Not that it did them any good: as Hobson had written, “once ratified, always ratified.” Under Article V of the Constitution the legislatures, however misshapen by rural domination, had the authority to enact constitutional Prohibition, and they did so with the speed of an epidemic, immune from referenda or gubernatorial vetoes. Setting aside Connecticut (population 67 percent Catholic) and Rhode Island (76 percent Catholic), both of which held out and refused to ratify, more than 80 percent of the nation’s state legislators voted dry. Generally speaking the more rural the state, the more arid the vote: among the six states whose legislatures were unanimous for ratification were Idaho, Kansas, South Dakota, Utah, and Wyoming. The only one of the six with any substantial urban presence was Washington, hardly an urban stronghold.
On January 16, 1919, when Nebraska’s lower house went 98–0 for Prohibition (three days earlier one lone state senator out of the chamber’s thirty-two had demurred), the Eighteenth Amendment was embedded in the United States Constitution. From the moment of submission it had taken 394 days to meet the approval of thirty-six state legislatures—less than half as long as it had taken eleven of the first fourteen states to approve the Bill of Rights.
THE OPENING CLAUSE of the Eighteenth Amendment—“After one year from the ratification of this article . . .”—meant that life in the United States was no different on January 17, 1919, from what it had been on January 15. This didn’t stop people from airing their reactions. H. L. Mencken sold his 1915 Studebaker and told his friend Ernest Boyd that he “invested the proceeds in alcohol.” William Jennings Bryan passed the time reading congratulatory telegrams. A woman in Missouri received a letter from her fiancé, a captain in the 129th Field Artillery, still with the U.S. Army near Verdun in northeastern France. “It looks to me like the moonshine business is going to be pretty good in the land of the Liberty Loans and Green Trading Stamps,” thirty-four-year-old Harry S. Truman wrote to Bess Wallace, “and some of us want to get in on the ground floor. At least we want to get there in time to lay in a supply for future consumption.”
Truman couldn’t have been serious—at least not terribly serious—but his perception was on target. The experience of states that had already gone dry suggested there was a large and liquid gulf between how people voted and how they drank. Washington banned the in-state sale of liquor in 1916 but allowed individuals with permits to import it from other states; 34,000 permits were issued in Spokane County, where there were only 44,000 registered voters. Kansas had been officially dry since 1880, but enough saloons were operating under the protection of corrupt or lenient politicians for Carry Nation to have fashioned a career from their presence.
The most vivid example of thirsty behavior in a Prohibition desert played out in the month immediately after ratification, as Congress prepared to enact the legislation that would engrave into law the procedures, penalties, appropriations, exceptions, and hundreds of other necessary details that the 112 words of the Eighteenth Amendment didn’t begin to address. After Michigan went bone dry in 1918 (the referendum that passed in 1916 didn’t go into effect until then), you couldn’t buy liquor in the state legally. But U.S. Highway 25, running from Dry Detroit to Wet Toledo, was so convenient for smugglers that it became known as the “Avenue de Booze.” When a court decision made the liquor traffic along its sixty miles temporarily legal in February 1919, the Detroit News described “two almost continuous streams” of cars pouring along its length. “Those bound Detroitward and loaded to capacity with Toledo liquor” had their “rear fenders almost scraping the tires”; those going south were empty, ready to load up. “Wrecked automobiles dotted the length of the highway after the mad rush of Wednesday night,” the paper noted.
