Soon four thousand new guardsmen that Wheeler characterized as “incorruptible” were assigned to twenty reconditioned destroyers and three hundred brand-new small craft. Within months the beefed up “Dry Navy” seized three British rum-running boats in international waters in the North Atlantic, and scores of smaller vessels were apprehended and impounded up and down the Atlantic and Pacific coasts, along the Gulf of Mexico, and in the Great Lakes. In May 1925 an operation that became known as the “Great Offensive” dislodged fifty mother ships from the section of Rum Row that ran from Block Island to Brooklyn. And on the West Coast, what might have been the single most successful bootlegging operation in the nation foundered on the shoals of a new law enforcement technique called wiretapping.
But in the end, additional expenditures and focused effort were not enough. Except for wiretapping, each of these developments turned out to be less effective than it had first appeared. (This should not have been a surprise; even the twelve-mile limit extracted from the British through strenuous negotiation had not worked out, for it required the Coast Guard to patrol a vastly increased area.) Most of the ships chased away from Rum Row retreated to Canada, where their suppliers were led to devise new ways of getting their product to the U.S. market—chiefly, in the case of the Bronfman brothers, by the much more efficient shipment of goods by train through Ontario and across the river to Detroit (or, as Sam Bronfman always called it, “the Windsor market”). The seizure of the three British rumrunners provoked a new outbreak of diplomatic friction with the United Kingdom. Most of the impounded inshore boats, sold at government auction after the conclusion of legal proceedings, were simply repurchased by their original owners, who were usually the only bidders, as if by tacit agreement among the rum-running syndicates. In a single year the steamer Underwriter was seized four times, auctioned four times, and returned four times to its role as a rumrunner at the eastern end of Long Island Sound.
The four thousand new uniformed seamen in the Coast Guard, who were working for thirty-six dollars a month plus room and board, found it difficult (if not pointless) to remain incorruptible, and the newspapers were awash in reports of misdeeds, court-martial, and convictions. In 1928 the secretary of the Elks Lodge in Niagara Falls, New York, who had no liquor in his possession and no previous record, was fatally shot through the head after he was apprehended by a Coast Guard crew. “I would not have shot him, and probably you would not,” said a philosophical Seymour Lowman, the assistant secretary of the Treasury ultimately responsible for Prohibition enforcement, “but you want to recollect that the men engaged as Coast Guardsmen there are not college professors or lawyers.”
Even the well-funded development of the Guard’s swift new boats miscarried. Required to make its specifications available to any boatyard interested in bidding on the construction contracts, the government was effectively providing blueprints to the rumrunners, who paid the very same boatbuilders to design vessels that could outrun the ones they were building for the Guard. The Freeport Point Boatyard on the south shore of Long Island built fifteen vessels for the Coast Guard and thirty for the rumrunners they were supposed to chase down, including a trio of forty-two-foot boats for the notorious bootlegger Dutch Schultz, each one equipped with three Packard Liberator 500-horsepower air-cooled engines, bulletproof gas tanks, and room for 600 cases of liquor. On a larger scale, by 1930 a 150-foot blockade runner equipped with diesel engines, Maxim silencers, shortwave radio, armor plating, and a capacity of 8,000 cases could be had for $100,000. At a gross profit of $1 per bottle, any self-respecting bootlegger could have made back virtually his entire investment on a single run.
Just as World War I had accelerated the evolution of airplane technology, the battle between the rumrunners and the Coast Guard provoked the rapid development of powerboat design. The motorized version of the nimble Jersey Sea Skiff, with a nearly flat hull that enabled it to run its payload right up on shore, was a Prohibition product. When the New Orleans levees were breached during the Great Mississippi Flood of 1927, the first rescue boats on the scene were the exceptionally speedy craft developed for, and operated by, upriver bootleggers.
