Prohibition, the Constitution, and States' Rights 9780226632278

Citation 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  vii chapter 1 Introduction: Prohibition, Now and Then 1 chapter 2 A  lcohol and Liberalism: Before National Prohibition 8 chapter 3 Prohibition and Federalism: The Road to the Sheppard Amendment 17  atifying and Implementing the Sheppard Amendment chapter 4 R (1918–­21) 51 chapter 5 R  atifying and Implementing II (1918–­21): The Northeast 76 chapter 6 The Dry Tide Recedes (1922–­23) 100 chapter 7 Constitutional Obligations (1923–­24) 135 chapter 8 T  aking Alcohol to the People of the States (1925–­28) 149 chapter 9 The Noble Experiment (1929–­31) 176 chapter 10 The Dam Breaks (1932–­33) 213  onclusion: Prohibition and American chapter 11 C Constitutionalism 229 coda

Pot and Popular Constitutionalism: Prohibition’s Lessons for the Marijuana Legalization Debate 241

vi

contents

List of Abbreviations 251 Notes 253 Index 311 An online appendix is available at https://press.uchicago.edu /sites /beienburg/.

Acknowledgments

A

mong 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.”* 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 Prince­ ton’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

* Wilson Carey McWilliams, “The Search for a Public Philosophy,” in The Democratic Soul, ed. Patrick Deneen and Susan McWilliams (Lexington: University Press of Kentucky, 2011), 336–52, 348.

viii

acknowledgments

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.

acknowledgments

ix

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

I

n 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

2

chapter one

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 per­ fectly 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

introduction: prohibition, now and then

3

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

4

chapter one

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 predom­ inantly 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 second-

introduction: prohibition, now and then

5

ary 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 strug­ gled 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.

6

chapter one

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 pro­ gressives detached from the parties—­were outside the postbellum settle­ ment 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

introduction: prohibition, now and then

7

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

B

efore 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 al-

alcohol and liberalism

9

cohol 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

10

chapter two

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

alcohol and liberalism

11

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

12

chapter two

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

alcohol and liberalism

13

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 Four­ teenth 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

14

chapter two

clean and effective government, capable of implementing improvements necessary for the citizens’ lives, required cleansing the saloon floor.28 The “rural-­fundamentalist-­fanatic stereotype”29 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

alcohol and liberalism

15

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 culture. Alluding to the nexus of immigrant populations and alcohol, he explained: “It is the degenerate vote that has in the past overwhelmed the liberties of free people. And it is the degenerate vote in our big cities that is a menace to our institutions.”37 Not all prohibitionists viewed the political control of alcohol as a necessary exception to classical liberalism and its skepticism of government power. Instead, many viewed it as part of the need to deemphasize individual rights and autonomy for the good of society.38 These more progressive, left-­leaning prohibitionists easily situated alcohol regulations within their new political ideology’s belief in a more protective and proactive government guaranteeing basic goods to citizens. This strand of thought—­ sometimes dubbed reform liberalism—­had embraced active regulation of the economy and government provisions as necessary for the meaningful exercise of individual freedom.39 So it was, too, with demon rum. The language of freedom, appealing to American traditionalists, could be joined to arguments from left-­leaning economic thought, each reinforcing the need to fight alcohol. Thus, like many other prohibitionists, Warner could marshal George Bernard Shaw’s bitterness about “enormous capitalist organizations pushing drink under people’s noses,” leaving both the inebriate and society to pick up the pieces. Small-­town moralistic hectoring worked hand in hand with cosmopolitan credibility.40 John Stuart Mill might have mocked the early prohibition movements as sanctimonious do-­gooders in On Liberty (1859), his founding treatise on classical liberalism, but liquor foes had connected the control of alcohol to both wings of Mill’s American descendants, libertarian and progressive alike.41 The movement to reduce Americans’ obscene alcohol intake slowly turned its emphasis from voluntarism toward enlisting government power to achieve its goals, marking the transition from temperance to prohibition.42 Over the course of and toward the end of the nineteenth century, these powerful social movements against alcohol had gradually coalesced into the politically lobbying Women’s Christian Temperance Union and the ASL. States had experimented with prohibition since 1851, when Neal Dow persuaded Maine to pass the first prohibition law. Although more polarizing

16

chapter two

than the voluntarist model, midcentury reformers’ “Maine Laws” spread elsewhere in the United States, garnering international attention, including Mill’s contempt.43 Few of these early prohibition laws survived long, however, with legislatures and courts quickly striking down the bulk of them, most notably in New York’s due process decision in Wynehamer v. New York (1856).44 Prohibitionists remained patient, however, and the movement gained new strength in the 1880s, with Kansas amending its constitution to restrict alcohol in 1881 and the Dakotas entering statehood with prohibition in 1889. After stalling for two decades, prohibition reappeared on state agendas, with mainly southern states, where alcohol had become racialized, voting to suppress drinking. Georgia and Oklahoma instituted it in 1907, Mississippi and North Carolina the following year.45 As prohibition rapidly spread, opponents of alcohol now began to wonder, Could not merely the states but the United States become dry?

chapter three

Prohibition and Federalism The Road to the Sheppard Amendment

[The] wisdom of the fathers in the division of the powers of government between the Nation and the States was almost superhuman.—­Representative Martin Morrison (D-­IN), unsuccessfully defending his failed states’ rights alternative to what became the Eighteenth Amendment1 After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors . . . for beverage purposes is hereby prohibited. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation. —­Eighteenth Amendment to the US Constitution

W

hile the temperance movement had provoked decades of debate about what it meant to be a free and self-­governing individual, the turn to national Prohibition triggered similar debates about what it meant to be a self-­governing polity in this federal system. If Americans were torn between preserving individual freedom and ensuring that the polity could act on behalf of the public good, federalism helped resolve these theoretical tensions, between unease with political control imposed from afar and the desire to create a well-­functioning society. But how to ensure that the federal and state governments remained in their proper spheres was a question that long predated prohibition and one necessary to answer in a society so committed to the Constitution and particularly its regime of decentralized federalism. Prohibition thus reignited very old political debates about how exactly states could resist the usurpation of powers they believed the Constitution allocated to them rather than Washington.

18

chapter three

Must they simply wait for judicial pronouncement? Or could they use political means to police the boundaries of federalism? And, if so, which?

Federalism and the American Constitutional Order As Alexis de Tocqueville observed: “Americans believe that in each state the social power ought to emanate directly from the people; but once that power is constituted, they imagine so to speak no limits to it; they willingly recognize that it has the right to do everything.”2 Far from a minimalist, “night watchman” polity, Americans drew on English common law to build up robust local and state governments wielding the ability to govern and regulate the health, welfare, safety, and morals of the community—­the expansive authority dubbed “the police power” in constitutional law.3 The American constitutional order invested these state communities with presumptive sovereignty to govern on behalf of the people’s welfare while establishing a federal government limited to specific powers and obligations enumerated by the US Constitution, as the Tenth Amendment made abundantly clear.4 It was an order to which Americans were deeply committed as it implemented their understanding of their experience under the British Empire, a regime in which local representative governments were invested with primary responsibility. It was the threat to this order, once the British government began stepping away from decades of “salutary neglect” of the colonies, that had animated the American Revolution and led Edmund Burke to sympathize with, if not quite endorse, the Americans’ attempt to vindicate their understanding of liberty.5 At least as far as the federal Constitution was concerned, states had been able to set alcohol policy however they liked, as the Court held in Mugler v. Kansas (1887).6 What they could not do, as a century of political development had confirmed, was engage in nullification aiming to block the enforcement of federal law. Dual sovereignty meant that the state and federal governments were sovereign within their allocated sphere—­but within that sphere each was indeed sovereign. Just as the federal government could not impinge on rights reserved to the states by the Ninth and Tenth Amendments, including the right to have state officials enforce state laws and priorities, neither could the states obstruct legitimate federal laws passed pursuant to the Constitution and the powers it gave Washington. The first potential glimpse of state nullification of federal law had ap-

prohibition and federalism

19

peared in 1798, as Thomas Jefferson and James Madison sought to help mobilize the proto–­Democratic-­Republican Party in opposition to the Alien and Sedition Acts as yet the most egregious example of the Federalists’ indifference to constitutional fidelity and states’ rights. Their Virginia and Kentucky Resolutions, passed by those states’ legislatures, encouraged other states to join them in condemning violations of the Constitution, with the two resolutions arguing that the Constitution was a compact among the states and that the states thus remained charged with its protection and enforcement.7 Beyond that, it was somewhat hazy. For example, in one particularly opaque section removed from the final version, Jefferson’s draft of the Kentucky Resolution had initially called for the states to “nullify” unconstitutional legislation, taking unspecified “measures . . . for providing that neither these acts, nor any others of the General Government not plainly and intentionally authorized by the Constitution, shalt be exercised within their respective territories.” Borrowing a term from astronomy referring to the movement of heavenly bodies, Madison’s Virginia Resolution called for the states to “interpose” themselves between the federal government and the citizens, observing at the end that the states should take the “necessary and proper measures” to protect citizens’ rights by declaring the acts unconstitutional. As Madison clarified both in his follow-­up 1800 report and later in life, this meant that the states would serve not as direct obstacles but as signals mobilizing voters to defend the Constitution’s original meaning.8 Although the Virginia and Kentucky Resolutions had targeted the Federalists (and rallied the 1800 electorate against them), New Englanders upset about the lead-­up to and prosecution of the War of 1812 were the first to adopt the more strident states’ rights “Spirit of 1798” positions that Madison strenuously denied his resolution implied.9 In 1809, Massachusetts, Connecticut, and Rhode Island effectively replicated the 1798 resolutions in declaring the embargo unconstitutional, with one or more New England states similarly condemning the call-­up of their state militia, the proposed draft, and even the admission of Louisiana as exceeding the Union’s constitutional powers.10 These culminated in the Hartford Convention, which did not, as is often believed, propose New England secession when it met in 1814 and 1815. Instead, Hartford was an effort by moderate Federalists to clamp down at least temporarily on the secession movement circulating among their more extreme members by proposing a series of amendments to correct those issues and pacify New England. To justify the states’ actions,

20

chapter three

the convention invoked the Virginia and Kentucky Resolutions, framing them as nullification blocking illegal acts within the state’s boundaries, and secession remained an implicit threat if the rest of the Union did not recognize New England’s constitutional grievances. (Madison—­now president—­had quietly ordered military preparations to “put rebellion down,” had the convention come to that.)11 But, with the convention tarred as un-­American at war’s end, the movement burned itself out before its hotheaded politics could develop further. This near miss was not Madison’s only confrontation with northerners using the Virginia Resolution against him. An ostensibly minor, seemingly interminable property case threatened to place the Union in armed conflict with an unexpected state: the Commonwealth of Pennsylvania. In 1803, federal courts ruled that Pennsylvania government officers owed Gideon Olmstead part of a payment for his role in capturing a British vessel during the Revolution, for which Pennsylvania, whose militia had ultimately delivered the vessel, had claimed what should have been Olmstead’s share of the bounty. Six years later, in U.S. v. Peters, Chief Justice John Marshall instructed the district judge and federal marshal to implement the ruling. Echoing the logic of the 1798 Virginia Resolution, Pennsylvania’s legislature passed a bill resisting the claim. Governor Simon Snyder deployed the state militia to prevent federal officials from enforcing the decision. Perhaps obliquely invoking the Democratic-­Republican-­endorsed Virginia Resolution against its recently unmasked author, Snyder noted that he was pleased to be dealing with a president “who is so intimately acquainted with the principles of the Federal constitution, and who is no less disposed to protect the sovereignty and independence of the several states, as guaranteed to them, than to defend the rights and legitimate powers of the General government.”12 In his reply to the governor, Madison forcefully denied that he supported unilateral state nullification of federal law and insisted that, like the president, state officials were bound by the Supreme Court’s rulings. Fearing armed conflict when the federal marshal organized a posse comitatus to implement the ruling by force, the Pennsylvania government finally relented. In turn, political prudence led Madison to pardon Pennsylvania militia officials who had been indicted for violating federal law—­arguing that they had been merely following orders from their state leadership—­ thus avoiding a potential armed showdown over state sovereignty.13 The major conflict over nullification came in the late 1820s and 1830s, as South Carolina invoked a strong form of the compact theory to argue that

prohibition and federalism

21

it, as a party to the Constitution, had the authority to judge laws passed under it—­and unilaterally to block laws held to be unconstitutional. Former South Carolina senator and current vice president John C. Calhoun, who had drifted from membership in the national wing of the old Democratic-­Republican Party, had long grappled with the political thought of the party’s Virginian founders and political demigods, interpreting (or misinterpreting) their works to develop a theory that privileged various forms of political consensus, in this case, the consent of the states to national action.14 Although the protection of slavery was ultimately the animating purpose behind the development of nullification, South Carolina initially employed it to attack a tariff.15 Invoking Madison’s Virginia Resolution in the Webster-­Hayne-­Livingston debates, South Carolina senator Robert Hayne argued that the Spirit of 1798 outlined what his state had been attempting to do when Vice President Calhoun had written its nullification ordinance.16 The invocation of Madison provoked fierce opposition from Massachusetts’s Daniel Webster, who argued that the Virginia Resolution called for nothing more than a righteous protest until Congress repealed the law or courts invalidated it.17 Louisiana senator Edward Livingston, a man of far firmer commitments to states’ rights and strict construction than Webster—­ and who as a young New York congressman had supported Madison and Jefferson in 1798—­agreed that nullification was anarchic and unconstitutional and that states must use other remedies, particularly the courts, to vindicate their rights. Even if one conceded that Webster’s constitutional theory was insufficiently committed to federalism, Livingston agreed with Webster that Madison never aimed to propose such a dangerous remedy as a unilateral state veto of legislation and instead envisioned the states as signaling their positions.18 So controversial was nullification that Livingston, a close ally of Andrew Jackson’s who would become his secretary of state and help write the antinullification proclamation, defended even secession as a more legitimate method of state resistance to violations of the Constitution—­ unlike Calhoun’s doctrine, which he assailed at length in the Webster-­ Hayne-­Livingston debates.19 The debate remained abstract, tangential arguments about a largely unrelated bill until South Carolina moved to implement nullification in the Tariff Crisis of 1832, provoking a fierce response from President Andrew Jackson. Although, like his friend Livingston, Jackson was a man of unimpeachable commitment to the Spirit of 1798, states’ rights, and the strict construction

22

chapter three

of federal powers—­as his vetoes of the Second Bank of the United States recharter and the Maysville Road extension showed—­he firmly resisted nullification as wholly unjustifiable from the text of the Constitution. Aided in the White House by Livingston, now serving as secretary of state, and in Congress by his usual foe Webster, he prepared to mobilize the military to suppress nullification by force. Calhoun, whose writings had laid the intellectual groundwork for nullification, maneuvered behind the scenes with now governor Hayne and Webster to drop the tariff rate and allow South Carolina to save face—­and avert a civil war. That the United States had come so close to conflict had exposed the danger inherent in nullification. But still there were flirtations with it. The 1850 Fugitive Slave Act outraged northerners as a violation of states’ rights by requiring their cooperation with federal efforts to capture escaped slaves. Like legislatures in New England, Ohio, and Michigan, Wisconsin’s legislature passed personal liberty laws undermining its effectiveness. But Wisconsin legislators went much further than restricting state cooperation. In Ableman v. Booth (1858/1859), the state’s judges attempted to release an abolitionist held by federal courts, which a unanimous Supreme Court, including Dred Scott dissenter John McLean, slapped down as judicial nullification. The state legislature responded with actual nullification: an 1859 resolution that included the usual acknowledgments and celebrations of the states’ role in policing states’ rights but that rejected any ambiguity about confining itself to Madisonian protest. Against such unconstitutional acts, “a positive defiance . . . is the rightful remedy.”20 This stunning declaration was not confined to a dusty state legislative journal: South Carolina’s 1860 ordinance of secession pointed not to federal overreach as its first proof of the need to withdraw from the Union but instead to northern invocations of states’ rights against slavery.21 Hard-­line abolitionists’ flirtation with nullification and secession in the antebellum period infuriated most Americans, even states’ rights Republicans, who shared the Garrisonians’ hatred of slavery but feared the potential damage wrought by their constitutional theories.22 Southerners similarly found nullification troubling. Indeed, in his farewell address to the US Senate following Mississippi’s secession, future Confederate president Jefferson Davis celebrated the right of states to withdraw from the Union while echoing Jackson and decrying nullification as lawless: Nullification and secession, so often confounded, are indeed antagonistic principles. . . . It is by this confounding of nullification and secession that the name

prohibition and federalism

23

of a great man, whose ashes now mingle with his mother earth, has been invoked to justify coercion against a seceded State. The phrase “to execute the laws,” was an expression which General Jackson applied to the case of a State refusing to obey the laws while yet a member of the Union. That is not the case which is now presented. . . . You may make war on a foreign State. If it be the purpose of gentlemen, they may make war against a State which has withdrawn from the Union; but there are no laws of the United States to be executed within the limits of a seceded State.23

It was Davis’s fellow southerners who, despite their uneasy and inconsistent relationship with states’ rights, put the compact theory to the test in the 1860s and lost. The Civil War vindicated Jackson’s perspective as the predominant one in American politics, preserving states’ rights as the core of constitutional thought while undermining secession and particularly nullification.24 This was especially true after the flimsy case of Texas v. White (1869), which held secession unconstitutional (while curiously upholding Reconstruction).25 Whatever the merits of White as a matter of law, it accurately described postwar attitudes: as Representative James P. Buchanan (D-­TX) observed when debating prohibition in 1914: “Though force of arms has substituted conquest for compact, and the right of secession has forever disappeared, the state sovereignty equation is intact in all other respects.”26 A visceral aversion to nullification in the 1910s and 1920s is unsurprising as it was a cornerstone of the era’s mainstream legal thought dating back to Reconstruction and before for both parties. If Democrats had Jackson, Republicans had Lincoln, who combined robust defenses of states’ rights with attacks on the compact theory.27 Thus, most northerners, outside a few nationalists like Charles Sumner and Thaddeus Stevens, remained devoted to a middle ground of federalism, one that we might characterize as states’ rights, as opposed to either consolidationism or compact theory/pure state sovereignty.28 As Justice Samuel Miller observed in the Slaughterhouse Cases (1873), even with “the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the State with powers for domestic and local government . . . was essential to the perfect working of our complex form of government,” and, while adding a few new federal powers to create a floor of rights, the Reconstruction amendments aimed not to destroy but to preserve decentralized federalism.29 Subsequent generations of legal elites were trained to adopt this mixed “states’ rights nationalism.”30

chapter three

24

Though in practice American constitutional history has tended to produce three broad interpretations of state power, in theory there are four interpretations that can be assembled from two related but distinct questions, and it was the interplay between those two issues that helps us explain the Prohibition debates. One is a question of substantive power: How expansive are federal powers? The other is a question of interpretive authority: Are states authorized to offer a binding interpretation of those powers independently?31 As Matthew Brogdon has noted in his treatment of the nullification crisis and Andrew Jackson’s constitutional theory, one could combine these two axes to link a narrow conception of federal power (states’ rights) with an equally firm rejection of the states’ authority to issue a binding interpretation of that power (nullification).32 One could maximize state power on both axes, as Calhoun did. One could adopt a robust nationalism, denying both state nullification and meaningful limits on federal enumerated powers, as many charged Daniel Webster and John Marshall with believing (but which Webster and Marshall both denied).33 One could also envision a hypothetical case in which the states retained the ultimate interpretive authority to judge the Constitution but always deferred to expansive federal power (see table 1). If prohibition could draw on competing strands of American individualism deeply rooted in American thought, efforts to stop it by nullification could not. Instead, over a century of American political practice had marginalized nullification even among those deeply committed to states’ rights federalism. As the following chapters will show, with the exception of the reviled and marginal true nullifiers and a few proto–­New Deal nationalist outliers like William McAdoo, nearly all the participants in the Prohibition debate placed themselves in the states’ rights box: William Borah, Al Smith, table 1.  Theories of American Federalism Federal powers States’ interpretive authority

Limited

Plenary

States cannot offer binding independent assessment of federal power

States’ rights (e.g., Andrew Jackson, Edward Livingston, Abraham Lincoln)

Consolidationism/ nationalism (e.g., some Reconstruction-­era Radical Republicans, post–­New Deal Democrats)

States can offer binding independent assessment of federal power

Compact theory/nullification (e.g., John C. Calhoun/1830s South Carolina)

prohibition and federalism

25

and Calvin Coolidge all recognized that federal power should be carefully and fairly strictly limited to the powers enumerated in the Constitution but denied that the states served as the ultimate arbiters of that federal power. Except for southern Democrats, whose selective views on federalism were almost wholly a cover for their racial order, and a faction of nationalist progressives, ardent drys happily reconciled their belief in this specific amendment’s centralization with a general presumption of federal weakness. That is to say, nearly everyone was fighting within and trying to claim that top-­left states’ rights box (see table 1) while attempting to shove their opponents outside it by changing the axis of debate. Those defending Prohibition tried to frame their rivals as Calhounian nullifiers making the states the final arbiters of constitutional interpretation obstructing federal activity—­in effect, pushing wets into the bottom-­left box. At the same time, drys claimed that their own side still took a narrow textual interpretation of federal power because they were following a specific constitutional amendment. The wets trying to defend themselves against charges of nullification denied that they were committing any such obstruction of federal power—­in effect, rejecting the drys’ effort to shift the terms of debate onto interpretive authority. Instead, they contended that drys threatened to sweep away state sovereignty by establishing a federal police power— ­essentially arguing that prohibitionists belonged in the top-­right box. Showing that relatively little separated the constitutional assumptions of the wets from those of the drys, opposition to state enforcement among wets did not extend to obstruction of federal power. Instead, they clearly resented any insinuation that they had committed nullification and instead sought the states’ rights middle ground while trying to cast the opposition out of it. This Jacksonian understanding of the post–­Civil War settlement bristled against both nationalism and nullification: while states were to have wide discretion and the national government relatively little, efforts to obstruct federal policy proactively were dismissed with pejorative comparisons to antebellum fire-­eaters. Almost nobody wanted to be associated with John C. Calhoun, not even southerners. Whatever their divisions on tariffs or other issues, in the first third of the twentieth century both parties’ mainstreams remained broadly committed to enforcing this states’ rights consensus.34 How they would do so in the wake of Prohibition’s alteration of the federal-­state balance was a trickier question.

26

chapter three

A handful of provocateurs sought to offer intellectual heft to the widespread, de facto nullification in which many citizens eventually engaged, what one might call the popular constitutionalism of the speakeasy.35 The Maryland Republican John Phillip Hill had lamented that “the Fourteenth and Fifteenth Amendments are nullified by common consent” and that if “the Eighteenth Amendment is not repealed it [too] will be nullified in certain portions of the United States.”36 Nonetheless, an open embrace of nullification proved almost unanimously abhorrent even to the most ardent wets. The doctrine never gained congressional supporters, and the Association against the Prohibition Amendment (AAPA) and other repeal leagues stressed their opposition to the lawlessness of nullification.37 Even Senator Oscar Underwood (D-­AL), who became one of the leading wets in America and one of the few southerners consistently making federalist attacks against Prohibition, cited his constitutional obligations in opposing proposals to exempt beer and light wines from Prohibition enforcement.38 Prominent politicians joined legal elites in publishing manifestos contending that the amendment fundamentally warped the constitutional logic of divided powers—­but these did not resort to open advocacy of nullification.39 Thus, it was not without justification that H. L. Mencken hissed that drys campaigned against a straw man: “For all its wholesale violation by millions of Americans, no proposal that the President of the United States formally repudiate and nullify [the Eighteenth Amendment] has ever been made by anyone.”40 Many frustrated, usually northeastern and Republican governors found themselves in an agonizing situation: largely wet and skeptical of federal power but bound by their oaths to become zealous law enforcers rather than be complicit in what they believed to be nullification. In this number—­ neither wet nor dry but prohibition legalists—­we can count Chief Justice William Howard Taft, governors like Calvin Coolidge of Massachusetts, Fred Zimmerman of Wisconsin, and, most prominently, Nathan Miller of New York, the former judge and bar association president who fought with Al Smith about gubernatorial obligations to enforce the Eighteenth Amendment. Wets and drys thus contested how the states’ police power would be used in the absence of a clear constitutional mandate: was the choice to cooperate (or not) within the authority retained by the states and consistent with the Constitution’s localist framework, or were states obligated somehow to assist in suppressing an evil they themselves had agreed to proscribe constitutionally? The difficulty of answering that question ignited

prohibition and federalism

27

fifteen years of political conflict pulling at the core of the American constitutional order.