Detroiters who were parched but carless “stormed” Toledo-bound interurban streetcars in the “thousands,” the News reported, carrying “cheap, dirty suitcases, paper parcels, oil cans, bags and boxes” to fill up in Ohio and then tote back home. On the return trip, the Toledo train station was so crowded that would-be passengers “shouldered their heavy burdens and trudged three miles along the tracks to the city limits, only to find the incoming cars were jammed with new arrivals.” After the governor of Michigan obtained a court injunction and heavily armed state police and federal agents were stationed on the highway (in the appropriately named border town of Temperance, Michigan), it was finally “safe for an innocent motorist to venture out on the highway . . . without being crowded into the ditch or trampled down by liquor runners.”*
The Michigan experience suggested that only the hopelessly naïve believed that the moonshine business, the smuggling business, and any other form of illegal trade in alcohol would evaporate in the glorious sunlight of Prohibition. Men planning to get in on what Truman called “the ground floor” tended not to record their thoughts in letters that would be preserved in scholarly archives, but certainly they realized the opportunity that lay ahead of them. Back in the original debate over the Hobson Amendment, wet representative J. Campbell Cantrill of Kentucky had said the measure was effectively “a resolution legalizing the manufacture of intoxicating liquor without taxation,” a privilege the legal distillers and brewers had never enjoyed. For those willing to risk the perils of unlawful activity, selling liquor without having to pay state or federal taxes was a business model of considerable appeal. Vastly enhanced profit margins could underwrite a lot of the overhead associated with lawbreaking—for instance, the cost of corrupting police, judges, politicians, and anyone else remotely involved in enforcement. William Howard Taft, serving as a professor of law at Yale during the interval between his presidency and his eventual appointment as Chief Justice of the Supreme Court, said, “The business of manufacturing alcohol, liquor and beer will go out of the hands of law-abiding members of the community, and will be transferred to the quasi criminal class.” The only ill-chosen word in that sentence was “quasi.”
THE MAN WHOSE legislative skills were called upon to prevent the realization of Taft’s prediction was Andrew John Volstead, whose name would forever be attached to Prohibition as if it were an especially cheerless leit-motif in a Wagnerian opera. In Webster’s unabridged Third New International Dictionary, “volsteadism” was still defined in the 1996 printing as “the doctrine of or adherence to prohibition.” The word is much better remembered than the man.
He might not have minded, for Volstead did not seek attention; his sponsorship of the legislation required to enforce the Eighteenth Amendment thrust attention upon him. Born Andreas Joseph Vraalstad in 1859, the son of Norwegian immigrants, he was about as colorful as the snow that each winter blanketed his hometown of Granite Falls, Minnesota, and no more eager for the spotlight than a cloistered monk. “He had few inferiors when it came to dealing with the newspaper correspondents,” one of them wrote, and Volstead would not have argued the point. He found press attention so disagreeable he once ran across the White House lawn to avoid being photographed. Volstead chewed cut-plug tobacco and indulged in the occasional glass of homemade chokecherry wine, but that was about as far from the straight and narrow as he would wander. He even wore a tie while tending the peonies in the garden of his wood-frame home in Granite Falls.
After serving fourteen years as the Yellow Medicine County prosecuting attorney, Volstead entered Congress in 1903 and generally aligned himself with the progressive, prosuffrage, pro–income tax wing of the Republican Party. He had been in the House sixteen years before assuming the chairmanship of the Judiciary Committee and, therefore, responsibility for the National Prohibition Act, which was the formal name of the legislation that would turn the Eighteenth Amendment’s stark declarations into a code of enforcement. Volstead’s one distinguishing physical characteristic was a broom of a mustache so luxuriant it reached his lower lip and made his face one of the most recognizable in the Capitol. But because of the duty that fell to him, both history and his wet colleagues in Washington saw something else when they looked at him. James A. Reed of Missouri—the most eloque
nt, most aggressive, most vituperative, and wettest wet in the Senate—said, “I have gazed upon pictures of the celebrated conspirators of the past,” the leaders of “fanatical crusades, the burners of witches, the executioners who applied the torch of persecution, and I saw them all again when I looked at” the congressman from Granite Falls. Of course, Reed also said that Volstead was foreign-born and “speaks a very broken English,” so it’s somewhat understandable that he got everything else about him wrong, too.
Volstead was indeed a dry, but not a terribly vociferous one. He’d never delivered a speech on the subject and never joined the ASL. The Prohibition Party twice put up candidates to run against him. But he recognized “the vast movement that has gone on in this country in the last few years,” and he believed in the rule of law. The Constitution had turned against liquor, and after the Sixty-sixth Congress opened for business in March 1919, Volstead did his best to implement the sacred document’s intentions.
