Prohibition, the Constitution, and States' Rights

By Sean Beienburg

Colorado’s legalization of marijuana spurred intense debate about the extent to which the Constitution preempts state-enacted laws and statutes. Colorado’s legal cannabis program generated a strange scenario in which many politicians, including many who freely invoke the Tenth Amendment, seemed to be attacking the progressive state for asserting states’ rights. Unusual as this may seem, this has happened before—in the early part of the twentieth century, as America concluded a decades-long struggle over the suppression of alcohol during Prohibition.
           
Sean Beienburg recovers a largely forgotten constitutional debate, revealing how Prohibition became a battlefield on which skirmishes of American political development, including the debate over federalism and states’ rights, were fought. Beienburg focuses on the massive extension of federal authority involved in Prohibition and the passage of the Eighteenth Amendment, describing the roles and reactions of not just Congress, the presidents, and the Supreme Court but political actors throughout the states, who jockeyed with one another to claim fidelity to the Tenth Amendment while reviling nationalism and nullification alike. The most comprehensive treatment of the constitutional debate over Prohibition to date, the book concludes with a discussion of the parallels and differences between Prohibition in the 1920s and debates about the legalization of marijuana today.
 

• Language: English
• Publisher: University of Chicago Press
• Release date: Jun 27, 2019
• ISBN: 9780226632278

Book preview

Prohibition, the Constitution, and States’ Rights

Prohibition, the Constitution, and States’ Rights

SEAN BEIENBURG

THE UNIVERSITY OF CHICAGO PRESS

CHICAGO AND LONDON

The University of Chicago Press, Chicago 60637

The University of Chicago Press, Ltd., London

© 2019 by The University of Chicago

All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission, except in the case of brief quotations in critical articles and reviews. For more information, contact the University of Chicago Press, 1427 E. 60th St., Chicago, IL 60637.

Published 2019

Printed in the United States of America

28 27 26 25 24 23 22 21 20 19    1 2 3 4 5

ISBN-13: 978-0-226-63194-3 (cloth)

ISBN-13: 978-0-226-63213-1 (paper)

ISBN-13: 978-0-226-63227-8 (e-book)

DOI: https://doi.org/10.7208/chicago/9780226632278.001.0001

Library of Congress Cataloging-in-Publication Data

Names: Beienburg, Sean, author.

Title: Prohibition, the Constitution, and states’ rights / Sean Beienburg.

Description: Chicago ; London : The University of Chicago Press, 2019. | Includes bibliographical references and index.

Identifiers: LCCN 2019002015 | ISBN 9780226631943 (cloth : alk. paper) | ISBN 9780226632131 (pbk. : alk. paper) | ISBN 9780226632278 (e-book)

Subjects: LCSH: Prohibition—United States—History—20th century. | Federal government—United States—History—20th century. | Prohibition—Political aspects—United States—History—20th century. | United States. Constitution. 18th amendment. | United States. Constitution. 21st amendment.

Classification: LCC KF3919 .B45 2019 | DDC 344.7305/41—dc23

LC record available at https://lccn.loc.gov/2019002015

This paper meets the requirements of ANSI/NISO Z39.48-1992 (Permanence of Paper).

Contents

Acknowledgments

CHAPTER 1  Introduction: Prohibition, Now and Then

CHAPTER 2  Alcohol and Liberalism: Before National Prohibition

CHAPTER 3  Prohibition and Federalism: The Road to the Sheppard Amendment

CHAPTER 4  Ratifying and Implementing the Sheppard Amendment (1918–21)

CHAPTER 5  Ratifying and Implementing II (1918–21): The Northeast

CHAPTER 6  The Dry Tide Recedes (1922–23)

CHAPTER 7  Constitutional Obligations (1923–24)

CHAPTER 8  Taking Alcohol to the People of the States (1925–28)

CHAPTER 9  The Noble Experiment (1929–31)

CHAPTER 10  The Dam Breaks (1932–33)

CHAPTER 11  Conclusion: Prohibition and American Constitutionalism

CODA  Pot and Popular Constitutionalism: Prohibition’s Lessons for the Marijuana Legalization Debate

List of Abbreviations

Notes

Index

An online appendix is available at https://press.uchicago.edu/sites/beienburg/.

Acknowledgments

Among my tasks during my postbaccalaureate fellowship year was helping assemble a volume of essays, a line from which sticks with me to this day: Human beings are not born free, but indebted; their identities are more defined by what they owe than by what they own.¹f With that in mind, I begin by acknowledging some of those to whom I am so indebted, both professionally and personally.