Nationalizing Prohibition In 1913, when the Anti-­Saloon League (ASL) first pitched national Prohibition, nine states were dry, with other local options existing throughout the country. Federal legislation, however, was far sparser, as earlier efforts to nationalize prohibition foundered against the American skepticism of national power. Prohibitionists initially trying to use the commerce clause to suppress alcohol soon realized that Americans remained committed to federalism even as they tried to fashion solutions to the changes brought about by big business and industrialization. Thus, as early as 1889, legislators carefully scrutinized efforts to use federal power to hamper the interstate trafficking of liquor, ensuring that such proposals were compatible with the prerogatives of states.41 Strong momentum on behalf of local prohibition continued; at the start of American entry into the European conflict in April 1917, twenty-­six states (and the District of Columbia) were dry, most enacted by referenda, with passage expected in many more. A series of recent Supreme Court decisions upheld federal transportation restrictions on various goods and persons, precedents that state prohibitionists hoped would buttress a bill offering a moderate states’ rights position on alcohol. In approving the Webb-­ Kenyon Act, a 1913 law that helped deal with the problem of spillover from wet states, the justices offered state prohibitionists precisely this support.42 Webb-­Kenyon, which had passed over Taft’s veto, enabled Congress to help dry states suppress the importation of unwanted liquor into their territory: it became a federal crime to ship alcohol into a state that prohibited it. William Anderson, one of the leaders of the ASL, had pitched an early analogue to Webb-­Kenyon in 1909 on grounds that doing so would allow the federal government to “use its power over interstate commerce in such manner as to aid the states.” After passage of such a law, Anderson asserted, “the center of the fighting will again shift back to the states,” which would be “unhampered by the federal government” in “awakening civilization.”43 In short, Webb-­Kenyon imposed no formal federal policy but simply used congressional power to reinforce the wishes of the states. Indeed, the generally federalist Taft and his attorney general, George Wickersham, had

28

chapter three

objected that Webb-­Kenyon gave states too much power by letting them dictate policy to the national market and thus that the bill violated the commerce clause of the Constitution. (According to Wayne Wheeler’s private secretary, although he publicly defended Webb-­Kenyon before the Supreme Court, Wheeler shared Taft’s worries about unconstitutionally ceding too much power to the states and had privately lobbied for a different version.)44 John Davis, the West Virginia representative who became solicitor general and one of the Democratic Party’s legal luminaries (and its 1924 presidential nominee), similarly worried that the bill went too far in the direction of his cherished belief in states’ rights. Only constituent pressure, he conceded, helped him overcome his grave constitutional reservations.45 With Webb-­Kenyon, the states could now count on federal support in setting their own alcohol policy, and states passed a variety of laws as they moved to assert control over liquor within their borders.46 Maryland’s wet Republican congressman John Phillip Hill, who had defended Webb-­ Kenyon in 1914, later held it up as the ideal of states’ rights: “The protection of the States in their local self-­government is a proper function of the Federal Government, but farther than this it should not go.”47 As James Morone has observed, with the passage of Webb-­Kenyon, Americans “might now have found themselves with a model of moral federalism”: dry America would be sheltered from its neighbors’ vices and wet America unburdened by its neighbors’ moralism.48 The ASL, however, decided to move beyond a mere statute and looked to embed prohibition in the Constitution itself, for dry and wet states alike. The league had always theoretically supported national Prohibition—­ although it sometimes opportunistically downplayed that when justifying the local or state option—­but passage of Webb-­Kenyon convinced it that it was viable.49 In late 1913, the ASL and its allies announced support for a national prohibition amendment, and, a year later, in December 1914, Congress began debating two alternatives, the so-­called Morrison Amendment, a more moderate, states’ rights approach from the Indiana Democrat Martin Morrison, and an amendment advanced by a pair of progressive southern Democrats, Representative Richmond Hobson of Alabama and Senator Morris Sheppard of Texas, who had also served as a sponsor of Webb-­Kenyon.50 The Morrison Amendment’s change from the status quo would have been comparatively minor as its primary effect would have been constitutionalizing and strengthening the Webb-­Kenyon Act by prohibiting all interstate shipments of alcohol. (Constitutionalizing Webb-­Kenyon in 1913 had its ad-

prohibition and federalism

29

vantages since four years would elapse between its passage and the Court’s decision confirming its constitutionality in 1917 by a 7–­2 margin, with the odd couple of Willis Van Devanter and Oliver Wendell Holmes silently dissenting.) Other than foreclosing that possibility, the Morrison Amendment’s primary functional change would have been to deprive wet states of specific types of alcohol to which the legislature did not object but which could not be produced within the state.51 Responsibility for enforcement would have been more precise, with a clearer division of labor than existed under Webb-­ Kenyon. States would retain their regular police power to ban or legalize whatever alcohols they saw fit within their own states, but Congress and only Congress would have a “duty . . . to enact appropriate legislation for the effective enforcement” of a total ban on the interstate shipment of alcohol.52 Morrison’s constitutional commitments led him to minimize structural changes to the old order. His amendment would lock in a specific federal policy, but the allocation of powers would remain identical; states could set their own internal decisions, and the federal government would continue to enforce only regulations on the movement of goods across state lines. Morrison insisted that this careful tailoring would mean that anyone for both prohibition and constitutional decentralization would back his amendment as an improvement on Webb-­Kenyon, which he characterized as a good policy and good law but more difficult to enforce than a categorical ban on interstate shipping altogether.53 More importantly for Morrison, his amendment was faithful to constitutional principles in a way that the Hobson-­Sheppard proposal was not. Morrison explained his commitment to federalism by citing the civics lessons of his youth, when he had been “taught to believe, and [did] believe,” “that the republic is . . . an indissoluble union of sovereign and indestructible states,” adding, in almost idolatrous terms, that the “wisdom of the fathers in the division of the powers of government between the Nation and the States was almost superhuman.”54 In a further flourish of civic education, he explained that he never used the phrase states’ rights because governments have not rights but powers— ­of which, he insisted, the federal government had few and the states many.55 That latent constitutional conservatism led North Carolina’s Edwin Webb, the sponsor of the Webb-­Kenyon Act, to dismiss the Morrison Amendment as an unnecessary duplication of his own bill and of preexisting constitutional powers. Citing cases like Champion v. Ames (1903), Webb insisted that the federal government already had that power (as the Court eventually agreed in upholding Webb-­Kenyon).56

30

chapter three

Although briefly venturing into discussions of revenue concerns or the devaluation of property without compensation, most of the congressional debate about the two amendments in 1914 centered on federalism. Most of the Republicans who spoke on states’ rights tended to support strict construction of federal power, while Democrats, who did most of the talking, tended to be more sharply split, representing both the most assertive of the importance of preserving federalism and the most dismissive of it as an archaic and legalistic doctrine. For prohibitionists who professed a commitment to states’ rights, support for a nationalizing amendment on prohibition did not threaten feder­alism at all. The Texan Daniel Garrett observed that the Thirteenth Amendment removed state authorization of slavery but did not end federalism and that this amendment would likewise apply to a single issue—­not a general grant of power undermining the enumeration of powers.57 Franklin Mondell, a Wyoming Republican, agreed, arguing that turning to an amendment reinvigorated constitutional federalism by enabling strict construction of powers, rather than allowing the federal government to interpret its powers loosely and expand into fields like migratory bird acts. “I have no criticism of those who in good faith strictly construe the powers of the Federal Government under the Constitution,” he observed, adding: “My own inclination is that way.”58 In short, these mainstream prohibitionists insisted that the amendment was indeed the exception that proved the rule—­vindicating a states’ rights reading of the Constitution. To properly increase the authority of the national government required a specific amendment adding a new power akin to those already listed in Article I, section 8. One could not simply justify national power through tortured and expansive readings of the general welfare clause of the taxing and spending powers or the commerce clause such that anything affecting commerce could be regulated (as the Court later controversially concluded during the New Deal).59 Rather than having a functional and presumptive police power, as the states possessed, national powers were to be construed strictly. Adding to those powers was legitimate—­indeed often advisable—­but required constitutional amendment: exactly the moderate states’ rights position that Andrew Jackson himself adopted in his Maysville Road veto when warning against efforts to have “expediency be made a rule of construction” authorizing federally developed in-­state infrastructure rather than an amendment “delegating the necessary power.”60 Others were less inclined to care about constitutional nicety. William La Follette (R-­WA), a cousin and ally of Wisconsin’s progressive champion

prohibition and federalism

31

Robert La Follette, dismissed representatives “deluding themselves with state rights theories [sic], with personal liberty theories, and sophistries of many kinds” when in the end such sophists were simply motivated by “the greed of gain [and] the almighty dollar”; people afraid of changing the Constitution simply feared “financial loss to certain interests and individuals.”61 A Michigan Republican derided the “moss-­grown state rights argument.”62 An Illinois Progressive was only slightly more patient, conceding that “that there are still abroad in the land numerous devotees of that old mossback doctrine” but that many were simply opportunistically covering more nefarious justifications, just as La Follette alleged.63 Future Senate majority leader Alben Barkley of Kentucky wondered why some of his fellow southern Democrats, who had voted for hog cholera appropriations the day before, suddenly discovered federalism.64 Another member of that state’s delegation scoffed at “states’ rights statesmen,” asking them to discover “the power under the general welfare clause of the Constitution, if nowhere else, to reach out and grapple with the monster” of demon rum.65 But for a handful of outliers, southern invocations of states’ rights were remarkably muted. In 1914, 61 percent of southern Democrats in Congress voted for national Prohibition— ­compared to 28 percent of those in the Northeast.66 Despite Sheppard’s sponsorship, Texas voted almost unan­ imously against the amendment, and Hobson’s Alabama split almost evenly—­ with Majority Leader Oscar Underwood leading the opposition—­but other southern representatives were overwhelmingly dry in 1914 and would become even more so later. The cavalier dismissal of decentralization by many southerners appalled antiprohibitionists from the former Confederacy. Several professed themselves in favor of local or state prohibition but found national prohibition hostile to both constitutional principles and their ostensible Democratic ideals. Perhaps, some southerners observed, conventional wisdom about the parties’ relationship to federalism had been wrong all along. Campbell Cantrill of Kentucky implicitly accused Barkley and fellow proamendment Kentuckians of electoral malfeasance, reading aloud excerpts of states’ rights pledges from the party’s platforms between 1856 and 1912, and noting that he would remain faithful to the pledges made to constituents. Republicans in power had never pushed such a nationalizing amendment, he added, but his party now seemed so ready to commit suicide that he almost feared a conspiracy.67 Representative William Pou similarly contrasted the program of the Democrats, finally back in power in Washington after spending most of the last half century in political exile, with the Republicans. The North

32

chapter three

Carolinian observed that Republicans might be less likely to cite states’ rights rhetoric in their platforms explicitly than were the Democrats but that they at least had generally seemed to honor the principle when governing, grimly adding that his own Democrats’ establishment of a precedent of states’ dictating policy to one another would lead to civil war.68 Nor was southern states’ rights on prohibition unrelated to the last civil war as many proponents closely linked their views to the local maintenance of southern white supremacy. Pou expressed his fear that reinvigorating federal authority would allow the North to determine suffrage or interfere with segregation and miscegenation laws.69 He noted that he of course sympathized with the need to control blacks but that southerners had already removed their access to both the bottle and the ballot, just “as the adult takes the pistol from the hand of a child.” But, by threatening to reignite federal power, southern Democrats risked “the very civilization of [his] state and of every southern state [that] depends upon the survival of the principle” of states’ rights.70 Although obviously not invoking the same sorts of racial justifications, Republicans offered states’ rights themes as loudly as any Democrat in criticizing the Sheppard-­Hobson proposal, either in support of Morrison’s or against any national amendment. Minority Leader James Mann of Illi­ nois attacked the surrender of the police powers to a centralizing federal government, a theme echoed by the Pennsylvania Republican Andrew Barchfield, who protested the efforts of Kansans and Georgians to dictate policy to Pennsylvania steelworkers.71 Wisconsin’s Irvine Lenroot, a self-­ described “progressive Republican” who added that he was “probably regarded as more or less of a radical,” insisted that he remained committed to state sovereignty and that that was why he backed Webb-­Kenyon as the model for prohibition. Should the Court overturn that bill, he added, he would support a specific amendment narrowly tailored to authorize federal assistance to state alcohol policies but no other amendment.72 Lenroot’s Wisconsin colleague Edward Browne repeated similar themes, noting policies like women’s suffrage that he supported at the state level but opposed at the federal level. Wisconsin had restricted cigarette smoking but did not seek to impose that on the country. Why then, he asked, should prohibitionists of alcohol act differently? Akin to Democrats recounting a lineage of states’ rights from Jefferson to Jackson to Cleveland, Browne explained the similar commitment to federalism running through formative Republicans: Lincoln, Justice Samuel Miller, and even John Marshall Harlan (“who represented as liberal a view toward the powers of the national government

prohibition and federalism

33

as any judge who has sat upon the Supreme Bench”) all agreed that states’ rights represented the “foundation rock” of the American Constitution. Ignoring that heritage and enforcing federal power “against the overwhelming sentiment of the people of a sovereign State” would be a “disaster.”73 Morrison’s amendment would have quieted these fears, but from the beginning the ASL believed that it could eventually achieve the more radical proposal—­not in 1914, but eventually. Its long campaign of gradualism, often building up from local option to state referenda, had laid the groundwork for the final push.74 Thus, it threw its full support behind Hobson-­Sheppard. Moreover, as Morrison lamented when support for his amendment collapsed, antiprohibition forces perceived his version as the more plausible, and therefore more dangerous, proposal and, thus, using poison-­pill logic, attacked his version, not Hobson’s more centralizing offering.75 With that, the last serious states’ rights prohibition alternative met its end. Support for what would become the Eighteenth Amendment was not enough to clear the House, much less the Senate, but the ASL had managed to get national prohibition on the congressional agenda and realize who its friends and enemies were. The ASL had mustered only a bare majority of the House for the first 1914 amendment. By the time Sheppard reintroduced the amendment in 1917, he could count many more allies.76 There was also addition by subtraction: the inflammatory and vain Hobson was gone, felled in a Democratic senatorial primary by the ardent wet Oscar Underwood and now a part of ASL leadership, where he could turn his rhetorical talents to good use. Hobson had been a onetime war hero whose dogmatism and self-­ righteousness made him a pariah even in his academy days, to say nothing of his incompetent floor leadership of the 1913/1914 amendment. His fellow House members were not sad to see him leave: Speaker Champ Clark (D-­MO) called him a “lunatic” in a press conference, pausing to restate that word to ensure reporters heard his comments.77 By way of contrast, Sheppard was much better respected in the Capitol as a consistent and eloquent progressive voice and legislative steward. He was a true believer in prohibition, someone whom James Wadsworth, his ardently wet conservative Republican peer from New York, cited as one of only three honorable Senate drys he knew who actually abstained from alcohol—­although the media nonetheless had fun with the discovery of a massive still, run without Sheppard’s knowledge, on his farm.78 Prohibitionists also found a much more favorable political climate in 1917 as mobilization for World War I meant more aggressive government intervention into an increasingly national market. The war forced Americans to

34

chapter three

grapple with a national economy, placing the Court—­with Taft soon in its center seat—­in the difficult situation of reconciling the dual sovereignty of traditional jurisprudence with the increasing reality of a common market, but its pushback on behalf of state power had not yet appeared.79 Although prohibition’s momentum in the 1910s suggests that World War I was not a necessary condition for its passage, mobilization helped force open the policy window that prohibitionists had long been working toward. In Britain, Prime Minister David Lloyd George explained that his country waged war against three foes: “Germany, Austria, and drink,” with alcohol being the most damaging, worse “than all the German submarines put together.”80 The same domestic sentiment converted even some critics of national prohibition like Theodore Roosevelt, who offered temporary endorsement as part of the campaign on the home front and seemed to hint that the time had come for permanent national prohibition.81 Efforts to ration goods for wartime production of foods and fuels enabled the first foray into national prohibition, with the wartime Lever Act authorizing the president to limit the distilling of alcoholic beverages from essential agricultural crops.82 Finally, as Daniel Okrent observed, prohibition seems almost moderate compared to the Wilson administration’s seizures of railways and mines, the aggressive curbs on speech, and the other authoritarian policies undertaken in the name of victory.83 If the Webb-­Kenyon Act had shown the ASL that it could mobilize in 1914, the almost accidental passage in 1917 of the so-­called Reed Bone-­Dry Amendment confirmed prohibitionists’ strength. The law, an amendment to a federal mail statute, forbade the shipping of all nonindustrial, medicinal or sacramental alcohol into dry states, even those largely antisaloon states that had allowed the personal importation of alcohol. The arch-­ wet curmudgeon and states’ rights fanatic Senator James Reed (D-­MO) had hoped to discredit prohibition by satirizing its nationalizing aspirations with such a draconian poison pill. Indeed, fears that the dry proposal would alienate states’ rights sympathizers pushed even Hobson to balk at the proposal and ask his ASL allies to stop it, leading the league to instruct members of Congress to vote their conscience rather than lobby for it.84 Yet it passed. The time for a national amendment had come. Compared to 1914, debate in 1917 was minimal.85 Federalism, which had dominated the 1914 debate, was no longer the focus, though a bipartisan bloc of senators—­most notably, the Republican titan Henry Cabot Lodge of Massachusetts—­reminded listeners of the centrality of states’ rights to the constitutional scheme and the dangerous precedent set by

prohibition and federalism

35

undermining it.86 Thomas Hardwick (D-­GA) had opened the debate by conceding: “This amendment conforms, of course, to the constitutional requirements as to the manner and method in which the Constitution may be amended, and cannot, therefore, be assailed as violative of the letter of the Constitution.” But he continued: [The amendment] does, however, violate its spirit . . . [because] local self-­government is a part of the priceless heritage of liberty that came to us from our English forebears. To assert it and preserve it the War of the Revolution was fought; to defend it my fathers and my people shed their blood like water in the unfortunate Civil War, and though the grim verdict of that war may have determined the Indestructibility of the Union and denied the right of secession to the States, it did not set aside or seek to set aside, it did not destroy or seek to destroy, the right of the States to local self-­government.87

But such arguments were less refuted than ignored: most in the Senate treated passage as a fait accompli, with the bulk of the Congressional Record consisting of antialcohol testimonials entered by prohibitionist senators and most discussion focusing on technicalities such as whether to have eminent domain compensation and the time allowed for ratification. Federalism was similarly muted in the House debate on December 17, and those who did invoke states’ rights tended to be backbenchers rather than, as in the Senate, powerful leaders. Still, some tried.88 John Small (D-­NC) rejected the argument of a narrow exception: “It may be said that this invasion of a right of the states constitutes only one instance and that other invasions will not necessarily follow. . . . The first error will make easier subsequent efforts. When we have once weakened the fine balance of powers between the States and the Federal Government we will have endangered the stability of the entire structure.”89 Tom Slayden (D-­TX) offered an extensive, if opinionated, history lesson of the Founders’ commitment to federalism, when states’ rights patriots had defeated the “Centralist” aims of Alexander Hamilton, who had sought to induce the Constitutional Convention to “betray the states that sent them” both before and after ratification. He explained that Sheppard’s amendment would vindicate Hamilton’s subversive vision: “We will have a government [if the resolution passes] but it will not be the government our fathers gave us. . . . The states will be mere expensive political shells, without souls, and no good reason can be advanced why they should be maintained. As important political entities they will have passed into history.”90

36

chapter three

James Timberlake aptly summarized both chambers’ 1917 debates as follows. Not all the opponents of Prohibition were conservatives or all the supporters progressives, but arguments invoked by opponents, even progressives, tended toward conservative themes. They consequently worried (1) that Prohibition would require tax increases to make up alcohol revenue (with progressives arguing that the Treasury, flush with cash from the Sixteenth Amendment’s income tax, had sufficient funding), (2) that it attacked the property rights of brewers, bar owners, and others who had invested capital in alcohol-­based industry (supporters observed that property creating a harm had always been regulated), and especially (3) that it undermined states’ rights (an argument that progressive supporters mostly ignored).91 If things seemed different from the 1914 debate, which had focused on federalism, the Pennsylvanian Clyde Kelly, one of six Progressives (and one Socialist) whose coalitional support gave Democrats operational control of the House despite a Republican plurality, offered continuity in picking up Hobson’s penchant for overwrought rhetoric. He predicted “a new political alignment in this country, with Americans on one side and anti-­Americans on the other”: “All those who fight under the black banner of corruption and the yellow flag of treason must be lined up so Americans may know their enemies. . . . The battle will come. [Prohibition will assure] victory to the forces of Americanism.”92 After a perfunctory acceptance of the House-­ passed version, the Senate formally proposed Morris Sheppard’s prohibition amendment on December 18, 1917.93 “Americanism” had won. How had this happened? The ASL itself had worked to make the political climate far more favorable to the dry cause since the debate over Webb-­ Kenyon and the 1914 attempt to pass a national amendment. Joseph Cannon (R-­IL), the powerful Speaker of the House, had opposed the Webb-­Kenyon Act owing to the same constitutional objections raised by Taft. Even this political giant did not intimidate the ASL, which attempted to defeat him in a general election. (He survived, only to be politically crippled in a coup by progressive Republicans.)94 Though beaten by Cannon, the league succeeded in marginalizing its most threatening rival interest group so that it could frame the debate and lobby members of Congress with minimal contestation. ASL operatives managed to discredit and ultimately play on wartime nativism to break up the German-­American Alliance (GAA), a cultural organization with deep ties to the nation’s brewing industry that represented perhaps the most formidable potential rallying point against the league’s prohibitionist efforts. As will be discussed later, brewers and distillers remained suicidally

prohibition and federalism

37

fragmented, further disrupting the possibility of counterorganization, and thus the defeat of the GAA proved especially influential. Through judicious leaks to and lobbying of Congress and enlisting the support of the bellicose Theodore Roosevelt in its campaign, the ASL succeeded in having the GAA hounded out of existence after being investigated for subversion and having its charter revoked.95 Breaking up the GAA was far from the sole foray of the ASL into the nativist field; it actually sponsored Americanization clinics to help assimilate immigrants into mainstream culture and beliefs—­including, and especially, prohibition.96 The destruction of a national wet rallying point followed a similar success in defeating local nodes of antiprohibition sentiment. By passing statewide prohibition referenda and other efforts aimed at closing saloons, drys successfully demobilized wet voters. As many good government prohibitionists had bitterly noted, saloons had long served as sources of organization and thus core nodes for machine politics. As a result, shuttering saloons had an additional effect in demobilizing wet voters, and thus the ASL’s success with state prohibition additionally disabled effective countermobilization points.97 Eventually, Captain William Stayton, a retired navy officer from Maryland, joined with the Du Pont family and other opponents of prohibition to create the AAPA, a repeal organization that primarily attacked the Sheppard Amendment on states’ rights and federalism grounds, but its rise was yet a half decade away.98 By kneecapping rivals like neighborhood saloons and the probeer GAA, the ASL could erase more moderate forms of alcohol control— ­quite likely Americans’ true preference—­from the world of policy possibilities. In later years, antiprohibitionist groups would argue that Americans’ old preference for temperance could be combined with either voluntarism or moderate legal restrictions on alcohol, but, without such a group on the scene in the late 1910s, the ASL could frame prohibition as the only credible solution to the real problems of alcohol consumption. As one particularly bitter account of this organizational asymmetry notes: “The American public was duped into making a ‘moral’ choice [until] the economic and moral aspects of Prohibition were uncoupled [in 1933].”99 Such a plan to dupe the country would seem to have followed from the demographic strategizing drawn up by Richmond Hobson, who had become a leader of the ASL after his electoral defeat. The unpopular Hobson may not have understood tact, but he did understand math, realizing that a prohibition amendment needed to be locked in quickly before the 1920 reapportionment, when demographic changes would possibly install

38

chapter three

too many wet, urban House members to achieve the necessary two-­thirds vote. Once the amendment was passed, such changes could occur without threatening the amendment since the three-­quarter state ratification requirement would presumably never be reached.100 Even the decision to push for an amendment in 1913 resulted from the ASL’s keen understanding of political time. While a national amendment had always been its goal and Webb-­Kenyon a reassuring demonstration of its strength, the ASL feared the brewers’ recent turn to state referenda—­a technique uniquely suited to defeat its brand of legislative pressure politics, as the AAPA would exploit a decade later.101 Prohibition unsettled traditional partisan alignments as it had done for decades, perhaps most notably in costing James Blaine New York in 1884—­where only one thousand votes gave Grover Cleveland the state’s thirty-­six electoral votes and thus the 1884 presidential election.102 When the roll call on the Eighteenth Amendment concluded in 1917, Republicans and Democrats alike had backed it by huge margins; three-­fourths of both parties’ senators ( 36 of 48 Democrats and 29 of 37 Republicans) and roughly two-­thirds of their House members (141 of 205 Democrats and 137 of 199 Republicans) sent the amendment on to the states. Two-­thirds of the body’s independent or third-­party representatives also supported it, including the Prohibition Party representative that Los Angeles dispatched to Congress.103 That nonpartisanship was not accidental. Instead, it was a testament to the ASL’s greatest achievement: its carefully constructed, pathbreaking role of a true single-­issue interest group that continues to serve as the model of pressure politics today. Under the helm of the tactically canny Wayne Wheeler, the ASL understood the importance of its pivotal role as a single-­issue pressure group and actually fought hard to ensure that prohibition did not filter into the party system during the 1910s and 1920s.104 Years earlier, Representative Campbell Cantrill, a Kentucky Democrat against a national amendment, had warned his colleagues that the league would “cheerfully disrupt all party organizations in the land if they could win victories for the single flag of national prohibition,” a sentiment that Wheeler would be the first to endorse.105 With few exceptions, such as New York, where the ASL all but seized the GOP, the ASL carefully cultivated relationships with members of both parties to maintain the credibility to offer or withhold support exclusively on the basis of fidelity to the lone issue its members cared about. Wheeler consequently showed little interest outside policy success; an alcoholic who voted dry was preferable to a puritan abstemious in personal

prohibition and federalism

39

behavior who opposed national prohibition owing to constitutional scruples. Even Klan membership, if not at the expense of the league, proved acceptable.106 The litmus test was simple: casting legislative votes for national prohibition meant the friendship of the league for saints, sinners, drunkards, and white supremacists alike. Even voting for prohibition did not always engender gratitude from the ASL, as prohibitionists learned the hard way in national platform fights. In the 1920 election, Wheeler desperately worked to keep both party platforms silent on prohibition not only because, consistent with his pivotal politics strategy, he did not want to make alcohol a partisan issue but also because he did not want his movement to appear weak should any platform vote fail. The GOP, split between its eastern, generally wet-­leaning conservative faction and its western populist drys, happily obliged, but the Democratic membership proved more troublesome. William Jennings Bryan dissented, forcing the ASL to try to destroy the hopes of one of the nation’s most prominent drys lest he spoil the plan to keep Democrats similarly neutral. With Wilson and his faction hoping to modify Volstead to allow beer and Bryan trying to insert a dry plank, Wheeler dispatched James Cannon, the ASL’s southern Democratic point man, to kill Bryan’s proposal. While stalking the convention halls, Wheeler bumped into a despondent Bryan just as the vote to reject his plank became clear, with the old warhorse defeated and weeping, lamenting that Democratic endorsement of prohibition was so important to him as to be worth his own death.107 Wheeler’s methods might have been callous, reducing even a key ally to a crying mess, but they were effective. Indeed, one historian speculates that a dry but vindictive Republican Congress installed the ultrawet Democrat James Reed on the Judiciary Committee as revenge for the ASL’s pressure tactics, setting up years of comical harassment of the ASL by the irascible Missourian.108 Not only had the ASL constructed an influential mass movement that could credibly intimidate candidates, but it had also disabled potential rivals and threatened others as it prepared for its final push to lock prohibition into the national Constitution. Such effectiveness made ratification far swifter than expected, almost as fast as the states’ legislative sessions allowed. A few state legislatures meeting in 1918 ratified the proposal; within two weeks of the start of the 1919 sessions, the Constitution had its Eighteenth Amendment, banning the manufacture and sale of alcohol for beverage purposes. When Congress met a few months later, Wayne Wheeler promptly handed implementing legislation to

40

chapter three

Andrew Volstead, a long-­serving law-­and-­order Minnesota Republican who chaired the House Judiciary Committee. A moderate prohibitionist rather than an ardent believer, Volstead carefully redrafted Wheeler’s handiwork and moved the bill through more in his institutional capacity as head of the Judiciary Committee enforcing the rule of law than as a proponent of a policy agenda to which he was committed—­even though the bill’s shorthand nonetheless bore his name and made him infamous.109 In October 1919, an ailing President Wilson, who considered himself for temperance but against prohibition, vetoed the Volstead Act on the grounds that the bill was a war measure without a war until the amendment went into effect on January 16, 1920, but Congress overcame his veto—­two hours later in the House and one day later in the Senate.110 The Volstead Act’s ferociously strict definition of intoxicating—­at 0.5 per­ cent alcohol by volume (ABV)—­stunned many who now saw the cunning strategy that Wheeler had used in pressing for the use of intoxicating in Sheppard’s amendment text. With distilled liquor gone, some brewers anticipated cornering the market with “temperate” light (or “near”) beer.111 As shown by the brewers’ calculations, many had understood intoxicating to be a term of art restricted to harder liquors—­but not light wines or beer. (The ASL did not discourage such notions, though the House debate on the Eighteenth Amendment, which explicitly rejected an exemption for low-­ABV drinks, should have been a tell.)112 Brewers had believed that the Lever Act’s ban on using grains to distill alcohol but not brew it had foreshadowed similarly favorable treatment under prohibition. As a result, they had fought prohibition only halfheartedly—­and without the GAA.113 Buyer’s remorse could not reverse passage; nor, owing to the ASL’s slow but uncompromising cultivation of friendlies, were there likely enough legislators in this middle ground to have proved pivotal anyway. Wheeler had enough votes to implement whatever alcohol policy he wanted, but, as long as the Volstead Act included the critical, draconian standard of ABV, he remained willing to give ground in neutralizing what he considered peripheral issues.114 For example, even though many correctly predicted that the exemptions for alcohol used in religious services would be a readily abused loophole, Wheeler did not press for its control. He had similarly defused property rights concerns during the consideration of the Eighteenth Amendment by allowing Senator Warren Harding (R-­OH) and others anxious about the issue to delay implementation for one year from ratification, during which time brewers and tavern keepers ostensibly could

prohibition and federalism

41

convert or dispose of distilleries or other investments—­“a fair and just” time “to wind up their business,” as Representative Webb observed.115 Of course, as critics noted, this was somewhat hollow in practice since wartime prohibition under the Lever Act remained in effect and made the yearlong delay largely meaningless.116 Herbert Hoover, then serving as head of the US Food Administration, was particularly unsatisfied, calling the lack of eminent domain compensation to breweries “an insult to private property.”117 Wheeler also cut a deal with Harding to reduce the delayed start of prohibition to begin only a year after enactment, instead of the proposed two, in exchange for Harding writing in an expiration if the amendment had not passed in seven years. Such a trade was a shrewd bargain on Wheeler’s end: as Richard Hamm observed, the prohibitionists “gave away nothing” because Wheeler recognized that the amendment would likely fail anyway if it lost momentum and the ASL had to work with the 1920 reapportionment.118 Wheeler also tried to avoid needlessly antagonizing civil libertarians already bristling at the rise of a national criminal enforcement regime. The Volstead Act’s treatment of Fourth Amendment warrant requirements satisfied even a libertarian New York Bar Association leader whose treatise on defiance of prohibition instead blamed an overeager Department of Justice for excesses violating citizens’ rights.119 Searches of residences were severely restricted: Section 29 held: “No search warrant shall issue to search any private dwelling occupied as such unless it is being used for the unlawful sale of intoxicating liquor.” Nor did Wheeler seek to alienate farmers as he allowed the home manufacture of two hundred gallons of “nonintoxicating” hard cider per family per year without defining that with any specific ABV. Neither, at the beginning, did he seek significant federal funding. Recognizing America’s turn toward frugality, in 1920 he promised that the prohibition bureau’s fines would largely pay for the program after a relatively small start-­up cost of $5 million.120 Nor, it should be remembered, was use itself regulated. As even Morris Sheppard himself had claimed: “I am not a prohibitionist in the strict sense of the word. I am against the liquor traffic. I am against the saloon. I am not in any sense aiming to prevent the personal use of drink.” And he had fought off proposed text in the Eighteenth Amendment criminalizing use.121 Wheeler had been happy to make all these concessions, keenly aware of the magnitude of his success: his organization had passed national prohibition. With the Eighteenth Amendment in effect, law enforcement in committed dry states more or less continued as it had before. Legislators often

