boy die in France having never tasted alcohol than live on imbibing. 

World War One postcard that was part of a series on American soldiers in France.  This soldier is giving a ride on his horse to a French girl as two French villagers observe.  This is just what quite a few Americans feared was going to be going on while their sons were overseas. For what it's worth, the saddle on the horse is a M1917 packer's saddle, so this soldier is likely in the Quartermasters Corp, although not necessarily so.  Of note, he's wearing a watch.

Which takes us to the fact that this particular era was one of Evangelical Protestant revival.

Christianity has no prohibition on alcohol at all, and many of those ordering a draft at East Coast taverns on Sunday afternoons had no doubt been to Mass than morning, in the case of German and Irish Americans.  The concept that Christianity is antithetical to alcohol is a false one, although it very clear is opposed to drunkenness.  At any rate, some Evangelical Christians in the English speaking world saw alcohol as a prohibited substance and they accordingly were very much against it. As they were in the rise at the time, that contributed to the movement.

Another French postcard, one that most soldiers would have been ill advised to send home.  The French translation does not match the English, with the French one stating "We quickly get to know each other.".  By 1919, Americans had somewhat overcome their concern about French women, who were now entering the United States as war brides in large numbers.  Newspaper articles had gone from soldiers' reports about how they still looked back at the girl back home more favorably, to ones in which they were impressed with the French lasses, to reports of a lot of them coming home as the spouses of the troops.  Those women, of course, were coming from a culture in which wine made up a substantial portion of the average person's daily caloric intake to another which was now officially dry.

For this reason, even without the wartime act, alcohol was on its way out in the United States.  Many states had already banned it, and Wyoming was one of them.  This adds to the confusion of the headlines, however, as the local papers were following the national news on the wartime ban, and the local news on the arrival of state Prohibition.

And added to that was the passage of the Volstead Act, which we've just read about.  That act was to bring about the enforcement of the 20th Amendment to the United States Constitution, which was not self enacting.  It was only introduced in June of 1919, so the full Federal law on permanent Prohibition hadn't arrived.  Indeed, a person has to speculate on the extent to which the decision to enforce "wartime" Prohibition in 1919 was due to that fact. The wartime measure could have been viewed as a stopgap until the full law arrived.

What could we add to that?

Well, a couple of things.

For one thing, the press was solidly behind Prohibition.  Solidly.  It was a movement by 1918-19 and it had the absolute backing of the newspapers. 

It also had the absolute backing of nearly every politician, in most places, who was willing to say anything. By 1919 there weren't very many "wets".

And the success of Prohibition. . . in 1919. . . was seen as inevitable social progress by the classes that strongly believed in social progress.  Sure, some people somewhere were unhappy, but they'd fall in line.

All of this is significant in terms of a forgotten lesson. What you often hear about Prohibition is that its an example of how "you can't legislate morality" or that you can't impose an unpopular law on the majority of the nation.  It's not an example of either of those things.

It was hugely popular when it passed.  A minority of people opposed it. But that minority was a large minority and soon would grow in scale.. 

And that gives us the first lesson. At any one time people who believe that the success of any movement is assured are believing that in vain.  Inevitable progressions of history turn out not to be that.  Today, progressives argue for the legalization of new drugs as inevitable progress.  In 1919 the same class argued to ban alcohol and was even beginning to think about taking on caffeinated drinks at this point.  The "right" side of history in 1919 is now regarded as the wrong one.  Things aren't nearly as linear as they might seem.

And the second lesson is hinted at above.  Alcohol prior to 1919 was nearly completely unregulated. When it came back, it came back heavily regulated.  That's what actually addressed the underlying problems that most people worried about.  So Prohibition turned out to be a sort of a success in that fashion. And, as we've discussed here above, the health of the nation actually did improve during Prohibition, in spite of the myths to the contrary, so to the extent people had backed it for that reason, they weren't actually wrong.

Wyoming, North Carolina, Utah, Nebraska, and Missouri push the 18th Amendment over the top.