During the course of this project I received generous financial support from the Miller Center at the University of Virginia (under Brian Balogh), the Institute for Humane Studies, Lehigh University, and Princeton’s Program in American Studies. I also thank the staff at the Firestone Library and particularly the Wisconsin Historical Society—an essential resource for anyone researching state politics.

I commenced the early part of this research at Princeton, alongside folks devoted to helping a developing scholar to whom I remain very grateful. Paul Frymer has been the ideal mentor: a supportive friend who is happy—indeed, eager—to comment on work and let me stop by to bounce ideas off of him (even when he’s visibly swamped) and doggedly committed to ensuring his students succeed in the way they—not he—want to. Keith Whittington is incredibly generous in sharing his peerless knowledge of American political history, federalism, and constitutional theory as well as wry conversations on politics—now, shockingly, online. Dirk Hartog laughed once that his main contribution to the project was directing me to the Wisconsin Historical Society state collection. While that certainly helped, he has also been extremely generous in treating a political science interloper as a fellow historian and providing incredibly detailed feedback. Omar Wasow offered helpful counsel, especially on the racial politics underlying prohibition. I also benefited greatly from conversations with Chris Achen, Robby George, Phil Wallach, Sean Wilentz, and Brad Wilson, who all helped make Princeton a vibrant place to discuss constitutionalism.

I also received much helpful feedback on this project from Richard Bensel, John Dinan, Mark Graber, Paul Herron, Ken Kersch, Helen Knowles, Rick Matthews, Alan Tarr, Rebecca Zietlow, Michael Zuckert, and the two anonymous reviewers. Chuck Myers and Holly Smith have been every bit the helpful and patient editors one would want.

Some of this material has been presented at meetings of the American Political Science Association, the New England Political Science Association, the Law and Society Association, and Policy History. I thank the Jack Miller Center and American Political Thought for allowing me to incorporate material from my Neither Nullification nor Nationalism: The Battle for the States’ Rights Middle Ground during Prohibition, American Political Thought 7 (2018): 271–303, © 2018 by the Jack Miller Center.

My study of constitutional and legal development was cultivated by passionate professors, specifically Phillip Argento, Justin Crowe, Gary Kates, Charles Lofgren, Robert Woods, and especially Susan McWilliams.

As Ecclesiastes 12:12 observes: Of making many books there is no end, and much study wearies the body. A few family and friends are owed a lot of gratitude for their especially generous support during my academic career. Of my extended family, Bruce and Joanne McCallum, Cara McCallum, Stephanie Sullivan, and Brad Grandy warrant special thanks. So do several friends, from grad school, college, and before: Richard Jordan, Ross Williford, Herschel Nachlis, Alexander Haines (who volunteered to read the manuscript for a nonacademic’s perspective), Steven Hurtado, Alistair Rockoff, James Stake, Trevor Lagers, Jordan Perry, and Joe Wachtel.

My brother, Matt Beienburg: I consider myself very fortunate indeed that our paths could cross twice more after Phoenix, first in Claremont and then Princeton, before now reconvening back in Arizona. In addition to being the mapmaker and a reader for this book, he has always been, and I hope will continue to be, my most treasured conversationalist and my closest adviser, with perhaps one exception.

Matt and I were raised by our grandparents and, after the death of my grandfather, Steve Beienburg, by my grandmother, Helen. Raising two boys alone was not exactly the plan for quiet retirement she anticipated, which makes her many sacrifices on our behalf all the more appreciated. Years ago, in conversation a few weeks before we both finished graduate school, Matt and I both acknowledged that any successes we have are due to her and our failures in spite of her, and I have since wanted to put that in writing that she and others might see it. That both Matt and I ended up working in the realms of politics and education is a result of her teaching us to cherish the value of civic knowledge in preserving a well-functioning constitutional republic. I hope she will find this project a fitting tribute.

Ditat Deus.

CHAPTER ONE

Introduction

Prohibition, Now and Then

Will New York secede from the union? I wouldn’t care, would you?—Anonymous attendee at a dinner held for the Anti-Saloon League, protesting New York’s decision to repeal its act enforcing the Eighteenth Amendment¹

You are making it possible for a state to secede from the Union. You are trifling with a great principle to save your political hides.—A dry Republican state senator to colleagues who approved New York’s referendum against national prohibition²

In the wake of Colorado’s 2012 legalization of marijuana, two of its neighboring states asked the Supreme Court to strike down the Centennial State’s constitutional amendment as a violation of the nation’s founding charter.³

According to the state attorneys general, the complex regulatory practices attached to the repeal of Colorado’s marijuana laws violated the supremacy clause of the US Constitution. Article VI holds that the Constitution and all laws made in pursuance thereof . . . shall be the Supreme Law of the land—in effect, that the Constitution and any laws that it authorizes trump any conflicting state law, including a state’s constitution. Nebraska and Oklahoma v. Colorado argued that the state’s marijuana amendment created such a conflict.