42

chapter three

revised their state’s prohibition laws, either adopting the definitions of the Volstead Act (i.e., 0.5 percent ABV ) or in some cases explicitly declaring that the Volstead Act or successor federal legislation would set the state’s policies. The Volstead Act standard adopted by Congress in 1919 remained static through the lifetime of prohibition, but the amendment’s mandate on the states triggered an extensive discussion of constitutional obligation and federalism, especially as states debated passing concurrent enforcement legislation creating Volstead Act analogues within their own boundaries.122 After all, national prohibition had been ratified by more than just the previously dry states, and it was binding on those once-­wet states as well, in addition to Connecticut and Rhode Island, which had refused to ratify it at all. (New Jersey also held out ratification until the amendment went into effect and then grudgingly added its name to the list.) These converts now had to decide what, exactly, states were obligated to do in implementing the Eighteenth Amendment’s seemingly opaque text. The first part was clear. Not only did the amendment create a direct po­ lice power; it also set a police policy. Congress had not a new political ju­ risdiction but a mandate as to what it would be used for, a mandate that ad­ ditionally applied to the states. Section 1 of the amendment held: “After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors . . . for beverage purposes is hereby prohibited.” Who was to implement this prohibition? This was less obvious. Section 2 established that “the Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.” What was “concurrent power?” That language had been a ham-­fisted effort by which progressives hoped to foreclose states’ rights concerns; drafters envisioned that citizens would see enforcement as primarily the product of local governments rather than hated federal agents descending from an imperial city. But that crucial section had been largely ignored in floor debate; no one knew what it meant, only that states would be involved, leaving states with little guidance.123 Unlike the 1913 debates on Hobson-­Sheppard and their significant focus on federalism, the 1917 debates offered little guidance, mostly focusing on issues like the expiration of the ratification period—­nothing of use for understanding concurrent enforcement. The nebulousness of the provision is apparent in letters Wheeler received from congressional sponsors, which broke both ways. Some argued that the states would have to follow the federal lead, while Edwin Webb, who had been so central to federal

prohibition and federalism

43

antialcohol efforts, explicitly told Wheeler that he understood concurrent enforcement to mean that states could define liquor however they saw fit: “Each sovereign has the right . . . to enforce this constitutional amendment in its own way.”124 As Congress considered the Volstead Act in July 1919, wets including Henry Steele (R-­PA) and (Theodore Roosevelt’s son-­in-­law and future House Speaker) Nicholas Longworth (R-­OH) now tried to make up for their negligence in allowing concurrent to pass unremarked in 1917. They argued that the concurrent enforcement text of the Sheppard Amendment implied consent and therefore that the federal government could not simply dictate a standard of intoxicating to the states, but Wheeler eviscerated those claims by citing the supremacy clause.125 George Wickersham, Taft’s former attorney general who would chair the 1930 commission assessing a decade of prohibition, had warned of both the danger and the inscrutability of the concurrent power clause and urged the New York Bar to join him in opposing its ratification. By creating an awkward situation in which states concurrently interpreted a federal power, the drafters of the amendment had, according to Wickersham, resurrected the vision of the “states’ rights leaders of Calhoun’s time,” who had demanded the consent of the states as a prerequisite to achieve federal action. More bafflingly, he observed, this specter of nullification was perfectly needless as the Court had upheld the robustly federalist Webb-­Kenyon. Wickersham hoped that he would be proved wrong, but how would he know how concurrent enforcement would be interpreted when his examinations of the Congressional Record could not disclose any evidence “that it ever received the slightest consideration of anybody in the legislative body”? In appealing to the New York legal community, “students of the Constitution . . . devoted to the institutions of our country,” he reminded them of the obligation to protest when “our representatives in Congress abdicate their functions and duties by passing far-­reaching measures of this kind without consideration.” (While disagreeing on the merits of prohibition, all but one of his peers spoke out in opposition to the concurrent phrasing; one cynic dismissed the amendment as simply a harmless sop to public opinion that would be as underenforced as the Reconstruction amendments.)126 But, if a former attorney general could not understand an essential provision of the amendment, how were state legislators to know what they could and could not do? After all, as numerous political commentators observe, Prohibition was an unprecedented experiment in American federalism, “arguably the most radical and significant constitutional reform ever adopted.”127 In considering

44

chapter three

the extent of federal power to regulate maternity with the Sheppard-­Towner Act, Massachusetts attorney general J. Weston Allen explained that it was the singular exception of federal police powers in the Constitution.128 Millard Tydings, a states’ rights– ­oriented Maryland state legislator turned senator, argued that its enactment had modified the “fundamental principle” of the Constitution: “Congress, for the first time, was given the power to deal exclusively with a local matter rather than a national matter.”129 What were states required to do in such an untested world? Hoping that the answer would be nothing, Rhode Island joined those who challenged not only the Volstead Act but the Eighteenth Amendment before the Supreme Court, on the grounds that Sheppard’s handiwork had been an unconstitutional constitutional amendment.130 To argue the case, the state and a coalition of brewers enlisted Elihu Root, an elite Republican elder statesmen and lawyer from New York. (Root’s fellow high-­powered New York lawyer, former and future Justice Charles Evans Hughes, although a wet, refused a large sum of money to argue the case, finding its claim ridiculous, instead defending the other side.)131 Not only was Root a former president of the New York Bar and a recently retired senator, but he had also been Theodore Roosevelt’s secretary of war (and chosen successor) before painfully breaking with him during the latter’s 1912 run. Root was well-­known for strong progressive political sympathies: he favored aggressive economic regulation by the federal government and, in a famous speech, urged states to pass robust welfare, safety, and other laws needed in the wake of industrialization.132 But that program suggests Root’s constitutional conservatism. He believed the increasingly interstate nature of commerce activated federal powers to regulate the economy (and hence he had supported Roosevelt’s Square Deal), but he urged states to fulfill their duties in passing health, safety, and welfare laws not only to generate good policy but to preserve the distinction between state plenary powers and federal enumerated powers.133 His views on prohibition and federalism were similarly nuanced: for example, he had supported Taft’s veto of Webb-­Kenyon on constitutional grounds even though he approved of its substantive aims of encouraging state prohibition.134 In short, he was a conscientious constitutional thinker, one who recognized changing social conditions and the need for governments to respond accordingly, and as a result he was able to forge bonds with both the conservative and the progressive wings of the Republican Party. Thus, it is easy to see why Taft seriously considered Root for the chief justice appointment that eventually went to Edward Douglass White.135

prohibition and federalism

45

But, if Root was an ideal choice to argue the case, the case itself was not an ideal case to argue as he had to advance a position that seemed, on its face, laughable—­that a provision of the Constitution, textually embedded through the channels proposed in the Article V amendment process, was nonetheless unconstitutional. Root’s argument was one shared by other libertarian lawyers, many of whom were based in the New York legal community, combining elements of popular sovereignty and natural law to discredit the Eighteenth Amendment altogether. This position held that federalism was so core to the constitutional settlement that the amendment’s drastic changes could be approved only via the people directly through conventions.136 In short, Article V offered a protocol for amending the Constitution and even for changing its balance of powers. However, eroding the distinction between the limited grant of primarily economic federal powers and the plenary grant of state police powers by directly mandating a policy had so drastically changed the nature of the Constitution as to require a convention.137 In advancing this position, Root resurrected an argument offered by Roger Sherman, the Connecticut representative whose successful insistence on preserving federalism in the 1787 Constitutional Convention arguably made the final product more his handiwork than James Madison’s.138 But, if Sherman generally defeated Madison and preserved a state-­centered polity—­for example, by insisting, contrary to Madison, that the federal government could regulate only interstate and not intrastate commerce—­the amendment process was one of the Virginian’s victories. Sherman had proposed that any Article V amendment modifying the states’ internal police powers require unanimous consent, but Madison, able to point to the disastrous unanimous consent provisions of the Articles of Confederation, turned this proposal aside.139 ( This convention defeat did not stop two Re­ publican congressmen from citing this argument in justifying their 1917 votes against Sheppard’s amendment.)140 Even Root’s friend and cocounsel William Guthrie, a Columbia constitutional law professor, president of the New York Bar, and fellow elite Republican corporate lawyer, thought this was a losing argument, despite matching (and probably exceeding) Root’s commitment to states’ rights. Root’s position on the illegitimacy of the Eighteenth Amendment garnered some support: both the state attorneys general assisting Root and Guthrie—­Herbert Rice, attorney general of Rhode Island, and Thomas McCran, attorney general of New Jersey— ­defended Root’s claim.141 Conversely, Maine’s governor, Carl Milliken, enlisted thirty-­three other governors to criticize the

46

chapter three

argument, with Vermont’s Percival Clement endorsing the Rhode Island position, while the New York Times praised the effort by the holdout states to make the case for federalism.142 Root’s position on an unconstitutional amendment was controversial, but his assumptions about the centrality and even the moral worth of the states as the nation’s constitutional core were not so radical. This position, what Robert Post refers to as normative dualism, drew on a wide base of support among both legal scholars and more popular opinion. The Nation, for example, declared that, should Root lose, the right of states to self-­ government “will perhaps disappear so far as the police power is concerned, and the way be opened for a federal centralization practically complete.”143 Thus, even if most would not have gone as far as Root in this case, Root himself could at least draw on a well of moral support as he begged the Court to remember the importance of federalism. Nicholas Murray Butler, the president of Columbia University and a close Root ally, recounted the aged Root’s almost apocalyptic plea to the Supreme Court. In his closing argument, the elderly Root, bracing himself to stand up straight for one final salvo, pointed his finger at Chief Justice White and, with a scalding indictment, warned the justices: “If your honors shall find a way to uphold the validity of this amendment, the government of the United States, as we have known it, will have ceased to exist. . . . Your honors, John Marshall need never have sat upon your bench.”144 Note, however, that even the venue for dispute resolution was the Supreme Court itself. Despite fervently believing that the amendment was unconstitutional, both in text and in spirit, Root was no Calhoun, demanding that a state legislature (or a special convention) issue an ordinance of nullification. Instead, he and the states and brewers who hired him submitted their objections to the judicial and legislative processes—­just as Andrew Jackson and Edward Livingston had proposed throughout the years of the nullification crisis. The Court consolidated various legal challenges as the National Prohibition Cases and, in June 1920, swept away any lingering doubts about the legitimacy of the amendment. In a mechanical opinion by Justice Willis Van Devanter, functionally serving as a brief per curiam, the Court offered terse summaries of its holdings without agreeing on the justifications. Recognizing the danger of judicial reticence in “a case of this magnitude” with grave implications for federalism and of direct interest to the citizenry, Chief Justice White offered a concurrence that tried to explain why the majority ruled as it did.145 An equally unimpressed Justice Joseph McKenna

prohibition and federalism

47

sarcastically observed: “The Court declares conclusions only, without giving any reasons for them. The instance may be wise— ­establishing a pre­ cedent now, hereafter wisely to be imitated. It will undoubtedly decrease the literature of the Court if it does not increase its lucidity.”146 If the reasoning was unclear, the result was not. While the justices splintered in interpreting secondary questions, they agreed on one thing: the Eighteenth Amendment was constitutional, which they concluded with little more than a cursory dismissal.147 As even Justice McKenna’s dissent tersely observed: “The Eighteenth Amendment is part of the Constitution of the United States, therefore of as high sanction as Article VI.” In what appears to be a dig at Root, McKenna added that Van Devanter’s perfunctory explanation that the amendment was the law of the land “seem[ed] to assert the undisputed.”148 William Guthrie, Root’s cocounsel, did not do much better than Root in his part of the argument, in which he analyzed the language of concurrent enforcement to attack the Volstead Act and its enforcement within the states. Considering the minimal debate that took place in Congress on the meaning of “concurrent enforcement,” the Court splintered in interpreting that provision. Between two and three justices seemed willing to agree with Guthrie in holding that “concurrent” did not allow for unilateral federal decisionmaking that also bound the states. (McReynolds signed off on the judgements announced in Van Devanter’s functional per curiam opinion, but explicitly reserved his prerogative to reject any underlying reasoning.) For dissenters Clarke and McKenna, “concurrent” meant cooperative. The states already had the police power to do whatever they wished with alcohol, so “concurrent” could not be read to give states what they already possessed. Instead, the amendment authorized the federal government to wield new powers—­but using notably different language than other previous additions to federal authority. This textual anomaly was key for the dissenters: Unlike appropriate enforcement of the Reconstruction amendments, lodged exclusively in the national government, the unusual inclusion of concurrent power required agreement. McKenna was adamant that the Eighteenth Amendment did not enable the federal government to simply roll over state liquor laws with the Volstead Act.149 Justice John Clarke tried to read the amendment as a more aggressive Webb-­Kenyon, something akin to a specialization of labor within the separate spheres of dual sovereignty. For him, the federal government could suppress interstate alcohol trafficking as before, but it could undertake the suppression of intrastate alcohol only with the

48

chapter three

agreement of the state. States could not license or tax alcohol within their borders—­but they could keep federal prohibitionists out.150 Doing otherwise, Clarke warned, echoing the worry of the Waite Court justices in Slaughterhouse, “would have radically changed the whole constitutional theory of the relations of our state and federal governments by transferring to the general government that police power.” Looking to his predecessors’ example, and anticipating the views of his successor, George Sutherland, he was glad that the Slaughterhouse Court had been capable of “resisting the pressure of the passing hour” and had thus “maintained the integrity of state control over local affairs to the extent that it had not been deliberately and clearly surrendered to the general government.” His peers on the Taft Court, he lamented, had not done so in this case.151 But such deliberate and clear surrender was precisely what the majority believed had happened with the Eighteenth Amendment: the people had debated and approved a change to the Constitution, giving Congress a new power and setting a specific policy, and that meant independent mandatory enforcement by both federal and state officials. In brushing aside the challenge not just to the amendment but also to the Volstead Act, Van Devanter’s opinion and White’s concurrence, functionally speaking for the Court’s majority, foreshadowed the vigorous defense of federal prohibition authority the Court would adopt under Taft.152 According to the majority, Congress had the power to suppress the manufacture, sale, and transportation of beverage alcohol within the nation’s borders, full stop. The amendment itself did not contemplate any sort of separate spheres but gave Congress authority to implement its mandate by appropriate legislation. Implicitly relying on the supremacy clause in noting national enforcement is “paramount when state legislation and congressional action conflict,” White observed that, far from creating equality between the two sovereignties, the dissenters’ interpretation would “destroy it by making one paramount over the other.”153 Congress could thus act directly on individuals engaged in wholly intrastate activities; any other construction would “give the states the power to nullify the first section” by refusing to enforce the amendment.154 Van Devanter and White agreed that neither Congress nor the states could “defeat or thwart the prohibition, but only . . . enforce it by appropriate means.”155 Those appropriate means entailed implementing the Volstead Act. The Court’s minimalist opinion, even with White’s brief addenda, left two complications of dual federalism unresolved, one resulting from compliant states, and one from holdouts. First, if both sovereigns were independently

prohibition and federalism

49

bound to enforce that same Eighteenth Amendment as implemented by Congress through the Volstead Act (and duplicative “baby Volstead” state legislation), could an individual be tried by each sovereign independently for one act that therefore meant committing two crimes? Stated more concretely, did an individual’s Fifth Amendment protection from double jeopardy prevent a bootlegger arrested for operating in Washington from being tried by both state and federal district attorneys? The amendment sponsor Edwin Webb had promised that double jeopardy would protect a citizen in this situation.156 In U.S. v. Lanza (1922), a unanimous Court held that it did not.157 The second complication, acknowledged by Chief Justice White as an abstraction, speculated not about redundant enforcement but about unaided enforcement. In rejecting the dissenters’ interpretation of concurrent, the chief justice had observed that Congress must have independent power to enforce the Eighteenth Amendment without a state’s permission. Otherwise, he feared, “in a case where no state legislation was enacted, there would be no prohibition.”158 This raised the natural question, What would happen if a state never enacted enforcement legislation— ­or repealed it? Would there truly be no prohibition without federal implementation? Could states thus take advantage of the federal government’s limited bureaucratic and law enforcement apparatus and functionally end prohibition enforcement within their borders? For the time being, however, Wheeler and the ASL were unperturbed and confident, and they had every reason to be. Regardless of their own views of the merits of Prohibition, the country’s political leadership firmly believed— ­or had resigned themselves to acknowledging—­that Wheeler’s handiwork would survive forever. President Harding repeatedly offered this prediction.159 Root’s passionate legal assault on the Eighteenth Amendment had in part resulted from his belief that a court imprimatur would make it a part of the Constitution for all time.160 New Hampshire governor John Bartlett proclaimed that, like suffrage, prohibition was legislation that would “undoubtedly stand forever towering at mountain heights”: “With a strong public sentiment behind them, and because they are so manifestly right in principle, there can be little doubt that they will be allowed to remain as completed and settled issues.”161 In 1924, when asked to join the growing AAPA, Arizona governor George Hunt explained the futility of seeking repeal. In light of that calculation, he insisted: “The sooner the Association and all of other such organizations disband and recognize that the Eighteenth Amendment is as much a part of the Constitution of the United

50

chapter three

States as any other portion thereof, the better it will be for law enforcement.”162 Even as late as 1930, Senator Morris Sheppard colorfully gloated of his amendment’s durability: “There is as much chance of repealing the Eighteenth Amendment as there is for a hummingbird to fly to Mars with the Washington Monument tied to its tail.”163 Nor did wet Americans looking for an oasis find help from the Supreme Court, even though it was staffed by prohibition opponents. Fulfilling the hopes of the man who appointed him, the elderly Edward Douglass White’s passing in 1921 opened a seat for that same man, William Howard Taft.164 The positivist Taft, who had firmly opposed the amendment both as president and as a law professor on states’ rights grounds, resigned himself to the amendment’s permanence. “There isn’t the slightest chance that the constitutional amendment will be repealed,” he explained, and thus he protected the sanctity of law by becoming Prohibition’s most zealous champion on the Court.165 Under Taft’s leadership, the Court rarely ruled against Prohibition even in an era of legal conservatism and a dogged renewal of federalism. Much to the anguish of old natural rights hard-­liners Sutherland, McReynolds, and Pierce Butler, the equally conservative but legal positivists Sanford and Van Devanter joined Taft and the Court’s progressives in creating at least one pocket of nationalist jurisprudence that would lay some of the groundwork for the New Deal.166 Six months after the Court signaled that it would authorize the nation building of Prohibition, Eugene Chafin, the Prohibition Party’s 1912 presidential candidate, went to his grave, surrounded by an increasingly resigned political class. While Taft, Root, Guthrie, and Harding despaired of ever freeing themselves of Sheppard’s handiwork, Chafin feared something else: that the severe Volstead Act had ruined temperance and would alienate Americans from his life’s work. The dying man prophesied the impossible: the invincible Eighteenth Amendment would be repealed within fifteen years.167

chapter four

Ratifying and Implementing the Sheppard Amendment (1918–­21)

Orders is orders, you know.—­Detroit police officer, on seizing the liquor supply of the Massachusetts delegation en route to the 1920 Republican convention1

O

n the same day that the Supreme Court handed down the National Prohibition Cases, the Chicago Tribune reported the sad plight of a trainload of Massachusetts Republicans who had been merrily riding from Boston en route to the party’s national convention in Chicago. After a week on the road, they made a brief stop in Detroit. As their train was presumably resupplied for the last part of their journey, they were met by Detroit’s “sponge squad,” a unit of prohibition agents aiming to mop up the flow of alcohol into the city. The Tribune’s impish title covering the story playfully observed: “ ‘Sponge Squad’ Dries Up Joy of Bay State Men.”2 As these Massachusetts Republicans—­formerly dry in endorsing the ratification of the Sheppard Amendment, increasingly moist in resisting it—­learned to their regret, national Prohibition was real, and its enforcement regime would happily soak up their supply of liquor just as it would that of millions of others. The Supreme Court had proved no help. The Eighteenth Amendment was constitutional; therefore, according to Article VI, its implementing act was constitutional as well. But wets had never expected the justices’ courtroom in the Old Senate Chamber to be the battleground in which to defeat national prohibition and instead had expected to wage a war of constitutional politics. In fighting the Sheppard Amendment and the Volstead Act,

52

chapter four

the brewing industry, New Jersey, and Rhode Island had turned to Elihu Root’s last-­ditch legal gambit in 1920 only because ratification by the states had proved so easy in 1918 and 1919. By the terms spelled out in the third section of the proposed amendment’s text, consideration of the Eighteenth Amendment automatically expired after seven years. The Anti-­Saloon League (ASL) had been confident of eventual passage but had anticipated a multiyear, state-­by-­state battle to clear the high bar of ratification by thirty-­six states. Instead, all but three states had ratified by the time the Court heard oral arguments in May 1920. The ASL and its allies were able to achieve this for many of the reasons discussed in the previous chapter: a uniquely favorable policy window appealing to wartime sacrifice and nationalism, the linkage of cultural conser­ vatism with progressive social engineering, disorganized countermobilization, and especially effective pressure politics. As politics turned to the states, the prohibitionists also leveraged sophisticated constitutional theorizing alongside their political power. In developing this logic, they rhetorically seized the language of constitutional fidelity and states’ rights—­in effect, claiming the desirable center ground of the American constitutional battlefield. Yes, the prohibitionists conceded, their amendment set a national alcohol policy instead of leaving the issue to the states under Webb-­Kenyon, but this did not undermine the Tenth Amendment and federalism. Instead, they argued that the Eighteenth Amendment and state participation in its regime of concurrent enforcement supported federalism in three ways. First, by resorting to a constitutional amendment, drys argued, they had reinforced a strict reading of the federal government’s powers. Rather than simply softening the protections of federalism through an expansive construction of the commerce clause (as would occur under the New Deal), they had gone through the trouble of specifically adding a new federal power. In effect, prohibition was an exception that proved the rule: by specifically adding to the enumerated powers, they confirmed that the federal government could not exercise authority outside the list of powers and that only the rigid amendment process could allow any adjustment. Second, by making this change through the state-­centered Article V rat­ ification process, the drys ensured that the states themselves consented to this change and in the most authoritative manner possible. ( Never mind those states whose legislatures ratified an amendment without a popular refer­ endum, something that several of their own state constitutions required but that the courts dismissed.)3 This offered little comfort for Connecticut, Rhode

ratifying and implementing the sheppard amendment (1918–­21)

53

Island, and New Jersey, the three states that had withheld ratification, but, as other states began to repent of their decision and delib­erate about ending in-­house prohibition enforcement, prohibitionists could rightly point out that the states themselves had agreed to pass and enforce the Eighteenth Amend­ ment: they were bound only by their own earlier choices, not by some external invader. Third, as wets began to argue that the states should use their sovereign discretion to withhold assistance from prohibition, drys warned that doing so would only help expand federal authority and build up a national law enforcement apparatus. Even some wets found this a compelling argument and functioned as prohibition legalists, fearing that their states’ noncompliance might result only in further federal growth and enforcement by foreign powers rather than their own police forces. As Lisa McGirr’s work on Prohibition as the genesis of a federal law enforcement state has shown, they were right.4 Finally, prohibitionists combined the three claims outlined above to argue that a lack of state support amounted to nullification—­not only claiming the states’ rights center ground for themselves but also casting the wets back into an antebellum constitutionalism now reviled as southern treason. Drys could never quite figure out what to do with Maryland, the lone state never to enact state concurrent enforcement. But, drys argued, any subsequent statutory withdrawal of enforcement by states that did pass implementing legislation constituted legislation inconsistent with the supremacy clause of Article VI. Thus, once ratification passed, drys demanded compliance and cooperation not only to help preserve the sanctity of the law and the Constitution but also to minimize damage to the federal system and maintain as much of the federalist order as possible. Eventually wets would attempt to reclaim this ground of states’ rights, arguing that states retained their sovereign ability to refrain from assisting federal policy. The Eighteenth Amendment, they argued, created concurrence, not commandeering. But, in the early years of prohibition—­during its ratification process and early implementation—­such arguments were confined to the fringe of political losers. This chapter will show how states in the South, West, and Midwest debated ratification and whether to adopt concurrent enforcement within their borders, with the following chapter covering equivalent developments in the Northeast.5 Fifteen state legislatures that had met in 1918 ratified the amendment—­ most painlessly—­and, when the bulk of state legislatures met in January

54

chapter four

1919, they raced through ratification, figuring that years of debate meant that there was little more to say. So quick were these efforts that six ratified the amendment within a week of convening and nineteen joined them the following week to exceed the thirty-­six-­state threshold. Eight states had yet to ratify;6 these were all in the Northeast except for New Mexico and Nevada, and, though all but two (Connecticut and Rhode Island) would eventually sign on, the laggard states would see a disproportionate share of antiprohibition activism once it came time to actually enforce dry policies. By the start of World War I, twenty-­six states had adopted state-­level prohibition, with an additional eight added to that number during the conflict. Thus, only fourteen states remained wet and without in-­house enforcement by the beginning of 1920, when the amendment went into effect. Of these, passage of concurrent enforcement would prove uneventful in many, especially after the Court handed down the National Prohibition Cases.

