Yet Another Nullification Success Story

Tenther BlogFrom The Tenth Amendment Center,  By on February 10, 2013 – 

On January 16, 1919, the ratification of the 18th amendment was certified by the US Congress.  This amendment had been ratified by 46 of 48 states and said:

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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.

The 18th amendment was repealed by the 21st amendment on December 5, 1933.
Before I started researching for this article, what I thought I knew about the prohibition era went something like this:  The 18th amendment was passed.  Organized crime took over in New York and Chicago.  The mob thrived.  People danced “the Charleston”.  Al Capone got arrested for tax evasion.  And eventually the 18th amendment was repealed by the 21st.  It occurred to me recently that learning more about prohibition era America might provide some useful lessons for today, so I have done some reading.  I am still far from expert on the period, but what I have learned so far is absolutely fascinating.
What strikes me most about prohibition and its repeal is that this is a familiar recipe.  NullifiersAmendmentsWe have seen how nullification helped pave the way to freedom for Pennsylvania’s black population during the 19th century.  Pennsylvania’s resistance to the federal fugitive slave acts spanned decades and included jury nullification, individual nullification in the form of the underground railroad, state-level nullification in the form of personal freedom acts, and electoral efforts at the national level, eventually culminating in the Civil War and the 13th amendment.
Similarly, the Whiskey Rebellion, consisted of a combination of jury nullification, individual nullification in the form of non-compliance, and organized nullification in the western counties of many of the states.  It came to fruition when Thomas Jefferson was elected President.  Jefferson appointed Pennsylvanian and accused whiskey rebel, Albert Gallatin, to be his Treasury Secretary and to oversee the repeal of the unpopular whiskey tax.
This article will demonstrate how the same basic template was used in order to bring about the 21st amendment.  Can the nullification deniers continue to bury their heads in the sand when nullification has played a role in not one, but two Constitutional amendments?  It’s sort-of hard to argue that nullification isn’t a valid part of the Constitutional process when there are two real, live, examples where nullification was part of the process that led up to a Constitutional amendment.

Was Prohibition Constitutional?

I am aware that this question seems almost nonsensical.  How could an amendment to the Constitution possibly be unconstitutional?  The thing to remember, though, is that prohibition involved more than just the 18th amendment.  After the amendment came federal legislation, and after that came interpretations by the Supreme Court.  I would invite you to look at section 1 of the amendment again.  What was actually prohibited by the amendment?  According to Last Call, the phrase “intoxicating liquors” was intentionally chosen in order to be misleading.

This conscious dodge had enabled fence-sitters, conflict avoiders, and wishful thinkers to support the amendment in the hope that the eventual definition would leave room for some of the milder forms of liquid stimulation.

When you see the word “liquor” in that amendment, does it include “beer”?  I don’t know what the language was in 1919, but to my understanding, beer, wine, and liquor are three different types of alcoholic drinks.  The amendment was enabled by the Volstead Act, which prohibited drinks with more than 0.5% alcohol, including beer and wine.  This is a classic bait and switch.  Is an agreement valid when it is made under intentionally false pretense? Jack S. Blocker, Jr. wrote in the Journal of the American Public Health Association,

The Volstead Act defined “intoxicating” as containing 0.5% or more alcohol by volume, thereby prohibiting virtually all alcoholic drinks.  The brewers, who had expected beer of moderate strength to remain legal, were stunned, but their efforts to overturn the definition were unavailing.

The Supreme Court’s decisions upheld Congress’ bait and switch and added on some power grabs of its own.  Section 2 of the amendment said that the federal government and the states had concurrent enforcement power.  According to Robert Post of Yale Law School, writing in the William and Mary Law Review, over the prohibition years, the supreme court modified its interpretations of the 4th, 5th, and 10th amendments in order to uphold the Volstead Act and interpret the enforcement power in the 18th amendment expansively.  The court allowed wiretaps without a warrant, allowed a person to be charged twice for the same crime under state and federal statutes, and allowed warrantless searches of motor vehicles – establishing the “reasonable suspicion” standard.
Post writes that Supreme Court Justice McReynolds sputtered in dissent to United States vs. Carroll:

“Has it come about that merely because a man once agreed to deliver whisky, but did not, he may be arrested whenever thereafter he ventures to drive an automobile on the road to Detroit!”

And to that, political scientist Robert Cusman answered:

“it certainly has, and … most of us are not sensitive enough to feel that such a result violates the requirements either of justice or of common sense.”Prohibition

Simplistically – the phrase concurrent enforcement could mean two things.  It could mean that the states enforce the law in their own spheres of influence – inside their borders; and the federal government enforces it in its sphere – interstate commerce and foreign trade.  This understanding would not have involved reinterpreting the Bill of Rights.
Post cites advocates as arguing,

the dual sovereignty in our federal system of Nation and State each supreme within its own sphere did not signify a merely functional division of labor between state and federal governments, but instead a fundamental constitutional commitment, symbolized by the Tenth Amendment, to maintain ‘state control over local affairs.’