More specifically, Nebraska and Oklahoma charged that Colorado’s regulation of a statewide marijuana industry, enacted as part of the state’s repeal initiative, conflicts with the Controlled Substances Act’s federal prohibition of marijuana—and, thus, that its repealing law is unconstitutional.⁴

Colorado, for its part, insisted that the federal government remained perfectly free to enforce the Controlled Substances Act within its territory. That the federal government does not do so is, according to Colorado, the result of executive decisionmaking, not any fault of the state’s law.⁵ In effect, Colorado argued that the state’s marijuana amendment commits it to inaction rather than conflict, unlike the nullification doctrines of the antebellum South, which threatened military opposition to federal enforcement of congressional laws.

Nor was Colorado contesting the constitutionality of the Controlled Substances Act, which is, after all, in this instance regulating purely intrastate marijuana. That has already been tried, and the states lost. In the 2005 case Gonzales v. Raich, the Supreme Court, over fierce states’ rights dissents by Justices Clarence Thomas and Sandra Day O’Connor (joined by the dying Chief Justice William Rehnquist), held that the enumerated constitutional power to regulate interstate commerce also brought with it the authority to suppress purely intrastate trafficking and even possession of homegrown medicinal marijuana. Stated another way, a state market (or nonmarket) affected the federal ability to control a national market and thus authorized congressional suppression even of a wholly in-state good.⁶

Critics have noted the strange scenario in which reliably Republican states whose officials often invoke the Tenth Amendment seem to be attacking an increasingly progressive neighbor for asserting its own sovereign prerogatives—a claim that some Nebraska and Oklahoma legislators have found persuasive in discouraging their own states’ lawsuits.⁷ Taking the opposite tack, ten years earlier, the attorneys general of Alabama, Louisiana, and Mississippi explained that their states remained firmly committed to the statewide suppression of marijuana but wanted vigorously to defend California’s constitutional right to experiment with medical marijuana, consistent with a narrower interpretation of the federal government’s interstate commerce clause power.⁸

Federalism complicates our usual political alliances. In this case, conservative members of Congress invoke states’ rights to join with progressive colleagues invoking criminal justice in seeking to end Controlled Substances Act enforcement in pro–medical marijuana states. In Raich, Justice Thomas sided with Stephen Reinhardt, the leading left voice on the progressive Ninth Circuit, and against Justice Antonin Scalia, who backed the federal government, much to the bitter disappointment of Raich’s attorney, the libertarian law professor Randy Barnett.⁹ Attorneys from the Deep South defended pot (in 2004); conservative Plains states defended federal authority (in 2015). Over the protest of Justices Thomas and Samuel Alito, the Court declined to hear the Colorado case, leaving unclear the federalism implications of such a state and federal clash.¹⁰

Unusual as this may seem, all this has happened before—in the early part of the twentieth century, as the American people finally concluded the decades-long struggle toward the national suppression of alcohol: Prohibition.

Immortalized since Dashiell Hammett’s contemporary hard-boiled short stories of the Continental Op(erative) (a thinly fictionalized Pinkerton agent) and other toughs navigating rum-soaked San Francisco or Izzard, Arizona,¹¹ or the formative years of Hollywood, from the original Scarface to The Untouchables to Boardwalk Empire, Prohibition still casts a long shadow over American popular culture. But, while the popularity of gangster fiction in the national imagination comes and goes, the impact of prohibition on America’s legal order was even stronger. In a call to arms later widely popularized as the noble experiment, Herbert Hoover’s 1928 speech accepting the Republican nomination for president recognized the stakes of prohibition: Our country has deliberately undertaken a great social and economic experiment, noble in motive and far-reaching in purpose.¹²