The legislative process that turned the Volstead Act into law encompassed all the elements that had come to characterize Prohibition’s progress in Washington: the unshirted zealotry of the dry-drys, the winking compromises of the wet-drys, the general irrelevance of wets of every degree of dampness, and the canny tactical decisions of Wayne Wheeler. It incorporated the semantic tap dancing that could imbue a single, uninflected word with a meaning that would affect the lives of millions, and it accommodated political dissimulations even Wheeler would come to regret.
The sixty-seven separate sections of the Volstead Act indicated the breadth of its concerns and at the same time suggested how many different parties had a stake in it. The final bill covered everything from the definition of “intoxicating” (its single most crucial sentence) to whether de-alcoholized beer could still be called beer or “near beer” (it could not) to whether a foreign ship would be allowed to pass through the Panama Canal if it carried a few bottles of rum for its crew (it would, but only if it was in transit from one foreign country to another and wouldn’t be visiting a U.S. port along the way). Parties of interest weighing in on the law ranged from rabbinical associations fearful of a ban on sacramental wine to the Farm Bureau to the nation’s manufacturers of hair tonic, flavor extracts, industrial dyes, and men’s hats. And, most crucially, the Anti-Saloon League.
Popular accounts have long attributed the bill’s authorship to Wheeler, partly because his eulogists wanted to credit him with it and partly because it was unimaginable that he wouldn’t have commandeered the process. In fact Wheeler did fashion a version of a Prohibition enforcement law out of a number of existing state laws and presented it to Volstead and to the measure’s Senate sponsors. But Volstead, who found Wheeler’s draft “too loosely drawn” and possibly vulnerable to court challenges, spent several months crafting a measure so tight that not one of its provisions was ever deemed unconstitutional. Even though Wheeler may have spent nearly as much time in the committee room as many of its members, he never claimed sole authorship of the act. Grilled by hostile wets during a Senate hearing several years later, he was asked if he had dictated the various amendments to the bill as it passed through Congress. Wheeler replied, “Only in part.”
The parts he seemed to care about most were the section enumerating the acts deemed criminal and the one that defined “intoxicating liquors.” What was carefully kept out of the criminal code was any specific proscription against drinking or buying alcohol; savvy drys knew that without this enormous carve-out no user would ever testify against his supplier. Wheeler also got what he wanted in the definition of “intoxicating liquors,” the vague formulation he and his allies had inserted (instead of “alcoholic beverages”) in the amendment itself. 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. Herbert Hoover, virtually a national hero because of his leadership of the wartime Food Administration, said he didn’t think it was possible for a man to get drunk on beer that was 2.75 percent alcohol.
But now the drys had a much smaller mountain to climb. To pass the Volstead Act they needed only a majority in each house of Congress, rather than two-thirds of each house plus three-quarters of the state legislatures. The prudence that had replaced “alcoholic beverages” with “intoxicating liquors” in the text of the Eighteenth Amendment could now be cast aside. “Alcoholic” was not something that could have been argued; anything containing alcohol was alcoholic, and Wheeler believed that if the word had been included in the text of the Eighteenth Amendment, the amendment would have died in Congress. Now, though, Wheeler’s hammer came down on a stunningly severe definition of “intoxicating”—anything ingestible that contained more than 0.5 percent alcohol. This proscribed the lightest of wines, the most diluted forms of beer, and, if you really wanted to get serious about it, the naturally occurring fermentation that takes place in some recipes for sauerkraut (up to 0.8 percent alcohol) and German chocolate cake (0.62 percent). After this definition of “intoxicating” was established, a House Judiciary Committee report said, “No one who supported this amendment had in mind that there could be any question as to the meaning of the term.” On the contrary: its appeal to Wheeler and his allies when they inserted the term into the amendment had been its exquisite vagueness. Less vague was the meaning of “beverage,” at least to Representative Nicholas Longworth of Ohio, a future Speaker of the House with little patience for Prohibition. He said a beverage was “anything you can eat with a sponge.”