Instead of accepting this argument, which would have left the Bill of Rights intact, the court interpreted it to mean that the federal government could enforce the amendment anywhere, including domains that had been reserved to the states by the Tenth Amendment.  Post goes on to say,

The Court refused to interpret the Eighteenth Amendment through the lens of normative dualism, and as a result prohibition became definitively associated with national regulation and national enforcement. This made the tension between prohibition and regionally-based customary norms particularly intense, leading in some contexts, as in the repeal of the Mullan-Gage law, to outright defiance.”

When the 18th amendment was ratified, did anyone think they were agreeing to amend the Bill of Rights?  Where did the Supreme Court find its power to enact these amendments?
Another potential problem with the Volstead Act includes the fact that it carved out exceptions for farmers, favoring wealthy and rural citizens and laying a disproportionate impact on the poor, urban and immigrant residents.

Happy Hour: Thank the Nullifiers

Uncle Sam brings you mercury filled CFL light bulbs and 1.6 gallon per flush toilets, so when you’re plunging your toilet you can say a silent word of thanks to Uncle Sam.  When you’re relaxing with a beer after work, though, you’re doing it despite Uncle Sam’s best efforts to keep you dry.  You can thank the nullifiers for his failure.
After the 18th amendment, nearly all of the states passed laws to enforce prohibition.  According to Post, prohibition’s supporters and federal officials argued throughout the ’20s that the 18th amendment created an obligation for the states to enforce the law.  This is seen in an article from the Women’s National Committee for Law Enforcement, which argued:

…The conditions in States like New York and Maryland, where there is no State enforcement law, which is required by the eighteenth amendment, framed to secure concurrent action, are bad….  We are not satisfied that the law is being enforced in all places.  (emphasis added)

Further, President Coolidge addressed a meeting of governors and told them that Section 2 of the 18th amendment imposed “a joint responsibility to enact and execute enforcement laws.”; James Doran, Commissioner of Prohibition, stated that states were required “to exercise in their appropriate sphere of action the full police powers of the State, in order to properly discharge their obligations under the Eighteenth Amendment.”; and Idaho Senator William E. Borah wrote in the New York Times that a state was under a “legal obligation… to support the law under which it lives.”Missing
Despite this widespread understanding, the state of Maryland never passed any laws to enable state-level enforcement.  Maryland was eventually joined by at least five other states, starting with New York’s repeal of the Mullan-Gage law in 1923.  HowStuffWorks notes that

Many states eventually grew tired of the hassle. In fact, by 1925 six states had developed laws that kept police from investigating infractions.  Cities in the Midwest and Northeast were particularly uninterested in enforcing Prohibition.

And Alcohol and Temperance in Modern History informs us that by 1928, 28 states had stopped funding for prohibition enforcement and local police were sporadic in their enforcement efforts.
In addition to this city and state level resistance, Alcohol and Temperance in Modern History also notes that juries showed reluctance to convict their peers for violations which seemed insufficiently criminal to merit punishment.
In a 1925 address to Congress, Maryland’s Senator Bruce stated,

“national prohibition went into legal effect upward of six years ago, but it can be truly said that, except to a highly qualified extent, it has never gone into practical effect at all.”

And

“It (prohibition) has brought about close working relations between the bootlegger and thousands of the most intelligent and virtuous members of American society who feel no more compunction about violating the Volstead Act than the Free Soiler did about violating the fugitive slave law…”

His point is further illustrated by newspaperman, Malcolm Bingay, who wrote,

It was absolutely impossible to get a drink in Detroit unless you walked at least ten feet and told the busy bartender what you wanted in a voice loud enough for him to hear you above the uproar.

Space limits force me to wrap up here, but the Internet is replete with examples of this sort of widespread non-compliance throughout the nation.

Conclusion

The 18th amendment was Constitutional by definition, but there is an argument to be made that the law passed by Congress and the Supreme Court’s interpretations were not.  When confronted with what the people and the states believed to be federal overreach, the people responded with outright disobedience and jury nullification.  The cities and states nullified through sporadic or complete absence of enforcement.  As with the Whiskey Rebellion and resistance to the Federal Fugitive Slave Act, the federal government was unable to overcome the resistance and was eventually forced to repeal the detested intrusion.
When a nullification denier tells us that nullification is ineffective, the repeal of prohibition tells us otherwise.  When a nullification denier tells us that nullification will lead to chaos and disorder, the repeal of prohibition tells us otherwise.  In the case of prohibition, disorder arrived because a dishonest federal government attempted to pull a bait and switch on the American people.  Order was restored when nullification led to repeal.

US_Supreme_Court2

It is worth noting, however, that lingering harm was done to the Constitution which has not yet been repaired.  Under cover of enforcing the 18th amendment, the federal government reinterpreted the 4th, 5th and 10th amendments. The 18th amendment was repealed, but the court’s power grab was not.  To this day, we have the prohibition era Supreme Court to thank for the fact that our cars can be stopped and searched without a warrant, based merely on a police officer’s claim of “reasonable suspicion”.  We are also subject to double jeopardy through state and federal charges through prohibition era precedent.  Indeed, the federal government’s intrusion into the states’ police powers was justified by the prohibition era courts.

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