It was equally far-reaching in effect. Prohibition’s creation of a national law enforcement regime altered not only the relationship between the states and the federal government but also that between the government and the individual. David Kyvig observes: National prohibition was arguably the most radical and significant constitutional reform ever adopted. Only the Thirteenth Amendment . . . rivals it. That is, both interjected the federal government directly into individual conduct, destroying property interests, and pulling power from the states.¹³ Implementation by the Department of the Treasury’s prohis (pronounced pro-hees) and their state allies triggered a variety of controversial changes, including warrantless searches of cars¹⁴ and tapping of phones,¹⁵ prosecutions by both state and federal prosecutors despite double jeopardy protections,¹⁶ and other contested applications of constitutional guarantees. The creation of the vast new national powers that so unnerved states’ rights constitutionalists seemed especially jarring in an era otherwise recoiling from the expansion of national power during World War I. According to Lisa McGirr’s history of the war on alcohol, Prohibition drastically built the power of the American state, injecting the federal government into the traditional domains of state authority such as policing and criminology, and working to build a nationalized and professionalized carceral and law enforcement state—one that survived the fall of the Eighteenth Amendment.¹⁷ Prohibition was thus, in the words of James Morone, American government’s overlooked growth spurt, one that would drastically rewrite American federalism, criminal justice, the courts, civil liberties, crime-fighting, crime families, and national attitudes.¹⁸

If its implications for national power were long overlooked by scholars, they were not at the time as prohibition launched a decades-long debate on states’ rights, one that took place largely outside the courts.

As the major political issue of the 1920s, national prohibition offered a battlefield on which many of the core questions of American political development were fought—of race, of the allocation of federal and state powers, of popular sovereignty, and finally of constitutional obligation and judicial supremacy—as elected officials on both sides mobilized a popular constitutionalist campaign around the noble experiment. As a result of that campaign, the Eighteenth Amendment bears infamy as the only amendment to be formally repealed.

Despite most of American government operating at the state level, previous accounts of prohibition, like much of the political science literature on American political development, have generally focused on national institutions, though recent work in constitutional development has illustrated the potential weaknesses of such a purely or even predominantly national account.¹⁹ Such state-centered scholarship has helped show, for example, the constitutional tradition that provides for vigorous use of the states’ police powers to supplement the more limited and jealously guarded powers exercised by the federal government.²⁰

By using state legislative journals and newspapers, this book builds the first extended state-level constitutional history of the fight against national Prohibition. Such a history reveals a widespread and aggressive mobilization of states’ rights thinking. Especially as Americans undertake the first steps in an analogous state-by-state campaign to legalize marijuana use under a regime of national control, such a constitutional and political history of state prohibition illuminates several underappreciated features about the legal order before the New Deal as well as offering instructive contrasts with the contemporary movement.

First, the constitutional politics of Prohibition were about politics, not just judicial filings and rulings. Although generating court cases in secondary issues like the aforementioned searches, the primary constitutional battlegrounds of Prohibition were in the state halls and ballot boxes, through gubernatorial addresses and legislative action and referenda, as states struggled with whether they had a constitutional obligation to enforce Prohibition against individuals—or the sovereign prerogative not to. During the decade and a half following the implementation of the Eighteenth Amendment, states, not the Supreme Court, served as the primary sites of constitutional deliberation.

Second, and relatedly, unlike our current-day politics, in which nonjudges cede constitutional argument to courts in a realm of judicial exclusivity and judicial supremacy, noncourt actors took constitutional politics seriously.²¹ Governors and legislators struggled against one another by citing specifically constitutional arguments, often elaborating them in extremely thoughtful, detailed, and widely publicized discussions that provided valuable civic education, especially when contrasted with the Supreme Court’s muddled and unclear justifications of its pro-prohibition interventions.²²

Elected state officials openly appealed to their constitutional oaths in defending policies they personally opposed and, more importantly, knew their constituents opposed, hoping that such claims would immunize them by appealing to the people’s faith in the Constitution. In some cases, such behavior was clearly principled, and constitutional beliefs constrained behavior, as political leaders reversed their preamendment views and became ardent, though unhappy, prohibitionists.²³ Other cases were more clearly electorally focused, trying to avoid the wrath of the Anti-Saloon League (ASL), the most powerful lobbying organization in the country with its leader, Wayne Wheeler, perhaps the most feared man in politics.²⁴ Still others, especially wet Democrats, sought to use prohibition as a new crosscutting issue during a regime of Republican dominance. But, whether owing to electoral or to conscientious reasons, these officials engaged in model constitutional dialogues of precisely the sort popular constitutionalists²⁵ and other scholars of extrajudicial constitutional politics envision.²⁶

Third, for all their disagreement, most wets resisting Prohibition and drys backing it shared a remarkably consistent constitutional vision that enabled such meaningful dialogue.²⁷ Unlike often sharply polarized contemporary debates in which legal practitioners seem to speak about two different Constitutions, agreement on the constitutional framework meant that both sides in the prohibition debate generally talked to, rather than past, one another.