On this day in 1919, Wyoming, in combination with North Carolina, Utah, Nebraska and Missouri ratified the 18th Amendment to the United States Constitution.  These legislative acts secured a sufficient number of votes to make the 18th Amendment the law. The Senate had passed the original proposal on August 1, 1917 and the House a revised variant on December 17, 1917.  The various states passed it in the following order:

1. Mississippi (January 7, 1918)
2. Virginia (January 11, 1918)
3. Kentucky (January 14, 1918)
4. North Dakota (January 25, 1918)
5. South Carolina (January 29, 1918)
6. Maryland (February 13, 1918)
7. Montana (February 19, 1918)
8. Texas (March 4, 1918)
9. Delaware (March 18, 1918)
10. South Dakota (March 20, 1918)
11. Massachusetts (April 2, 1918)
12. Arizona (May 24, 1918)
13. Georgia (June 26, 1918)
14. Louisiana (August 3, 1918)
15. Florida (November 27, 1918)
16. Michigan (January 2, 1919)
17. Ohio (January 7, 1919)
18. Oklahoma (January 7, 1919)
19. Idaho (January 8, 1919)
20. Maine (January 8, 1919)
21. West Virginia (January 9, 1919)
22. California (January 13, 1919)
23. Tennessee (January 13, 1919)
24. Washington (January 13, 1919)
25. Arkansas (January 14, 1919)
26. Illinois (January 14, 1919)
27. Indiana (January 14, 1919)
28. Kansas (January 14, 1919)
29. Alabama (January 15, 1919)
30. Colorado (January 15, 1919)
31. Iowa (January 15, 1919)
32. New Hampshire (January 15, 1919)
33. Oregon (January 15, 1919)
34. North Carolina (January 16, 1919)
35. Utah (January 16, 1919)
36. Nebraska (January 16, 1919)
37. Missouri (January 16, 1919)
38. Wyoming (January 16, 1919)
39. Minnesota (January 17, 1919)
40. Wisconsin (January 17, 1919)
41. New Mexico (January 20, 1919)
42. Nevada (January 21, 1919)
43. New York (January 29, 1919)
44. Vermont (January 29, 1919)
45. Pennsylvania (February 25, 1919)
46. New Jersey (March 9, 1922)

Connecticut and Rhode Island told Congress to pound dry sand and didn't ratify the amendment, not that that matter in context.  There were, of course, only 48 states at the time.

The 18th Amendment provided:

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 the 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.

While the intent of the Amendment was clear; "bone dry prohibition", it didn't actually provide any definitions and so it required legislation to make it effective, which was quick in coming. 

As this list should indicate, Prohibition was actually massively popular in the United States including the Western United States.  Only two states refused to ratify the proposed amendment.  I'm not sure what the situation was in Connecticut, but Rhode Island was heavily Catholic with a large Italian demographic and likely found the proposal abhorrent for that reason.  Still, it's somewhat telling that Wyoming's ratification came with a slate of late Western states that voted for it.  Still, the entire process really only took one year once Congress had passed it.

Everyone is well aware of how the history of Prohibition worked and its generally regarded as a failure.  Like most popular history, it's become mythologized, which isn't a bad thing in and of itself as myths are the means by which humans originally remembered their history.  However, like other instances in which an event quickly turned into an unacceptable defeat, the myth isn't completely accurate.  The popular myth is that Prohibition was unpopular from the start and is a failed example of legislating morality.  While it may be an example of such a failure, it very clearly wasn't unpopular at first and in fact the opposite was very much the case.  Indeed, as late as the election of 1922 it remained so popular in Wyoming that William B. Ross, the Democrat who ran for office, ran on a platform of more strictly enforcing its provisions.

So a person might reasonably ask what happened to cause it to so rapidly fail and to be so inaccurately remembered.  Quite a few things really.

For one thing, the final push to pass Prohibition came in the context of World War One.  While momentum to pass it had been building for well over a decade, the war caused an enormous fear that American youth would be exposed to the corrupting influences of European culture.  If that seems really odd, and it is, we have to keep in mind that American culture in the 1910s remained predominantly Protestant in outlook (and indeed it still is).  English speaking Protestants took a distinctively different view of drink in this period than their Catholic fellows, in part because their history with it was considerably different.  While early Protestants had not been opposed to drink at all, this had evolved and by this point there was a strong anti drinking culture in the English speaking world.  People feared that progress on the anti drinking front would be lost when young Americans were exposed to French wine and, frankly, French women.

But for the most part the cultural impact on Americans, who were not in the war long, was much less than it would be for later wars, even where they fought overseas.  So this fear did not really last that long.  The short but deep depression that followed the war, moreover, reminded people that alcohol was an agricultural byproduct, and like a lot of things that impact a person's wallet, that had an influence.  The lid coming off of the culture in the 1920s had an additional big impact on things as the 1920s started to Roar and Prohibition became fashionable to flaunt.  That in turn inspired criminal activity that became a major problem.  By the early 1930s Americans had substantially changed their minds as a second depression, the Great Depression, again depressed the agricultural sector along with every other.  So, after a short stint, Prohibition went from massively popular to substantially unpopular, and the 18th Amendment was repealed.