Historian Lisa Andersen describes how ineffective Prohibition was:
People who could afford the high price of smuggled liquor flocked to speakeasies and gin joints.… Working-class consumption largely moved from saloons into the home. “Bathtub gin” and moonshine took the place of mass-produced liquor, and hosts might use additives to turn grape juice into wine for their guests. Americans who sought to remain in the liquor business found ways to redistill the alcohol in perfume, paint, and carpentry supplies.… Criminal organizations profited from Americans’ insatiable desire for liquor, and then defended those profits by murdering hundreds of their competitors and infiltrating legitimate businesses, labor unions, and government.
Words of Wisdom from Clarence Darrow
“As long as the world shall last there will be wrongs, and if no man objected and no man rebelled, those wrongs would last forever.”
President Woodrow Wilson opposed Prohibition before it became law. He defended his administration’s enforcement of it, but he and his wife took their stash of booze from the White House when he left the presidency in March 1921. His successor, Warren G. Harding, brought his own large supply with him to the White House immediately after his inauguration.
Such double standards were widely practiced, prompting gangster Al Capone to say, “When I sell liquor, it’s called bootlegging; when my patrons serve it on Lake Shore Drive, it’s called hospitality.” Capone’s rise to the pinnacle of the crime world stemmed directly from Prohibition; he happily supplied the booze while the government pummeled his competition.
Economist Mark Thornton, in a 1991 policy analysis paper for the Cato Institute, noted that Prohibition reversed what had been a gradual decline in serious crime since the late nineteenth century. During the 1920s the homicide rate increased 78 percent over the pre-Prohibition period. “More crimes were committed,” Thornton wrote, “because prohibition destroys legal jobs, creates black-market violence, diverts resources from enforcement of other laws, and greatly increases the prices people have to pay for the prohibited goods.”
One of Prohibition’s more colorful dissenters was commentator H. L. Mencken, who wrote in 1925:
Five years of Prohibition have had, at least, this one benign effect: they have completely disposed of all the favorite arguments of the Prohibitionists. None of the great boons and usufructs that were to follow the passage of the Eighteenth Amendment has come to pass. There is not less drunkenness in the Republic, but more. There is not less crime, but more. There is not less insanity, but more. The cost of government is not smaller, but vastly greater. Respect for law has not increased, but diminished.
Mencken understood that it wasn’t government’s function to make war on people over their personal, private, and peaceful choices. As long as we do no harm to others, each of us possesses an inherent, natural right to our own lives and property—and that includes our bodies. Prohibition assumes everybody who touches the prohibited stuff deserves to be treated as a criminal, and that just isn’t so. If you take a book and beat somebody over the head with it, you may rightfully be charged with assault. But if you do nothing more than read the text, even if it’s a book as offensive as The Communist Manifesto, only a fool or a tyrant would ban the book and throw you in prison.
Honorable Resistance
Though evidence suggests that the ban did cut alcohol consumption temporarily—we’ll never know by how much, because bans drive the prohibited behavior behind closed doors—the benefits of Prohibition were dwarfed by the harm it did. Those with the courage to say so and to work to change the law are the heroes in this otherwise sorry saga.
Women took lead roles in the crusade for repeal, as documented in Kenneth D. Rose’s 1996 book, American Women and the Repeal of Prohibition. One example was M. Louise Gross, who created the New York City–based Molly Pitcher Club in 1922 to campaign for repeal.
Another was Pauline Sabin, an influential Republican Party official, who founded the Women’s Organization for National Prohibition Reform. Sabin “found the hypocrisy of Prohibition intolerable,” according to one biographer, and “was repelled by politicians who voted dry and then turned up at her dinner table expecting a drink.”
My personal favorites among Prohibition’s foes were the many jurors who simply refused to convict defendants accused of buying, selling, or drinking illegal booze. They were exercising what legal scholars term the right of “jury nullification.” When jurors acquit an accused person they know is guilty of breaking the law because they object to the law itself, at least in that individual case they are “nullifying” it. Though controversial among members of the legal community, the practice commands considerable precedent in common law dating back as far as the thirteenth century.
In their highly regarded and frequently referenced 1966 book, The American Jury, Harry Kalven Jr. and Hans Zeisel wrote, “The Prohibition era provided the most intense example of jury revolt in recent history.” They reported that the acquittal rate for liquor violations for 8,078 trials in the federal system from 1929 to 1930 was 26 percent. In the Second District of New York it was an astonishing 60 percent. Kalven and Zeisel quoted a judge’s note, “Difficult generally to convict bootleggers.” Another judge wrote, “A very great number of persons maintain the belief that the law against selling alcoholic drinks should not be enforced, and it is extremely difficult to get a conviction no matter how strong the evidence may be.”
The typical nullification case did not involve the accused abusing alcohol and then, under the influence, doing harm to another person or his property. Jurors almost always voted to acquit in cases where there were no victims or in cases where, if there was a victim, it was the accused himself through his own voluntary choice. Those jurors were, in a way, echoing the sentiments of Henry David Thoreau: “If … the machine of government is of such a nature that it requires you to be the agent of injustice to another, then I say, break the law.”