What becomes immediately apparent from those debates is how aggressively most of the participants tried to claim the same middle ground of centrist federalism at the core of pre–New Deal constitutionalism.²⁸ Participants worked to situate themselves as faithful guarantors of both enumerated powers and constitutional obligations because they believed such fidelity to be both required by their principles and rhetorically powerful.²⁹ Those who defended national Prohibition and state cooperation with it constantly tried to defend this as the consequence of a specific textual amendment—in effect, they remained committed to originalism and federalism. By contrast, those who wanted the states to refrain from enforcement repeatedly denied that they were engaging in nullification and instead asserted what we would today call the noncommandeering doctrine, in which states were not required to be administrative agents of a different sovereign.³⁰ This, wets repeatedly insisted, was a far cry from Calhounian obstruction, and any resulting failures of implementation were the fault of the federal government. In short, prohibitionists denied that they were nationalists while alleging that wets were nullifiers, with antiprohibition forces reversing the claims.

Only a few outliers—largely southern Democrats and a handful of progressives detached from the parties—were outside the postbellum settlement that embraced states’ rights but rejected both nationalism and nullification, leading both camps to place themselves within a centrist federalism. As will become apparent, part of this was ideological and part of it structural, with prohibition’s internal division within the parties intentionally cultivated by the leading prohibition group in America. At least through 1928, the ASL’s careful and conscious effort to keep prohibition a nonpartisan issue foreclosed a nascent political realignment that perceptive observers began to see. Ambitious politicians prepared for prohibition as the first stage of a conflict that would eventually reorient the basic divide of American politics.

Rather than having the parties internally divided between a more libertarian-, states’ rights–oriented bloc and a progressive, nationalist wing, the new party system would make support for the size of the federal government the new electoral fault line. Prohibition seemed an especially popular and fitting vehicle to help achieve this. But these policy entrepreneurs ended up twice surprised: not only did the Democrats not end up as the antistatist party, but the defeat of prohibition also did not herald the Tenth Amendment paradise they had longed to see. With the eventual repeal of national prohibition by the Twenty-First Amendment, the libertarian activists at the core of the opposition to national prohibition declared victorious the cause of states’ rights and, refashioned into the Liberty League, hoped to turn their influence against the growing federal power of the New Deal—only to be disbanded in disgrace.

Of all the constitutional issues that generated states’ rights conflicts between Reconstruction and the New Deal, only prohibition approached race in either intensity or longevity. But, similar as the furor may have been, the participants could not have been more dissimilar. Southern opposition to prohibition was nearly nonexistent in state houses, while it was northerners (and Marylanders) who tended to condemn the nationalizing policy.

Prohibition’s state legislative opponents were mildly more likely to be Democrats than Republicans, but the invocation of states’ rights in the period was a decidedly northern phenomenon. This proved baffling to contemporary observers, who, growing up during the high point of Lost Cause mythology, repeatedly but inaccurately understood the nation’s constitutional fault line as a continuation of a Civil War waged between states’ rights southerners and nationalist Yankees, something earlier northerners, including the quintessential Boston Brahmin Henry Adams, had rejected in ardently embracing federalism themselves.³¹

After situating prohibition within the contours of American political thought and offering a brief account of the early state temperance and prohibition movement in the nineteenth and early twentieth centuries, this book turns to a discussion of American federalism and the political drive culminating in the passage of national prohibition. With that background material laid, the primary focus is on the decade and a half after the ratification of the Eighteenth Amendment as activists and political entrepreneurs successfully turned states into battlegrounds and used federalism to their advantage both institutionally and rhetorically. By removing states from the machinery of enforcement, antiprohibitionists helped destroy prohibition’s effectiveness. At the same time, while perhaps not as powerful as its practitioners thought, an appeal to deep American principles of constitutional federalism served as a powerful rhetorical tool that opponents of the national marijuana regulatory regime might do well to emulate.

CHAPTER TWO

Alcohol and Liberalism

Before National Prohibition

When the victory shall be complete, when there shall be neither a slave nor a drunkard on the earth, how proud the title of that Land, how nobly distinguished that people who shall have planted . . . both the political and moral freedom of their species.—Abraham Lincoln¹

Before the Anti-Saloon League (ASL) and its allies could enact what eventually became the noble experiment, prohibitionists spent decades building up both the intellectual and the institutional strength necessary to implement such a far-reaching change. This meant decades of political persuasion, beginning with individual temperance before moving to local and then state-imposed suppression of alcohol, all of which required overcoming deep tendencies toward both individualism and localism in the American political mind. Prohibition eventually exposed two related fault lines in American political thought: the proper role of individual rights and choice against government regulation, on the one hand, and the proper allocation of state and federal power, on the other.

