I’m not asking about the decision to ban alcohol as a policy, I questioning it as a procedure. Why was a constitutional amendment used as the means of prohibiting alcohol? Wouldn’t the dry lobby have had an easier time just getting a comprehensive law passed? No one appears to have felt an amendment was needed to ban marijuana or cocaine on a national level.
The Constitution does not give the Federal government the power to regulate sales of alcohol within the several states, only interstate commerce. A federal law banning the sale and manufacture of liquor would be struck down as unconstitutional. The only way to accomplish it at the federal level was to amend the Constitution.
The prohibitionists knew that there were some states that would never vote to ban alcohol, and that those states would become the suppliers for the dry states.
As for marijuana and cocaine, the percentage of the U.S. population using those has never been anywhere near the percentage of Americans who used (and abused) alcohol. If they were as popular as alcohol, who knows what would have happened.
Thanks to friedo and Walloon for their posts, but the answers don’t resolve the problem for me. If a law prohibiting alcohol would have been unconstitutional, why weren’t contemporous laws against other drugs ruled unconstitutional? Marijuana was less of an interstate product than alcohol and cocaine use was very widespread. Was there a specific USSC decision on alcohol that had to be overriden?
Well, many states have passed medical marijuana laws, but the federal government still says marijuana is illegal for all purposes. Surely one of these state governments would have brought a court case against the feds by now if the federal law was unconstitutional.
By 1937, when the federal Marihuana [sic] Tax Act was passed, marijuana use was already illegal in all states, based on the model Uniform Narcotic Drug Act endorsed by the Federal Bureau of Narcotics as an alternative to federal laws.
Rather than prohibit the purchase of marijuana directly, the federal Marihuana Tax Act of 1937 imposed a prohibitive tax of $100 an ounce on designated transactions. The penalty provisions of the Act: five years’ imprisonment, a $2,000 fine, or both. Furthermore, any marijuana dealer who did pay the token $3/year dealer tax had to keep written records of each transaction, including the names and addresses of all buyers.
Your question is a good one. At the time, at least lawmakers knew they had to pass an amendment for such a policy. No-one today seems troubled by such technicalities.
Federal powers have been increasing for years. I believe that the Commerce clause. Apparently anything involved in interstate commerce can be considered Federal juristiction. It seems to me that gives the Feds power over everything but IANAL. Maybe minty green will drop by to explain what’s different between the two situations. Here’s a Great Debate thread “What do the Ninth and Tenth Amendments really mean?” where it is brought up.
Ditto.
There is no specific power in the constitution for the federal government to outlaw any material object, which is why no substance, no weapon, no object was ever outlawed without a constitutional ammendment for over 150 years.
If the contstitution does not specifically grant the federal governemnt the power to do something, then the power is reserved to the states.
Frankly, I would think the founding fathers would be bewildered why anyone would want to federally outlaw an inanimate object.
I think the answer to the question of why an amendment is simply that the “drys” wanted it to be nationwide and permanent. Although this is ironic in view of what happened only a few years later, prohibition was thought of as much of a moral crusade as the civil rights movement would become. The overwhemling majority of the country was already dry; the amendment was to ensure that the hold-outs could never gain dominance.
William Klingamen, 1919
TheVolstead Act is what actually controlled prohibition and its wording shows clearly that it depended on the 18th amendment for its authority.
No lawyers yet?
OK, I’ll offer the explanation from Business Law 101:
A law may not invalidate a pre-existing contract.
Under this doctrine, a simple law would not have stood - all the manufactures, distributors, etc. had legally enforcable contracts - only a constitutional amendment could void those contracts.
So if I find a new narcotic that just happens to… oh, say, kill 1 in 10 people who use it, and I get a huge contract to manufacture and sell it… if they outlaw it, I get to make and distribute everything the contract entitles me to before I have to stop?
Okay, I did a little online research. Cocaine and opium products were essentially prohibited by the Harrison Narcotics Act of 1914. This law did succeed in making these drugs illegal nation wide. However at the time, there was wide resistance from medical and business groups that had a financial stake in the issue and legal authorities who questioned whether the federal government had the right to regulate drug use. We now know these efforts would fail, but they seemed possible at the time.
So (and here I’m speculating) the organizations that were lobbying for alcohol prohibition may have decided to bypass these problems and go for a constitutional amendment. In other words (assuming my theory is correct) an amendment wasn’t necessary but people thought it was.
IANAL, but I think your new drug would be found contrary to public policy (under the “it’s not nice to kill people” theory), thus rendering any contract to supply it unenforcable (or some such term - any lawyers want to check in on what the exact status would be?).
And, as noted, current law has eroded the common law concept of “contracts cannot be voided by law” to the point where the FDA certainly CAN ban manufacture and/or distribution of anything it decides to call a “drug”.
How many liquor manufacture and delivery contracts lasted for more than a year? I ask because obviously this principle of constitutional law (“No state shall . . . pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts”) did not stop states from passing and enforcing their own prohibition acts years before the 18th Amendment. I think by setting the effective date of the state and local laws to be a year or so from the date of passage allowed existing contracts to expire naturally.
But notice the convoluted way in which the Harrison Act was written, as an excise tax rather than a prohibition. Even so, in 1916 the Supreme Court threw out an early Harrison Act prosecution in U.S. v. Jin Fuey Moy in terms which cast doubt on its enforceability. Furthermore, the Court’s opinion stated,
In short, no reasonable person in 1917 could have expected that SCOTUS would sustain a nationwide, federal statutory ban on the sale of alcohol.
I think this is greatly overstating the case. You’re simply counting counties, while there is nothing (size polupation, etc.) at all similar about counties, so counting them is meaningless.
I’d guess that, for example, there were a whole bunch of Illinois counties downstate that were dry, with pretty tiny populations. While Cook county (containing Chicago & suburbs) was wet.
So I think that if you were to give us a citation of the number of people nationwide living in a dry county vs. the number of people living in a wet country, the results would be much different.
Exactitude is difficult in dealing with state and local Prohibition. Bans varied in whether they applied to alcohol sale, possession, distillation, or importation (or all of the above), and sources disagree as to the count of “dry” states and counties at any given time. Here is what we can say with confidence:
-
Before America entered WWI in April 1917, Prohibition was a successful and growing but still largely regional movement. Sources cite between 19 and 23 “dry” states—mostly in the South and rural Midwest, but with breakthroughs toward the end of the period in Michigan and Washington. In 1916 a national Prohibition amendment failed in the House with 197 in favor and 190 opposed.
-
American entry into WWI pushed national Prohibition over the top. Sobriety seemed like a greater virtue during wartime, alcohol “wasted” grain which could feed troops, and most brewers were German-American which made the profession suspect. Within a few months both houses of Congress mustered the necessary two-thirds majorities for a Prohibition amendment.
-
Thereafter, with eventual national Prohibition a foregone conclusion, more states and counties piled onto the bandwagon and went dry, which accounts for the high numbers cited by Exapno.
-
Given the political and legal climate in 1917, a Constitutional amendment was the only viable national strategy.
I think you’re missing the point. It’s exactly because the wet counties were disproportionately major urban areas that the rest of the country was so anxious to get a national amendment through. And it’s because the wets were concentrated in so small an area that it was easy to get the necessary majorities in Congress and 36 states to push the amendment through.
As I said, “the amendment was to ensure that the hold-outs could never gain dominance.”