The South Many expected southerners to hew to their supposed legacy of states’ rights in opposing a massive new federal power, especially one that recalled the federal machinery of the now unenforced Reconstruction amendments. Instead, the South was one place not hostile to either nationwide prohibition or state concurrence in enforcing dry laws. The almost total southern disinterest in states’ rights concerning Prohibition was widely noted (and derided) at the time, especially in contrast to southerners’ rediscovery of the doctrine when opposing ratification of the Nineteenth Amendment less than a year later.7 As one ASL official observed in mocking the hopes of Edward Edwards, a states’ rights fanatic New Jersey governor, the South would give him no comfort: the first four capitols to ratify the Sheppard Amendment in 1918 had been Jefferson Davis’s Jackson, Robert E. Lee’s Richmond, Frankfort, the home of the Kentucky Resolution, and John C. Calhoun’s Columbia.8 Critics of southern hypocrisy easily pointed to sponsorship of what became the Prohibition amendment to illustrate the region’s seeming indifference to states’ rights except when useful to maintain white supremacy. The most nationalizing elements of the Eighteenth Amendment resulted from southern Democrats’ overcoming the measured states’ rights Morrison Amendment, which had been favored by northern Democratic prohibitionists. After all, Morris Sheppard and Richmond Hobson, the con-

ratifying and implementing the sheppard amendment (1918–­21)

55

map 1.  State prohibition as of the Eighteenth Amendment going into effect (January 1920)

gressional point men in creating a national police power, were not Yankee Puritans but instead southern Democrats who brushed aside their northern colleagues’ federalist concerns. Hobson and his fellow Democratic Alabama representative Oscar Underwood, who had recently defeated Hobson for Alabama’s Senate seat in 1914, waged a decade-­long contest to steer the South’s two possible paths under Prohibition. In December 1914, then representative (and majority leader) Oscar Underwood had denounced the Hobson-­Sheppard Amendment as an “attempt to rob the states of their jurisdiction over police matters . . . and to establish a precedent that would concentrate the power of all government in the government established here in Washington.”9 Underwood was a consistent opponent of federal power who devoted his career to the preservation of states’ rights. Indeed, his last major political act after his retirement from the Senate was a federalist manifesto trying to reclaim the doctrine from those who dismissed it as an obsolete lost cause. Underwood’s treatise defended states’ rights on both historical and pragmatic

56

chapter four

grounds, especially but not exclusively in the hope of attacking prohibition, which he seemed to hate above all.10 For Underwood, Prohibition was the most offensive example of southern indifference to states’ rights, but it was by no means the only instance that alienated him from much of his party. Underwood had begun as a supporter of the New Freedom, seeing it as the relative small government alternative in that election, but he had turned against the Democratic president when he concluded that Wilson had instead abandoned that plank for progressive nationalism.11 Since the time of Theodore Roosevelt, Underwood lamented, “a distinct class had grown up . . . who sometimes called themselves Progressives” and to whom “the guarantee of the Federal Constitution stood not as a safeguard . . . but rather as an impediment.” These progressives were moralizing “apostles advocating general improvements . . . for the whole people of the United States, regardless of the desires and wishes of the people of some of the States.”12 Equally damningly, he warned, these nationalists were joining with interest groups (like the ASL) to overthrow the basic logic of American politics, in which local populations enforced laws consistent with their own needs—­relatively homogeneous states within a more heterogeneous union.13 Thus, citizens of the arid Rocky Mountains, Underwood noted, appropriately imposed draconian water controls on themselves that would make no sense and would be immoral if forced on the wet East.14 Surveying Democratic leadership in the late 1920s, Underwood scalded his people for betraying this system, suggesting that immigrants had supplanted native Americans as the true guarantors of the constitutional order. “It is a strange condition of our own times that the great cities of the East, with their foreign populations,” continued to guard “the true tradition of Thomas Jefferson,” he noted, while the “revolutionary blood and Protestant . . . religion” of the South and West no longer believed in states’ rights.15 Compared to most southerners, and certainly compared to Hobson, Underwood was a comparative racial moderate (like the nineteenth-­century southern Bourbons who shared Underwood’s enthusiasm for business and integrating the isolated agrarian South into the northern capitalist economy). Though he successfully filibustered federal lynching laws and invoked white supremacist rhetoric throughout his political career, he also praised his close friend Warren Harding after his controversial 1921 Birmingham speech calling for black political equality. Finally, he would eventually destroy his political career battling the Klan at the 1924 Democratic convention (which garnered him a mention in John F. Kennedy’s Profiles in Courage).16

ratifying and implementing the sheppard amendment (1918–­21)

57

Nonetheless, just as race served as the dominant organizing feature of southern politics,17 so did it structure Underwood’s and Hobson’s contest over prohibition. Even though his service in the Spanish-­American War made him sympathetic to individual black soldiers and veterans, Hobson was typical of southern prohibitionists in tightly linking control of alcohol with control of blacks. Unlike Underwood, he was comfortable voicing aggressively and luridly white supremacist views, claiming, for example, that alcohol prompted black cannibalism. Like Hobson, Underwood was not above leveraging southern racism on behalf of his Prohibition position: Hobson’s weakening of states’ rights, he warned, would enable a new Reconstruction pushing for federal enforcement of racial equality and the Fifteenth Amendment, which (briefly) enabled him to position himself as a stronger defender of the southern racial order than Hobson.18 His victory in the Alabama Senate race ultimately amounted to little, however, as Underwood soon found himself a relatively lonely true believer in his region’s purported doctrine. As he lamented and the southern states’ subsequent policy decisions made clear, it was indeed Hobson and Sheppard, not him, who represented mainstream southern thought on prohibition and federalism. Below the Mason-­Dixon line, only Maryland, already in transition out of the South, joined the resistance to Prohibition (unlike neighboring Delaware);19 all the others ratified in quick succession and implemented enforcement almost as quickly. In the wake of the National Prohibition Cases, Louisiana, the only other southern state without preexisting state prohibition, quickly passed concurrent enforcement, the so-­called Hood Act, at a fall special session in 1921. (The session was called not for prohibition but for the implementation of the latest installment in the state’s innumerable constitutions.)20 It briefly appeared possible that Louisiana would join those states pushing back against the Volstead Act. Governor John Parker—­a Democrat but onetime Progressive Party leader and close ally of Theodore Roosevelt’s—­ pledged his support for a bill against bootlegging but warned that he would veto any implementation of Volstead’s standards by Louisiana itself.21 But, with Parker elsewhere for an arms conference, his lieutenant governor signed the Hood Act.22 Nonetheless, at least some vestige of Parker’s Volstead skepticism survived as the Senate backed a resolution against the National Prohibition Act, albeit one firmly rooted in respectful policy critique rather than federalism. SCR5 tepidly noted that Congress was “at present considering a modification of the so-­called Volstead Act” and that therefore Louisiana

58

chapter four

thought it appropriate to “request” that such modifications allow light wines and beer.23 Federalist objections to the Hood Act itself were only slightly more substantial. One opponent of the bill wished that Louisiana had done nothing, protesting that Prohibition was not germane to Parker’s stated purpose of implementing the new constitution at the special session. Although this senator professed to be in favor of prohibition’s objectives, he thought that the problem was Congress’s: “I do not believe that the State of Louisiana should be required at this time to execute federal laws that the federal government itself has flatly failed in enforcing.”24 But that mild skepticism was the only obstacle in making the Lower South completely dry. Although Maryland ratified the Sheppard Amendment in 1918, the controversial passage foreshadowed the surliness that would make it the only state never to pass concurrent enforcement—­and from there become the bastion of states’ rights more generally during the 1920s. Maryland’s refusal led Georgia congressman William Upshaw to dub the states’ citizens traitors—­and in turn earned Maryland its nickname of the Free State when Baltimore Sun editor Hamilton Owens responded to Upshaw’s attack by writing a half-­satirical editorial called “The Maryland Free State” calling for the state to go ahead and secede from the Union rather than suppress alcohol under federal duress. Owens did not end up running the piece but recycled the term into later editorials that Governor Albert Ritchie then popularized in endlessly promoting Maryland’s attacks on federal power—­ and himself as the nation’s leading defender of states’ rights.25 Maryland was the extreme outlier in the South, its political class sharing a zealous commitment to states’ rights that cut across party and issue. Marylanders invoked their southern heritage in defending their states’ rights positions, and therefore onlookers had considered Maryland a key test of the Sheppard Amendment’s viability as it was the first wet state to consider ratification in 1918.26 It had not only a political culture noted for localism and states’ rights beliefs but also a reasonably large alcohol industry.27 These factors led the wet Baltimore Sun toward guarded optimism that the state would reject both the Eighteenth Amendment and state prohibition. The editors observed that Baltimore—­both the city and county—­ had decisively rejected prohibition at the most recent election and thus that its many legislators would fear crossing wet constituents. Those outside the county, it was hoped, would be content leaving their own locales dry rather than imposing their whims on their neighbors.28 Although the Sun had remained hopeful that the state’s seeming preference for decentralization would preserve local option, the editors feared

ratifying and implementing the sheppard amendment (1918–­21)

59

changes in constitutional thought in light of the experience of World War I. They also recognized that Dixie’s supposed ardor for federalism seemed to have cooled. “We do not,” they lamented, “lay stress on the abstract doctrine of states’ rights, a theory not much regarded in these days, although once held so important in Maryland and the South.”29 When it came time to consider ratification of the amendment in January 1918, however, the Senate’s Federal Relations Committee, dominated by a states’ rights bloc, did hold the doctrine in high regard. Almost totally endorsing the positions taken by the Baltimore lawyer William Marbury in widely covered testimony, the committee firmly endorsed states’ rights and recommended inaction until a state referendum approved ratification.30 The committee argued not only that civic peace and democratic legitimacy were enhanced by requiring popular approval but also that the Eighteenth Amendment served as a de facto amendment to Maryland’s constitution as well since Article 4 of that document held: “The people of this state have the sole and exclusive right of regulating the internal government and police thereof as a free, sovereign, and independent State.” The committee was adamant: “This is the law of the land which we have sworn to uphold. To adopt this amendment, therefore, is equivalent to amending the Constitution of Maryland, a right belonging only to the people and one which they are properly jealous of. The General Assembly has never had any right to surrender the guarantees which the people enjoy under the Constitution.”31 Ratification for them meant a “surrender to the Federal Government a part of what is called the police power of the State in flat contravention” of the constitution and therefore required the approval of the people. The committee’s amendment demanded that the legislature take no further consideration until such a referendum occurred.32 Unfortunately for the Senate’s Federal Relations Committee, its vote was irrelevant. It had been able to write that report at all only because the full Senate had barely missed the two-­thirds vote necessary to set a procedural rule bypassing it altogether.33 Nor had the drys even bothered testifying in response to Marbury’s arguments, although several days later a visiting William Jennings Bryan took note of his address in his own speech to a packed House chamber.34 Bryan reportedly once said that, no matter what one wanted to do, a railroad lawyer would pull out court cases and declare that the Constitution prohibited it—­which he later added was equally true of antiprohibitionists.35 Securing ratification of the Eighteenth Amendment would obviate such worries. Thus, the Nebraska populist had designated himself a roving

60

chapter four

advocate for the amendment’s ratification, visiting the legislatures of states considering the cause with which he was so closely identified. With Maryland offering the first real test of ratification, he traveled to Annapolis to personally vouch for ratification. The former secretary of state recognized that securing Maryland’s ratification required disarming the state’s political leadership and its self-­imposed, bipartisan mantle as the guardian of federalism. After praising the skill of William Marbury in attacking the proposed Eighteenth Amendment, Bryan observed that the extra year stalling for a referendum would merely result in another billion dollars of brewers’ revenue. On hearing the antiratification forces attack the Sheppard Amendment for centralizing power in Washington—­against what their southern heritage demanded—­he argued that liquor was a poor cause that would discredit federalism, floridly declaring: “No man lives who is more devoted to states’ rights than I am, but I am not willing to have that honorable doctrine in a drunkard’s grave.”36 (He did have a reasonably well-­established and firm commitment to states’ rights. For example, his populism and Democratic Party platforms explicitly linked federalism and antimonopoly policies.)37 Having claimed the mantle of states’ rights and therefore the most desirable rhetorical position in Maryland’s political culture, Bryan then turned to a more controversial position less likely to find favor among citizens. Sounding somewhat like a legal realist, he dismissed constitutional arguments as “the most dignified and respectable of all . . . excuses” to hide one’s political position. From there, he transitioned to a defense of judicial supremacy, insisting that constitutional arguments were judges’ problem; contrary to those who insisted that constitutionalism imposed binding obligations on elected officials, he countered that constitutionalism was fundamentally about law. He sought to dismiss the lawyerly committee’s legal scruples—­that constitutional fidelity required a popular referendum when ceding states’ rights—­by explaining that it was simply not the job of legislatures to fret about constitutionality. “My friends,” he declared, “the Constitution is not vested in you; we have courts to decide such questions.”38 Nor were Marylanders obligated to be strong guarantors of states’ rights. After all, Bryan observed, Mississippi, the home of Jefferson Davis, had already ratified the amendment, and it had won overwhelming southern support in Congress.39 In short, his logic seemed to imply that Bryan was for states’ rights, but that the rest of the South did not believe in them, that, even if one did, one

ratifying and implementing the sheppard amendment (1918–­21)

61

should not act on that conviction unless one was a member of the judiciary, but that that conviction was likely a cover for policy positions anyway. It is thus unsurprising that his comments did not mollify Maryland’s states’ rights bloc, whose members viewed themselves as duty bound, even as legislators, to protect both the federal and the state constitutions and their careful balance of federalism. Bryan’s condescension was only the latest blow to the states’ rights bloc and its leaders, Senators George Frick and William Norris, both Democrats from Baltimore. They had already twice lost votes to substitute legislative ratification with a referendum, and Frick had been reduced to stunt bills, like an oyster licensing scheme, purportedly designed to make up lost alcohol tax revenue, to educate fence-­sitters about the unintended consequences of prohibition.40 The efforts of states’ rights proponents to force temporary adjournment had failed, and their filibusters had been blocked. The state’s increasingly impatient drys responded with intemperate language, such as veiled accusations of bribery and even charges of malfeasance on the part of the Senate clerk. Observers would seem justified in believing that it had been the nastiest session in memory. The drys succeeded in breaking Frick’s filibuster, leaving only the same seven holdouts also attempting to block ratification.41 The Maryland House had also been in doubt—­with both sides agreeing to an adjournment to marshal their forces—­but representatives also easily blocked a referendum demand and ratified the amendment.42 The only real surprises had been the collapse of dry support in Baltimore and the appearance of wets in western Maryland; both sections defied expectations and voted almost in lockstep. In Baltimore County and City, members of the House voted overwhelmingly against ratification.43 One week later, over the final insistence by the states’ rights bloc that further consideration of prohibition was “subversive of the sovereignty of Maryland and the rights and liberties of the people,” the Senate signed off on final ratification of Prohibition, making Maryland the sixth state—­ and the first wet state—­to do so.44 A defeated Frick could only amuse his peers by explaining that, contrary to the biblical injunctions his dry colleagues had offered reviling alcohol, the text did not exactly endorse water as a beverage: he had “read the Bible through and in only one place . . . been able to find a reference to a man asking for water to drink, and he was in hell and asked for only one drop.”45 Frick had little else to comfort him, as the ASL, now confident that Mary­ land’s  wet reputation had proved false, readied three bills: statewide prohibition,

62

chapter four

a “bone-­dry” enforcement assistance to dry counties (akin to the federal Webb-­Kenyon Act but also radically expanding search and seizure), and a navy-­backed ban on liquor sales in Annapolis.46 Maryland’s wets had already begun to take out their anger on the local ASL and its agent, William Anderson, for their disingenuous reversal from states’ rights and local option to the “theocratic” imposition of a national solution. (At least one wet had bitterly pointed this reversal out on the floor.)47 Maryland’s wets had two consolations, however. The hated Anderson soon returned to New York, where he and the ASL would successfully break the Empire State’s Republican Party through his brilliant but ruthless maneuvers—­but that was Albany’s problem now.48 Annapolis was free of him. More importantly, the fierce debate had exhausted the House, which decided to let national ratification take its course before taking any further action on the ASL-­drafted bill to implement a regime of state enforcement. Moreover, while they had failed to get a referendum attached to ratification itself, wets successfully attached a referendum to the bill implementing concurrent enforcement. Risk-­averse drys backed down rather than risk a demonstration of their weakness among the population. With a voice vote, the House postponed consideration of any state enforcement bill until 1920, the earliest point at which the amendment would need enforcement.49 The ASL had not succeeded in making Maryland state law any less wet, but it did have a powerful rhetorical point in having wrung ratification out of a notoriously wet and devoutly federalist state. In the 1920 session, wets and drys offered competing measures, trying to determine the shape of Maryland’s liquor laws after its approval of Prohibition. The Republican Edgar McBride offered a concurrent enforcement duplicating the Volstead Act’s 0.5 percent alcohol by volume (ABV) standard—­a so-­called baby Volstead law. The Democrat Willis Jones of Baltimore countered with a bill that would criminalize only alcohol above 3.5 percent ABV—­a clear passive-­aggressive attack on the ASL’s alcohol regime but one that still changed policy and would do so regardless of federal decisions.50 Although the newly elected governor Albert Ritchie would have preferred no bill at all, he nonetheless endorsed the Jones 3.5 percent ABV bill as a protest vote against Volstead. By a 62–­39 vote, the House endorsed the Jones Bill over McBride’s Volstead standard, but legislators decided to shelve both and wait for the Supreme Court’s decision in the summer of 1920.51 When the Court decision came down in June, with its

ratifying and implementing the sheppard amendment (1918–­21)

63

ruling that the amendment itself imposed a “duty” but did not formally mandate an enforcement action, Marylanders had a viable course of action: doing nothing. The doggedness of Maryland’s stance had generated notoriety for the state and helped bring its widely popular Democratic governor, Albert Ritchie, to national prominence as the political figure more closely identified with states’ rights than anyone else in the nation.52 Ritchie, the most vocal governor opposing Prohibition as the latest in a series of illegitimate expansions of federal power (and one who would attempt to leverage that into both presidential ambitions and the remaking of the party system), agreed that the Eighteenth Amendment authorized federal power and that states could not proactively interfere. Nonetheless, as he and like-­minded supporters argued, the text did not specifically require states to pass specific legislation, and the structure and spirit of the Constitution both instituted state-­centered polities. Thus, for example, consistent with the text of the Eighteenth Amendment, states could continue to understand intoxicating as a term of art referring specifically to harder liquor only, interpret it as a Volstead analogy, or retain their current temperance legislation. As Ritchie later explained: “It is my purpose first to discuss the claim that the States have either a legal or a moral duty to take over as a State proposition the enforcement of the eighteenth amendment. . . . The position of Maryland is simple enough, and I presume it is the position of [the other holdout states] also. . . . Maryland does not construe it. Because we do not, we are accused by militant drys of treason, sedition, secession, nullification, and every other high crime and misdemeanor in the catalogue of prohibition abuse.”53 Ritchie bristled against comparisons of his states’ rights to the nullifying state sovereignty of Calhoun. Nullification he dismissed as a discredited “lost cause.” “Before the civil war,” he insisted, “the struggle of the states was for state supremacy over federal power in the federal domain. Now it is for state existence against federal transgressions in the state domain.”54 But Ritchie and the states’ rights bloc in the Senate legislature were far from the only Maryland politicians wedded to dual federalism. The most detailed study of Maryland during Prohibition led its author to conclude that, in the Free State, “the advocacy of states’ rights seems to have been genuine,” with the state’s political class earnestly committed to fighting against the growth of federal power.55 The Baltimore Sun columnist H. L. Mencken, a dogged believer in states’ rights (and thus a great champion of Ritchie’s), became the country’s leading journalistic critic of prohibition.56

64

chapter four

Other Maryland politicians, Democratic and Republican, in Congress and state government, wet and dry, consequently shared Ritchie’s zeal for federalism. Captain William Stayton, the founder of the Association against the Prohibition Amendment (AAPA), who insisted that his organization wage the campaign on states’ rights grounds, was a Marylander and friend of Mencken’s.57 Baltimore’s Democratic mayor, Howard Jackson, who overlapped with Ritchie and served through much of the 1920s and all of the 1930s, cited states’ rights to oppose prohibition (and, dangerously for an urban mayor, to express skepticism of the New Deal’s federal interventions into economic affairs).58 Baltimore’s Republican representative John Phillip Hill made the same arguments, most notably in a 1925 manifesto in the North American Review. Like New York’s Fiorello La Guardia, he engaged in comical public protests against prohibition. He dubbed his house “Franklin Farms” (after the street where it was located), planting apple trees and grapes in his yard that he would then openly ferment. He twice beat federal indictments that he had made intoxicating cider, leveraging the Volstead Act’s ambiguity in failing to define what exactly constituted an intoxicating cider.59 Ovington Weller, the state’s Republican senator, had similarly attacked the Volstead Act as an “unreasonable, drastic, and intemperate” violation of states’ rights.60 Ironically, Weller, wet as he was, was nonetheless seen as one whose constitutional scruples meant that he was one whom prohibitionists could occasionally negotiate with and thus came to be considered on the dry side of Maryland’s ultrawet politics. Hill unsuccessfully challenged Weller in the 1926 primary, but the even wetter Democrat Millard Tydings, equally committed to states’ rights, defeated Weller in November.61 William Jennings Bryan had thus accurately recognized that his success in securing ratification required reconciling prohibition with Marylanders’ deep skepticism of federal power: when in Annapolis, do as the Annapolites. Maryland’s sharp divergence from the rest of the South concerned other southern drys, who correctly feared that it would or had become the center of opposition to Prohibition and a dangerous example. Georgia’s congressman Upshaw dubbed Marylanders traitors for their defiance.62 Senator William Cabell Bruce’s constant citation of states’ rights in opposing federal prohibition legislation infuriated Hugo Black into giving an anti-­Maryland tirade on the Senate floor in 1928. In a rather tortured and baffling attack, the Alabama senator and future Supreme Court justice charged Bruce (and Ritchie) with hypocrisy for discussing states’ rights while offering a corrupting example that threatened the maintenance of prohibition in dry states.

ratifying and implementing the sheppard amendment (1918–­21)

65

For the fiercely dry Black, diffusion of ideas across state lines somehow constituted a violation of federalism.63 Rather than be impressed by the near unanimity of Dixie, Marylanders offered the worry one would expect other southerners to have made: that federal power would destroy the South’s social arrangements of white supremacy (which were, ironically enough, far weaker in Maryland law than in the laws of the rest of the South).64 That was why one wet Maryland legislator responded to Bryan’s visit by worrying not only that erosion of states’ rights would see the final triumph of national marriage and divorce laws but also that the South’s lockstep support of Prohibition would generate regional backlash: the North and West would avenge the loss of their beer with centralization of their own, including a force bill against the South guaranteeing black suffrage.65 In 1919, Congressman Reuben Haskell, a Republican from Brooklyn, had threatened precisely that, warning that northerners losing their local ability to set alcohol policy would eventually seek retribution in the form of Fourteenth Amendment enforcement.66 But as that threat did not come to pass— ­occasionally vented by bitter Yankee wets but never seriously considered—­southern state legislators remained devoutly committed to prohibition to the bitter end. Outside Maryland, state enforcement of the Eighteenth Amendment was never seriously challenged in the South until 1932, thus allowing the states’ rights Marylander Mencken to seethe that prohibition was “now an integral part of the neo-­Confederate theology.”67

The West No western state was dry before 1914, but a massive diffusion of state prohibition legislation, referenda, and constitutional amendments meant that seven of the eleven states of the Mountain and Far West adopted prohibition by the time Congress proposed the Eighteenth Amendment in December 1917. The following year, while the nation debated whether to ratify the amendment, New Mexico, Nevada, and Wyoming all passed statewide prohibition. Surveying the diffusion of statewide prohibition, and noting that the rest of the adjacent Western and Plains states were all dry, Wyoming’s governor had explicitly justified passage on following the trend. The state had a libertarian political streak skeptical of government, he conceded, but it might as well just follow along rather than be

66

chapter four

a lonely wet island.68 Thus, with the sole exception of California, where grape growers had long resisted prohibition, all states in both the Mountain West and the Pacific Coast had instituted state prohibition by the time of the Sheppard Amendment’s ratification in 1919. California was itself in a state of internal transition as Los Angeles, which surpassed San Francisco in population in 1920, increasingly came to dominate the politics of California during the 1910s and the 1920s. The City of Angels was unique in American politics: an urban metropolis that acted like the country. Settled primarily by middle-­class midwestern Protestants, its politics resembled the small-­town America of the ASL, and as a result it was the only dry electorate among America’s ten largest cities.69 The state’s politics continued to roil with a reformist impulse that had tended toward progressivism and active government in the years since Hiram Johnson had joined with the rest of the state’s business community to help finish off the decades-­long domination of the state by the Southern Pacific Railroad. Johnson had similarly broken the power of political parties in California, allowing for cross-­filing and for interest groups and policy entrepreneurs to place unconventional issues on the ballot.70 Consequently, the combination of rural moralism, weak party organization, and progressive ideology meant that Los Angeles was a bastion of dry zeal, going so far as to actually send a member of the Prohibition Party to Congress. Hiram Johnson may have been from the northern part of the state, but his political sensibilities were much more in line with the new southern California’s attitudes, which is why most of his progressive allies and successors hailed from the Los Angeles area. With Johnson’s nominally Republican machine in control of California, the entire state was poised to adopt Los Angeles’s prohibition politics. (The line between his wing of the GOP and the Progressive Party was a thin one owing to the fluid party systems and ballot protocols Johnson had instituted as governor.) The state’s political class interpreted congressional passage of the Sheppard Amendment as opening the policy window that California progressives had long been trying to create. In 1919, the same California legislators who easily ratified the Eighteenth Amendment, after blocking a referendum, also passed an especially draconian enforcement act— ­despite voters rejecting state prohibition referenda in each of the previous three elections, as several legislators noted in protest.71 As one might expect in the fiercely democratic state, a repeal petition soon circulated. With strong support from the state’s grape industry, a chance to be rid of the so-­called Harris Act appeared on the 1920 ballot.

ratifying and implementing the sheppard amendment (1918–­21)

67

California’s dry leadership mobilized on behalf of what Lieutenant Governor C. C. Young dubbed “the most vitally important single measure ever submitted to the people of California.” Not only was supplementing federal enforcement resources essential to policy success, Young warned, but the alternative “would breed in our children a feeling that California will tolerate a defiance of our United States Constitution.”72 Senator M. B. Harris contributed the referendum ballot’s argument on behalf of his concurrent enforcement bill, trying to explain why neither previous wet referenda nor wet beliefs should control his fellow legislators or continue to be held by the voters. He and his peers had passed the bill, Harris explained, “in obedience to the Constitution . . . [which] is not self-­executing.” Since the Supreme Court had approved both the Eighteenth Amendment and the Volstead Act, “the referendum on the Harris Law is an attack on the national constitution itself”: “There is but one lawful way to attack the constitution, and that is by amending it. [Repealing the bill] is nullification and defiance of the constitution. . . . For this reason, ex-­President Taft, who opposed ratifying the amendment, now advocates its vigorous enforcement.”73 Thus, Harris tried to shift the argument away from whether prohibition was a good idea—­which a majority of Californians repeatedly had held it not to be—­to whether the Constitution ought to be followed and whether Californians would remain within the universally accepted norms of American federalism. The California Commonwealth Club’s debates on the Harris Act almost exactly mirrored the words of the bill’s namesake, suggesting diffusion of Harris’s position. “The Constitution is not self-­executed,” a speaker in its defense began, as it needed penalties, enforcement, and implementation of its various provisions to bind those Americans who would choose not to follow it out of patriotic zeal. As a result: The referendum on the “Harris Law” may be regarded as an attack on the national constitution since the failure to enact the “Harris Law” would cripple the enforcement of the constitution in California. There is but one lawful method of attacking the constitution and that is by amendment. It is equivalent of the nullification or defiance of the constitution to defeat or trifle with laws which enforce it. . . . [R]efusal to affirm [the Harris Bill] at the polls under the referendum is equivalent to a refusal of California to aid in enforcing the national Constitution. . . . It would be to yield to the lawless elements of society.74

Unlike the club’s membership, which overwhelmingly voted to oppose the repeal, California voters decided to yield to those lawless elements,

68

chapter four

passing the antiprohibition referendum by a vote of 465,537 for repeal and 400,475 to preserve the law.75 Even Los Angeles County, which had sent a Prohibition Party member to Congress, contributed only a small margin for the Harris Bill.76 Although voters had blocked the Harris Bill, drys nonetheless took the unusual course of considering legislation to reinstitute a bill negated by referendum.77 In the weeks after the people’s vote, drys interpreted the election as anything except an attack on prohibition. The Los Angeles Times, which had earlier condemned referenda on both prohibition repeal and a proposed alien land law for potentially putting the state in conflict with the national government, now declared: “We have not hereby repudiated the Constitution.”78 Instead, it continued in a rather hopeful gloss: “[The vote] implied our ability and preference to abide by the national law without additional supervision. Our honor is the more deeply involved . . . [in enforcing Prohibition and proving that] as a righteous State . . . exceptional methods are unnecessary to invoke our loyalty. . . . That way, and that way only, lies honor.”79 According to the Times, the alternative, “collective repudiation of the Eighteenth Amendment, is plain national treachery.”80 For the San Jose Mercury News, assuming that California voters meant to defy an amendment would be imputing to them “Calhoun’s famous doctrine of nullification.”81 Even though it was unconventional to second-­guess the people’s expressed wish in a referendum, “a vote so interpreted would be passive opposition” to the Constitution, “an attitude differ[ing] only in decree from South Carolina” and its tariff actions in 1832.82 While the Times’s stretched interpretation is hard to justify, the claim that the vote ought not to be understood as a constitutional attack on Prohibition was arguably the correct one. Unlike in most of the other, especially eastern, states, those opposed to prohibition in California seemed specifically to avoid constitutional or other states’ rights arguments and instead almost exclusively assaulted the bill on policy grounds; popular constitutionalism in California was almost entirely a one-­sided affair.83 This was why drys argued that they could pass a new enforcement bill; the Grape Growers Association and allied wets had attacked the bill for deviating from Volstead, not for imposing prohibition or ceding states’ rights.84 As a result, drys insisted, passing an enforcement act more closely tied to Volstead than the slightly more extreme Harris Act voters had struck down would actually fulfill rather than negate the voters’ wishes.85 Legislators in Sacramento consequently passed another bill, the so-­called Wright Act, to enforce Prohibition in 1921, even though the Assembly elected

ratifying and implementing the sheppard amendment (1918–­21)

69

an expected wet majority.86 M. B. Harris drafted this new bill precisely to implement federal policy by bootstrapping the standard to Volstead or whatever successor legislation Congress might decide; the one-­page-­long bill did little but assert that it was implementing the Eighteenth Amendment and require enforcement by state officials and courts.87 Harris argued that he would be able to flip some moderate wets on fiscal grounds as they would rather that fines go to the treasury in Sacramento rather than Washington.88 By a single vote, the wet majority in the Assembly amended Harris’s bill to make it inoperative without voter approval in the next election.89 The Senate removed the rider, and, after extended debate focused on whether the vote violated the popular will, the House voted to concur and skip an automatic referendum.90 Gubernatorial approval was a foregone conclusion as Governor William Stephens, a Republican progressive ally of Hiram Johnson’s, had been lobbying for the bill since the start of the session.91 Declaring the need to enforce the Eighteenth Amendment, and citing Chief Justice White’s concurrence in the National Prohibition Cases, Stephens explained that his signature meant that California would not “[fail] in its constitutional obligations.”92 Another former lieutenant governor, now serving as president of the California ASL, similarly crowed: “Refusal to act would have been disloyalty.”93 While California now had concurrent enforcement, members of the Assembly recognized voter dissatisfaction by narrowly approving a protest resolution against the Volstead Act. Support for the resolution was, unsurprisingly, concentrated in the Bay Area, while all three women in the legislature voted against it. Reflecting the common feature of California’s prohibition debate, this resolution was rooted not in constitutional or legal argument but in simple economic prudence: the Volstead Act’s expansive definition of intoxicating harmed California’s grape industry.94 The Senate ignored these resolutions and blocked votes on equivalent memorials introduced by its members.95 It might as well have adopted the wets’ hostile amendment to the Wright Act, however, as, citing the violation of the people’s sovereign will, the Grape Growers Association gathered enough signatures to again subject concurrent enforcement to a referendum on the 1922 ballot.96

The Midwest The Midwest, dominated by evangelical Protestants (especially Methodists) and the home of the ASL, remained unsurprisingly solid in endorsing