Americans’ ambivalence—or, perhaps more accurately, bipolarity—regarding alcohol had deep roots reaching back even before independence and before efforts to implement sobriety through government coercion. Benjamin Rush, a leading physician at the time of the American Revolution (and a signer of the Declaration of Independence), was perhaps the most prominent early temperance advocate, questioning the effects of alcohol on the health and virtue of citizens. Protestant churches and loosely aligned moral societies picked up the torch of temperance in the early nineteenth century as many of the same reformers engaged in the abolitionist movement sought to improve society through voluntarist solutions like temperance education encouraging a reduction in alcohol consumption. Jefferson extensively cultivated grapes in the hopes of producing mild wines that would let Americans drink in moderation like the French rather than to the excesses he blamed on distilled liquors. Jefferson was not an outlier either: the temperance movement boasted an impressive list of early presidential endorsements, including a morose Lincoln—whose temperance sympathies were later distorted into outright prohibitionism—comparing drunkenness to the angel of death in Exodus.²

Alcohol foes were able to overcome the libertarian individualism and antistatism of the American political ethos by arguing that alcohol eliminated the ability to exercise meaningful freedom, which could persuade both classical liberals (who found prohibition an exception necessary to preserve individual agency) and the developing progressive movement (which increasingly favored government action overcoming structural impediments to meaningful choice).

The recovery of these intellectual roots has been a long process. For much of the twentieth century, the prohibitionist was spoken of as the less lethal modern-day descendant of the proverbial witch burner: a product of backward American religion, small-town busybodies, and a fear of the new and the foreign. In this understanding, prohibition was but a manifestation of what Rogers Smith would later call the ascriptive tradition in American politics: an inegalitarian and exclusive strand of thought moored in hierarchies of race, gender, and nationality.³ The Baltimore Sun journalist H. L. Mencken’s pithy barbs against small-town rubes had laid the initial intellectual groundwork for this interpretation (and established the libertarian Mencken as the nation’s most vociferous critic of prohibition), but it was the historian Richard Hofstadter who cast the long shadow over American political thought by characterizing prohibition as the death throes of a reactionary white Protestant America lashing out from the farms.

For Hofstadter, the movement was a vengeful and irrational mania carried about America by the rural-evangelical virus and striking out with a pseudo-reform, a pinched, parochial substitute for reform . . . not merely an aversion to drunkenness and to the evils that accompanied it but the immigrant drinking masses, to the pleasures and amenities of city life, and to the well-to-do classes and cultivated men.⁴ It was, in short, an outlet for the troubles of every cramped libido, [replacing] anti-Catholicism . . . as the pornography of the puritan.⁵

One cannot deny that culturally conservative, xenophobic, and racist forces were a critical element backing prohibition, but the assimilation of the issue by progressive moral reformers (many of whom also shared those values) ultimately enabled the move toward national Prohibition. As Hofstadter sniffed, rural conservatives were for prohibition—but so too were egalitarian urban progressives who believed that alcohol perpetuated working-class poverty, black intellectuals hoping to spur federal enforcement of the Reconstruction amendments, businessmen concerned with labor productivity, and good government reformers recognizing that saloons served as keystones of machine politics.⁶ Inconceivable as prohibition might appear to us today, the crusade against alcohol mobilized wide swaths of American society in overlapping ways.

Like other nineteenth-century reform movements, antialcohol efforts partly developed from women’s moral uplift organizations. Drawing on Christianity as well as what we would today consider antipoverty and women’s rights movements, temperance groups offered several justifications to convince society to weaken alcohol’s stranglehold. Temperance movements argued that alcohol abetted not only sin in general but specifically sins against women and the family, as breadwinning men in thrall to demon rum squandered the family’s limited assets purchasing alcohol, only to come home in drunken rages and commit domestic battery. Thus, alcohol contributed not only to women’s physical harm but also to their poverty, especially urban poverty—part of why many urban progressive reformers came to back prohibition so strongly.⁷ That alcohol use was understood to be concentrated among largely immigrant populations enabled these moral reformers to add a xenophobic frame as well, though enthusiasm for prohibition was not quite the strict Protestant-Catholic split sometimes portrayed; prohibitionists had Catholic allies who shared the progressive belief that sobriety would lead to the uplift of immigrant communities.⁸

The deep connections between prohibition and racism have been thoroughly explored by other scholars,⁹ so, rather than replicate their work, the account that follows will largely focus on the implications for federalism.

