# Why didn't the Volstead Act make possession of liquor illegal?
**URL:** https://boards.straightdope.com/t/why-didnt-the-volstead-act-make-possession-of-liquor-illegal/431143
**Category:** Factual Questions
**Created:** [December 24, 2007, 6:26pm UTC](https://boards.straightdope.com/t/why-didnt-the-volstead-act-make-possession-of-liquor-illegal/431143 "2007-12-24T18:26:09Z")
**Posts on this page:** 12
**Page:** 1
### Author:  [@aldiboronti](https://boards.straightdope.com/u/aldiboronti)
#### Post date: [December 24, 2007, 6:26pm UTC](https://boards.straightdope.com/t/why-didnt-the-volstead-act-make-possession-of-liquor-illegal/431143/1 "2007-12-24T18:26:09Z")
From the text of the [Volstead Act](http://www.historycentral.com/documents/Volstead.html)
> [@](#):
>
> … But it shall not be unlawful to possess liquors in one’s private dwelling while the same is occupied and used by him as his dwelling only and such liquor need not be reported, provided such liquors are for use only for the personal consumption of the owner thereof and his family residing in such dwelling and of his bona fide guests when entertained by him therein …
Where on earth were they supposed to obtain such liquors? Why didn’t the Voilstead Act go the whole way and make the consumption of alcohol illegal? It just doesn’t make sense this way, it’s like allowing people to possess and use heroin and cocaine in their homes while outlawing the dealers. By this half measure they made it virtually certain that a bootlegging industry would spring up to supply the demand for the lawful consumption of liquor.
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### Author:  [@hajario](https://boards.straightdope.com/u/hajario)
#### Post date: [December 24, 2007, 6:35pm UTC](https://boards.straightdope.com/t/why-didnt-the-volstead-act-make-possession-of-liquor-illegal/431143/2 "2007-12-24T18:35:39Z")
They probably didn’t want people to have to throw away what they had previously bought legally.
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### Author:  [@yabob](https://boards.straightdope.com/u/yabob)
#### Post date: [December 24, 2007, 6:40pm UTC](https://boards.straightdope.com/t/why-didnt-the-volstead-act-make-possession-of-liquor-illegal/431143/3 "2007-12-24T18:40:52Z")
There might have been a constitutional challenge to that. Outlawing sale and transportation was justifiable under the ever-handy interstate commerce clause.
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### Author:  [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)
#### Post date: [December 24, 2007, 6:56pm UTC](https://boards.straightdope.com/t/why-didnt-the-volstead-act-make-possession-of-liquor-illegal/431143/4 "2007-12-24T18:56:00Z")
[QUOTE=yabob]
There might have been a constitutional challenge to that. Outlawing sale and transportation was justifiable under the ever-handy interstate commerce clause.
[/QUOTE]
There might have been a constitutional challenge, but not for the reason you say. The Volstead Act was authorized by the Eighteenth Amendment, not by the interstate commerce clause. The Eighteenth Amendment empowered (actually, _required_) Congress to ban “the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States”. It didn’t say anything about possession.
One might ask, why not. Most likely the drafters knew that anything empowering federal agents to burst into people’s homes looking for small private stocks of alcohol would have aroused greater resistance. Plus, as **hajario** says, a ban on possession would have required everybody to destroy what they already possessed, or drink it all in one last monster binge in January 1920!
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### Author:  [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)
#### Post date: [December 24, 2007, 7:52pm UTC](https://boards.straightdope.com/t/why-didnt-the-volstead-act-make-possession-of-liquor-illegal/431143/5 "2007-12-24T19:52:37Z")
[QUOTE=aldiboronti]
Where on earth were they supposed to obtain such liquors? Why didn’t the Voilstead Act go the whole way and make the consumption of alcohol illegal? It just doesn’t make sense this way, it’s like allowing people to possess and use heroin and cocaine in their homes while outlawing the dealers. By this half measure they made it virtually certain that a bootlegging industry would spring up to supply the demand for the lawful consumption of liquor.
[/QUOTE]
It’s also an issue of ex post facto law: If it was legal to own the alcohol before prohibition, no law could make owning it suddenly illegal. It would have been a nightmare to prove when a particular bottle was bought.
And some places did have legal alchohol throughout Prohibition; I seem to recall some club at Yale that stocked up and had plenty until repeal. No doubt there were others.
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### Author:  [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)
#### Post date: [December 24, 2007, 8:11pm UTC](https://boards.straightdope.com/t/why-didnt-the-volstead-act-make-possession-of-liquor-illegal/431143/6 "2007-12-24T20:11:38Z")
[QUOTE=RealityChuck]
It’s also an issue of ex post facto law: If it was legal to own the alcohol before prohibition, no law could make owning it suddenly illegal. It would have been a nightmare to prove when a particular bottle was bought.
And some places did have legal alchohol throughout Prohibition; I seem to recall some club at Yale that stocked up and had plenty until repeal. No doubt there were others.
[/QUOTE]
Um, that is not an example of an _ex post facto_ law.
Basic information about the Eighteenth Amendment can be found at [Wikipedia:Eighteenth Amendment](http://en.wikipedia.org/wiki/Eighteenth_Amendment_to_the_United_States_Constitution).
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### Author:  [@A.R.Cane](https://boards.straightdope.com/u/A.R.Cane)
#### Post date: [December 24, 2007, 8:24pm UTC](https://boards.straightdope.com/t/why-didnt-the-volstead-act-make-possession-of-liquor-illegal/431143/7 "2007-12-24T20:24:33Z")
My FiL’s family owned a restuarant and bar. During prohibition they moved the bar to the basement and ran a speakeasy. As a young man he made booze runs in a ‘laundry’ truck. He inherited the business and it was still operating during my marriage. The old door was still on the basement entrance, with it’s little ‘judas door’ intact.