70

chapter four

Prohibition. Kansas and the Dakotas had invigorated the second prohibition wave in the late nineteenth century, and Ohio had long been a center of dry efforts (and thus was the natural location for the headquarters of the ASL). Before ratification of the Eighteenth Amendment, four states—­ Missouri, Illinois, Minnesota, and Wisconsin—­lacked state prohibition. Although several had significant brewing industries and all significant pietistic populations, none resisted Prohibition like the Northeast—­Volstead’s Minnesota, for example, complied immediately and overwhelmingly.97 Illinois would, through the notoriety of Al Capone, Frank Nitti, and the rest of Chicago’s organized crime syndicate, become popularly understood as the center of resistance to Prohibition, but politically it was no wet bastion. Capone and friends were not simply sticking it to Washington prohis from the Treasury Department as the bipartisan state government and political class pressed for both the implementation and the maintenance of prohibition. Unlike many other states dominated by a single populous urban center, Illinois had experimented with prohibition before its imposition from Washington, passing in 1917 a local option bill that theoretically rendered much of rural Illinois—­and even the bulk of Chicago itself— ­dry. Thus, when national Prohibition came, the initial groundwork for concurrent enforcement had already been laid—­as had opposition. Statewide prohibition had failed in the state house in 1917 after passing the Senate, with the ratification of the Eighteenth Amendment two years later nearly replicating that vote. (The difference was that in the 1918 elections drys picked up a handful of House seats outside Chicago’s Cook County, where the state’s old-­stock Protestants were almost monolithically prohibitionist regardless of party.)98 In 1921, the Illinois Senate overwhelmingly approved the state concurrent enforcement bill over the protest of most members from Chicago, who opposed it and who made for a much narrower margin in the lower chamber of the Assembly.99 Even as popular support for prohibition declined, the bipartisan, largely dry bloc subsequently used careful agenda control to avert consideration of legislative challenges to state prohibition throughout the 1920s, leaving Capone and his associates to challenge it in the streets. Just to the southwest, across the Mississippi River, lay America’s brewing capital, St. Louis, Missouri, built up by German immigrants for whom beer was a cultural centerpiece. It boasted as its senior senator the libertarian states’ rights Democrat James Reed, easily the most vitriolic (and

ratifying and implementing the sheppard amendment (1918–­21)

71

quotable) wet in that chamber, whose scorn for prohibition delighted newspapermen looking for excellent copy (making him Mencken’s favorite senator).100 Of his dry western neighbors, Reed once observed: “I have always thought the worst combination on earth was a Kansan and a quart of bourbon. . . . If there ever was a place on the earth where they need to regulate the habits of the people, it was in Kansas.”101 Missouri consequently held a proalcohol reputation and an economic dependence on this key industry, but its politics did not reflect this sympathy as a bipartisan dry coalition imposed tough prohibition on the state’s bitter wets. Missouri legislators had ratified the Eighteenth Amendment by a two-­to-­one ratio in January 1919, turning down a states’ rights counterresolution that reminded legislators of the citizens’ wet wishes. Not only had Missouri voters overwhelmingly rejected a dry referendum only two months before, but approving the amendment also violated a Bill of Rights provision in the state’s hard-­line constitution, one that mixed protest against the Reconstruction amendments with acceptance of the finality of the Civil War. In borrowing language from Salmon P. Chase’s famous Texas v. White condemnation of secession,102 the state constitution held: “Missouri is a free and independent state, subject only to the Constitution of the United States; and as the preservation of the states and the maintenance of their governments are necessary to an indestructible Union, and were intended to co-­exist with it, the Legislature is not authorized to adopt, nor will the people of this state ever assent to, any amendment . . . [to] the Constitution of the United States which may in any way impair the right of local self-­government.”103 But just as the Supreme Court had rejected a challenge to Ohio’s rat­ ification—­made on the grounds that Ohio legislators also violated their state constitution by approving an amendment without an intervening elec­ tion104 —­Missouri legislators evidently felt that Article V’s process trumped the admonitory language in Missouri’s charter. In the House, the longtime leader of the Democrats’ wet faction conceded that his constituents wanted the Sheppard Amendment passed and thus proclaimed that he would vote not only to ratify but also to pass the subsequent concurrent enforcement. Few other legislators spoke; “action was taken virtually without debate.” Most other rural wets evidently came to the same conclusion as nearly all the Senate opposition and half the House opposition came from St. Louis.105 Both chambers easily blocked the states’ rights refusal substitute resolution, ratified the Sheppard Amendment, and passed concurrent enforcement in short order, with nearly identical votes and stronger Democratic

72

chapter four

than Republican support.106 As in California, the state’s alcohol interests quickly moved to block implementation by funding a successful referendum petition, gaining the requisite signatures, and setting up a popular vote on concurrent enforcement in 1920.107 By a 53–­47 percent margin, the state’s voters approved the statute, implementing concurrent enforcement in one of the nation’s notoriously wet, brewer-­dominated states. As would be the case throughout the rest of the decade, Missouri saw an especially sharp division between wet St. Louis (106,687 net votes against) and the dry parts of the rest of the state (167,986 net votes for), a rural margin sufficient for victory.108 And a triumph it was. The state’s drys had decided that any victory over the brewers would be total and thus in approving the statute Missourians implemented an especially harsh, ASL-­drawn statute that made even Volstead look tame. For example, unlike the national statute, which allowed transportation of legally possessed liquor, Missouri’s bone-­dry statute forbade even that, and its newly elected attorney general, the Republican Jesse Barrett, offered specific plans to ensure his office’s aggressive implementation.109 Even this eventually prove too tame for Jefferson City’s ultradrys, who would pass stricter prohibition legislation in the next session (in 1923). St. Louis’s rival as the other major midwestern brewing industry lay in Milwaukee, with Wisconsin’s unusual experience with prohibition reflecting a state with many more crosscutting pressures than most of America. As illustrated by its powerful senior senator Robert La Follette, the state was strongly progressive—­arguably the centerpiece of American progressivism, both intellectually and institutionally—­and thus open to the sort of technocratic social reforms represented by prohibition. Its decentralist streak, on the other hand, made its political leaders eager to invoke states’ rights and resentful of national intervention in that progressive laboratory. The state also had a significant German population, which made anti-­German appeals a double-­edged sword—­they easily activated latent hostility from old-­stock Americans but meant a credible possibility of countermobilization. Finally, the state, especially Milwaukee, was economically dependent on both brewing and secondary industries such as refrigeration (in which one of the state’s Prohibition-­era governors had made his fortune). Conversely, Madison’s Dane County had an antialcohol streak that antedated the progressive movement, beginning with local activist pressure for passage and enforcement of the state’s Sunday laws that had frustrated a young county prosecutor—­Robert La Follette—­in the 1880s. Early in his career, La Follette had tangled with forerunners of the ASL, such as

ratifying and implementing the sheppard amendment (1918–­21)

73

the Law and Order League, a “vigilante” group of Protestant churches led by the University of Wisconsin’s president John Bascom, whose Law and Order League activities eventually led the regents to ease him out of his university position altogether.110 The Wisconsin branch of the ASL started its activities in 1898, but the powerful Milwaukee brewer establishment long blocked its agenda. In the middle of the 1910s, that establishment remained extremely powerful: thirteen of the city’s forty-­six councilors were brewers able persuasively to explain the economic costs prohibition would impose on the financial well-­being of both the community and the state. Marquette’s president, the Jesuit Herbert Noonan, strenuously added that natural law protected both the production and the consumption of alcohol.111 Unfortunately for the brewers, whose power had held steady, prohibitionist forces had not. As had occurred throughout the nation, wartime and progressive concerns managed to pull the ASL’s position into the mainstream. In 1917, the state’s Republican/Progressive legislature authorized a referendum allowing the state’s voters to decide on prohibition, but Wisconsin voters never got the chance as Governor Emanuel Philipp vetoed the authorizing legislation. Philipp argued that total prohibition was not a real wartime measure, unduly handicapped the economy, and was overbroad in combating the legitimate policy problem of the saloon. A hard liquor ban, he countered, would be a sensible, narrowly tailored response to a real problem; destroying Milwaukee’s economy would not. As a self-­ made businessman whose refrigerator company depended on sales to the brewing industry, Philipp understood these consequences firsthand, and that business background unsurprisingly situated him in the conservative, antiregulatory wing of the state’s Republican Party.112 Philipp had many preexisting reasons to be hostile to the legislation, but the state’s press still alleged that the brewing industry had bought him off. Ironically, his most prominent public defender was William Evejue, the state legislator who had initially sponsored the dry referendum and who argued that Philipp opposed the legislation in good faith. (Even more ironically, within two years Evejue would find himself in opposition to the prohibitionist movement, condemning the ASL as a cabal of reactionaries.)113 The ASL mobilized aggressively against Philipp’s wet allies in the 1918 elections, waging a scorched-­earth campaign comparing wet Wisconsin towns to World War I sites, and suggesting a war against German influence on all fronts. Unfortunately for Philipp, that campaign proved immensely successful as ASL-­backed candidates swept into office with a clear dry mandate.114

74

chapter four

As the 1919 legislative session began, Philipp continued to lobby for a limited hard liquor enforcement bill that would still allow beer. The resulting Mulberger Act offered a popular referendum imposing prohibition but with an exemption for 2.5 percent ABV beer. An equally controversial provision of the Mulberger Act held that the beer exemption would become inoperative if Congress adopted a different definition of intoxicating, which the state would then adopt as its own. Although the ASL initially opposed the bill owing to the beer carve out, after the National Prohibition Cases upheld the Volstead Act it reversed course and strongly championed the Mulberger Bill, warning that any other definition would result in a “horde of federal agents” descending on the state to enforce Prohibition when state officials would not. Both Governor Philipp and William Austin, the head of the Wisconsin brewers’ association, invoked the Tenth Amendment and opposed that definitional bootstrapping provision on federalism grounds, but they had little backing. The bill sailed through both legislature and referendum, with over two-­to-­one support among Wisconsin voters (419,309 in favor and 199,876 opposed).115 Prohibition had come to Wisconsin. The 1920 election saw the replacement of Philipp with John J. Blaine, a “small-­town dry” who came from the progressive wing of the state’s GOP with La Follette’s backing.116 Unlike much of the rest of the country, which turned more conservative in that year’s elections, Wisconsin turned to the left, with La Follette’s slate winning nearly all races except the Senate seat taken by Congressman Irvine Lenroot, who had once ferociously opposed national Prohibition on states’ rights grounds before voting for it in 1917. (Lenroot had also been a progressive La Follette backer earlier in his career but had turned toward the Stalwart conservative wing and would eventually lose the Senate seat to Blaine.)117 As the 1921 session opened, the ASL pushed for an even more radical prohibitionist bill that would have, among other things, restricted medicinal uses, prohibited some home manufactures (that the Volstead Act did not), and enabled warrants to search homes for stills. Blaine vetoed this Matheson Bill, arguing, on civil libertarian grounds, against its home searches and restrictions on medical practice. Unlike other governors who vetoed their states’ Volstead enforcement on the grounds that bootstrapping to federal definitions ceded state sovereignty, he made a pragmatic argument that the bill’s harsher departures from Volstead undermined the predictability of law. The bulk of his message, however, was a tirade against the forces of the ASL, which he characterized as a “dictatorial lobby [that] bludgeoned members into acquiescence [by] . . . vicious propaganda” and that had drafted a

ratifying and implementing the sheppard amendment (1918–­21)

75

technically sloppy bill. Although Blaine was a moderate dry and called for strong enforcement of the popular Mulberger Act (and enhancements to it), the ASL’s fanaticism disturbed his good government reformer streak.118 Blaine instead offered what became popularly known as the Severson Bill, which more closely enacted the standards of the Volstead Act but with stronger warrant protections than had been present in the Matheson Bill. He argued that this was more faithful to the people’s wishes—­as expressed in the referendum on the Mulberger Bill—­as well as to the federal Constitution. The governor was proud of his bill; as he announced in a letter to the editor of a local newspaper: “I have just signed the enforcement measure this morning. There can be no invasion of the home or spying on family life under the bill, and it provides simplified machinery for enforcement.”119 As that bill suggests, Blaine was no friend of loose booze in 1921 and 1922; his administration incensed wets by subsequently enforcing the Severson Act, going after brewers who had federal medicinal licenses. Milwaukee’s city council responded with loud calls for a change to the Volstead Act that would allow beer and light wines. In the meantime, Dr. J. J. Seelman, the head of Milwaukee County’s medical society, had organized a state chapter of the AAPA calling for the end of national Prohibition, with Missouri senator James Reed serving as keynote speaker at the group’s first meeting. Sounding like constitutional lawyers as much as doctors, the Wisconsin AAPA decried Prohibition as “an unnecessary grant of power to the federal government” against “state sovereignty.”120 Barely a year and a half into the noble experiment, Wisconsin’s wets were resurgent, and they would soon gain an important convert. But, for now, Wisconsin, like the rest of the Midwest, the South (outside Maryland), and the West (outside California), had both ratified the Sheppard Amendment and passed concurrent enforcement legislation. Whatever states’ rights hostility to the amendment existed in the state legislatures had been superseded by the claim that fidelity to the Constitution required states to help suppress alcohol.

chapter five

Ratifying and Implementing II (1918–­21) The Northeast

If the federal government may subvert the doctrine of state rights and, without a commission or mandate from the people enter upon our firesides . . . the theory of our constitutional government and all the rights incident to home rule . . . are destroyed.— ­Governor Edward Edwards (D-­NJ)1 My oath was not to take a chance on the Constitution. It was to support it. . . . Opinions and instructions do not outmatch the Constitution. Against it, they are void. . . . There can be no constitutional instruction to do an unconstitutional act.— ­Governor Calvin Coolidge (R-­MA)2

I

n 1882, Henry Adams—­a Harvard historian, descendant of Presidents John Adams and John Quincy Adams, and Boston Brahmin if ever there was one— ­defended states’ rights as “a sound and true doctrine . . . as dear to New England as to Virginia.” Between “the slave power and states’ rights,” there was, he wrote, “no necessary connection,” and indeed history had often shown that it was the southern slave power that had just as often used national power, meaning that “Massachusetts appealed to this protecting principle [of states’ rights] as often and almost as loudly as South Carolina.”3 Although Maryland’s political class incessantly cited its southern heritage in refusing to pass concurrent enforcement, the Free State’s Prohibition stance made it far more like the Northeast as described by Adams, the region of the country most hostile to the regulation of alcohol in general and especially to cooperation with the Eighteenth Amendment’s regime of

ratifying and implementing ii (1918–­21): the northeast

77

concurrent enforcement. This was true in the heavily urbanized, immigrant-­ rich states of both the Mid-­Atlantic region and southern New England, but even the more rural states in the far north showed resistance to the nationalization of prohibition rather than its implementation by state action.4 As of 1918, when states began considering ratification of the Sheppard Amendment, the only states north of the Mason-­Dixon line with their own, self-­imposed state prohibition were Maine and New Hampshire. Thus, despite New England’s puritanical legacy—­the birthplace of state prohibition and where states still boasted various Sunday closure blue laws—­the Northeast was the region most opposed to the Eighteenth Amendment. This derived in part from the stronger drinking cultures of many of the region’s Catholic immigrants, but even many old WASPs opposed the national imposition of their grandfathers’ policies. This chapter will reconstruct these debates in the Northeast, in which a robust, bipartisan, and sustained constitutional politics debated first whether to ratify the Sheppard Amendment and then how to apply their shared values once ratification had been secured. The Northeast proved the country’s most fertile ground for prohibition legalism, a distaste for Prohibition but a belief in its enforcement that came to define leaders like Calvin Coolidge and Nathan Miller. Others, like Edward Edwards, sought to push states’ rights as far as possible without crossing into nullification, while still others tried to muddle through the seeming contradiction they felt forced on them by the Eighteenth Amendment. Maine’s long-­standing state prohibition laws had survived since the 1850s, and New Hampshire restored its law in 1917, but Vermont, perhaps the most ardently Republican state in the nation, had an uncertain relationship with temperance and prohibition.5 Inspired by its New England neighbors’ initial enthusiasm, it had passed tough temperance laws but removed them in a closely decided 1903 constitutional referendum.6 While much of the country was moving toward state prohibition during World War I, Vermonters rejected reinstating it in a close 1917 referendum.7 When the Vermont legislature met in January 1919, fewer than half the required states had approved the Sheppard Amendment, with four more states quickly ratifying by the time Governor-­Elect Percival Clement could give his inaugural address on January 10. Clement, a former Democrat turned Republican and a longtime wet who had fought for the 1903 prohibition repeal, urged fellow Republicans to block the amendment and its “too complaisant surrender of the rights and powers inherent in our sovereign state.”8 Events overtook him, and by the end of

78

chapter five

the week sufficient states had ratified to make Vermont’s vote on the Eighteenth Amendment merely symbolic. Rather than make a now quixotic stand against the Sheppard Amendment, the state’s legislators easily concurred.9 Once the Eighteenth Amendment went into effect in 1920, the Green Mountain State quickly joined the rest of its neighbors in passing a 1921 concurrent enforcement law that would remain undisturbed until the 1930s.10 Vermonters’ states’ rights hostility to central power, even on issues that they substantively supported (e.g., child labor), would reappear throughout the 1920s, but that hostility did not translate into defiance once the amendment had become law. Rhode Island did not similarly acquiesce to the amendment and remained, along with Connecticut, one of two states never to ratify. Instead it had joined the brewers in procuring the services of Elihu Root to challenge the amendment. Now that the justices had approved national Prohibition, Governor Emery San Souci agreed that his state should cooperate. San Souci was a Republican of French Canadian descent, chosen in part to help the party appeal to the state’s changing, increasingly Catholic electorate, but his legalism was not likely to please those generally wet voters, as it led him to push for a concurrent enforcement bill in 1921. Because the Supreme Court had rebuffed the state’s challenge to the amendment, San Souci explained, “the manufacture and sale of all intoxicating liquors for beverage purposes is absolutely prohibited throughout the jurisdiction of the United States.” Sounding the standard call for fidelity to law and order, he noted that “lax enforcement of any law tends to disobedience and disrespect for all laws” and that Prohibition was “now the law of Rhode Island as well as the law of the country.” The overwhelmingly Republican Rhode Island legislature disagreed during its 1921 session, ignoring San Souci’s proposal, and leaving enforcement solely within the purview of the federal government.11 Connecticut was one of two other states that had refused ratification and that had therefore, as its leaders never hesitated to point out, been similarly coerced into Prohibition by forty-­five others. Since Rhode Island had lost its case, consolidated as part of the National Prohibition Cases, some believed this made the Constitution State the last potential legal challenger (once New Jersey reversed course and ratified).12 Such coercion of one state by the rest unhappily vindicated the state’s leading Founder, Roger Sherman, who was in some ways more the father of the Constitution than Madison, and who, in one of his comparatively few losses at the Constitutional Convention, had tried but failed to require each state’s individual consent for amendments affecting the police power.13

ratifying and implementing ii (1918–­21): the northeast

79

While recognizing that external imposition, throughout the first half of Prohibition Connecticut’s Republican governors insisted on upholding the sanctity of the Constitution (and therefore concurrent legislation) while also demanding efforts to repeal the Volstead Act and the Eighteenth Amendment. Governor Everett Lake’s 1921 inaugural address was the first to model this prohibition legalism, explaining to legislators that their “failure to ratify [the amendment] has no bearing whatever upon [their] duty to enact legislation which shall now insure the positive enforcement” of the Constitution.14 Throughout the 1920s, Connecticut legislatures followed that message, faithfully preserving concurrent enforcement, and even initially resisting memorials to Congress that could be seen as inappropriate in undermining the Constitution. The Connecticut Supreme Court soon offered a minor disagreement with the governor, but it agreed on the essentials of balancing constitutional obligation and federalism. In a May case, Chief Justice George Wheeler held that Connecticut did not need to mirror Volstead enforcement to be in compliance but that as a sovereign state it retained discretion in choosing implementation. After a detailed and robustly states’ rights gloss on the Tenth Amendment, he argued that the Eighteenth Amendment authorized Congress to exercise an additional enumerated power but otherwise made only one other constitutional change to the states’ police powers: the supremacy clause blocked any state legislation repugnant to the Eighteenth Amendment, such as the state’s earlier legislation authorizing a higher alcohol by volume (ABV) than Volstead. Otherwise, he explained, the state’s earlier licensing legislation survived both as an implementation of the old police powers and as Connecticut’s effort to work toward concurrent enforcement; an enforcement statute analogous to the Volstead Act was not required to fulfill constitutional duty. To paraphrase John Marshall’s McCulloch v. Maryland opinion, as long as Connecticut honored its duty to fulfill the ends of the amendment, it could choose the means.15 The governor and chief justice had agreed: state legislators did not have to like or approve of Prohibition, but they had to respect it, and that was pre­ cisely the course the state’s Republicans took one month later. The effectively one-­party Senate voted, by a 19–­10 roll call, to continue to withhold moral approval by postponing ratification of the amendment, but Hartford other­wise behaved as the model prohibitionist. Overcoming an initial negative report from a judiciary committee and a resulting narrow Senate vote, both chambers invoked the duty of constitutional obligation to pass concurrent enforcement and kill a memorial to revise the Volstead Act.16

80

chapter five

Massachusetts’s initial ratification of Prohibition had been relatively and surprisingly quick considering that it too had both growing Catholic electoral strength and a business-­oriented, Republican legal elite strongly committed to federalism. The state’s general court had briefly considered but discarded a proposal to wait until the people could vote on ratification as legislators approved the amendment and made Massachusetts one of the handful of states to ratify in 1918.17 By January 1919, however, popular clamor pushed legislators to awkwardly investigate revoking ratification. Ostensibly citing consultation with the attorney general, the legislature postponed this action until the following session.18 Nor did it pass concurrent enforcement legislation during the annual session, which later proved fortuitous: town meetings in March favored wet policies and approved a nonbinding referendum instructing representatives to vote for a 4 percent beer standard.19 Local voters in Massachusetts, like neighboring Vermont (whose town meetings had similar results), seemed to be declaring against Prohibition. But, as the New York Times wryly declared, this sudden hostility to the Sheppard Amendment was a bit late.20 With Bay State voters calling for opposition to prohibition and state legislators struggling to pass a concurrent enforcement bill, 1920 saw a serious constitutional debate take place in Boston. Citizen petitions buried legislators, asking for, among other things, a lawsuit against the amendment, the rescinding of ratification, and a memorial to modify the Volstead Act.21 Wayne Wheeler of the Anti-­Saloon League (ASL) testified to the legislative committee, explaining that the Eighteenth Amendment and Article VI’s supremacy clause jointly created a legal obligation of state enforcement. Wets, most notably Judge Allan Buttrick, argued that the nation’s prohibition regime attacked the core constitutional principle of states’ rights—­as Root unsuccessfully pitched to the Supreme Court—­but Buttrick went further, adding that Congress had specifically violated its text. By adopting an unconventional, draconian definition of intoxicating rather than the supposedly commonly understood meaning of harder liquors, Congress had exceeded even the additional powers granted by the Eighteenth Amendment.22 On March 24, the Senate rejected a proposal that would have asked the state supreme court advisory questions about the Eighteenth Amendment. (The House did the same a week later, arguing that it made little sense to act when the US Supreme Court was actively considering the issue.)23 The basic inquiry was quite simple: legislators were trying to assess the wets’ argument and probe whether the Eighteenth Amendment required the

ratifying and implementing ii (1918–­21): the northeast

81

state to adopt an identical definition of intoxicating and, if not, what sort of deviation might be permissible.24 Forced into a debate that they did not want to have (but that ended up being quite substantive), Massachusetts Republicans struggled to avoid a vote that would either bring down the wrath of the ASL (by opposing prohibition) or threaten their coalition (by supporting it). Not only did they risk further alienating their new and ever-­growing electorates, but much of the state’s Republican leadership—­including its powerful senior senator and party boss, Henry Cabot Lodge. Lodge had bitterly opposed the Sheppard Amendment on the Senate floor in 1917, agreeing with his colleagues in fearing that it went a long way toward “taking [the] police power from the states, [where . . . it] properly belongs,” and conferring yet more authority on Washington. Unlike his close friend Theodore Roosevelt, whose loose constitutionalism had shattered their long allegiance in 1912 and who dismissed states as mere administrative conveniences, Lodge offered a passionate defense of states’ rights, worrying that Congress was “forgetful of the fact that the strength and stability of our government have depended upon the principle of local government embodied in the states.” Americans, he warned, would “rue the day they gave their support to a proposition so injurious to state independence and state power.”25 Unlike Roosevelt and Lodge’s other close ally, Elihu Root, Lodge conceded that the Constitution allowed an amendment transferring police powers (in this case, prohibition) to Congress, but he had urged his colleagues to reject it on prudential grounds nonetheless. In a line later recognized as prophetic, he argued that it would prove counterproductive in both wet and dry states: states that already zealously enforced prohibition would slacken in their enforcement, free riding on federal machinery rather than expending their own treasury, and citizens of states that were not prohibitionist would fiercely resent imposition from afar and perhaps begin spitefully drinking harder liquors as a form of protest, breaking down the rule of law. How did he know this? The aging Lodge wistfully remembered his inability to enforce the Fifteenth Amendment in the face of a recalcitrant South, which had defeated his 1890 suffrage law (the so-­called Force Bill) back when he was a mere second-­term congressman rather than the dean of the Senate. He and his fellow Republicans had painfully concluded that the impossibility of implementation meant that the suffrage amendment was a dead letter.  So too would prohibition’s “practical difficulties . . . cause it to

82

chapter five

fail”: “In a very short time we shall settle down to a condition like that pres­ ented by the Amendments which attempted to confer full political rights upon the negroes of the United States, where the constitutional provision is entirely disregarded.”26 Lodge’s commitments to both the rule of law and federalism were typical of the state’s legal elite, including his former aide turned protégé Louis Coolidge, a man fiercely devoted to states’ rights who would soon organize like-­minded Massachusetts conservatives to create the Sentinels of the Republic and Constitutional Liberty League in response to the nationalizing tendencies of prohibition, Sheppard-­Towner, child labor, etc.27 Still trying to disentangle themselves from antagonizing either the state’s legal community or their constituents, Massachusetts legislators seized on a potential alternative plan relayed to them via petition: sending the higher alcohol limit to the voters through a referendum. In drawing up this bill, a Senate committee report disputed use of the term intoxicating to refer to beverages below 2.75 percent ABV, finding neither empirical evidence of its effect nor that common usage had defined it as such. As a result, while Congress might continue to use the stricter definition, the legislators hoped that Washington would revise the Volstead Act and authorize the consumption of beer, as demanded by the people of Massachusetts. This had the advantage of combining the higher, non-­Volstead ABV standard used by other northeastern wets with the avoidance of legislative blame for any possible symbolic nullification through the referendum. Any responsibility for alcohol policy would fall onto their antialcohol constituents (for the outcome of the vote) and the federal government (for its indifference to the referendum in maintaining national enforcement against beer.) These “moist” Republicans conceded that such an act nominally authorizing a higher ABV— ­ostensibly consistent with a traditional understanding of intoxicating—­would be of no force, trumped by federal implementation of Volstead, but it would nonetheless make an indirect critique of national Prohibition. The minority report, however, was less sanguine about such constitutional symbolism, believing that “due respect for law and order . . . and due recognition of the supremacy of Federal Law demand forbearance from any hasty and imprudent act” with a “probability, if not the certainty [of creating] conflict with the Federal authorities.” The minority members invoked both Massachusetts’s abolitionist legacy and its bogeyman, ominously concluding that the proposed law was “fraught with danger to our citizens and . . . bespeaks the nullification of 1833.”28 It was, one legislator added on the floor

ratifying and implementing ii (1918–­21): the northeast

83

debate, inappropriate to impute such a position to the voters as the majority implicitly wanted to do in rooting their position in the popular will.29 By massive margins, however—­almost two to one in the House and five to one in the Senate—­Massachusetts Republicans passed the bill, unfazed by the minority’s worry of nullification.30 Such worries did faze Governor Calvin Coolidge, who adopted the minority’s position almost exactly in vetoing the bill. Coolidge’s position on prohibition is somewhat hard to classify, with most biographers arguing that, abstemious as he was in his personal habits, he was against prohibition. It was widely believed—­and later biographers concur—­that Coolidge opposed national Prohibition both for generating contempt for law and for the expansion of federal power, which he consistently opposed, but his stated commitment to the rule of law meant that he avoided any direct condemnation of Prohibition as long as it remained on the books.31 His constantly professed belief in law and order led Coolidge to take seriously, or at least not obstruct, what he took to be constitutional mandates, both as governor and as president. Consistent with that old-­fashioned sensibility, his veto message offered traditional positions on separation of powers, legal formalism, and constitutional obligation. First, in a line of reasoning that would have pleased John Locke and George Washington, who looked skeptically on and, in Locke’s case, openly questioned the toleration of atheists on the grounds that they would not adhere to oaths,32 Coolidge took his own oath very seriously: The proper authorities have declared the eighteenth amendment to the United States Constitution adopted. Under it Congress has passed legislation. . . . By the solemn adoption of an amendment to the fundamental law of the land jurisdiction over this subject has been placed in Congress. It ought to be left there until it is declared with equal solemnity by the Supreme Court that such amendment is void. When I took office I gave an oath to support the Constitution of the United States. . . . So far as any court has decided I understand the amendment has been sustained. . . . It would be extremely improper to undertake to influence [ judicial decisions] by the action of the law-­making power of Massachusetts. . . . My oath was not to take a chance on the Constitution. It was to support it. When the proponents of this measure do not intend to jeopardize their safety by acting under it, why should I jeopardize my oath by approving it?33