Rumrunners also copied the design of a famous boat celebrated for its speed, and according to the New York Times they intended to improve it by equipping it with machine guns. In this particular instance, the Coast Guard eventually acquired the legendary speedster by seizing it from hijackers who had been preying on rumrunners operating near Coney Island. Like its original owners, who were interested only in cash or hostages, the Coast Guard was not concerned with cargo capacity; speed was everything, and this vessel was the fastest boat in the water. Once it became government property, it was known as CG-911; before that, it had earned its reputation with a name that would in time signify thousands of boats built to a modernized version of its revolutionary, Prohibition-bred design: Cigarette.
AS THE 1920s rolled forward, accompanied by the roar of hyperthyroid speedboat engines and punctuated by the rat-a-tat of the Thompson submachine gun (during World War I it was called the “Trench Broom”; now it became known as the “Chicago Typewriter”), virtually the only good news for the party of enforcement came from an unlikely place: the United States Supreme Court.
Despite Elihu Root’s failed effort in 1920 to persuade the Court that a constitutional amendment could be unconstitutional, wets had hung their hopes for judicial sympathy on a Court that seemed genetically sympathetic to their cause. Before his appointment as an associate justice, Louis D. Brandeis had lobbied the Massachusetts legislature in behalf of the state’s breweries, and the ASL, in its maiden venture into Supreme Court politics, had actively opposed his confirmation. Justice Harlan Fiske Stone was a connoisseur of fine wines—he had a 1912 Chateau Ausone in his collection, and a 1916 Beychevelle—who had earlier tried (vainly) to move the contents of his cellar from New York to Washington when he was appointed attorney general; late in life, he would contemplate the unkind destiny that had “inflict[ed] public office and prohibition on me at one and the same time.” The court’s senior member, Oliver Wendell Holmes, was known to appreciate his whiskey (in 1927 he registered his gratitude for an illegal gift bottle with a characteristically Holmesian aphorism: “I have not forgotten the prayer ‘Lead us into temptation’ ”). And a bloc of archconservative justices led by the reactionary James C. McReynolds was instinctively aligned with James Montgomery Beck and other legal theorists who so loathed the authority of the federal government they would have strangled it had they had the chance.*
But wets hoping for a Supreme Court hostile toward Prohibition enforcement had placed most of their optimism in the capacious lap of the chief justice, former president William Howard Taft. The Anti-Saloon League loathed him (an ASL publication once referred to him as “the huge, beer-swilled Taft”). Adolphus Busch, whose personal lawyer, Charles Nagel, served in Taft’s cabinet, considered him a friend and ally (and offered Taft $50,000 a year to assume the presidency of a St. Louis bank after he left the White House). In his last month as president, Taft had vetoed the Webb-Kenyon Act and its restrictions on the interstate shipment of liquor. Congress overrode his veto, but until the Eighteenth Amendment was ratified, Taft did not moderate his views on constitutional efforts to limit alcohol consumption. Not only did he once declare Prohibition “unenforceable,” he also believed it “would put on the shoulders of the Government the duty of sweeping the doorsteps of every home in the land. If national prohibition legislation is passed, local government would be destroyed.”
