Prohibition Proves an Amendment Can Be a Mistake and Can Be Repealed

Let me tell you about the only time in American history the country amended its Constitution, looked at the result for thirteen years, and said, more or less, "never mind." It is a story with crusaders, bootleggers, federal agents, bathtub chemistry and a ratification method nobody had used before or has used since. And it ends with the most bipartisan sigh of relief in the history of the Republic.

The 18th Amendment banned the liquor trade. The 21st Amendment unbanned it. In between, the nation learned a lesson that some of our friends in Washington have been working hard to forget ever since: a constitution is a frame for government, not a place to store your favorite policy. Pull up a chair. Root beer is fine.

The crusade, and why it was not crazy

Before we have fun at Prohibition's expense, let us be fair to the people who wanted it, because they were not cranks.

Nineteenth-century America drank heavily, and a great deal of the damage fell on wives and children. A man could drink his wages on a Friday night and come home with nothing for the rent. Churches saw it in their congregations. Reformers saw it in the tenements. The American Temperance Society was organized in 1826. Maine enacted a statewide prohibition law in 1851. The Woman's Christian Temperance Union was founded in 1874, and the Anti-Saloon League in 1893. The League, under its formidable lawyer and strategist Wayne Wheeler, became one of the most effective single-issue lobbies the country had ever seen. It did not care what else a candidate believed. It cared whether he was dry.

These were serious moral concerns held by serious people, and many of them were people of faith acting on conscience. The problem was never their motive. The problem was the tool they reached for.

The amendment, and what it actually banned

Congress sent the 18th Amendment to the states in December 1917. It was ratified on January 16, 1919, and took effect one year later. Here is 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.

Now read it again and notice what is missing. Drinking. The amendment banned making, selling and moving liquor. It did not ban owning it or drinking it. So if you had the foresight, and the cellar space, to stock up in the year before the ban took effect, you were perfectly legal. The wealthy did exactly that. Here was a moral crusade that, in its first act, gave the rich a twelve-month head start. You could not have designed it better if you were trying to annoy the working man.

The amendment also had a Section 3 requiring ratification within seven years, the first time Congress put a deadline in an amendment's text. Hold that thought. It means the drafters understood that public opinion changes. They just assumed it would not change about this.

The Volstead Act, where "intoxicating" got a number

An amendment is a principle. Somebody has to write the rules. That was the National Prohibition Act, known by the name of its House sponsor, Representative Andrew Volstead of Minnesota. Congress passed it in October 1919 over President Woodrow Wilson's veto.

The act defined "intoxicating liquor" as anything over one-half of one percent alcohol. That swept in beer and wine along with whiskey. A good many Americans who had supported a ban on hard liquor discovered that they had also banned the lager at the corner tavern. Surprise! The fine print strikes again.

The act carried exemptions, and here is where it gets good. Sacramental wine was allowed for religious use. Physicians could prescribe whiskey for medicinal purposes. Households could make limited amounts of fruit juice at home, and the definition of "juice" proved remarkably flexible as the weeks went by. Grape growers sold concentrated bricks with a label warning purchasers not to dissolve them in water and leave them in a cool place, because they might ferment. If you had to be told, you were not the target market.

Thirteen years of failure, in plain sight

What happened next is well known, so let us take the highlights.

• Speakeasies. Drinking moved from licensed saloons to unlicensed back rooms, which nobody inspected, nobody taxed, and everybody knew about. The local beat cop often knew the password.
• Organized crime. Smuggling and bootlegging became enormously profitable. Criminal organizations grew rich and well armed. The most famous gangster of the age, Al Capone of Chicago, was finally convicted in 1931 not for bootlegging or violence but for federal income tax evasion, which tells you something about the 16th Amendment as well.
• Corruption. When a product millions of people want is illegal, the people paid to stop it are offered a great deal of money not to. Many accepted.
• Dangerous liquor. Unregulated alcohol was sometimes poisonous. Industrial alcohol was denatured with toxic additives to make it undrinkable, and when it was diverted to the bootleg trade anyway, people who drank it were blinded or killed.
• Contempt for law. Perhaps the most corrosive effect: ordinary, law-abiding citizens became casual lawbreakers, and they knew it, and they knew their neighbors knew it.

President Herbert Hoover appointed a commission, chaired by former Attorney General George Wickersham, to study law enforcement. Its 1931 report documented the enforcement problems in detail and still, famously, stopped short of recommending repeal. Washington looked straight at a failed policy, wrote it all down, and recommended keeping it. Some traditions are older than you think.

Repeal, by a route nobody had used

By 1932 the tide had turned. The Depression helped: the federal government wanted the tax revenue, and the country wanted the jobs. Congress sent the 21st Amendment to the states in February 1933. While ratification proceeded, Congress amended the Volstead Act to allow beer of 3.2 percent alcohol, which went on sale in April 1933.

Here is Section 1 of the 21st Amendment, the shortest repeal in history:

The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2 handed the question back to the states:

The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

And Section 3 did something remarkable. It required ratification not by state legislatures but by "conventions in the several States." Article V of the Constitution offers both methods. Here is the language:

which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress

Why conventions? Because the drafters of repeal believed many legislators were more beholden to dry lobbying than their voters were, and that delegates elected for the single purpose of deciding repeal would reflect public opinion more directly. They were right. The 21st Amendment was ratified on December 5, 1933, in less than ten months. It remains the only amendment ratified by state conventions and the only one that repealed another.