Kirsten Tynan directs the Fully Informed Jury Association (FIJA), an organization formed to educate Americans about the jury nullification concept. She brought to my attention a January 1928 New York Times article headlined “Jurors Go on Trial, Drank Up Evidence.” The story revealed that the prosecution’s main exhibit in its case against one George Beven, accused of an alcohol violation, was a pint of liquor. Left alone with the pint for three hours during deliberation, the jurors “sampled” the evidence until it was gone, claiming they did so to determine if it was in fact alcohol. They found Beven not guilty.
In honoring this heroic resistance, are we endorsing lawlessness?
In the words of the famous lawyer Clarence Darrow, “As long as the world shall last there will be wrongs, and if no man objected and no man rebelled, those wrongs would last forever.”
When bad law conflicts with good conscience, nullification is an honorable option.
Prohibition Today
After nearly fourteen years of bad law and its tragedies, Prohibition was repealed on December 5, 1933—just in time for some legal Christmas cheer. Newly elected president Franklin Roosevelt had pushed for repeal mainly to shore up declining federal revenues by taxing legal alcohol. The real heroes of the repeal effort were the men and women who wrote and spoke against Prohibition, who formed organizations to educate for personal choice, and who refused to enforce the law even when judges never advised them they had that right.
What does all this imply about the wisdom of today’s laws against the possession, use, or sale of the most ubiquitous illegal substance, marijuana, which results in far fewer deaths each year than swimming pool accidents do?
The evidence is stark. Our marijuana laws are a colossal and expensive failure. Practically anybody who wants the stuff can get it, easily. Ironically, those who have the toughest time securing it are those who would benefit from its pain-reducing qualities but are averse to breaking the law. The war against it is no more effective or desirable than was alcohol Prohibition.
Thanks largely to marij
uana prohibition, we prop up Caponelike drug cartels with billions in artificial profits. The associated violence on both sides of the border with Mexico kills and maims thousands more in any one year than marijuana has in the past hundred years. More than forty thousand people—virtually all nonviolent offenders—are languishing in U.S. jails and prisons on marijuana charges, at an average cost to taxpayers of at least $20,000 per inmate.
What do we have to show for it all? Mostly pain, sorrow, and billions of dollars down the drain—not to mention the liberties we’ve lost because of property forfeitures and other intrusive police powers. Someday, thanks to those like FIJA’s Kirsten Tynan who are working to enlighten us, problems of substance abuse will be widely recognized not as criminal issues but as personal and medical ones.
In recent years, juries have nullified in marijuana cases in states as diverse as New Jersey, Montana, and New Hampshire. In 2013 Reason TV interviewed a medical marijuana patient who escaped conviction and up to ten years in prison through jury nullification. The jurors who freed him from a life ruined by jail time for a victimless crime are real heroes. So are the voters who have supported legalization at the polls. And so are the many other men, women, and organizations speaking out against the insanity of present-day marijuana laws.
I salute the heroic foes of prohibitions past and present, and I’m grateful I can raise a glass of beer or wine in their honor without fear of jail time.
Lessons from Prohibition’s Foes
Have the courage to resist unjust laws: Prohibition was a predictable disaster of social experimentation. The heroes were those who spoke up and organized against Prohibition, making repeal possible.
Remember that good intentions alone don’t make good government policy: Even many well-intentioned government policies do more harm than good. Government shouldn’t make war on people over their personal, private, and peaceful choices.
22
Four Justices
Liberty’s Saving Hands
“We want a Supreme Court,” declared President Franklin Roosevelt in March 1937, “which will do justice under the Constitution—not over it. In our courts, we want a government of laws and not of men.”
A month earlier, the very same FDR had announced his plan to “pack” the Supreme Court with enough additional justices to accomplish precisely the opposite. The last thing FDR wanted was a court that defended the Constitution; he preferred one that would meekly sanctify the centralizing nonsense of his New Deal.
Four justices in particular drew FDR’s wrath in the 1930s. They did the job they were sworn to do: uphold the Constitution as it was written against all attempts to subvert it or the liberties of the people it protected. They were respected legal scholars of the first order. Unlike Roosevelt, they didn’t think it was their duty to torture the Constitution until it confessed to federal powers never dreamed of by those who designed it. Power and political expediency were not among their priorities. These four heroes were George Sutherland, Willis Van Devanter, James Clark McReynolds, and Pierce Butler.
In few law schools today are these four defended as heroes. They are commonly vilified as legal Neanderthals who stood in the way of FDR’s vast expansion of federal power to deal with the Great Depression.
Progressive intellectuals in the 1930s labeled them with the epithet the “Four Horsemen”—comparing them to the biblical harbingers of the Apocalypse. But I count Sutherland, Van Devanter, McReynolds, and Butler as four of the most principled and courageous people ever appointed to the Supreme Court.