Coming from a professor at Yale Law School—Taft’s home between his presidency and his appointment to the Court—this seemed a clear statement of belief, suggesting emphatic support for strong proscriptions against unreasonable search and seizure, and for the prerogatives of local authority. But Taft also believed that the citizen who obeys only laws that he endorses “is willing to govern, but not be governed”—willing, in other words, to destroy the rule of law. Consequently, Taft led a fairly
stable bloc of justices who rendered a series of decisions expanding the power of the federal government, over the generally consistent objections of McReynolds and his conservative allies. Two key decisions weakened the Fifth Amendment. In 1922 the Court brushed aside the amendment’s proscription against double jeopardy, declaring that the Eighteenth Amendment’s “concurrent power to enforce” clause allowed Prohibition violators to be prosecuted in both state and federal courts for the same violation unless Congress enacted legislation barring the practice. Five years later the justices found that requiring a bootlegger to file a tax return on his illegal earnings did not infringe on the Fifth Amendment’s protection against self-incrimination.*
But it was the Fourth Amendment’s bar against unreasonable search and seizure that captured the Court’s attention most firmly, and led it, in twenty separate cases between 1920 and 1933, to a broad-strokes rewriting of a century’s worth of Supreme Court jurisprudence. The theory behind the Fourth Amendment, which dated back to the colonial era, was embedded in the primacy of the rights of the individual vis-à-vis the powers of the government, and particularly protected the sanctity of the home. During the latter part of the nineteenth century and into the twentieth, it had been judicially extended to foster the freedoms of a laissez-faire economy, shielding businessmen from raids on their premises. But once Prohibition was in place, judges realized that tight limits on searches crippled the government’s ability to enforce the Volstead Act. Long-honored restraints on police authority soon gave way. In a New York World cartoon by Rollin Kirby, a figure representing the Eighteenth Amendment was shown lynching a representation of the Fourth, with a delighted member of the ASL looking on. Defendants played an active role in this explosion of Fourth Amendment jurisprudence as well: big-time bootleggers could afford expensive lawyers who could chase a case up the judicial ladder to the Supreme Court. The Cyclopedia of Law and Practice, published in 1910, gave 15 pages to discussion of searches and seizures; its 1932 successor required 114. Eventually, half of the training classes given to new Prohibition agents were devoted strictly to search-warrant requirements and procedures. In an era when possession seemed ten-tenths of the law, cellars and suitcases and speakeasies and cars no longer appeared to be quite as sacrosanct as they once had seemed.
Especially cars. In some cities they were mobile taverns, their proprietors parking outside factory gates, peddling shots of liquor for twenty cents apiece and speeding off at the first scent of an honest Prohibition agent. As early as 1915 William Jennings Bryan had made the case that the danger of an automobile driven by an inebriated person negated the “personal liberty” argument against Prohibition—when a drunk could take to the streets behind the wheel of a powerful machine, Bryan argued, the health and safety of the driest teetotaler was placed at risk, rendering the driver’s rights irrelevant. Drunk driving in fact skyrocketed during the 1920s (in Chicago it multiplied nearly fivefold). This was accurately attributed to the steep increase in the number of cars on the road, but writing it off strictly to that was like blaming the size of an influenza epidemic on population growth. And no one disputed the role of cars in the gangster-dominated bootlegging business and the protection their operators were afforded under the Fourth Amendment. Writing to his brother Horace in 1925, Chief Justice Taft insisted that “the automobile is the greatest instrument for promoting immunity of crimes of violence . . . in the history of civilization.”
His letter to Horace was a preview of the decision the Chief Justice, speaking for the Court, would issue the next day. In Carroll v. United States, Taft dismantled a constitutional roadblock in favor of a literal one, declaring that Prohibition agents no longer needed a warrant to stop and search a car they believed to be carrying contraband liquor. One justification for this “reasonable” search: the Oldsmobile roadster in Carroll was proceeding westward from Detroit, wrote Taft, “one of the most active centers for introducing illegally into this country spirituous liquors for distribution into the interior.”
THE RUM ROW that developed along the Pacific Coast never quite grew to the size of the fleet stationed along the Atlantic seaboard and the Gulf of Mexico, nor did the traffic ever become quite as deadly. The West was much less populated than the East, of course (in 1930 there were over a million more people in New York City than in all of California), and robust domestic production in northern California kept the Coast’s thirstiest city, San Francisco, stocked with wine. But the Pacific states did have their own version of Detroit in the far Northwest, where spirituous liquors stored near the docks in Vancouver and Victoria could be shipped across the Strait of Juan de Fuca, saturate Seattle, and flow all the way down the coast to Los Angeles. The unlikely figure dominating this trade was Roy Olmstead, who became known locally as “the good bootlegger” and nationally as the appellant in what was arguably the most important and farthest-reaching Supreme Court decision that emerged from the fourteen years of Prohibition.