I think the law was directed at the purveyors of alcohol, to make it more acceptable to the average citizen. It probably wouldn’t have been ratified if the people believed they were subject to arrest in their homes.
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### Author:  [@Hari\_Seldon](https://boards.straightdope.com/u/Hari_Seldon)
#### Post date: [December 24, 2007, 9:10pm UTC](https://boards.straightdope.com/t/why-didnt-the-volstead-act-make-possession-of-liquor-illegal/431143/8 "2007-12-24T21:10:14Z")
Had they made possession illegal, then all the wealthy people who could afford to stock up on enough liquor until the madness passed would have been SOL. This included the White House.
Another thing is that manufacture of liquor was not illegal. Theoretically, it was all for export. My father told me once that so much was “stolen” from bonded warehouses that the government began to tax the amount stolen. (I cannot vouch for this claim since i have never ehcked it out.)
Interestingly, the same exemption applies to Cuban goods. They cannot be legally purchased but if you have a 50 year old supply of Cuban cigars (huh?) it is perfectly legal to own and smoke them.
Now I have a question. Why did it take a constitutional amendment to ban the sale of liquors but a simple act of congress can ban marijuana? And exactly what clause of the constitution allows the feds to ban the sale of medical marijuana that under California law is legally grown in California and used only there (for medical purposes, although that is irrelevant to this question)?
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### Author:  [@hajario](https://boards.straightdope.com/u/hajario)
#### Post date: [December 24, 2007, 9:45pm UTC](https://boards.straightdope.com/t/why-didnt-the-volstead-act-make-possession-of-liquor-illegal/431143/9 "2007-12-24T21:45:40Z")
[QUOTE=RealityChuck]
If it was legal to own the alcohol before prohibition, no law could make owning it suddenly illegal. It would have been a nightmare to prove when a particular bottle was bought.
[/QUOTE]
That certainly didn’t apply to slavery. It didn’t apply when various recreational drugs like LSD and MDMA suddenly became illegal either.
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### Author:  [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)
#### Post date: [December 24, 2007, 10:27pm UTC](https://boards.straightdope.com/t/why-didnt-the-volstead-act-make-possession-of-liquor-illegal/431143/10 "2007-12-24T22:27:01Z")
[QUOTE=Hari Seldon]
Now I have a question. Why did it take a constitutional amendment to ban the sale of liquors but a simple act of congress can ban marijuana? And exactly what clause of the constitution allows the feds to ban the sale of medical marijuana that under California law is legally grown in California and used only there (for medical purposes, although that is irrelevant to this question)?
[/QUOTE]
Partly because there has been a shift in the interpretation of the Commerce Clause in the intervening years. But mostly it was because the 18th Amendment wasn’t necessary to accomplish the ban, but was enacted to make it harder to overturn the ban. By instituting a constitutional amendment, the dries made it so that the wets would have to pass a constitutional amendment to undo Prohibition (which took until 1933 to accomplish). Had they simply passed a law to do the same thing, then it could have been overturned by the election into office of a majority of wets in the Congress (with a wet president).
As to the hijack, the ability to criminalize possession of marijuana exists under the same portions of the constitution that allow the federal government to criminalize possession of any drug. The fact that an individual state doesn’t mind is of little relevance.
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### Author:  [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)
#### Post date: [December 24, 2007, 11:00pm UTC](https://boards.straightdope.com/t/why-didnt-the-volstead-act-make-possession-of-liquor-illegal/431143/11 "2007-12-24T23:00:12Z")
> [@Hari Seldon](#):
>
> Another thing is that manufacture of liquor was not illegal.
Of course it was. See the text of the Eighteenth Amendment quoted above. There were exemptions for medicinal and sacramental purposes, however (not for export), and these would have been the stocks that your father found “stolen”.
[QUOTE=Hari Seldon]
Why did it take a constitutional amendment to ban the sale of liquors but a simple act of congress can ban marijuana?
[/quote]
During the era leading up to Prohibition, Congress didn’t assert its authority to ban drugs either. Early federal drug laws took the form of bans on imports, or bans on interstate commerce, or excise taxes (as in the case of the [Marihuana Tax Act of 1937](http://www.druglibrary.org/schaffer/hemp/taxact/mjtaxact.htm), for that very reason.
By the time Congress ramped up the modern War on Drugs with the Controlled Substances Act of 1970, the commerce clause had been applied to intrastate commerce by the infamous ruling of [Wickard v. Fulbin](http://en.wikipedia.org/wiki/Wickard_v._Filburn) . . .
> [@Hari Seldon](#):
>
> And exactly what clause of the constitution allows the feds to ban the sale of medical marijuana that under California law is legally grown in California and used only there (for medical purposes, although that is irrelevant to this question)?
. . . and so it remains to this day. The Controlled Substances Act, as applied to marijuana grown and consumed within a state, was challenged in the case of [Gonzales v. Reich](http://en.wikipedia.org/wiki/Raich_v._Ashcroft) in 2005. Gonzales won.
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### Author:  [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)
#### Post date: [December 25, 2007, 4:10am UTC](https://boards.straightdope.com/t/why-didnt-the-volstead-act-make-possession-of-liquor-illegal/431143/12 "2007-12-25T04:10:58Z")
Didn’t most day-to-day enforcement of Prohibition fall to state and local police rather than federal agents? As I recall politicians in some states (eg Neveda) we less than enthusiastic about it and never bothered to pass anti-alcohol laws at the state level. On the other hand some states (Michigan) went farther than the Volstead Act and outlaws the possesion and consumption of alcohol (other than medicinal, sacremental, etc use).