This has been puzzling me for years. An amendment is, by definition, a change in a document. There is nothing in the Constitution about the manufacture or sale of alcohol, as there wouldn’t be, since it’s essentially a plan of government that details who or what has which powers. So why did Temperance advocates push for the 18th Amendment Prohibiition an amendment instead of a federal law–as the prohibition against the growth or sale of marijuana is?
I can find lots of info on the Temperance Movement and the passage of the 18th Amendment, but zippo that answers my question.
Nobody believed that the federal government held the power, under the Constitution as originally written, to ban the production, distribution, and sale of alcohol. Congress and the states had to amend the Constitution.
They could have amended the Constitution to merely grant the federal government the necessary power, leaving it to Congress to decide whether to actually pass such a law. This was the route taken, for example, with the income tax.
But that would have required the battle to be fought twice, once to pass the amendment and once to pass the law. And it would have left Prohibition vulnerable to repeal by a majority in Congress plus the President.
So the proponents wrote the ban right into the Constitution, which required another amendment to repeal it.
The short answer is that Temperance was a moral crusade. Laws could be repealed. Amendments never had been. They were fixed and immutable.
And laws were made by lawmakers. The movement didn’t trust Congress. In fact, Congress wasn’t wildly enthusiastic about Prohibition. The South didn’t like the whole notion of federal control over state matters, which sounds good in theory, but was really code for saying that if feds could tell them about liquor they could tell them how to deal with Negroes. The Northeast had large Catholic immigrant populations who were vehemently anti-Prohibition.
Getting an Amendment through Congress was a one-time thing. Lots of wheeling-dealing and pure corruption went into it. Getting three-quarters of the states was harder, and lots of corruption went into that as well. But in both cases it was a matter of bullying the last few votes to push it over.
And that was supposed to be it, for all time. Congress did have to pass the Volstead Act for the enforcement machinery, but they mostly stood back and let the country drink. People who wanted their moral victory got it. People who wanted their liquor also got it. Win-win if it weren’t for all those dead people…
Thus Repeal. But the bigger point is that nobody expected an Amendment to go away, ever. And once it did, no other Amendment has ever gone away. That’s because people learned to be reluctant to put moral crusades into the Constitution, even though lots of them have tried since.
This OP is inadvertently (poignantly to me) raising GD material. We live in a time when it’s just natural for an American to assume Congress can pass a national law doing anything.
Back then they still took the Constitution seriously as though the federal government were one with enumerated powers (not bullshit dormant commerce clause plenary jurisdiction). Because nothing in the Constitution specifically authorizes Congress to regulate alcohol, they thought they had to change the Constitution.
You just laid out those reasons a few posts before.
Perhaps I am not not reading it correctly.
Apparently they didn’t take it seriously enough to realize that the Constitution is all about what the government can’t take away from you. Prohibition flew right in the face of this.
Well that might be difficult because the whole point is I don’t know if anyone even thought to propose doing it as a federal statute, precisely because that would have seemed a non-starter. I’ll look around though.
I’m trying to be polite in GQ. As Romeo and Whatsherface mentioned earlier, Congress could pass a Harrison Act. It could pass a thousand bills taking stuff away from you. Everyone knew that and understand that. Thirty states had already enacted dry laws before the national bill went through. Congress clearly had the power to make it national.
Your notion about the Constitution has no foundation. Huerta88’s rant is a political belief with no foundation. If either of you want to defend your statements by quoting contemporaries, please try to do so. But my reading tells me that you’re taking a modern belief - and one subscribed to only by a minority today - and putting it back in time where it doesn’t belong.
The Harrison Act was structured as a tax for that very reason (as was a similar prohibition against marijuana in 1937.) The tax was transparently a ruse, being set at only $1 per hundred prescriptions, but the Supreme Court upheld it in United States v. Doremus in 1919.
Note, however, that this was a closely run thing–a lower court had ruled the Harrison Act unconstitutional, and the Supreme Court reversed only by 5-4. And, this happened in 1919, after Prohibition had already been drafted.
That was another moral crusade. However, the impetus for that was somewhat different. The Supreme Court was, by our standards, palaeolithically conservative. It held the right of contract sacrosanct. Prohibiting child labor by an amendment was the only end run that was possible.
Over time, the principles that are associated with the Progressives took hold. They went from radical subversion to bedrock democracy and the Supreme Court eventually adjusted to that reality. Once that happened the need for an Amendment evaporated. Same with the eight-hour day and minimum wage and a million other things we take for granted today.
This is not the same thing as a belief about the enumerated powers of the federal system. Nothing about the Constitutional balance of state and federal power had to change. Society’s willingness to make contract law sacrosanct changed.
They managed to ban marijuana and other substances without an amendment and I see nothing in the constitution that authorizes that. Especially, say, for marijuana that is grown and consumed in California without ever entering into interstate commerce.
As noted above, the earliest “ban” on marijuana took the form of a tax. Later drug laws were more explicit, and not disguised as taxes, because in the meantime the Supreme Court had expanded the scope of the Interstate Commerce Clause during the New Deal.
The Volstead Act was an Act that implemented the 18th Amendment. The Amendment prohibited the production, sale, and transport of “intoxicating liquor,” but it did not define what “intoxicating liquor” is, nor did it define penalties. The Volstead Act filled in the blanks, but the 18th Amendment mandated the prohibition. This was said before, but I thought I would make it clear that many federal acts need implementing by federal agencies. In this case, it was a constitutional amendment that needed implementation by a federal statute.