Olmstead had entered public life as a promising member of the Seattle Police Department, praised by the department’s very dry chief as “quick and responsive . . . bright and competent.” But Olmstead’s competence extended beyond ordinary police work, and while still a member of the department—he had been named a lieutenant when he was only thirty—he began running liquor from Canada. Roy Olmstead was handsome, personable, intelligent, and remarkably ethical. He never diluted his imports or blended them with industrial alcohol as so many other bootleggers did, and he dealt in such volume that he was able to undersell every other bootlegger in the Pacific Northwest. Historian Norman H. Clark wrote that Olmstead “avoided the sordid behavior of others in the same business—no murder, no narcotics, no rings of prostitution or gambling”—and, as a result, “many people could not regard him as an authentic criminal.” The Seattle Post-Intelligencer explained his popularity: he “served a social purpose.”
In time, Olmstead moved out of the retail business, effectively becoming wholesaler to most of the bootleggers in Greater Seattle. He established the city’s first radio station, and although Olmstead later denied it, Mabel Willebrandt believed the bedtime stories Olmstead’s wife read over the air “constituted code signals to the boats at sea, advising them when the coast was clear and where the Coast Guard boats were likely to be.” He bought a grand house in the Mount Baker section of town and socialized with the city’s leading figures, who considered him good company. Even more, they considered him useful. In the frescoed dining room of the Arctic Club, Olmstead’s services were all but invaluable.
But the Seattle office of the Prohibition Bureau was the personal property of Senator Wesley L. Jones, the very dry Senate majority whip. Determined to arrest and prosecute Olmstead, dry agents in Seattle brought in a gentleman named Richard Fryant to help build their case. Olmstead considered federal agents “too slow to catch cold,” but they were nimble enough to realize that Fryant had a practical, and novel, skill: he knew how to tap telephones. Soon the bureau had a collection of transcripts that may have read like a bad film script (“I have seen Doc and all is OK”), but nonetheless helped smother Olmstead and his associates under ninety-one separate indictments.
When he was attorney general, Harlan Fiske Stone had declared that Justice Department personnel (including members of J. Edgar Hoover’s brand-new Bureau of Investigation) were forbidden to use wiretaps, which he considered unethical. But Stone had no authority over Treasury Department personnel, including Prohibition agents, nor was his proscription enforced by his successor at justice, John G. Sargent. Still, Mabel Willebrandt, who would normally have represented the government before the Court, declared that she “thoroughly disapproved” of wiretapping tactics, and could not in good conscience argue the case. The solicitor general brought in outside counsel, and Chief Justice Taft led a 5–4 majority that found private telephone communication between two individuals no different from casual conversations overheard in a public place.
“Can it be that the Constitution affords no protecti
on against such invasions of individual security?” asked Brandeis. For the first time, the Court said it did not.
THE LAW MADE in Olmstead v. United States stayed on the books until it was overturned in 1967, when the only dissenting vote was cast by the old Prohibition prosecutor, Justice Hugo Black. Law yet more enduring was made by Brandeis’s Olmstead dissent, in which he articulated a constitutional “right to be let alone”—words invoked by the majority nearly half a century later in Roe v. Wade.
At the time, though, the most striking response to Olmstead came from the Anti-Saloon League. Extracting the gist of comments made by S. E. Nicholson, the ASL’s New York superintendent, the Times summarized the league position: “It is feared by the dry forces that Prohibition will fall into ‘disrepute’ and suffer ‘irreparable harm’ if the American public concludes that ‘universal snooping’ is favored for enforcing the Eighteenth Amendment.” Said Nicholson, “We do not favor the decision unless it is to be interpreted as applying to all criminal cases of every kind.” It was an impossible position. On the one hand, the league was acknowledging the unpopularity of this particular expansion of federal authority. But, in an attempt to dodge responsibility for Olmstead and the other unpopular snips and slices that were increasingly perforating the Bill of Rights, the league wanted to suggest that these alterations were meant to address crime in general and were not specifically about Prohibition at all.
Last Call: The Rise and Fall of Prohibition Page 38