The argument, in four points

Now let me put the lesson as plainly as I can, numbered for convenience.

1. A constitution has a job, and policy is not it. The Constitution's work is to create the institutions of government, divide and limit their powers, and protect the rights of the people. The 18th Amendment did none of that. It enacted a specific rule about a specific product. That is the job of legislatures, which can revise their work as circumstances and evidence change.
2. Constitutionalizing a policy removes the feedback loop. When a statute fails, the next legislature can fix it. When a constitutional rule fails, it takes a two-thirds vote of Congress and three-quarters of the states to fix it. Prohibition's failures were obvious within a few years, and it still took thirteen. A policy mistake written into a constitution keeps doing damage long after everyone sees it.
3. National uniformity on a moral question breeds national defiance. Before 1920, states and towns could be wet or dry according to their own people's judgment, and many were dry. That local diversity let communities live by their convictions without forcing them on others. Prohibition nationalized the question, and the parts of the country that disagreed did not convert. They simply stopped obeying. The 21st Amendment's Section 2 restored the federal arrangement, and states and counties still choose for themselves. The case for that kind of experimentation is made in Federalism Lets Fifty States Experiment, and the Constitution Planned It.
4. The Founders built the amendment process for exactly this kind of correction. Madison, in Federalist 43, defended Article V because it "guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults." Prohibition was a discovered fault, and Article V let the country repair it. The system worked. Slowly, expensively, but it worked.

Following the idea one step further

Let me do what the fans of every national ban never do, and follow the logic one step further than they want to go.

Here is a thought experiment, purely hypothetical. Suppose a future movement decides sugary soft drinks are a public-health menace, which, judging by certain think-tank reports, is not a large leap. Suppose its advocates, impatient with fifty different state approaches, propose a constitutional amendment banning the manufacture, sale or transportation of sweetened beverages "for drinking purposes." What happens?

Well, the wealthy stock the basement with cola in the year before the ban, obviously. Pharmacies begin dispensing "medicinal" lemonade by prescription. Somebody starts selling dehydrated syrup bricks with a solemn warning not to add water. A speakeasy opens behind a laundromat with a password, and the password is "extra ice." A national Bureau of Beverage Enforcement is created, grows a budget, and issues annual reports explaining that it needs a bigger one. A federal commission studies the matter for two years and recommends keeping the ban but improving enforcement. And twenty years later, the Constitution of the United States still contains a sentence about soda. That is how silly it sounds when you hear it about soda. It was exactly as silly about beer.

Now, nobody in Washington is proposing a soda amendment. But the instinct behind it is everywhere: the belief that a good cause justifies a national, permanent, one-size rule, and that the people who disagree will come around. They will not. They never have.

What the coverage of the time missed, and what it still misses

Read accounts of the drive for the 18th Amendment and you will find enthusiastic predictions that prisons would empty and families would prosper. The reporting treated the amendment as the triumphant conclusion of a long reform. Few asked the practical question: who would enforce this, at what cost, against how many unwilling citizens?

The same pattern recurs whenever a cause is fashionable. A sweeping proposal is covered as a moral milestone, and the question of enforcement, the boring question, the one that decides whether the policy works, gets one paragraph near the end. Prohibition is the reminder that the boring question is the important one.

What the lesson means for conservatives today

Conservatives should take Prohibition's lesson in both directions.

First, be wary of any proposal to write a policy preference into the Constitution, including our own. Amendments to fix the structure of government are another matter: a balanced-budget rule, term limits for Congress, limits on federal power. Those are about the frame, which is what a constitution is for. But a constitutional amendment that dictates a specific outcome on a contested question of personal conduct is a Prohibition waiting to happen. For a sense of how rarely the country amends its charter, and how many proposals fail, see Twenty-Seven Amendments Out of Over Eleven Thousand Proposals, by the Numbers.

Second, take heart. The 21st Amendment proves that the people can correct their mistakes, through the process the Founders gave them. That matters for the debate over an Article V convention of states, which some conservatives fear could run wild. The convention method of ratification used in 1933 is a different thing from a convention to propose amendments, but the experience of repeal shows that Article V's machinery can be used soberly, for a clear purpose, without chaos. The case is weighed in A Convention of States Is the Founders' Safety Valve, Weighed Honestly, and the mechanics are in How a State Legislature Applies for an Article V Convention, Step by Step.

Third, remember who keeps the power. Section 2 of the 21st Amendment put alcohol regulation back with the states, where the 10th Amendment, discussed in The Tenth Amendment Left Out One Word, Expressly, and the Omission Mattered, suggests most such questions belong. A free people can disagree about a drink. They do not need Washington to settle it for all of them at once.

The case in brief

1. The 18th Amendment, ratified in 1919, wrote a policy about one product into the Constitution, and the Volstead Act set the line at one-half of one percent alcohol.
2. Prohibition failed in plain sight, with smuggling, corruption, dangerous liquor and widespread disrespect for law, and it still took thirteen years to undo.
3. The 21st Amendment, ratified by state conventions on December 5, 1933, is the only amendment to repeal another, and it returned the question to the states.
4. The lesson is to keep the Constitution for the frame of government and the rights of the people, and to leave contested policy to legislatures that can revise it.

What you can do: read Article V on our Constitution page, then look up whether your own state legislature has pending applications or resolutions under it, and tell your state legislators which kinds of amendments you think belong in the Constitution.