Apart from his insistence on the strict definition of the word that was the Eighteenth Amendment’s fulcrum, Wheeler displayed a surprising willingness to compromise on other aspects of the Volstead Act and to accommodate exceptions that would render it less than absolute. Having won the larger war, taking prisoners wasn’t at the top of his agenda. Wheeler wasn’t going to win meaningful support for the bill by accommodating the religious practices of the nation’s Jews and Catholics; they had been nearly unanimous in their opposition to Prohibition. But the delegation of Orthodox rabbis who called on Volstead (much to the later dismay of the Reform rabbinate) nonetheless came away with continued access to sacramental wine for their congregants, as did the Catholic Church. Many hard-line drys wanted to deny physicians the right to prescribe alcohol, but this, too, wasn’t worth the fight. No one questioned the need for the continued production of industrial alcohol for its many critical and/or popular uses, and if the enabling regulations were too loose, they could be tightened later. In a nod to those who had invested in their personal cellars (including various dry senators and representatives), Wheeler agreed to a clause that allowed individuals to continue to own, and to drink in their own homes, alcohol purchased before the Eighteenth Amendment’s effective date.
Wheeler was so obliging he even allowed a single exception to the definition of “intoxicating”—in this case not because of a sudden fit of permissiveness, but because he had little choice. America’s rural population and its elected representatives had nourished and sustained so much of the Prohibition crusade that ignoring their interests might have made passage of an effective enforcement act impossible. As a result, Section 29 of the Volstead Act specifically exempted cider and other “fruit juices” that just might happen to acquire an alcoholic tinge through the natural processes of fermentation. They were not subject to the 0.5 ceiling but to a determination of whether they were “intoxicating in fact”—a condition, said the very dry and very rural Senator Thomas Sterling of South Dakota, “for the jury to determine in any given case.” As intended by Wheeler and Volstead, and as later interpreted by the courts, the law made home manufacture of hard cider perfectly acceptable. No husbandman would be denied the barrel by the homestead door, the jug stashed in a corner of the field, the comforting warmth on cold country nights. One dry honest enough to object to this dodge, Alben Barkley of Kentucky, noted that if it was legal to transform the juice of the app
le into something stronger, then “Why not corn juice?”
Several years later, alighting on a justification for his departure from dry orthodoxy, Wheeler explained—apparently with a straight face—that the exception was meant to “enable the farmers and housewives of the country to conserve their fruits.”
DID IT MATTER that the Volstead Act failed to provide a judicial procedure other than jury trial for anyone accused of any violation, dooming the federal court system to an unremitting fourteen-year flood of petty cases? Did it matter that the army of federal agents hired to enforce the act would not be part of the civil service because Andrew Volstead, among others, feared that civil service protection would guarantee “the offices would be filled with Wets that we could not get rid of”? Did it matter that the total initial appropriation for federal enforcement of this radical and far-reaching new law amounted to $2.1 million, or slightly less than the amount paid in one day a few months later for muskrat pelts at the St. Louis fur auction?
Not really. By the time the Volstead Act became law, the drys had become giddy in their political dominance and confident they would retain power sufficient to correct any errors or omissions. They believed that their cause had been sanctified by the long, long march to ratification, that it had truly been a people’s movement every bit as glorious as any other in the nation’s history. They were not alone in this belief, and they found strong defenders when their enemies attributed the movement’s success to manipulation or deceit. “Prohibition was written into the Constitution with as much deliberation as attended the enactment of any amendment to the Constitution,” wrote Felix Frankfurter of Harvard Law School. It was, he added, “the culmination of fifty years of continuous effort.” Those who had organized to oppose it—the brewers, chiefly—had in fact been far more deceitful than the worst of the drys. “Pressure groups are our oldest political inheritance,” said Wayne Wheeler, whose expertise on the nature of pressure groups was underscored by the fact that it was he who had coined the term. “They are lineal descendants of the group of barons who met King John at Runnymede” and crafted the Magna Carta.
Last Call: The Rise and Fall of Prohibition Page 15