Coolidge then endorsed a vision of popular sovereignty that dismissed even the will of the people should it violate the Constitution, and, in any case,

84

chapter five

such a position was in his mind a null set, “an insult to any Massachusetts constituency.” Again echoing both Federalist 78 and George Washington’s Farewell Address, which held that regular, congressionally passed legislation could never trump the Constitution— ­only an “explicit and authentic act” of Article V could—­he insisted that only by such a “solemn adoption of an amendment” could the sovereign people modify the Constitution. Any other act in tension with the Constitution was simply not an act of the people and should be ignored: “Opinions and instructions do not outmatch the Constitution. Against it, they are void. . . . Instructions are not given unless carried out constitutionally. Instructions are not carried out unless constitutionally. There can be no constitutional instruction to do an unconstitutional act.”34 In so bridging oaths and amendments, Coolidge expanded on the thinking of Alexis de Tocqueville, who had insisted that otherwise hyperdemocratic Americans could take oaths to follow constitutional textualism (and a binding originalism) seriously because the amendment process implicitly made an oath to constitutionalism ultimately an oath to popular sovereignty.35 Coolidge’s fears about the collapse of law through nullification not only connected to Locke, Washington, and Tocqueville but also bore more than a passing resemblance to Lincoln’s fears about lawlessness and secession pushing popular government into a death spiral:36 “The authority of the law is questioned in these days all too much. The binding obligation of obedience against personal desire is denied in many quarters. If these doctrines prevail, all organized government, all liberty, all security are at an end. Force alone can prevail. . . . Can Massachusetts afford to take any positions which can anywhere be interpreted to be an act of nullification?”37 Coolidge felt it better to have no independent state law at all (leaving Volstead as the implicit legal framework) rather than approve a bill widely understood to be symbolic contempt of the federal government at best or nullification at worst. The proper channels to resist constitutional violation were, as he saw them, lawsuits and repeal by the relevant authorities; anything else was lawlessness, dangerous both to the legal order and to his oath of office. Coolidge’s tough handling of the 1919 Boston police strike had already begun to build up the law-­and-­order credentials that would garner the vice presidential nomination. His widely reprinted and nationally covered beer bill veto message furthered this support and garnered the gratitude of the ASL, which praised him for bucking unconstitutional instructions from voters. In a venomous (and veiledly anti-­Catholic) editorial, the New York Times praised him for outing the hypocrisy of Massachusetts legislators

ratifying and implementing ii (1918–­21): the northeast

85

who pretended to want 2.75 percent beer (which the editors claimed was too weak for such a chronically alcoholic state) but were instead merely position taking, just like voting “in favor of the Irish Republic.”38 Coolidge had squared off, the ASL declared, against those animated “by the same motives as those which prompted the firing upon Fort Sumter and the disenfranchisement of the Negro. The motive is nullification and rebellion.”39 Wets, however, were undeterred. The Massachusetts branch of the American Federation of Labor and allied groups wrote Coolidge an open letter, again asserting that the constitutional change did not authorize intervention into “non-­intoxicating” beverages like beer. As a result, the traditional constitutional arrangement held: “[We are] old-­fashioned people in Massachusetts who continue to hold to the belief that the State has not surrendered all its police powers to the National Government.”40 Other wets did more than vent, however, gathering signatures for initiative passage of a bill similar to the “beer law” Coolidge vetoed.41 By a vote of 442,215–­432,951 in the November 1920 election, Massachusetts citizens approved local option voting about whether to allow alcohol up to 2.75 percent ABV. (The state supreme court first blocked a legal challenge against the local elections’ constitutionality, agreeing that parts of the bill were inoperative, but deciding that the election could still be held.)42 Although the bill had been drawn up by Massachusetts’s wets, the local tallies from the April 1921 local vote proved more useful to the ASL by indicating that most of Massachusetts (outside Boston) was moving toward dry beliefs.43 As the 1921 legislature met, Massachusetts remained out of compliance with the Volstead Act, declining concurrent enforcement of its 0.5 percent ABV standard. Allan Buttrick, the author of the referendum instituting the 2.75 percent standard, continued to defend that policy but conceded that it was symbolic in the face of Volstead.44 The ASL attempted to correct the state’s ostensible noncompliance, delivering a model bill to the House at the opening of the session; the House approved it in May by a 139–­80 margin.45 But, before the senators would take action on the substance, they decided to consult the state’s legal machinery to determine the proper constitutional scope of any action.46 Massachusetts’s attorney general, the former legislator J. Weston Allen, was a particularly committed states’ rights devotee, as his crusade against Sheppard-­Towner the following year would confirm. (It would be hard to attribute this position simply to wet instrumentalism: the stuffy Allen seemed to be something of a dry caricature, as when he credited prohibition with preventing orgies by returning soldiers drunk on European libertinism.)47 Allen

86

chapter five

took the opposite track of his fellow states’ rights Republican Coolidge, arguing that the demands of federalism required the state to take an independent course in framing prohibition law. Simply adopting a provision setting Massachusetts’s definition of intoxicating to match whatever current federal law dictated, as the proposed bill did, unconstitutionally delegated the state’s legislative power to Congress. In Allen’s mind, such a delegation violated both background principles and a specific textual guarantee of the state constitution. He explained that he would raise no objection to the legislature choosing to set a standard consistent with the current Volstead Act and allowing future legislatures to modify the state definition as Congress amended the federal one: “What it cannot do . . . is to enact a law which, without further action of the legislature, will automatically amend itself so as to conform to subsequent legislation of the United States.”48 The Senate had its answer and an easy option to amend its bill so as to meet Allen’s objections. However, agreeing that it would be difficult to pass legislation so late in the session, the ASL and its allied legislators instead decided to delay a decision and solicit a second opinion from the state supreme court. The general court thus postponed further consideration of state enforcement until the following session in 1922.49 Two New England states were now out of compliance with Volstead. The Mid-­Atlantic, which had been the region where state prohibition had been least prevalent before the war, similarly boasted several holdouts to concurrent enforcement. After Maryland’s surprising ratification, many observers expected that New Jersey would take the lead in opposing national prohibition as it, along with Connecticut and Rhode Island, had initially refused ratification. More importantly, its governor had catapulted to power on a platform of opposition to the Eighteenth Amendment—­but even he, it turned out, bristled at charges of nullification and instead sought both to advance a moderate states’ rights position and to educate others on federalism. New Jersey, with its high immigrant populations, extensive port traffic, and entertainment industries, had little interest in prohibition. Its legislators did not, like many other wet states, fall in line and ratify the amendment as part of the early 1919 frenzy, instead waiting until after the Court pronounced its seeming permanence—­and, even then, ratification proved difficult. Nor did it rush to pass state concurrent enforcement legislation. When its Republican-­ dominated legislature eventually decided to pass enforcement in 1921, however, it did so not with the foot-­dragging it had shown before ratification but with a zeal disapproved by its governor and judiciary alike.

ratifying and implementing ii (1918–­21): the northeast

87

In blistering addresses that would have made Jefferson and Jackson beam, Democratic governor Edward Edwards decried the elitism, moralism, and hostility to both decentralization and individual liberties that seemed to characterize the prohibitionist impulse. So well publicized was Edwards’s position that the publishers of the Ohio State Monitor, a black newspaper based in Columbus, proclaimed that, had Edwards been born sixty years earlier, he would have made a “splendid ally” for “Jeff Davis . . . in his State Rights propaganda.”50 Herbert Parsons, a former Republican congressman from New York, flippantly argued that there were arguably better grounds to exclude Edwards’s nullifying, anticonstitutional allies from a state legislature than the handful of Socialists who had been barred from Albany’s legis­lature by the New York GOP (though he believed neither should be).51 Edwards proclaimed himself almost totally abstemious in his own alcohol consumption—­but nonetheless totally committed to defending the more important value of federalism.52 Edwards had waged a clear popular constitutionalist campaign in 1919, promising that, if elected, he would conduct a constitutional war against Prohibition beginning with New Jersey and spreading throughout the nation. His party’s platform bore a striking resemblance to the Virginia and Kentucky Resolutions: Jersey Democrats “pledge[d themselves] to oppose by all lawful means the ratification or enforcement of the so-­called Prohibition amendment . . . and to lead the movement which eventually will result in its repeal.”53 Edwards was widely reported to have sworn to make New Jersey “as wet as the Atlantic”; although he disavowed that specific line, he repeatedly insisted that he stood for states’ rights against an illegitimate usurpation of power.54 As the natural governing party of the state (with a usual fifty-­thousand-­vote margin), Republicans tried to evade the issue with a noncommittal platform and a candidate, Newton Bugbee, who expressed sympathies with both wet and dry positions.55 Like most dry Republicans, however, Bugbee explained that the controversy had been settled, in spite of his opponent’s “rais[ing] only one issue” in most of the campaign. “If he should be elected,” Bugbee warned, “it would mean that the majority of the people of New Jersey desire the nullification of the Constitution, the rock upon which our government has been built into a citadel of strength.”56 Like Coolidge, the Republican nominee also raised the question of Edwards’s oaths to defend the Constitution—­both state and federal.57 Edwards handily defeated Bugbee and, citing the Tenth Amendment, let it be known that he would pursue legal challenges against the Sheppard Amendment and do all he could to vindicate the rights of New Jersey

88

chapter five

residents.58 The governor-­elect argued that his clear platform meant that he could “construe [his] election” as a “mandate . . . to use all lawful methods to preserve inviolate the sovereignty of the people.”59 This included a variety of tactics, from a “beer bill” setting a higher ABV to a court case trying to block the Eighteenth Amendment directly by restarting the debate that Wheeler had tried to gloss over in ramming the amendment through without a clear understanding of its scope. Edwards argued that some state resolutions agreed to ratify prohibition of “alcoholic” drinks rather than “intoxicating” ones and that this disparity in wording meant that it was unclear that a sufficient number of states had actually voted for what became the authority to ban virtually all alcoholic drinks.60 In his farewell message, William Runyon, the outgoing Republican acting governor, suggested that New Jersey avoid “any legislation . . . which shall be interpreted as attempted nullification of the Federal Constitution.” Instead, he wanted to let the Court determine the validity of the Eighteenth Amendment and thus suggested that New Jersey “take no step until her right to do so along constitutional lines” was determined by the ongoing case.61 The incoming governor was not so patient, choosing a fiery states’ rights exhortation as his opening address, reiterating that he had waged his campaign on behalf of the decentralized structure of constitutional federalism and recognized a solemn duty to defend “the rights of New Jersey as a sovereign state.” To “guard against the contingency of there being an attempt to enforce Federal legislation” before the definitive approval of the “so-­called Eighteenth Amendment,” Edwards added that he had drafted legislation to provide alcohol regulation closer to the will of the people of New Jersey. The message was not all invective, however, as the nonlawyer Edwards offered a textual exegesis of the Constitution, concluding that states retained their traditional power over intrastate commerce via the concurrent power clause of the Eighteenth Amendment.62 Edwards had spurred a sophisticated debate on state sovereignty. News coverage of his campaign offered comparisons to nullification, Calhoun, the Hayne-­Webster debates, and the tariff nullification crisis and Force Bill.63 The then governor-­elect had been quick to make sure that his exact position was understood: he argued that, while he was bound by his oath to “maintain the sovereignty of the state of New Jersey,” unlike what newspapers had reported he would remain careful to commit “no nullification” as he insisted he would not have state officers impeding federal enforcers.64

ratifying and implementing ii (1918–­21): the northeast

89

The state’s attorney general, Thomas McCran, quickly agreed, explaining that New Jersey’s failure proactively to pass a concurrent enforcement bill matching Volstead was not nullification, regardless of Wayne Wheeler’s testimony in Trenton.65 McCran’s instructions were clear from Edwards’s inaugural address, in which, fulfilling a campaign pledge, the incoming governor immediately dispatched the attorney general to investigate lawfully overturning both the Eighteenth Amendment and the implementation of Volstead in New Jersey.66 The governor’s allies in the legislature offered competing plans to maintain legal alcohol in accordance with those views. Democratic assemblyman Barrett (of Essex County) proposed the administration’s bill, which would purport to implement concurrent enforcement, but only of any beverage with an ABV higher than 4 percent. (Wet Re­publicans offered an even more radical bill, with a 5 percent ABV following a state referendum.)67 Thomas Brown, the sponsor in the Senate, observed that the preamble of the beer and light wine bill offered several attacks on prohibition. First, it noted federal coercion, arguing that the lack of ratification in Trenton meant a lack of consent; second, it charged that the amendment was passed illegally (since many state constitutions required a referendum before ratification); and, third, it argued that the state retained its police power authority to define intoxicating. Brown claimed that his fellow legislators were operating under Edwards’s theory that the Volstead definition of intoxication applied only in the absence of concurrent state law. He added that he fully expected to generate as much of a states’ rights conversation as had South Carolina in 1832; he was no doubt pleased when a Washington Post article covering his bill held up New Jersey as the “champion of state sovereignty.”68 But, like Edwards, he disavowed nullification. It was legitimate to worry about nullification, he agreed, but the bill simply did not do that.69 Edwards’s bill—­now modified to 3.5 percent— ­easily passed both chambers despite GOP control of both the House (33–­27) and the Senate (15–­6). While Republicans provided almost half the twelve Senate votes, joining with all six Democrats to pass the bill, they were nonetheless divided. For now, Attorney General Thomas McCran had managed to shut out the ASL from the legislative process; initially the ASL had been promised a final hearing on the bill, but McCran appeared and claimed that his upcoming arguments before the Supreme Court would appear far stronger if he could invoke legislative support. Members of both parties agreed to fast-­track the bill, and the dry GOP majority leader made no attempt at whipping, allowing a comfortable 37–­21 passage, with the Senate following a week later.70

90

chapter five

Thus, according to the law of New Jersey, brewers could manufacture alcohol, although none actually dared to, waiting instead for the Supreme Court to decide on the legitimacy of the still lingering Volstead Act.71 Nor was the bill to be understood as an indirect ratification; instead, in a clear reminder that New Jersey felt coerced by an amendment foisted on it by other states, section 3 explicitly insisted that the bill “shall not be construed and is not intended in any sense or manner whatsoever to operate impliedly as a ratification of the Eighteenth Amendment to the Constitution of the United States, or in recognition of the validity thereof.”72 In signing the beer law, the governor reiterated his belief in his constitutional mandate and thanked the Republicans for joining him to vindicate constitutional principle in a nonpartisan way.73 For a pleased Edwards, this was “but the forerunner of an orderly movement to protect the liberties of the American people from the sumptuary powers of the Eighteenth Amendment.”74 The governor’s strategy seemed to pay dividends, at least for a few days: the federal prohibition agent in charge of New Jersey announced that, until he heard otherwise from his superiors, he would make no efforts to prosecute alcoholic beverages below 3.5 percent.75 Such orders followed almost immediately (as they would again two months later, when New York passed its own beer bill).76 Edwards had already nationalized his campaign, hijacking a speech honoring Democratic National Committee chair and future attorney general Ho­ mer Cummings to declare his one-­man war on centralizers in the Democratic Party. Not even scheduled to speak, he was a last-­minute replacement, invited to say a few remarks in the place of the ill Al Smith of New York. Edwards “sent a chill down the spines” of Democratic leadership, completely thwarting their effort to keep Prohibition out of the 1920 election. The ferocious New Jersey governor began with a scurrilous attack on the party’s respected elder statesman and leading dry, former secretary of state William Jennings Bryan. Bryan, he alleged, was motivated by investments in his grape holdings—­which would presumably sell more grape juice with competing products removed.77 Moreover, in the following back-­and-­forth between the two, Edwards attacked Bryan with the strongest slur a localist could offer: a cosmopolitan “man without a state.”78 His dinner tirade lacked a powerful metaphor like the Cross of Gold speech that had made his target famous, but Edwards was no less apocalyptic than the Great Commoner had been: “If the federal government may subvert the doctrine of state rights and, without a commission or mandate from the people enter upon our firesides . . . the theory of our constitutional

ratifying and implementing ii (1918–­21): the northeast

91

government and all the rights incident to home rule . . . are destroyed. . . . Under such a system the indestructible union of indestructible states becomes a myth . . . until nothing is left of the independent state of our fathers but the name.” He promised a popular constitutional revival, with himself as its prophet. Cummings and others might want to keep the party united, but he pledged to raise hell at the San Francisco convention so that he could “bring about a popular restatement of the doctrine of state rights and popular local home rule upon which our fathers founded this government.”79 (Some New Jersey Republican activists agreed to help that constitutional debate, promising to recirculate Edwards’s speech in upcoming campaigns as a means of discrediting him, while the Washington Post reprinted excerpts in celebration of Edwards’s and Smith’s fight for states’ rights.)80 Nor was it a passing comment; Edwards soon reiterated that party comity meant little to him: he commented that “personal liberty and state’s rights are involved” and that he would make sure San Francisco knew it.81 Bryan, in turn, attacked Edwards and Smith as nullifiers and demanded that Cummings disavow Edwards, pledging to quit as a delegate if Nebraska endorsed Edwards.82 As the convention met in June, Edwards proved as good as his word. He offered a long-­shot campaign for the presidency—­though an early state poll had him running ahead of all possible Democratic candidates, including Herbert Hoover83 —­but the platform seemed to be his highest priority. He conceded that he would likely fail to implement his wet plank in the party platform, but he was confident that his faction could at least veto Bryan’s efforts to institute a dry one. (Subsequent events— ­especially Wheeler’s efforts to keep the parties neutral—­proved this correct.) In the weeks beforehand, he continued to warn of the catastrophic effects Prohibition had wrought on American federalism: “If the states are to be denied sovereignty . . . what is the use of having so many expensive state governments? It would be cheaper to and easier to amalgamate the governments and have everything done . . . in Washington. I stand on the Jeffersonian principle of state sovereignty.”84 The self-­described Jeffersonian nodded to compact theory: “Thinking men realize that we are at the parting of the ways: either this country consists of a federation of states, with all reserved powers not expressly granted to the Federal Government, or it is a nation whose affairs are to be administered in all details by centralized authority.”85 The Supreme Court’s decision upholding both the Eighteenth Amendment and the Volstead Act left Edwards—­joined, by now, by New York’s

92

chapter five

Al Smith—­temporarily isolated in the states’ rights fight. (Edwards had also been embarrassed, along with Dow Jones, in relaying secret reports that the Court would overturn the Volstead Act in the National Prohibition Cases.)86 Samuel Wilson, a leader in New Jersey’s ASL, declared Edwards defeated, belonging with “the corpse . . . buried in 1865 under the apple tree at Appomattox.”87 Wilson danced on Edwards’s political grave, mocking his belief that states’ rights– ­committed southerners would rally to his cause, placing federalism above their devout belief in prohibition. That hope would prove hollow: the South had, as Wilson observed, all but given up on the doctrine, with the first four to ratify Mississippi, Virginia, Kentucky, and South Carolina.88 The adverse decision in the National Prohibition Cases deeply shaped New Jersey’s 1921 legislative session. Although merely symbolic by this point—­no states had ratified the Eighteenth Amendment for two years, and its enforcement had begun—­the legislature considered spiting Edwards by ratifying it anyway. A negative Senate vote trumped the House’s overwhelming passage in the session’s early weeks, and, for one year yet, New Jersey remained with Connecticut and Rhode Island as unwilling captives of the Prohibition amendment.89 While the legislators did not ratify the amendment in 1921, state enforcement came with the particularly harsh Van Ness Bill allowing trials by magistrate without jury and the issuance of warrants to search homes. Thus, even some who supported ratification of the amendment opposed Van Ness.90 Edwards, already incensed by Prohibition’s attack on federalism, now had two more constitutional objections to make, and he vetoed the bill on the jury and warrant grounds. The alternative, he soon claimed, was “a condition of judicial and official tyranny.”91 The Republican-­dominated chambers overrode his veto by identical margins, with Edwards picking up only one Republican Senate vote.92 The state supreme court, however, backed Edwards, striking down the Van Ness Act as unconstitutional, and leaving a rematch on New Jersey’s concurrent enforcement for 1922. Edwards’s flamboyant Democratic National Committee stand against prohibition had been initially aided by the absence of neighboring governor Al Smith of New York. Largely owing to Smith’s eventual notoriety, the Empire State would become the nation’s true prohibition rogue, but that was not yet the case in 1920 as Smith ended his first term as governor. Though clearly a wet and a committed states’ rights believer, he remained within the shadow of the much more provocative Edwards in 1920.

ratifying and implementing ii (1918–­21): the northeast

93

New York was unique in its relationship with the ASL, as William Anderson, one of its most talented operatives, sent to organize the flagging state organization, concluded that the state’s Democrats were too dominated by Tammany Hall to be swayed by the ASL’s nonpartisan pressure group tactics.93 Anderson had butted heads with his boss, Wayne Wheeler, before when he sought to block the nomination of the wet Andrew Mellon to head the Department of the Treasury (and prohibition). Wheeler prudently warned against such a doomed effort lest the ASL appear weak in defeat, just as he always shied away from criticizing Harding publicly and giving the impression that the ASL had not gotten its way.94 Anderson concluded that the ASL’s usual nonpartisan model so zealously championed by Wheeler would not work in New York. Thus, the ASL—­ and its able lobbying via the ruthless Anderson— ­could only destroy wet Republicans by replacing them with even wetter Democrats, which meant that New York Republicans especially resented ASL influence. Nor were GOP wets a rump faction, at least at first: as in Massachusetts, the state’s most powerful Republican was arguably the doggedly libertarian Senator James Wadsworth, who detested Prohibition for violating both civil liberties and states’ rights. But Anderson’s calculation—­that it would be easier to marginalize the Wadsworths of the New York GOP by single-­mindedly purging GOP wets than to make any inroads in Democratic Tammany—­ also meant that the ASL eventually helped create exactly what it wanted to avoid elsewhere: a state party system in which Prohibition was almost perfectly sorted despite Smith’s reluctance to press partisanship. Smith had first cut his political teeth in New York’s failed 1915 constitutional convention, where he built up a reputation for joining a commitment to state sovereignty and constitutional conservatism, on the one hand, with an active, progressive state government, on the other. Although clearly a product of the Tammany Hall Democratic machine, he had impressed New York Republican luminaries, including Elihu Root, Henry Stimson, and George Wickersham, with his appreciation of policy detail. Foreshadowing his future electoral support among the state’s Republicans, who appreciated his probusiness orientation and constitutional conservatism, that trio became his allies in good government and administrative reform throughout the convention and would remain supportive throughout his career.95 Smith had failed in stalling ratification in 1919, with Republicans ignoring his concern that the state should not surrender its states’ rights before confirming that the people were ready to “forfeit any part of the police power” via a referendum.96 While he joined neighboring New Jersey’s

94

chapter five

Edwards in sharply criticizing Prohibition in early 1920, both of them were still operating within a twilight zone in which state obligations, and perhaps even the Eighteenth Amendment itself, were unsettled before the Supreme Court issued its ruling in the National Prohibition Cases. Smith’s opening address at the 1920 legislative session proposed attacking Prohibition through electoral means. Although nearly all states had rat­ified the Sheppard Amendment, Smith argued that it would be possible to drop the total below the necessary three-­quarters threshold. First, he argued, several state constitutions forbade their legislatures from ratifying amendments without intervening elections or referenda, rendering those ratifications illegitimate. Second, a state could rescind its ratification before a constitutional amendment had passed (with the Eighteenth Amendment having failed to reach the threshold if several ratifications had been illegitimate). Thus, he urged legislators both to formally rescind their ratification and to prepare a state referendum to ascertain the people’s constitutional wishes.97 Smith made sure to offer an olive branch to his Republican colleagues (who held one of the legislative chambers). “The question [of Prohibition] is not a party one,” he observed. But, he continued, in a clear reference to the ASL, “it was made the subject of a party caucus,” forcing legislators to “surrender” their own well-­known views as well as those of their constituents.98 Smith offered that bipartisan gesture because Assembly Speaker Thaddeus Sweet, an attentive but begrudging ally of the ASL, had declared it his intention to push through Volstead enforcement and suggested that he would exert party pressure.99 Sweet had reason to fear the New York branch of the ASL: six years earlier, its point man, William Anderson, found him insufficiently committed to the cause and tried to defeat him by hiring a private investigator to circulate bogus stories about him and evidence of corruption on his part. Sweet managed to refute the accusations and save his career but seethed that Anderson’s tactics “make your blood run cold and your hair stand on end.”100 Sweet’s threat of party whipping seemed to corroborate Smith’s insinuations, leading the governor to joke that Anderson had rapidly “become the leader of the Republican Party . . . [its] biggest man [whom] . . . they ought to nominate . . . for Governor.” Smith again invited Republicans to reject Anderson’s influence; although Democrats had pledged hostility to Prohibition, Smith reminded the GOP members that their platform had not endorsed it and thus that they remained free to vote with him if their consciences dictated.101

ratifying and implementing ii (1918–­21): the northeast

95

Such an offer no doubt proved extraordinarily tempting as Senate Republicans clearly chafed at the pressure brought against them by the ASL. Democrats, for their part, and unlike in the rest of the country, seemed able to brush off the ASL, even with their informal February convention demanding Prohibition’s repeal and declaring the amendment “an unreasonable interference with the rights of the states as guaranteed by the Constitution.” Until such repeal occurred, they insisted on the “right of our state in the exercise of its sovereign power to so construe the concurrent clause . . . as to be in accord with the liberal and reasonable views of our people.”102 In the two months after the session’s inauguration, many in the GOP began to fear the consequences of enacting a mini-­Volstead and now openly flirted with a referendum asking voters to choose among legal beer, beer and wine, or Volstead as the state’s prohibition regime. Attempting nothing as radical as the Democrats’ proposal to repeal the Eighteenth Amendment altogether, Republicans nonetheless hoped to freeze “prohibition out of politics, so far as the state campaign is concerned,” as the Times described their fear. Colonel Ransom Gillett pledged to marshal thirty of his fellow GOP war veterans as well as the entire Democratic caucus for a referendum; even Speaker Sweet seemed to fear Gillett as much as Anderson and his ASL.103 Minority Leader (and future New York City mayor) Jimmy Walker offered a beer bill akin to that in Massachusetts. In enforcing the Eighteenth Amendment, his bill would close saloons (and hence was ferociously opposed by the liquor interests in the state) but, in line with the Democratic platform’s declaration, reserved the state’s right to define intoxicating—­ which beer apparently was not.104 (The Republican Gillett introduced the companion bill in the Assembly.) With even Wayne Wheeler himself appearing, the ASL continually pressured Republican leaders to make the bill a caucus vote, but as early as March reporters were observing that many of the GOP rank and file seemed swayed by the lawyer William Guthrie’s states’ rights argument allowing for an independent interpretation of intoxicating.105 Unlike in Massachusetts, where an uneasy Coolidge had vetoed an equiv­ alent bill, in New York, Anderson’s condemnations of Smith for violating his constitutional oath did not sway the Democratic governor. Wheeler and Anderson had limited influence even on the GOP: in retaliation for their lobbying, even the dry Assembly insisted on investigating the methods of the ASL.106 Unfortunately for Anderson, that was not the worst display of