The New Deal’s Attacks on the Constitution
None of these men was perfect. Sutherland defended sugar tariffs as a Utah congressman and supported much of Theodore Roosevelt’s progressive agenda as a senator. Van Devanter of Indiana suffered from chronic writer’s block and wrote few opinions in his twenty-six years on the court. Kentucky’s McReynolds could be cantankerous and even bigoted. It’s hard to find more than a minor flaw, however, in the life or writings of Minnesota’s Butler—a perfect gentleman and a constitutional stalwart who cast the lone dissent in a 1927 eugenics decision upholding the right of states to sterilize forcibly the “feeble-minded.”
Sutherland, Van Devanter, McReynolds, and Butler teamed up many times in the two decades they served together on the court—almost invariably to restrain the federal government in its pursuit of powers not granted to it in the Constitution. They also protected individual liberties against encroachments by state governments. In 1925 Sutherland, Van Devanter, McReynolds, Butler, and the rest of the court struck down an Oregon law that outlawed private schools and mandated attendance by all Oregon students at government schools. McReynolds wrote the opinion in that case, Pierce v. Society of Sisters, declaring that children were not “mere creatures of the State.” The freedom to choose a private education, he wrote, was protected by the Constitution (the Fourteenth Amendment in particular).
Words of Wisdom from Justice George Sutherland
“The saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time.”
When Franklin Roosevelt’s New Deal came along, no one opposed its dubious legal assumptions with more vigor and impact than these four men. In academia, it’s still fashionable today to support the New Deal’s federal power grabs as essential and effective, but they were neither. The measures expressly intended to remedy the Depression actually prolonged it and were mostly abandoned or repudiated later. And regardless of whether they were effective, many of the New Deal programs were constitutional quackery, as Sutherland, Van Devanter, McReynolds, and Butler wisely saw.
With the Four Horsemen leading the way in 1935, the Supreme Court voted unanimously to overturn FDR’s centerpiece: the National Industrial Recovery Act, a price-fixing artifice aimed at cartelizing American industry and forcing prices up at a time of widespread poverty and unemployment. The specific case involved a poultry company and whether consumers had the legal right to choose the chickens they wanted to buy. The government’s lawyers claimed they didn’t, prompting derisive laughter during oral arguments before the court.
In 1936 Chief Justice Charles Evans Hughes and Justice Owen Roberts joined the four in tossing out FDR’s ludicrous Agricultural Adjustment Act. The law imposed a tax on agricultural processors and used the revenue to pay for the destruction of healthy crops and cattle so as to raise prices. The court held that the tax was not constitutional because the payments from its revenues to farmers were coupled with coercive contracts. The justices couldn’t find any nook or cranny in the Constitution that authorized subsidies to farmers for destroying or reducing their crops. (I can’t, either.)
Justice Sutherland, who once flirted with progressive ideology, defended the Constitution in these and other cases with the ferocity of a strict constructionist. In the 1934 case of Home Building & Loan Association v. Blaisdell, he wrote, “If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned.”
The four’s reverence for the Constitution was on brilliant display in the 1936 case Carter v. Carter Coal Company, when, joined by a fifth justice, they refused to treat the Commerce Clause like a piece of taffy. That a commodity might in the future be sold in interstate commerce does not grant the federal government the power to regulate it before it ever leaves a state, the court ruled. The law the justices threw out required mines to pay a tax on coal to support a commission established to fix wages, prices, hours, and other elements of production and trade—a proposition so constitutionally dubious that it should have been laughed out of Congress in the first place.
Sadly, the four were outnumbered in the very important Gold Clause Cases of 1935. Two years earlier, FDR had issued an executive order demanding that American citizens surrender all gold coins, bullion, and gold certificates within a month or face penalties of $10,000 and/or up to ten years in prison. Congress foll
owed up with a resolution that canceled all clauses in private and public contracts that called for payment in gold. In blatant disregard for private property and agreements, the court upheld the seizures by a narrow 5–4 margin. Americans would not be allowed to own gold again until 1974.
In his blistering dissent in the Gold Clause Cases decision, Justice McReynolds wrote:
Just men regard repudiation and spoliation of citizens by their sovereign with abhorrence; but we are asked to affirm that the Constitution has granted power to accomplish both. No definite delegation of such a power exists, and we cannot believe the far-seeing framers, who labored with hope of establishing justice and securing the blessings of liberty, intended that the expected government should have authority to annihilate its own obligations and destroy the very rights which they were endeavoring to protect. Not only is there no permission for such actions, they are inhibited. And no plenitude of words can conform them to our charter.
The four were pilloried in the pro-FDR media and in the progressive ivory towers of academia. Whipped up by Democratic partisans, some communities even hanged them in effigy. The four justices were the principal (and principled) figures FDR had in mind when he sneered at “those nine old men” on the Supreme Court.
But Roosevelt failed in his court-packing contrivance, intended to circumvent the Four Horsemen. Even the president’s own party turned against the scheme. The proposal failed by better than a two-to-one margin in Congress.
Soon, however, Roosevelt would find openings to put his ideological allies on the court. Justice Van Devanter retired later that year; Justice Sutherland, in 1938; Justice Butler, in 1939; and Justice McReynolds, in 1941.
Real Heroes Page 14