When Booze Was Banned But Pot Was Not

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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.