96

chapter five

Republican independence. At the committee hearings to consider the beer bills, citizens in the gallery shouted him down; even Republican members joined in the jeering and voted to cancel his appearance.107 As the session neared a close, both chambers approved the beer bill thanks to a massive defection of Republican votes that caught the ASL off guard. Its influence came under further assault during the chaotic legislative battle, as an ASL official and a Democratic assemblymen nearly came to blows over the latter’s attempts to block lobbying. Moreover, seeing that Gillett had already rallied sufficient allies on the Republican side, Speaker Sweet stood down in his efforts to block the bill.108 Perhaps most damningly for the ASL, beer bill supporters included a handful of upstate Republicans and Theodore Roosevelt Jr., an up-­and-­coming member already being groomed for a future gubernatorial race.109 A seething Anderson could only threaten to block the Republicans’ national efforts, including, somewhat incredibly, the career of the popular and powerful Wadsworth.110 But Anderson’s threats were not wholly idle: subsequent state elections would drastically thin the wet Republican ranks in Albany. In hearings before the bill and in his brief memo signing it, Smith defended his own extrajudicial authority to interpret the Constitution. In a testy exchange with the ASL’s lawyer, he argued that the text of the Eighteenth Amendment authorized independent state interpretation through “sovereign power and concurrent power”; otherwise, “there was no reason to put in the concurrent power provision [and] the duty of the state would have been enforcement.” The ASL’s lawyer, he bristled, would have him “believe . . . that the federal government can impose upon the various states its own interpretation . . . and all that the state can do is merely concur?” The Republican Gillett, testifying after Smith, backed the Democrat, urging him to assert his “God-­given right to sign that Bill and make a second Declaration of Independence of State’s rights.” Adopting a compact theory and turning the ASL’s rhetoric back against it, Gillett added that anything else would be “nullify[ing] our form of government” in which “the federal government is a creature of the states”: “If we should surrender this sovereignty, the American people of five generations from now will curse us.”111 After delivering a statement declaring his deference to the legislature in defining an ambiguous term,112 Smith signed the bill, now widely seen as a clear states’ rights attack on Volstead and one that hopefully offered a strong signal to the Supreme Court. Ironically, this message took the form of a bill that, as the New York Tribune’s editors observed, carefully

ratifying and implementing ii (1918–­21): the northeast

97

invoked the text of the Eighteenth Amendment and whose substance the ASL would have happily passed a mere three years earlier.113 Although running well ahead of the rest of the Democratic Party in 1920—­suggesting his crossover support—­Smith nonetheless lost his first reelection campaign that fall to the Republican Nathan Miller in a strong GOP tailwind on behalf of postwar “normalcy.” Miller was an ally of Herbert Hoover’s. He had nominated Hoover at the 1920 GOP convention, and Hoover in turn had backed him in the New York race.114 The governor-­ elect was also a longtime former judge on the New York Supreme Court and Court of Appeals and the current president of the state bar and, like the rest of the New York legal community, shared a deep commitment to states’ rights and antipathy to Prohibition.115 In his memoirs, Miller summarized his views on Prohibition thusly: “I had taken an oath to support the Constitution. I had opposed the amendment and had stated that it was the greatest blow to liberty ever struck since the South seceded to perpetuate slavery. Sumptuary laws have no place in the Constitution.”116 This was not just a convenient reconstruction of his record, as Miller did not conceal his contempt for Prohibition. In September 1921, he condemned the state prohibition commissioner for relying on warrantless searches, noting: “If any principle that is sacred wherever the Anglo-­Saxon law is administered, that principle embodied in the fourth amendment is one.” The wrongness of such constitutional infidelity was especially true because enforcement of the “obnoxious law” of Prohibition only followed from another constitutional obligation: “I have never disguised the fact that I did not like the Eighteenth Amendment, but I cannot choose the laws which I will enforce.”117 Similarly, Miller explained: “I declined to accept the nomination of the Prohibition Party because I could not stultify myself by seeking votes on the pretense that I believed in something which I do not now and never believed in.”118 Miller’s prohibition legalism was apparent in the 1920 campaign as well. While he “never” had been a prohibitionist, Miller nonetheless insisted on enforcing Prohibition and thus made a point of appearing at a campaign stop with Calvin Coolidge, where he celebrated his eastern neighbor’s stance in vetoing that state’s beer bill as attempted nullification. He quoted from that veto message and particularly endorsed Coolidge’s emphasis on the importance of the constitutional oath. Reflecting his future constitutional brittleness on the Sheppard-­Towner Maternity Act, where he all but dared voters to remove him for his legalism, he boasted: “It is

98

chapter five

not important to me that I be elected governor, but it is important . . . that the governor of this state . . . shall respect his constitutional oath of office.” Al Smith, who clearly endorsed Volstead repeal, instead sought nullification.119 Now in power in 1921, Miller and his allies soon pushed hard for the vigorous enforcement of the Eighteenth Amendment. Although again hinting at his own antiprohibition views by saying that it remained legitimate to disagree with Prohibition on the merits, now governor Miller reiterated his obligation to pass a bill lest the state display contempt for the law— ­or endanger states’ rights. By ensuring that New York enforced Prohibition, he hoped to foreclose future federal intervention in the state’s police powers. His fellow New Yorkers might not be happy about the Eighteenth Amendment’s cession of states’ rights. But, he warned, resisting enforcement and thereby requiring heavy-­handed federal intervention, rather than dealing with it in-­house as he proposed, would only expand federal power even more. For a committed states’ rights believer like Miller, this was the worst of all worlds— ­cooperating with the federal government was the least harmful way ultimately to preserve the rest of the balance of federalism.120 True to its word, the ASL had been carefully purging upstate wet Republicans over the last few years, leading it to wield virtual control over much of the party’s legislative contingent—­a smaller, but loyal, GOP.121 Guided by true believers, like Miller’s lieutenant Frederick Davenport, a committed dry who had run on the Progressive ticket, and aided by wet but law-­and-­order legalists like Miller, Republican prohibitionism was clear.122 Miller and his fellow Republicans passed the draconian Mullan-­ Gage Act to enforce the Eighteenth Amendment and implement state concurrent enforcement in 1921.123 Miller had been as good as his word, and he would face the voters for it in 1922. Republicans in neighboring Pennsylvania took a unique course of action, trying to tame the saloon environment while using traditional state liquor control laws to bring its products into compliance with the Eighteenth Amendment. Governor William Sproul, a progressive-­leaning Republican, ardently supported prohibition, which he believed represented “the most far-­reaching self-­disciplinary measure ever taken by any nation in all history.”124 Thus, in 1921, he called for amending the state’s licensing law to comply with the Volstead Act. The administration bill, called the Woner Dry Act, claimed to implement state prohibition, but it did so in a roundabout way that appalled

ratifying and implementing ii (1918–­21): the northeast

99

ardent drys. Rather than repeal state licensing of saloons—­thereby shuttering them—­it guaranteed the licensing of a few saloons that would be allowed to serve only low-­ABV near beer, ostensibly compliant with the text of the Eighteenth Amendment but antithetical to the antisaloon spirit that had animated it.125 After several weeks of interbranch fighting, the Woner Bill passed.126 While Sproul proclaimed that his bill had implemented concurrent enforcement, other drys, including Gifford Pinchot, whom he had appointed state forest commissioner, still considered Pennsylvania to be out of alignment with the demands of the Eighteenth Amendment. The December 1921 death of Pennsylvania’s Republican boss, its powerful US senator Bois Penrose, who had held the state’s conservative, alcohol-­soaked Pittsburgh and Philadelphia local machines in line, soon unleashed an internal fight that would see all the factions’ worst nightmare: the election of Pinchot, the ardently antipartisan, good government, and ultradry progressive seeking to dismantle their machines. Thus, at the end of 1921, four northeastern states seemed to be out of compliance with their supposed constitutional duty to pass concurrent en­ forcement. In Massachusetts and Rhode Island, Republican legislators and governors had fought to a standstill, while New Jersey courts had blocked Republicans’ overzealous implementation there. Pennsylvania was a marginal case that had given drys much of what they wanted in practice. Others—­most notably Connecticut—­formally obeyed but made clear their contempt for federal coercion and pledged continued opposition. The GOP-­ controlled Northeast had laid the foundations for a decade of conflict with the party’s presidential wing—­and its two wets, Harding and Coolidge, themselves awkwardly trying to enforce policies in which neither truly believed.

chapter six

The Dry Tide Recedes (1922–­23)

With all respect for the President . . . I must here reassert this principle [of states’ rights] against his challenge and as the Chief Executive of the greatest sovereignty in the union, it is my duty to declare and maintain that sovereignty in exact accordance with the guarantees of the Constitution.— ­Governor Al Smith (D-­NY)1

B

y early 1922, all state legislatures had met since the Eighteenth Amendment had gone into effect and the justices of the Supreme Court pronounced both the Sheppard Amendment and the Volstead Act the law of the land. A few opponents of Prohibition, like Maryland governor Albert Ritchie, continued to hold that they represented sovereign states and that the minimalist National Prohibition Cases still preserved the states’ sovereignty to decide their own alcohol policies, but this was a decidedly minority position and a belief largely confined to the Northeast. Far more numerous were those who had adopted the position of America’s drys, who insisted, as even many resigned wets had come around to agree, that fidelity to the Constitution required the states to maintain a concurrent enforcement law consistent with the Volstead Act, lest states traverse beyond the states’ rights consensus. Thus, drys (and reluctant prohibition legalists) began adopting a powerful rhetoric, popular among both demagogic activists and serious politicians alike, tarring nonenforcing states with disloyalty, treason, nullification, and secession—­in effect, with restarting the Civil War. Beginning in 1923, and

the dry tide recedes (1922–­23)

101

lasting through the end of Prohibition, Maryland, which never passed concurrent enforcement, and New York, which infamously repealed its statute in 1923, became bogeymen frequently invoked in the same breath as Calhoun. Wayne Wheeler, the head of the Anti-­Saloon League (ASL), invoked nullification whenever he served as a witness in legislative testimony. Mary Haslup, president of a local Maryland chapter of the Women’s Christian Temperance Union (WCTU), condemned the state (and especially Governor Ritchie) for disloyalty on account of its refusal to pass concurrent enforcement legislation.2 The Wickersham Report, the 1930 product of the presidential blue-­ribbon commission assessing a decade of Prohibition, approvingly quoted a Boston police report holding that “repeal of the so-­called ‘Baby Volstead’ ” laws equaled “nullification.”3 Such sentiments held even in the core of Dixie: when Alabama’s legislature debated modifying its alcohol laws, the state branches of the WCTU and the ASL condemned such nullification (as they did elsewhere), while Georgia’s governor dismissed mere “states’ rights twaddle.”4 Even the Ku Klux Klan, which pledged its motto to be “obedience to law [and] respect for the Constitution,” dismissed New York’s Al Smith as “the great nullifier of today” who would learn that “what was good for Calhoun, the first great nullifier, will be ample for Al Smith in 1928.”5 (Southern unease with nullification was not without precedent: most southern states had shied away from adopting Calhoun’s formulation.)6 Leading elected drys of both parties echoed the same attacks against the supposed nullifiers. William McAdoo, who would assume leadership of the Democratic dry faction on the 1925 death of William Jennings Bryan, went a step further. While he grudgingly acknowledged that the federal government could not force Maryland to pass a law, he did note: “The courts of the repealing states are under a constitutional obligation to hold the repeal [of an already existing concurrent enforcement regiment] void.” In short, the Eighteenth Amendment, the supremacy clause, and the constitutional oath combined to “make clear, beyond the shadow of a doubt, the duty of the States to support and not to nullify ‘the supreme law of the land.’ ”7 Idaho’s Republican senator William Borah, who held an influential post atop the Senate Judiciary Committee, long insisted that states could not eliminate their legislation banning alcohol without violating the Constitution’s supremacy clause. While he conceded that the federal government “cannot mandamus a state to pass a state law, to execute or enforce a law,” he insisted that the state still had “a legal obligation to support the law under which it lives.”8

102

chapter six

But even Borah, the congressional Republican most associated with Prohibition, was an ardent states’ rights advocate. Although he and Chief Justice Taft disagreed on the substantive merits of prohibition, with Taft fiercely opposing the amendment on states’ rights grounds, their constitutional views were nearly identical: extremely skeptical of federal powers in light of the Tenth Amendment but, as good positivists, fanatically committed to them where the formal text of the Constitution had changed to add a new power.9 As one scholar of Idaho politics described it: “To Borah, who condoned federal policing of prohibition, the [Eighteenth] amendment was a rare exception to the Constitution’s states’ rights rule . . . [as was] the 17th Amendment. On most other issues, the church-­going, booze-­ foreswearing Republican wedded his progressivism to a fierce protection of states’ rights in the 10th Amendment.”10 Thus he opposed Sheppard-­ Towner and the women’s suffrage and child labor amendments on federalism grounds. Whatever distance existed between fellow Republicans Calvin Coolidge and Borah on policy grounds did not translate to the constitutional sphere: Borah praised former solicitor general James Beck’s influential constitutional treatise—­the manifesto of the era’s constitutional conservatism whose foreword was written by Coolidge himself—­by wishing that it “could be in the hands of every young person in the United States” because “God knows how dearly we need a constitutional revival.”11 Although, as the party in power in most of the country, Republicans were tasked with defending prohibition, efforts to affix partisan blame on the GOP generally failed. With few exceptions, where Democrats ruled, they too sounded nearly identical themes; for wets throughout the country, it was Wheeler, his organization, and their ideology of constitutional enforcement, not party politics, that protected the Sheppard Amendment. The ASL still had work to do, but, from the vantage point of 1922, it had already accomplished much. Strategic electioneering had largely ensured that opposition to Prohibition remained disorganized, frozen out of the party system. But, more importantly, it had popularized the belief that constitutional obligation meant that opposition to Prohibition was illegitimate and un-­American. Dry successes in the last two legislative years since Prohibition went into effect left only a few, mostly correctable holdouts remaining. New Jersey’s sloppy drafting had garnered a judicial strike of the state’s prohibition law, though drys’ continued veto-­proof majorities made passage of a replacement statute inevitable. Rhode Island and Pennsylvania had voted to wait for full enforcement but would likely fall in line. Only three

the dry tide recedes (1922–­23)

103

map 2.  State prohibition as of the end of 1921

states offered any obvious worries: in Massachusetts and California, referenda blocked Republicans’ efforts to implement concurrent enforcement, while Maryland’s bipartisan coalition, headed by Ritchie, appealed to states’ rights and foreclosed enforcement efforts there. But everywhere else in the country, the ASL had reason to be confident; only Maryland would likely remain committed to nullification. Unfortunately for the nation’s prohibitionists, they had reached the apex of their gains, and 1922 and 1923 would prove unhappy years for them as the march of progress would falter and backsliding would begin. A key Wisconsin dry continued faithful enforcement of the state’s prohibition laws, but doubt began to creep into his mind and set him on his political road to Damascus. More troubling for the ASL, those years saw the reluctant rise of the American politician who would supplant Maryland’s Albert Ritchie as the nation’s most prominent elected wet, one who would eventually spar with

104

chapter six

the president of the United States himself in defending what he took to be his own constitutional obligation: vindicating the rights of states under the Constitution. This chapter, covering 1922 and the first half of 1923, will begin by out­ lining the thorough debates in the Northeast, where wet invocations of fed­ eralism again confronted prohibition legalism, before turning to the curious case of the West, where antiprohibitionists uncharacteristically bypassed constitutional argument—­a sharp outlier from the careful constitutionalism seen in the rest of the country. From there, it will cover the Midwest and the South, where lone outlier states stood in sharp relief to robust regional support for concurrent enforcement as fulfilling constitutional fidelity.

The Northeast In New York, Nathan Miller and his Republican (and old Progressive) allies entered the 1922 election having passed concurrent enforcement and all but daring voters to punish them for enforcing the Constitution. The New York electorate obliged. Although Al Smith remained popular in his years out of office and Miller presumably would have lost votes without Harding’s massive 1920 coattails to help this time, New York’s Mullan-­Gage enforcement law enraged the state’s citizens, who decisively swept Miller and his supporters out of office. Both Smith and Miller had pitched their prohibition policies on primarily states’ rights grounds, with Smith saying that the state had no reason to enforce a federal law and Miller fearing that doing so would ultimately result in federal coercion. The voters backed Smith.12 In returning to office Smith struck an initially guarded tone, lamenting in his inaugural address that the Supreme Court’s decision to approve the Sheppard Amendment and the Volstead Act “render[ed] the state helpless”; if the people of the state were “to get relief . . . they must look to the National Congress.”13 Nonetheless, Smith offered a suggestion that would give some relief to New Yorkers, but his allies moved far more aggressively, ultimately setting him up to become the nation’s leading wet politician. Early in 1923, the state’s Democratic legislators immediately pressed for full repeal of Mullan-­Gage, far more than the plan to restore 2.75 percent beer that Smith had endorsed in the campaign. Unlike full repeal, Smith’s plan plausibly interpreted the Eighteenth Amendment through a lens of

the dry tide recedes (1922–­23)

105

limited state sovereignty—­agreeing to enforce the prohibition of intoxicating liquors, disagreeing only on what fell within that category. The author of the repeal bill, the Democrat Louis Cuvillier, also pushed to have New York openly rescind its ratification of the amendment. Citing the classic but controversial case of Wynehamer v. New York (1856), in which the New York Court of Appeals had overturned an early temperance law with one of the earliest applications of substantive due process,14 Cuvillier denied that New York’s ratification had ever been legitimate. Sounding every bit like the state’s economically libertarian judges, he argued that New York, and other states that had due process clauses in their state constitutions, had unconstitutionally approved a law depriving owners of property.15 No formal party whipping on the repeal bill took place; Republican Speaker Edmund Machold reportedly disavowed any caucus pressure on Cuvillier’s prohibition measures, arguing that the topic was one on which he believed members could have a “field day” voting their conscience.16 With the ASL doing the job leveraging pressure, none was needed. A starkly partisan vote sent the full repeal to the governor’s desk.17 Smith now hesitated. In his first stint as governor, he had vetoed an appropriation to state prohibition agents, but that was before the Supreme Court had vindicated both the Eighteenth Amendment and the Volstead Act.18 As Nathan Miller acidly observed on the campaign trail, Smith’s running mate, former congressman George Lunn, voted for the Sheppard Amendment in 1917.19 Although Smith made no secret of his consumption of his perfectly legal, pre-­Volstead cache of alcohol, he had initially, and very publicly, backed Sheppard’s enforcement, insisting that the state would help support the Constitution, and he continued to feel that way.20 Now his decision on the repeal of concurrent enforcement threatened to make antiprohibition a Democratic position and, with the core of the Republican Party of New York all but owned by the ASL, a plainly partisan issue as well. More troubling, newspapers attacked the Democrats and rump Republican defectors as secessionists, while the governor’s usual Tammany backers treated repeal as a party-­line litmus test and pressed Smith to sign the bill. His inner circle split on the matter: his closest adviser, Joseph Proskauer, was a southern states’ rights fanatic who scorned Prohibition as a violation of those principles, while both Eleanor and Franklin Roosevelt urged him to veto the repeal bill, warning that he would become a national pariah for failing to enforce the Constitution. Instead, FDR argued, Smith should propose a bill putting state officials on call to respond to enforcement requests by the federal government, thereby cleverly allowing the feds to take the blame

106

chapter six

for enforcing the unpopular amendment. (Roosevelt’s commandeering proposal had the trait of delegating even more of the state’s power to the federal government, just as Nathan Miller had prophesied.)21 That conflicting pressure from his colleagues matched the internal debate produced by Smith’s ideological commitments. Understanding those commitments is essential to understanding the politics of Prohibition, not only because Smith became the nation’s most prominent opponent of the Sheppard Amendment, but also because his tension so clearly typifies that faced by conscientious constitutionalists of the era. Smith’s political views defy a simplistic characterization, which has led to conflicting assessments from contemporaries and biographers alike, who struggle to reconcile the progressive governor who developed a robust social welfare and regulatory state in New York with the irascible curmudgeon joining the Liberty League’s Jeffersonian states’ rights attacks on his onetime protégé a decade later. Pique at Roosevelt for muscling him out of the 1932 presidential nomination contributed to his opposition to FDR, and it is certainly true that Smith, then the president of the Empire State Building, increasingly took on a businessman’s perspective. But was this a betrayal of the old Al Smith, the one who had championed protective state regulation, especially safety and health regulation (as, e.g., his work in drawing up a safety code in response to the Triangle Shirtwaist Fire)?22 Or the Al Smith who had made what seemed like proto–­New Deal statements, such as when he observed: “Too many people are prone to the idea that health is the concern of the individual. I believe it to be the business of the State because the State itself cannot be healthier than its people”?23 Or the Al Smith who, like Roosevelt, had worked to replace New York’s libertarian laissez-­faire judges with those who took a narrower interpretation of the due process clause, one more consistent with a robust state police power?24 It was not simply that Smith changed: he always had a conservative streak derived from his eclectic Jacksonian views, which, for example, led him to support zoning laws and state operation of public utilities but oppose public housing. He supported the government setting the conditions to encourage safe, healthy, and secure homeownership but not government directly owning it.25 His responses could be muddled—­the nonlawyer Smith was not a systematic legal thinker—­but his basic thought remained consistent. He believed in a robust and protective state, but, except for a brief but cool rapprochement with Roosevelt’s far-­reaching National Recovery Act in the beginning of 1933, he consistently rejected federal intervention in the social welfare realm and had attacked the then candidate Roosevelt as

the dry tide recedes (1922–­23)

107

a demagogue pitting classes against one another. Nor could his turn to fed­ eralism have been simply a late cover for attacking Roosevelt: back in the early 1920s, he was, along with Ritchie, one of the most aggressive opponents of grants-­in-­aid, including the Sheppard-­Towner program, on the grounds that such cooperative federalism was unconstitutional in that it made the states dependent on the federal government.26 Throughout his career, from his early days until his marginalization as a Liberty Leaguer, Smith demonstrated a fairly consistent belief in an active, progressive state and a sharply limited federal government— ­in short, the views of his Republican friend Elihu Root.27 Just as that constitutional conservatism and its states’ rights perspective had led Root to oppose the Eighteenth Amendment, so it led Smith to fret about how to balance a serious commitment to states’ rights with a fear of nullification as he debated whether to sign or veto the Democratic legislators’ repeal of the state’s concurrent enforcement law. A suddenly panicked governor called for public hearings, with Democrats reminding him of his campaign pledge to defang state prohibition and wets across the country plotting to use him (rather than Oscar Underwood) as their vehicle in 1924.28 These hearings marked one of the first major efforts by the Association against the Prohibition Amendment (AAPA), the interest group founded to attack the centralizing tendency of the Eighteenth Amendment. As the AAPA preferred, Ransom Gillett, the former Republican legislator who had assumed the leadership of the state branch, focused his hearing appearances on constitutional principles rather than policy objections. Gillett raised two objections: not only did concurrent enforcement allow the potential for double jeopardy, but it was also not mandated by the Eighteenth Amendment at all. Repealing the state’s enforcement law, he insisted, was not nullification but merely forcing the federal government to do its job. A nervous Smith continued to sit on the bill for as long as possible before announcing that he would allow the repeal.29 The long and tortured signing statement on Mullan-­Gage reflects the constitutional wrangling involved as Smith tried to justify his position in terms of fidelity to the Constitution on multiple fronts.30 He was at his strongest in explaining that the bill would correct the loophole found in the recent, widely criticized Supreme Court case of U.S. v. Lanza, which seemed to give the green light to double jeopardy prosecutions involving prohibition, with each sovereign entity concurrently enforcing alcohol laws (for the same act). Repealing Mullan-­Gage, Smith suggested, was a step to­ward ending that constitutional evil.31

108

chapter six

The position Smith expressed on federalism was somewhat less confident and more obscured, although he quickly worked himself into the wrath that meant his allies and the New York Times could interpret it as the “vigorous reassertion of the Democratic doctrine of state’s rights” that would catapult him to the top of the Democratic Party.32 Smith began with clear disavowals of both nullification and commandeering of state officials, helpfully citing Massachusetts’s attorneys general to explain that only direct interference with federal legislation constituted nullification, and that the state could not be forced to act against its own wishes—­the Eighteenth Amendment did not go that far: “The mere omission to maintain a state statute in no way abrogates a Federal statute.”33 Consistent with the states’ rights views that he held and that others were ascribing to him, Smith praised New York’s right to determine its own policy. However, he did not follow that position to its end like Maryland governor Albert Ritchie did as he also extolled the positive law of the Eighteenth Amendment and insisted that the Volstead Act still imposed a constitutional duty to enforce prohibition. As a result, he tamely but opaquely insisted that his state would continue to do that rather than nullify the law: “Let it be understood . . . that this repeal does not in the slightest degree lessen the obligation of peace officers of the State to enforce in its strictest letter the Volstead Act, and warning to that effected is herein contained as coming from the Chief Executive of the State of New York.”34 Indeed, he somewhat bizarrely insisted that eliminating the state act would intimidate criminals with constitutional splendor, that they would learn that their punishment was “intended to effectuate an amendment to the constitution of the United States . . . rather [than] be[ing] led to believe [it] merely a local regulation.”35 In short, Smith’s text left it rather hazy as to what exactly he expected state officials to do with the Eighteenth Amendment. Where he was clearer was in his repeated insistence that he was not defending nullification—­and that he would yield to no one in constitutional fidelity. Citing a supposed crack from President Harding implying that he was a nullifier, the governor defended himself with a prickly and somewhat condescending civics lesson, insisting that the incident indicated “how far we may wander from the thoughts and ideals of the founders” if the president believed that he could commandeer the states. As Smith observed: The children in our public schools have been taught to believe that our government rests upon the foundation that the states are sovereign with respect to all powers not expressly delegated by them to the federal government, and

the dry tide recedes (1922–­23)

109

that while the laws of Congress are paramount within the delegated power, the states are sovereign within the reserved power. . . . To any student of our government, I think it must be apparent that one of the great . . . strength[s] of our democracy is the supremacy of the Federal government in its own sphere and the sovereignty of the several states in theirs.

