Currently reading Last Call: The Rise and Fall of Prohibition.

The consequences of Prohibition are more or less common knowledge: enforcement was either difficult or impossible, and at any rate expensive; continued demand for alcohol gave rise to massive criminal syndicates; unregulated booze was a greater health hazard;  and the flouting of the law bled into a general disrespect for all law. And so on and so on. In retrospect, the whole ordeal seemed predestined to fail. And we don’t need a new history of the policy to tell us that.

What I did not realize about Prohibition is that, once you read the fact pattern of what happened in 1919, the whole business  seems obviously destined to fail even in the moment of its greatest triumph. And ground zero for that failure is the relationship between the 18th amendment and the Volstead Act.

The 18th Amendment reads:

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 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.

What had not dawned on before reading Last Call is the peculiar nature of the amendment. It is not self-enforcing. There’s no penalty for violating it. It simply sets up a policy and then tells Congress and the states they can enforce it (or not) however they see fit.

Wait, you might say, what about the 13th amendment? There’s no penalty for violating that, either. It merely prescribes a policy — slavery is not allowed — and tells Congress to enforce it. But there’s a huge difference here. In the case of the 13th amendment, anyone being wronged by it — that is, anyone being held as a slave in violation of the amendment — would have the recourse of going to a federal court and winning their freedom. (More likely, in practical terms, anyone who walked away from a “slaveholder” and was then arrested and sent back to slavery could simply use the federal courts to nullify whatever law arrested them. Without the power of the state backing it, slavery is unsustainable, or at least ceases to resemble slavery and begins to resemble kidnapping.)

In the case of the 18th amendment, however, there’s no individual being wronged. I guess you could go to the federal courts to demand that someone stop running booze over the Quebec border, but even then you’ve put the cart before the horse: without an arrest or a criminal complaint or even a visible defendant, what could the court do? And even if they wanted to do something, their only option (I think) would be to order an injunction against you running liquor across the border. Definitely no penalty.

This, in effect, was Elihu Root’s argument that the 18th amendment was unconstitutional. (Hamilton grad defends booze, big surprise!). However silly that sounds — and the courts tossed him and the wets aside rather quickly on this point — there is more than a grain of sense to the underlying structural logic of his argument: the amendment seemed to be nothing more than a criminal statute enacted as part of the Constitution. It’s completely out of place.

But if so, it’s a criminal statute sorely lacking in details! In effect, all the amendment did, as a practical matter, was give Congress the right to pass regular laws regarding Prohibition, which they may have not had the power to do prior to the amendment. And thus the Volstead Act.

The Volstead act was a couple of hundred pages of law that actually enforced the 18th amendment. But if you want to know why Prohibition failed — or at least why it failed as a political matter — this is your answer: the Volstead Act brought day-to-day popular politics into the enforcement of a Constitutional amendment. Consider the questions that had to be answered in the Volstead Act:

* What is an “intoxicating liquor”? Does beer count?

* Is possession of alcohol a crime? Is home brewing a crime?

* What is the penalty for any violation of the amendment?

* Can religious organizations like the Catholic Church still hand out wine?

* How should medicinal alcohol be regulated?

* Is the booze manufactured before Prohibition starts legal or illegal?

* What federal agency should be in charge of enforcement?

If you were the king of the nation, it would be difficult to properly answer these questions in the best possible way for enforcing the amendment. Now imagine you’re the United States Congress, and one portion of your membership actively disagrees with the amendment, and another portion publicly supports the amendment but privately would like to see it fail, and everyone has their own special interest that will need a carve-out, and all of a sudden it doesn’t seem possible to get this right.  And notice that we haven’t even talked yet about how we’re going to pay for the enforcement of the Volstead Act. Or what happens when the wets get control of Congress enough to change the Volstead Act but not repeal the Amendment. Yikes!

And so the seeds of destruction were laid prior to Prohibition’s official start date: the Volstead Act contained exemptions for previously manufactured alcohol if stored in a home (a sop to the rich, many of who built wine cellars and bought thousands of bottles prior to the start date); wide exemptions for medically-prescribed alcohol (which led to sham “pharmacies” that sold nothing but prescription booze); blanket religious exemptions (leading to things like Kosher wine stores in major cities that sold nothing but gallon jugs); exemptions for homemade wine (a sop to the farmer class); a tiny federal enforcement administration (complete with severe underfunding); and jury trials for non-compliance (watering down everything).

Even the most straightforward question — what in the hell are we trying to ban here, exactly? — could not be easily adjudicated. The politics of the amendment writing had gotten “intoxicating liquors” into the phrasing, instead of the much clearer “alcoholic beverages” that many of the fire-eating drys had preferred. Leaving it again up to Congress to figure out at a later date.

In effect, the institutional structure of the amendment and the law was a joke.

It’s tempting, of course, to disregard all of this, because the fundamental problem with Prohibition is that too many didn’t believe in it, and even a perfect law was not going to be enforceable in any way that didn’t create a cure worse than the disease. But the Volstead Act also speaks to the importance of understanding the limits of politics as they related to the enforcement of even good ideas; the best laid plans still require institutional scaffolding to support them. In case when the scaffolding cannot possibly hold, it is wise to rethink the merits of the ideas.

The arrangements of the 18th amendment and the Volstead Act did have one benefit — once the ship was clearly sinking, it merely took a federal law to undo things as time was marked toward formal repeal. The Volstead Act was amended in 1933 to legalize beer (a political sop to the powerful brewing interests?), months before the 21st amendment would pass.