The Prohibition Amendment

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.

—Paul J. Larkin

Introduction

Alcohol’s delightful allures and sometimes baleful consequences have enticed and/or repelled people ever since Noah became the first vintner.¹ People have used alcohol to celebrate victory in battle and fallen military comrades as well as international treaties, domestic political agreements, graduations, marriages, anniversaries, childbirths, and a host of other events.² America is no exception to that tradition: Peter Stuyvesant noted that one-quarter of the houses in New Amsterdam sold tobacco, beer, and brandy.³ The vessel that carried John Winthrop and the Puritans in 1630 to settle the Massachusetts Bay Colony held more liquor than water.⁴ In 1758, a prominent Virginia farmer spent nearly all of his Virginia House of Burgesses campaign funds to buy brandy, rum, cider, beer, and wine on election day for voters.⁵ And so on.⁶

But like almost everything else in life, alcohol also has its downsides. Samuel Johnson observed that “[i]n the bottle, discontent seeks for comfort, cowardice for courage, and bashfulness for confidence.”⁷ Alcohol has caused imbibers to destroy their health, lose their moral bearings, commit violent crimes, squander their wages, ruin marriages and families, and generate a host of other nasty outcomes.⁸ Beginning in the late eighteenth and early nineteenth centuries, advocates for temperance (moderate consumption) and prohibition (complete abstinence) started down a path that culminated in adoption of the second constitutional amendment to prohibit private conduct: the Eighteenth (Prohibition) Amendment. (The first was the Thirteenth Amendment, which outlawed slavery.) Ratified in 1919, the Prohibition Amendment had a short life and, having been repealed by the Twenty-First Amendment in 1933, is the only amendment to have passed into history.⁹

Rise of the Prohibition Amendment

The late eighteenth and early nineteenth centuries saw a great increase in alcohol consumption in America, largely by men. Two principal groups rose to quell that behavior and limit its dangerous consequences: ministers, who saw alcohol abuse as a threat to men’s souls, and women, who felt the impact of alcohol abuse on their persons and families.

Individual ministers and religions, such as Methodism, used moral suasion to dissuade Americans from abusing liquor or persuade them to abstain entirely. Women sought to change not only minds, but also laws and, to do so while being denied the right to vote, organized associations such as the Woman’s Christian Temperance Union (WCTU). These associations, through presence, prayer, or songs—and sometimes in a less soft-pedaled manner—sought to close individual saloons, supported legislation to restrain the issuance of liquor permits, and demanded enforcement of the laws on the books.

The apex of nineteenth-century prohibitionism was the passage of an 1851 Maine law making that state “dry” (alcohol-free). A dozen other states passed similar laws over the remainder of that decade.¹⁰ This mid-century success, however, was short-lived. Prohibition was a politically divisive issue, and the Democratic and Republican parties were reluctant to add it with slavery as the focus of a national campaign. By 1860, Maine had repealed its alcohol ban, and the other states with similar statutes either followed suit or ignored their prohibition laws.

The Civil War displaced prohibition as a subject of national debate. Afterwards, the so-called Gilded Age proved to be an unfavorable environment for prohibition’s rebirth. The century ended with the nation, by and large, remaining “wet.”¹¹

Popular opinion changed dramatically over the first two decades of the twentieth century for several reasons. Alcohol prohibition movements grew in other nations. The Anti-Saloon League, a politically savvy group, focused on disparaging saloons instead of the men who drank in them and supported any politician, regardless of party, who opposed alcohol. In addition, due to the influence of Progressivism, our societal focus on individual liberty shifted gradually to a focus on aggregate welfare. Patriotic opposition to German beer interests also grew once the United States entered the Great War against Kaiser Wilhelm.

Adoption of the Eighteenth Amendment

These factors and others enabled prohibition’s supporters to persuade two-thirds of the Senate and House of Representatives to pass the Prohibition Amendment in November 1917. Section 1 of the amendment barred the “manufacture, sale, or transportation,” as well as the “importation” and “exportation,” of “intoxicating liquors” from “one year after ratification.” The prohibition applied only to alcohol used for “beverage purposes,” which would exclude alcohol used for medicine and other similar purposes. Section 2 granted Congress and the states “concurrent power” to enforce the amendment. Prior amendments, such as the Fourteenth Amendment, gave only Congress an enforcement power. Section 3 provided that the amendment would become inoperative within seven years after it was submitted to the states, but it would not take nearly that long.