The antiprohibition author Fabian Franklin bitterly noted that the most deplorable feature of the passage of the Eighteenth Amendment was the almost complete failure of the South to pay any regard to the essential political principles involved in it. It was not a problem that, like most Americans, southerners had discarded the abstract doctrine of state sovereignty: That, at least, in its extreme form had been disposed for good and by all by the Civil War. But, in throwing in for Prohibition, southerners had, Franklin charged, also turned against the essential principle of local government and states’ rights, a . . . practical doctrine . . . not particular to the South [but] one that has been until these last years . . . the common doctrine of every section throughout all our history, but which the South has especially cherished.¹⁰

The South’s overwhelming embrace of prohibition makes it hard not to adopt the bitter cynicism of wet northerners who believed that it clearly exposed Dixie as myopic about white supremacy, with southern advocacy of states’ rights a sometimes-convenient fig leaf covering the true goal.¹¹ If forced to choose, prohibition, like federalism, was secondary: as Oscar Underwood, the rare southern states’ rights opponent of Prohibition, observed: The Southern States today, where the prohibition sentiment is the strongest, if put to the test of accepting the Fourteenth Amendment in its integrity in exchange for the honest enforcement of the prohibition laws of the Federal Government, would probably not accept the condition of enforcement and would stand ready to join the ranks of the nullifiers.¹²

As much scholarship demonstrates, massive southern support for prohibition only followed its racialization, with the ASL and other groups cynically ginning up propaganda warning of the particularly dangerous effects alcohol purportedly had on black self-control. As one bitter critic of national Prohibition lamented, the turn from state to national prohibition was largely southern driven, which, in turn, had been a consequence of southern racial views: All movements down there seem to have that one object [of ‘controlling the Negro’].¹³

The turn-of-the-century South was especially well primed to translate traditional white supremacy into prohibition. Goaded by propaganda like Birth of a Nation, a popular understanding valorized the Klan’s redemption of the South from blacks. Elite social scientists imbibed and recirculated Darwinian theories of racial fitness, which dovetailed especially well with progressive beliefs in centralized government direction on behalf of the public good. If, as northern reformers had long insisted, alcohol reduced white inhibitions, southern progressives now concluded that liquor enabled much more damage in unleashing already licentious blacks (who, southern reasoning went, would be further inflamed to commit rape, which would then prompt the regrettable tendency for lynching). Prohibition thus joined disenfranchisement in a linked crusade to maintain southern white supremacy.¹⁴

In short, black disenfranchisement and prohibition came from a shared southern belief in controlling an underclass through cool deliberation by paternalistic southern elites, with that, and not any deep commitment to localism, animating the selective southern invocations of states’ rights.¹⁵ This desire for elite control extended to disenfranchising poor whites at the turn of the twentieth century, many of whom were willing to buy in because white elites cultivated racial animus among them, making them more willing to cede their own franchise to guarantee political white supremacy.¹⁶

Even whites not committed to racial supremacy were more than happy to make use of it, as the ASL’s Wayne Wheeler and other drys proved perfectly eager to cut deals with racists on behalf of prohibition. As Daniel Okrent observed, Prohibition’s Democratic front men included the Yale-educated, Shakespeare-quoting Morris Sheppard alongside South Carolina’s Cole Blease, who lamented that education ruined black field hands. Perhaps the most shocking display of such a pact with the devil was Republican Assistant Attorney General Mabel Willebrandt—who after all, was ostensibly responsible for enforcing Reconstruction—shrugging off the Klan by saying: I have no objection to people dressing up in sheets, if they enjoy that sort of thing.¹⁷

As Thomas Pegram’s study of the Klan and the ASL concludes, the relationship between the two social movements was complicated: more extensive than most prohibition historians have conceded, yet . . . looser and less consistent than contemporaries and recent historians of the Klan have supposed.¹⁸ Coordination between Klan elements and the league occurred, but usually at arm’s length rather than any tight organizational nexus between the two, as suggested by Mencken’s crack that the Klan constituted the less fanatical secular arm of the ASL.¹⁹ The league would cooperate with and even employ Klansmen, but only those who kept their Klan and league responsibilities separate. Even then, this was a small subset, since the league often (correctly) viewed the Klan’s political operations as amateurish compared to the efficient machine Wheeler and his ASL allies had constructed. In practice, a loose specialization of labor developed, with the Klan mobilizing its members to assist with local enforcement efforts while the league itself carried on the more conventional high politics of lawmaking and electioneering.²⁰ Nor was it confined to the South: the Klan aided prohibition enforcement in the Midwest and even Anaheim in Orange County, California.²¹

