Correct, although with a caveat: in this instance “unconstitutional” would mean “the federal government was never granted the authority to do this”, as opposed to “flatly contradicting another provision of the Constitution and it’s amendments”.
Not at all true. If in 2002, you contracted with me to call you at all times when event X happened, and there was a provision for me to physically talk into the phone because you don’t like the hands-free voice (you’re hard of hearing) even while driving, does that invalidate all texting and cell phone laws?
There was briefly an income tax during the Civil War, too: Income tax in the United States - Wikipedia
In addition to that, a lot of those Germans - and virtually all Irish and Italian Americans, who had their own alcohol cultures - were Catholics and urbanites. That gave the mostly Protestant and small-town Dry movement something to unite against beyond just drink. As late as 1928 the Democrats (who had nominated Irish-Italian New Yorker Al Smith for president) could be effectively slammed as the party of “rum and Rome.”
Indeed, there were a number of short lived taxes that were put into law to pay for something or the other. But the 16th amendment came to life in 1913.
So I was right. But, alas, we weren’t playing for money. 
Not true. In 1934, the federal government passed a law, The Gold Reserve Act, making contracts that called for payment in gold unenforceable. Such contracts were converted to payment in cash. It also changed the value of gold from $20.67 to $35 (though I’m not sure which rate was used in the conversion for old contracts). This was just the rate the government would use exchange dollars from foreign governments.
And in fact even though it is now possible to write such contracts again, e.g. commodity bonds, the old contracts are still not enforceable.
Whenever I think about Prohibition, I am always AMAZED that the issue ever reached a consensus in Congress to begin with, much less got to the point where a constitutional amendment was realistic. To think how Congress would approach a law of similar magnitude today…
I’ve often wondered something similar (namely “How on earth did a law effectively banning alcohol get passed???”) and have done a bit of reading on Prohibition in the 1920s to try and understand this.
The best explanation I’ve been able to come up with is “Everybody thought the law wouldn’t apply to them”. It’s my understanding a lot of people thought that only spirits would be banned and that beer and wine would be OK, for example, or that there’d be exemptions for “personal use” (ie the bars and saloons would all be shut but there would still be places to purchase takeaway liquor to consume at home).
FWIW there was a strong temperance movement outside the US, too. The Australian Capital Territory was dry from 1917-1927 and NZ voted on prohibition a few times, notably in 1919 when the votes from soliders stationed overseas (who naturally were not impressed at the prospect of risking their lives and watching their friends die face down in the mud of the trenches, and then being told they couldn’t have a cold beer when they got back home), with the results being extremely close but still- just - against prohibition.
The problem was, how does one make a positive argument in favor of alcohol? The “Wets” were left chiefly with muttering “it’s not THAT bad”. And who wants to go on record as voting for a vice? It’s why marijuana has remained illegal for nearly a century.
Basically Congress decided that jumping on the Dry wagon was the best way to get and stay elected.
The Anti-Saloon League made that a very real consequence.
Basically the same rationale as abortion restrictions today.
I agree that the Contracts Clause argument is bunk – it’s pretty much what always happens when legal issues are discussed in an academic setting when the prof isn’t a lawyer. As others have said, there was no consensus that the federal government could regulate the sale of a retail product. Now, such a consensus is well understood and has been for about 80 years (although there are a handful of conservatives who decry it).
The treaties overriding the Constitution is an interesting idea. Like Little Nemo says, the migratory birds case stands for the proposition that treaties can invest the federal government with the power to pass legislation that would otherwise be beyond the limited powers enumerated in the Constitution (mostly in Art. I, Sec. 8), the authority passing through the constitutional power to make treaties. However, the treaty power does not, as a rule, give the federal government the ability to circumvent the explicit limitations found mostly in the Bill of Rights.
Said another way, the Constitution broadly defines three things – the dos (maintain the Army and Navy, secure the right of 18 year olds to vote, regulate interstate commerce), the don’ts (abridge freedom of speech or assembly, work corruption of the blood, deprive someone of liberty without due process), and everything else. Everything else isn’t specifically prohibited, but it’s not something that’s in the power of the federal government to do. But if the operation of one of the legitimate powers of the federal government incidentally requires regulation in the grey area, that is allowed, but even then, they still can’t overrule the don’t.
The two main ways this happens are the treaty power or, much more frequently, invocation of the Necessary and Proper Clause of Art. I. Sec. 8 to authorize federal action as necessary to the regulation of activity that is itself within the sphere of federal power.
–Cliffy
I haven’t read it, but have heard that Last Call by Daniel Okrent is a great book on Prohibition. Ken Burns’s 2011 PBS documentary Prohibition drew heavily upon it.
I mentioned that in the previous thread that Inner Stickler linked to.
It is a great book and I love Daniel Okrent as a writer. If you’re only going to read one book about Prohibition, make it that one. But he took a great deal from Dry Manhattan: Prohibition in New York City by Michael A. Lerner.
Lerner is a professor and the book is drier and more academic in tone, though certainly readable. And it obviously covers less national ground. What makes it valuable is that it goes in much more detail about many important aspects of the enforcement of Prohibition that Okrent largely skips over and creates more of the atmosphere of the city in those years.
That’s a good theory, but if it were correct then why did the Volstead Act pass over Wilson’s veto with 2/3rds majority in each house of Congress? The implementing prohibition act could have done either of the things you mentioned, but it didn’t. Obviously there were powerful forces that wanted to ban all alcohol in (almost) all circumstances.
The very WASPy temperance movement wanted to ban all alcohol consumption outright. But they knew that that was politically impossible. So they concentrated on the manufacture, transport, and sale of booze. Even then, they were forced to make concessions: sacramental and communion wine were allowed. (I know that even that bugged southern baptists. We substitute grape juice for wine in the communion.) Booze could be prescribed by a doctor (see the form here). But another political exemption on prohibition was for hard cider. Since this was a form of booze enjoyed almost exclusively by WASP farmers and country folk, the prohibitionists left it alone so as not to lose the support of their big fan base.