By January 1919, three-fourths of the states had ratified the amendment. In fact, ratification before the 1920 census potentially changed the composition of legislatures. Congress enforced the amendment with the National Prohibition Act, also known as the Volstead Act, which created a mechanism to take action against the manufacture, interstate transportation, and sale of alcohol.¹²

Repeal of the Prohibition Amendment

The Prohibition Amendment became unpopular after only thirteen years because of internal flaws and external opposition. The amendment and the Volstead Act did not specifically prohibit the possession and use of liquor, and the exception for medical-use alcohol sometimes resulted in pharmacies becoming a town’s largest distillers. “Rum runners” smuggled liquor in from other nations, such as the Caribbean Islands and Canada, where it was legal. A large percentage of the population still wanted to be able to drink. Alcohol moved indoors into clubs and “speakeasies” that were frequented by locally prominent parties and political officials and protected by corrupt local law enforcement officers.

The widespread evasion of Prohibition generated disrespect for the amendment and the Volstead Act, which in turn corroded belief in the rule of law. The Great Depression denied the federal, state, and local governments funds they would normally realize from income or business taxes, so liquor taxes became an attractive alternative revenue source. Crime became a considerable national problem, not just as a result of the importation and sale of liquor, but also because of the violence that accompanied black market activities.

By 1933, the nation had had enough of Prohibition. Each house of Congress passed the Twenty-First Amendment to repeal the Prohibition Amendment, and three-fourths of the states agreed. (See Essay No. 208.) Whether liquor should or should not be sold was an issue that was left to the states to resolve as they saw fit.

1. Genesis 9:20. ↩︎
2. John 2:1–11; The Iliad Bk. VI; The Odyssey Bk. 9. ↩︎
3. Edward Behr, Prohibition: Thirteen Years that Changed America 9 (2011). ↩︎
4. Daniel Okrent, Last Call: The Rise and Fall of Prohibition 7 (2010); Thomas R. Pegram, Battling Demon Rum: The Struggle for a Dry America, 1800–1933, at 7 (1998). ↩︎
5. Pegram, supra at ix. ↩︎
6. Tenn. Wine & Spirits Retailers Ass’n v. Thomas, 588 U.S. 504, 520 & n.6 (2019); Behr, supra at 9. ↩︎
7. 2 Samuel Johnson, The Lives of the Most Eminent English Poets 399 (1781). ↩︎
8. Bureau of Justice Statistics, U.S. Dep’t of Justice, No. NCJ 168632, Alcohol and Crime: An Analysis of National Data on the Prevalence of Alcohol Involvement in Crime iii, vi–vii, 1 (rev. Apr. 28, 1998), https://perma.cc/NG3V-ZCKQ; Breithaupt v. Abram, 352 U.S. 432, 439 (1957). ↩︎
9. Jack S. Blocker, Jr., American Temperance Movements: Cycles of Reform (1989); Joseph R. Gusfield, Symbolic Crusade: Status Politics and the American Temperance Movement (1963); Richard F. Hamm, Shaping the 18th Amendment: Temperance Reform, Legal Culture, and the Polity, 1880–1933 (1995); John Kobler, Ardent Spirits: The Rise and Fall of Prohibition (1973); Lisa McGirr, The War on Alcohol: Prohibition and the Rise of the American State (2016); Pegram, supra; W.J. Rorabaugh, The Alcoholic Republic: An American Tradition (1981); Sarah W. Tracy, Alcoholism in America: From Reconstruction to Prohibition (2005); The Prohibition in the United States: A History from Beginning to End (2019); Clark Byse, Alcoholic Beverage Control Before Repeal, 7 Law & Contemp. Prob. 544 (1940). For an extensive list of sources, see Pegram, supra, at 191–201. ↩︎
10. Pegram, supra, at 3–42. ↩︎
11. Pegram, supra at 43–108. ↩︎
12. 41 Stat. 305–323, ch. 85. ↩︎