But, as further evidence of the almost overdetermined support for prohibition, not only were white supremacists in favor of it; so were many of their opponents in the black community, who backed prohibition on the same grounds that white progressives did, hoping that it would clean up neighborhoods and promote economic uplift. Booker T. Washington supported state-level prohibition but from the start opposed its national variant, in 1912 condemning any effort to scale it up to a national issue.²² Others not only defended prohibition on the merits but specifically supported national Prohibition on constitutional grounds. W. E. B. Du Bois and the Amsterdam News and the Chicago Defender, two of America’s leading black newspapers, all argued that vigorous enforcement of the Eighteenth Amendment might help trigger, at last, meaningful enforcement of the Fourteenth and Fifteenth Amendments against recalcitrant southern states.²³ The Defender, which cited both black uplift and Reconstruction enforcement, condemned the Chicago Tribune as an abettor of nullification when, initially hostile to saloons and thus tepidly in support of temperance, that paper sharply reversed once national Prohibition passed and railed against it throughout the 1920s.²⁴ The National Association of Colored Women similarly forcefully endorsed national Prohibition on grounds of both racial uplift and seeing the Reconstruction amendments (and, eventually, the Nineteenth Amendment) vindicated in Dixie.²⁵

Although hostility to regulation meant that not all business interests were friendly to government-mandated prohibition, business practices had similarly contributed to the intellectual climate that enabled prohibition, and many businesses did support government restrictions on alcohol. In the previous decades, businesses had endeavored to suppress drinking among their workers, especially as their workplaces became more inherently unsafe owing to mechanization and their need for efficiency rose. Thus, many prohibited drinking not only on the job but also in some cases even off it, with leading industrialists going so far as to hire detectives to ensure that workers remained dry.²⁶

Nor was industrial safety the only health claim. Building on decades of scientific research on the negative health effects of alcohol, the American Medical Association’s decision to oppose the use of alcohol as a beverage in a 1917 resolution particularly impressed members of Congress.²⁷

Good government reformers—many of them the same urban progressives fighting poverty in the cities—came to (rightly) fear the power of saloons as organization points for corrupt local machine politics. Thus, restoring the sanctity of an honest ballot and mobilizing citizens to vote for clean and effective government, capable of implementing improvements necessary for the citizens’ lives, required cleansing the saloon floor.²⁸

The rural-fundamentalist-fanatic stereotype²⁹ was thus radically incomplete, ignoring an interlocking, often contradictory base of supporters who backed prohibition for a variety of reasons, good and bad, in an attempt to stop some very real problems.

Reducing prohibition to manifestations of close-minded bigotry also ignored the long legacy of Protestant, bourgeois belief in self-control deeply rooted in the American political culture and its liberal-republican ideology.³⁰ Frederick Davenport, a Hamilton College political science professor, the New York Progressive Party gubernatorial nominee, and a Republican state senator, explained this bluntly in endorsing that state’s ratification of the Eighteenth Amendment: If you have a self-controlled democracy, you must have a self-controlled people, and you cannot have it with alcohol.³¹

Like progressives more generally, antialcohol drys attempted to root their arguments in the language of liberty and the American experience.³² Lockean liberalism presumed a certain level of autonomy and agency; alcohol ran counter to these presumptions. Therefore, the responsible elements of society—whether as part of a more general belief in regulation or as a necessary exception that helped preserve an otherwise limited government—could be perfectly justified in constricting alcohol’s use among those unable to make decisions like a free man or woman.³³

In defending government control of alcohol, Harry Warner, a leading prohibitionist author in the 1920s, contended that prohibition did involve maximizing true freedom, liberating wet society from its own chemically induced, unwitting forfeiture of free will.³⁴ That prohibitionists could enlist Abraham Lincoln’s praise for temperance as liberating individual wills from slavery gave an even tighter connection bridging the war against alcohol with the highest ideals of American freedom. What a noble ally [temperance was] to the cause of political freedom, Lincoln had observed, looking forward to a future when minds saved from alcohol could embrace their liberty and govern the world. In lines that generations of temperance and prohibitionist advocates memorized, Lincoln used almost biblical language to describe the day "when the victory shall be complete, when there shall be neither a slave nor a drunkard on the earth, how proud the title of that Land, . . . how nobly distinguished that people who shall have planted . . . both the political and moral freedom of their species!"³⁵

The tight linkage between chemical and political freedom is why, Warner contended, old-stock Protestants, otherwise libertarian leaning in their political views, had become the most committed to government coercion in this area, with decades of experience convincing them that the choice against liquor was a false one.³⁶ Richmond Hobson, one of the congressional sponsors of Prohibition, took a more sociological perspective, tying it to the protection of liberal political