Smith fretted that the president believed he could demand state assistance in the federal sphere whenever necessary—­perhaps owing to underfunding, perhaps owing to other logistic difficulties. That made him worry “whether all vestige of the rights of the states guaranteed by the Federal constitution is to be driven from our political theory of government.” The initially guarded, seemingly contradictory tone that had charged state officials with enforcing Volstead disappeared as Smith now openly challenged Harding, asserting his duty to defend not only his honor but also the constitutional order: With all respect for the President . . . I must here reassert this principle against his challenge and as the Chief Executive of the greatest sovereignty in the union, it is my duty to declare and maintain that sovereignty in exact accordance with the guarantees of the Constitution. This does not mean that a state has any right or power to enact any law that in any way infringes upon a constitutional act of Congress, but it does mean that the Federal government has no right to impose upon the state any obligation. . . . I yield to no man in my reverence and respect for the Constitution of the United States and I advocate nothing which will infringe upon the provisions of the Eighteenth Amendment.36

Outside observers disagreed, charging Smith with taking precisely that course of nullification. Ohio senator Simeon Fess wrote him a letter explaining that, while it was “always the right of an American citizen to seek the repeal of the amendment itself,” the “great state” of New York’s protest against Volstead was “openly advocating nullification.”37 An attendee at an ASL dinner protested New York’s repeal, flippantly suggesting that the un-­American Empire State perhaps ought to leave a Union whose Constitution it ignored: “Will New York secede from the union? I wouldn’t care, would you?”38 That sentiment had support in high places beyond simply self-­righteous ASL hard-­liners. Midwestern wets agreed with Roosevelt in believing that Smith should have vetoed the Mullan-­Gage repeal while still delivering the same states’ rights tirade, instead of endangering both his own presidential

110

chapter six

aspirations and the Democrats’ electoral chances.39 Dry southerners held that Smith had thrown away their region since even South Carolina would prefer Prohibition to states’ rights (but was so strongly Democratic that it would not matter)—­adding that they resented a northeasterner trying to rebrand their party.40 A citizen letter dispatched to President Harding said that voting to repeal Mullan-­Gage makes one “subject to the law of treason, having taken the oath to sustain the Constitution,” among other things. Harding’s response—­“Much of what you say I am fully in accord”—­seemed to give tepid agreement.41 Harding hit back even more aggressively and publicly against Smith’s position at the end of June 1923, arguing that New York was not only committing nullification but also doing serious damage to the cause of states’ rights in the process. Although he did not name Smith, everyone knew that the New York governor was the target of Harding’s widely covered speech in Denver warning that resistance to Prohibition on states’ rights grounds was counterproductive. Turning the language of nullification against not only federal power but also state authority, Harding sarcastically observed: “The spectacle of a state nullifying its own authority, and asking the federal government to take over an important part of its powers, is new.”42 That the federal government would take over such a power was unquestioned: Harding explained that the amendment would never be repealed and that he and the Republican Party would ensure the law was followed. He did not cite Smith’s predecessor, Nathan Miller, but he may as well have as he made precisely the same point that the devoutly states’ rights and antiprohibition Miller had made in advocating New York enforcement even of a law he disliked. Repealing concurrent enforcement would not result in a wet New York: it would result in a poorer and submissive state, paying for external occupation (since New York contributed a disproportionate amount of federal income tax). Thus, the state’s decision was going to result in the creation of a massive—­and expensive—­federal bureaucracy and law enforcement regime “which in time will come to be regarded as an intrusion and interference with the right of local authority to manage concerns.” Consequently, “instead of being an assertion of states’ rights,” Harding observed, the repeal of the state’s concurrent enforcement was “an abandonment of them . . . an abdication. . . . There could be no more complete negation of state rights”: “When the implications of this strange proposal are fully understood the people and parties devoted to preserving the rights of the states, the new nullificationists, . . . will discover that they have perpetrated what is likely to prove one of the historic blunders in political management.”43

the dry tide recedes (1922–­23)

111

Whether Smith had endangered constitutional federalism was yet to be determined, but political mismanagement it was not. The repeal of concurrent enforcement made Smith a household name and a leading Democratic presidential contender in the next three elections. Even the staunchly Republican but states’ rights– ­committed Chicago Tribune backed him over Harding and Nathan Miller. True, the Tribune agreed, the states may have foolishly consented to “invasions of the state police power,” but it was less damaging to state sovereignty to “have a federal policeman raiding a bootlegger’s place of business” than to legitimize “a federal dictator in the state legislature”: “It is better to have federal interference with law breakers than law makers.”44 As Harding’s veiled attacks recognized, Smith’s decision to sign the bill repealing Mullan-­Gage had catapulted New York and its governor to the leadership of wet politics in America—­but only after repeatedly and consistently disowning nullification and engaging in an indirect constitutional law colloquium with the president of the United States. Not only did opponents of Prohibition have a champion, but, as wets had hoped, Smith’s hesitation also disappeared, and he would soon be offering full-­throated federalist attacks on national Prohibition. Just to the south, the New Jersey state legislature prevented longtime Prohibition foe Edward Edwards from joining Albert Ritchie and Al Smith as successful victors against it. The Garden State had remained without an enforcement law since the state’s court had found the Van Ness Act constitutionally wanting, but, like New York, New Jersey developed something of a partisan split on Prohibition. The party’s platforms now sharply diverged on alcohol. The Republicans’ 1921 platform insisted that the people of the United States had solemnly acted with constitutional change and thus that “loyal citizens” must show proper “obedience to the law of the land”; legislators, for their part, must ensure “honest and impartial enforcement of the Eighteenth Amendment.”45 The Democrats began by agreeing to the legitimacy of the Eighteenth Amendment, but they insisted that the Volstead Act “does not represent the true spirit of the Eighteenth Amendment, honestly interpreted,” and instead was “foisted upon an unwilling people, paid by professional reformers . . . who by coercion and intimidation have arrogantly set at naught the promises of the Founders.” In addition to that veiled reference to the ASL and the supposedly dubious definition of intoxicating in the Volstead Act, New Jersey Democrats claimed that that act’s enforcement regime violated the Fourth Amendment. These civil libertarian critiques turned to

112

chapter six

outright gloating as the platform moved to the overturned Van Ness Act, noting that Edwards’s civil liberties fears had been vindicated since the Republicans’ law represented “the most reprehensible and tyrannical measure ever enacted by this or any other commonwealth,” gutting the protections of trial by jury and due process against both the state constitution and the federal Constitution.46 On meeting in 1922, New Jersey’s Republican legislators and a handful of Democratic allies wasted no time in passing another prohibition enforcement bill to replace the judicially blocked Van Ness Act. Governor Edwards vetoed this one too, explaining that he was “convinced that the problem of enforcing the Eighteenth Amendment should not be thrust upon the several states.”47 As with the first enforcement act, the predominantly Republican legislature easily overrode the veto.48 No court intervened this time, and thus Prohibition had come to New Jersey at last. Further emphasizing the state’s newfound commitment to prohibition, Trenton’s legislators signed on to the Eighteenth Amendment itself, two years after Prohibition had begun and three years after the last state had ratified it.49 New Jersey had finally become, in the words of the California ASL, a model, a “self-­respecting” state that had initially opposed the Eighteenth Amendment but had nonetheless properly passed concurrent enforcement.50 Its example was not as impeccable as California’s ASL would have wanted in urging imitation, however; the Garden State had sent Edwards to continue the fight against prohibition in the US Senate. In 1923, Governor George Silzer, who had taken over for his fellow Dem­ ocrat, proposed a broad package of aggressive measures to resist Pro­hibition, including repeal of concurrent enforcement. Silzer shared his predecessor’s civil libertarian concerns with the warrantless searches and double jeopardy brought on by Prohibition, and he requested modification of the state’s enforcement law to vindicate these fundamental guarantees. He also shared Edwards’s belief that states had a meaningful role to play in the federal constitutional order, and his other proposed modifications to the state enforcement act reflected this. The Volstead Act’s definition of intoxicating, Silzer declared, was a “falsehood”: “It would be quite as true to say that a jackass is a camel.” Silzer recommended that the state change its definition of intoxicating to exempt beer and wine and thus force open a national conversation. “While this [would] not legalize the sale of these beverages [in New Jersey],” he conceded, since they would remain prohibited under federal law, “it at least expresses the will of the people as to what the national act should contain.”51

the dry tide recedes (1922–­23)

113

Silzer believed that the Eighteenth Amendment and the Volstead Act re­ mained binding and “should be enforced” as long as the “amendment is effective . . . and the act operative,” but this did not make them infallible or faithful embodiments of what the sovereign people had authorized the federal government to do. He thus proposed a joint resolution requesting modification of the Volstead Act and a constitutional convention modifying the Eighteenth Amendment. The purpose of both, he explained, was to clarify and restore what was originally intended by Prohibition to reflect the actual powers states had ceded to the federal government, limited in scope to hard alcohols. The resolution and amendment would ensure that America’s Prohibition experiment “reflect[ed] the intent and meaning of the Eighteenth Amendment, and not violate our constitutional privileges.” Nor was his state under any such compulsion to independently collaborate with the flawed definition of hard-­line prohibitionists, as his proposal for a new state definition demonstrated: “The Eighteenth Amendment provides for Federal and State enforcement; but the duty of the state is concurrent, not compelling.”52 Although Silzer argued that Prohibition had been the predominant issue in the state’s 1922 election and hence that he wielded a popular constitutionalist mandate to change state prohibition laws, the legislature interpreted the election differently and killed his antiprohibition program.53 Just across the Delaware River, Theodore Roosevelt’s old ally Gifford Pinchot took advantage of Republican infighting to become governor of Pennsylvania in 1923. The death of longtime party boss Senator Bois Penrose had thrown the state’s Republican machine into chaos; as various conservative industrialists squabbled to claim his empire, Pinchot easily consolidated the old progressive wing and assumed the governorship.54 Unlike his patron Roosevelt, who was more ambivalent on Prohibition, Pinchot was an antialcohol fanatic who additionally proclaimed that he would follow George Washington’s dictum that “future amendments would be as sacred as the original document.”55 Such was Pinchot’s crusading zeal that state senator Charles Snyder observed: “Every Sunday the governor tries to make some change in the universe where the Lord hasn’t done it right.”56 Although the Republican industrial bloc (and its key wet members) defeated most of his ambitious legislative agenda, Pinchot managed to ram through the Snyder concurrent enforcement act, establishing the standard concurrent enforcement regime of other states.57 Wets blocked funding for the Snyder Act, however, allowing Pinchot a moral victory against alcohol but one they assumed incapable of stopping its flow.

114

chapter six

Unfortunately for them, Pinchot cleverly arranged to allow private funding of the Snyder Act from the WCTU. In exchange for ceding an informal veto authority of prohibition appointments to the WCTU, he procured 60 percent of the funding that he had been denied by the legislature—­ which he then used to deploy state troopers to wet locales (thereby breaking a tradition in which communities had to consent to or request state police intervention).58 Prohibition had unquestionably come to Pennsylvania and, with it, signs of the state’s rapid turnover from the Republican industrial bosses who had dominated the state since the Civil War. In Rhode Island, Republican governor Emery San Souci reiterated his support for a concurrent enforcement bill in 1922 (after the legislature had postponed consideration of such a bill in 1920). He softened his request with the concession that the “wisdom of adopting the Eighteenth Amendment . . . is still open to question,” but that did not negate “the duty of every good citizen to aid in its enforcement.”59 Rhode Island legislators complied.60 The state now had a concurrent enforcement regime, one so well administered it would eventually be favorably singled out by the Wickersham Commission.61 In Connecticut, Republican governor Charles Templeton largely repeated his predecessor’s two-­part message, reiterating hostility to the amend­ ment on states’ rights grounds, but charging legislators with conscientious enforcement until federal repeal.62 The closest the legislature ever came to backsliding was in 1923, when it briefly considered a quasi–­discharge petition that would have ordered the judiciary committees to issue a report, for good or ill, on a repeal bill. State legislators decided to block not only John F. MacGrath’s de facto beer bill (repealing concurrent enforcement of all but hard liquors) but also protests on Volstead’s standard as well as ratification of the Eighteenth Amendment.63 Thus, it was not without reason that the Chicago Tribune hailed Connecticut as a model of both good governance and states’ rights, with both its parties opposed to the Eighteenth Amendment and publicly declaring themselves so but nonetheless implementing Prohibition while awaiting its repeal. Maryland, Massachusetts, and New York might be national pariahs of lawlessness, but they were also hypocrites that refused to implement an amendment they ratified; Connecticut, by way of contrast, was neither, an imitable paragon of constitutionalism.64 Although Maine governor Percival Baxter, Nathan Miller’s ally in fighting Sheppard-­Towner’s grants-­in-­aid as destructive of American federalism, supported prohibition, he likewise argued that Maine should do the bulk

the dry tide recedes (1922–­23)

115

of enforcement to avoid construction of a federal apparatus he similarly feared would erode states’ rights more generally.65 In Massachusetts, Governor Channing Cox, like San Souci in Rhode Island, wasted no time in reminding the general court that they had agreed to postpone, not ignore, prohibition. In his address opening the state’s 1922 legislative session, he urged congruence with national Prohibition standards.66 The legislature unsurprisingly took up the call, but states rights’ arguments were somewhat more oblique during hearings this time. Not only had the previous session’s discussions focused on that question, but the ASL had written the bill to state an independent Massachusetts policy rather than bootstrapping the bill to the federal definition of intoxicating. That the standard happened to be 0.5 percent ABV—­the same as Volstead—­was apparently a happy accident.67 The ASL deployed its well-­established lines on law and order, claiming it disingenuous for Massachusetts to ratify the Eighteenth Amendment and then become one of four holdouts (with Rhode Island, California, and Maryland) refusing to implement it. Even worse, it observed, invoking its usual trope, was the decision to nullify Volstead with the 2.75 percent ABV standard. Former Harvard president Charles Elliot, testifying alongside the ASL, praised the Eighteenth Amendment as a way to stop alcoholism, “the chief factor in the deterioration of the white race,” while observing that, contrary to the Puritans’ reputation for sobriety, they were actually hard drinkers whose descendants stubbornly clung to their ancestral beverages.68 With the support of roughly four-­fifths of the dominant Republican Party, the Massachusetts General Court easily passed the concurrent enforcement bill. Unsurprisingly, the core of Democratic opposition lay in Boston, but it was not a sharp wet city–­dry country split among the GOP.69 Cox signed the bill, but concurrent enforcement still had another hurdle. As had been the case in 1920, when Coolidge’s veto of the beer bill had been functionally overridden by a wet referendum, opponents of Prohibition again turned to a popular referendum to block the “Anti-­Saloon League in its efforts to Volsteadize Massachusetts.”70 Weston Allen, the attorney general whose states’ rights commitment had led him to oppose the specific drafting of the concurrent enforcement proposal in a previous session, now defended the bill against allegations that it was the ASL’s handiwork, as Lodge’s protégé Louis Coolidge alleged. In a public letter printed in Massachusetts newspapers, Allen explained that, in his capacity as attorney general and enforcer of the laws, he felt obligated to defend Governor Cox and state legislators for drafting the bill in order

116

chapter six

to implement the Constitution, not curry favor with the ASL. (Unstated in Allen’s letter were its implications for his gubernatorial run.)71 Allen’s letter was consistent with his constitutional positions expressed years before, in which states and state actors were obligated to defend the Constitution but had to be properly deferential of constitutional federalism in doing so. It also tried to make concurrent enforcement a matter not of ASL loyalty but of partisan, as well as constitutional, orthodoxy; to be for the Constitution was to be a Republican, which was why Allen argued that most of the GOP endorsed concurrent enforcement and nearly all Democrats opposed it. Allegations that “this Ohio organization” dominated the state’s Republican Party were fanciful. Instead, Allen insinuated, the Constitution ruled.72 Others were less convinced of Republican fidelity to Prohibition (and the Constitution) than Allen. The League of Women Voters noted that the Republican state platform pointedly remained silent on the prohibition referendum and instead seemed to be currying the favor of wets like Louis Coolidge.73 The Christian Science Monitor, surveying Massachusetts candidates for both state and federal office, backed Allen’s efforts to equate dry Republicans and regular Republicans. (That Lodge, the unquestioned party boss, was wet frustrated the fanatically dry newspaper’s editors.) The Monitor allowed that some wet Republicans—­mostly lawyers like Coolidge, Allan Buttrick, and their Constitutional Liberty League—­sincerely believed that the Eighteenth Amendment was unconstitutional or incompatible with federalism, but the editors insinuated that most wets were simply paid for by the liquor industry, both regular and bootlegging.74 The Monitor’s slurs aside, most consideration remained reasonably highbrow, and, even though the Massachusetts conversation was more frequently about policy, constitutionalism remained a vibrant part of it even after three years. At a widely publicized debate on the referendum, states’ rights again turned front and center, though it was the ASL’s envoy who felt more confident on that ground. The Constitutional Liberty League’s representative argued that the Sheppard Amendment was foreign to the rest of the Constitution, foisted on New England by southerners and westerners in frenzies about the war, frontier instability, and “the Negro problem.” The ASL’s envoy countered that the ratification process had given states the right to decide whether to have national Prohibition and that the states, Massachusetts included, had agreed both to that policy and to the duty of implementing it themselves. Even Connecticut and Rhode Island, which had not so consented with ratification, nonetheless honored the Constitution. Massachusetts must as well.75

the dry tide recedes (1922–­23)

117

Such arguments continued to sting wets, who struggled to defend against charges of disingenuousness leveled against repentant, now-­wet state legislators and of constitutional treason attributed to Prohibition op­ponents more generally. In the weeks after the debate, Massachusetts lawyers argued that the referendum repealing enforcement would assert states’ rights but not commit nullification. The Sheppard Amendment gave “congress and . . . each of the states the right to enforce” prohibition. It did make, not “a command, but an option . . . [and did] not create a duty”: “ ‘Nullification . . .’ is ‘the action of a state intended to abrogate within its limits the operation of a federal law.’ The omission of Massachusetts to pass an enforcement law would not abrogate, in any degree, the operation of the federal law. That can be enforced as vigorously as the federal government sees fit to enforce it. [A citizen voting to repeal] will violate no duty to his country.” The authors conceded that Massachusetts had ratified the amendment but that act “adds nothing to the obligation of either Legislature or people” regarding a state enforcement law.76 Thus, a moderate states’ rights position— ­of vigorous state prerogative but respect for federal law—­ continued to be the position to which Massachusetts wets tried to attach themselves.77 That position struck observers as “legalistic,” as a letter responding to the lawyers’ manifesto insisted. Whatever the good intentions and careful arguments of some political elites, the writer observed, “the victory will be cheered by the nullifiers,” who would be happy to vote for the law-­ and-­order, beer-­bill-­vetoing Coolidge and reelect Governor Cox while demanding both spit on their oaths.78 The ASL concurred with that apocalyptic interpretation, but, when voters overturned the state’s law by a 427,840–­323,964 margin in the November 1922 vote, most commentators seemed to read the result more moderately. Surveying the year’s political tug-­of-­war, the ASL lamented that Massachusetts remained a bastion of nullification, joined only by, as its officials said in October, “wine-­growing California and rum-­riddled Maryland” as the holdouts.79 The federal prohibition director for Massachusetts echoed at least some of the wets’ argument against concurrent enforcement: vigorous local option laws and state licensing laws enabled functional equivalence to Volstead should state officials so choose.80 The Boston Globe argued that the vote demonstrated a “damp” northeastern electorate angry with the ASL’s overreach. (Unfortunately, the editors observed, the Midwest doubled down on behalf of Volstead prohibition— ­even replacing Volstead himself with a radical dry congressman—­setting up regional conflict.)81

118

chapter six

Although Governor Cox had supported state enforcement, he and he alone joined Albert Ritchie in opposing tighter federal enforcement during a meeting of President Harding and key governors. Where Ritchie made his usual states’ rights critique, Cox merely observed that his state’s voters opposed Prohibition and thus that enforcement of even the current standards proved difficult in Massachusetts.82 He did argue, however, that Congress ought to increase funding for enforcement, especially to increase the often-­dubious quality of federal agents so that the state’s naturally law-­abiding voters might come to respect Prohibition.83 As the legislature convened in 1923, Cox appeared resigned to Massachusetts’s lack of concurrent enforcement. Unlike the speech inaugurating the last year’s session, his annual message notably made no reference to Prohibition, which was interpreted as his acknowledgment of voters’ hostility.84 Nonetheless, advised by Attorney General Weston Allen (whose primary challenge Cox had defeated), Massachusetts legislators again put forward a concurrent enforcement law adopting Volstead standards. The bill passed, almost without controversy, although by tighter margins than before. Its relatively quiet treatment, however, reflected the inevitability both of its passage and, as with the 1921 enforcement bill, of a referendum against it.85 Instead of fighting against concurrent enforcement, which another referendum would likely derail again anyway, wets concentrated on other efforts to change Prohibition. Republican Elijah Adlow, a Boston lawyer and a leader among the state’s wets, attempted to salvage Massachusetts Republicans’ reputation by arguing that prohibition ought not to be considered a partisan issue. To that end, he moved for advisory referenda that would inform senators of the state’s view on national Prohibition. Armed with such information, he insisted, Congress could properly act to change the Constitution. The former head of prohibition enforcement in Massachusetts controversially endorsed the proposition on grounds of democratic theory, while the ASL somewhat desperately argued that every vote for a dry candidate was a sufficient referendum and that last year’s actual referendum vote ought to be disregarded as the result of disinformation.86 By agreeing to Adlow’s advisory bill,87 the general court proposed placing two questions before the voters. First, should the state’s representatives and senators move to repeal the Eighteenth Amendment? Second, should the Volstead Act be modified to allow beer and wine? While Adlow had worked to create a protest that performed no substantive change to state law, had merely offered input into political debate, and thus could in no way be lumped in with nullification, Governor

the dry tide recedes (1922–­23)

119

Cox nonetheless claimed that even this veered too close to a spirit of constitutional defiance. He thus vetoed the referendum, arguing: “Those who feel that the constitution should be amended . . . have a legal and proper method of procedure, and no legislation on the part of Massachusetts is needed to enlarge upon that method.” While Cox insisted that debating Prohibition was an important part of congressional elections, he echoed Coolidge’s position on oaths, worrying that Volstead reform without prior change to the Eighteenth Amendment assaulted constitutionalism. It was wrong, he said, to pressure members of Congress “to do something which may be in violation of the constitution which he has sworn to uphold.”88 Cox may have vetoed the effort to hold an advisory referendum on the Eighteenth Amendment itself, but the following year the voters would have yet another chance to protest prohibition in considering concurrent enforcement. Fearing a third consecutive loss, the ASL began mobilizing on behalf of “constitutional liberty” a year before the election.89

The West California, like Massachusetts, pitted a dry legislature against a wet electorate in a repetitive sequence of prohibition bills and blocking referenda, seemingly isolated from regular competitive politics. Only in 1922 did the state’s prohibition finally become enmeshed in partisan division. No Democrat had occupied the governorship since 1899 (nor would one for almost another twenty years). While Golden State voters were willing to elect Socialists, Prohibitionists, and others into office, these were largely isolated choices. Other than a handful of rump Democrats based mostly in the Bay Area, the legislature was essentially one party. The GOP—­split between a Hiram Johnson wing (formerly affiliated with the defunct Progressive Party) and a conservative old guard, itself divided internally on prohibition—­dominated Sacramento. The ostensibly dry Sen­ ate was actually the more Democratic branch, with seven of forty members Democrats, unlike the almost purely Republican Assembly, which had only seven Democratic members out of a total of eighty. With such a natural disadvantage, the Democratic gubernatorial candidate, Thomas Woolwine, the district attorney of Los Angeles, needed an issue to shake up his flagging 1922 race. In September, with a little more than a month to go in the election, he endorsed modification of the Volstead Act to allow beers and light wines; this, he argued, reflected the preferences of

120

chapter six

a moderately dry-­moist electorate that had rejected zealous state enforcement in the last referendum.90 Woolwine’s gambit showed that prohibition remained a nonpartisan issue in California as it generated fierce division within the state’s Democratic leadership.91 (William McAdoo, arguably the most prominent Democrat in the state since taking residence there earlier in the year, was fiercely dry and would lead the nation’s anti-­Smith faction in 1924, but he was not a force in 1922.)92 Although Woolwine’s statements superficially downplayed the importance of alcohol on the race, newspaper coverage, both local and nationwide, cast the campaign as something of a second referendum on prohibition alongside the Grape Growers Association’s petition against the Wright Act.93 Drys condemned the growers for their opposition to the new Wright enforcement act, charging them with disingenuousness in adopting a new line of attack compared to the last referendum. If, as the growers argued before, deviations of the state Harris Act from the national Volstead Act had been a reason to vote to repeal it in the 1920 referendum, how could they now demand a vote against a bill that mirrored Volstead just as requested?94 Visiting the Bible Institute of Los Angeles to rally support in the “vote against lawlessness,” William Jennings Bryan went a step further and argued for disenfranchising wets and urged the sinking of any vessel, of any flag, transporting alcohol to the United States.95 As usual, the ASL insisted that the voters would endorse the sanctity of the law as the only issue was, “not prohibition, but a measure that meets a requirement of the Constitution” unless blocked again by “misleading eleventh hour wet appeals.”96 Such appeals did not work as California voters handily upheld the Wright Act and selected the Republican Friend Richardson over Thomas Woolwine in the 1922 election.97 Drys quickly celebrated the victory, arguing that the success of Woolwine’s last-­ditch campaign move “would have been interpreted as a defiance of federal statute.”98 Legislators moved to ratify that settlement by clearing prohibition from the policymaking agenda and enforcing legislative silence. Through the rest of the decade, the state’s legislative leadership, especially in the Senate, bottled up even the many resolutions to Congress seeking to modify or repeal the Volstead Act. After vacillating for several years on the exact implementation of prohibition, Californians had finally decided to embrace the Eighteenth Amendment and the Volstead Act. Other than Woolwine’s brief, failed effort to make prohibition partisan, it had remained and would remain

the dry tide recedes (1922–­23)

121

detached from party politics, especially after the dry McAdoo assumed leadership of the state’s Democratic Party in the latter half of the decade. As was the case elsewhere, drys attached themselves to popular constitutionalism and imputations of Calhoun; unlike the rest of the nation, wets remained decidedly hesitant to use any sort of constitutional argument rather than simply a pluralist defense of the state’s agricultural interests. California’s switch meant that the West was now as monolithically dry as the South, but that consensus lasted only one year. In 1923, cagey Silver State politicians quietly ensured prohibition’s end and looked to give Nevada’s economy yet another vice to market (along with boxing, gambling, and easy divorce).99 As a result of a 1918 referendum, Nevada had experimented with something close to bone-­dry prohibition before the Eighteenth Amendment. As the experiment approached its fifth year, enthusiasm had waned, and legislators now openly debated the future of the state’s prohibition laws.100 By the end of the annual session in 1923, Nevada legislators voted to kill the state’s prohibition laws—­with three competing bills—­to make sure it stayed dead. In its place stood a new law bootstrapping state prohibition to federal efforts, but one of obviously dubious constitutionality. The convoluted and largely inscrutable legislative history of Nevada’s 1923 session suggests that the ASL was correct in conspiracy mongering: there very much appeared to be an underhanded effort to block prohibition altogether. Democratic senator Albert L. Scott offered two bills that, in tandem, would repeal all the state’s prohibition laws: one repealed the initial 1918 referendum; the other revoked the implementing legislation passed the following year. Scott and his allies claimed that only a clean repeal bill would let Nevada create a sensible policy to implement the Volstead Act. The ASL argued, prudently enough, that there was no reason the legislators could not simply pass a modification bill, and the Reverend E. F. Jones, the ASL’s Nevada point man, submitted a Volstead compliance bill as a substitute.101 The legislature instead pressed on with the repeal bills. Initial floor debate in the Senate, which passed both Scott’s repeal bills by veto-­proof margins, apparently consisted of pious declarations that “all prohibition legislation should be swept from the statute books in order that an entirely new act might be drawn, modeled after the Volstead law,” as the Reno Evening Gazette described it. The Gazette reported that the House had adjourned to watch the Senate debate (which would return the favor later) but initially made no mention of any direct attack on prohibition in that debate.102 The next day, it offered a slightly more nuanced account:

122

chapter six

other senators pledged to pass an alternative prohibition bill, but Scott himself now seemed to be implying an end to state action altogether by questioning the financial costs of state prohibition, even though Nevada’s prohibition expenditures were already tiny, at approximately $100 per year.103 The debate featured the paradox of senators offering repeal as a catalyst for unified, ostensibly superior enforcement. Scott explained: “I do not desire to see this state in the position of having the federal government say to it [that] it is up to you to enforce [Prohibition]. I believe that if we clear the state of this act, we would get better results from the federal law . . . [that] the federal government would employ more men to enforce the national act.” Concluding with an almost laughable claim, he insisted that “the national act is operated at a profit to the government.” A dry senator responded that such claims of “economy” were a facade. “By this act,” another worried, “we have given notice that Nevada is opposed to any prohibition measures. . . . We are willing to be outlawed in a sense.”104 Local prohibition activists immediately demanded that the governor be prepared to veto both bills unless the legislature also passed substitute legislation creating a new, streamlined prohibition regime, lest the state signal its hostility to national Prohibition.105 The dry Nevada State Journal also suspected treachery behind the good government claims advanced by repeal backers. Conceding that such repeal would not be “notable” in the least if replaced with other enforcement bills, the editors warily observed that the legislature had yet to “show its theory.” That theory, the Journal insisted, ought to “have some sort of adoption of the federal law” rather than, as it feared, “by omission pretend to make something that is unlawful by the federal constitution [which is] the supreme law of the land.”106 The Gazette took a more moderate tone, urging some sensible updating and moderation of the prohibition laws, while agreeing with the drys that repeal without replacement was problematic. But even the Gazette interpreted repeal with a paranoid streak. Recalling the revolutionary accusation that King George was trying Americans in foreign courts, the editors counseled against outright repeal of the state’s prohibition laws lest “her citizens . . . be denied the right to a trial in the state courts” and instead were hauled before federal tribunals.107 The following week Scott seemed to reverse course, disavowing economy arguments, and instead suggesting that repeal would improve federalism. At least, it would make sure that Nevada was getting a better deal out of the Union: Scott said that the federal government owned 90 per­cent of Nevada’s lands and that “it must do its share of policing this empire.” He

the dry tide recedes (1922–­23)

123

also defended himself against the drys’ charges that this was the first step toward blocking prohibition in the state. Reminding listeners that Nevada had ratified the Eighteenth Amendment, he insisted: “We are committed as a state to prohibition as a national matter and we are a part of the nation. . . . [T]he passage of my bills need not be construed by any intelligent person as a sign that Nevada is ‘going wet.’ ”108 Perhaps it is overreading to note Scott’s somewhat slippery language, but, considering subsequent events, it is worth noting his plausible deniability, rather than outright disavowal, of interpreting his bill as making Nevada wet. One might also note his preference for inaction implicit in noting a respect for Prohibition as a “national matter,” cagily implying that it was the federal government’s problem. Interpreting Scott as a discreet wet does not seem unfair considering that he then praised Canada’s system of quasi-­state liquor stores. That was exactly what one assemblyman suggested in offering a resolution requesting Congress loosen medicinal alcohol requirements and distribute wine and beer through state-­owned facilities, days after the House voted to approve Scott’s repeal bills.109 Debate in the House had been nearly identical to that in the Senate: supporters insisted that the bill was simply a step toward more efficient state enforcement, with opponents fearing that it violated the obligations of the Eighteenth Amendment in the absence of an alternative enforcement mechanism. One Democratic member explained that repealing concurrent enforcement was perfectly constitutional: “We are not seceding from the Union. . . . We are not bound to pass any legislation.” Drys had attempted to slow down passage in order to propose substitutes, but Scott’s House allies rammed the bills through. The claims of Scott and his allies were “not even logical,” as one prohibitionist wrote Governor James Scrugham; why simply repeal a bill instead of enacting a standard repealing clause at the end of a new enforcement bill?110 The first-­term assemblyman George Whiteley agreed, offering a two-­ part enforcement bill while Scrugham pondered his response. The Republican Whiteley described himself as “an occasional wet” but had been among those who believed it disingenuous to promise Volstead implementation while actually gutting it.111 The Reno Evening Gazette now reported that, although most legislators continued to insist that they would happily pass a substitute, “several of the members do not conceal the fact that they are content to repeal the law and let it go at that.”112 Attention turned to Governor James Scrugham, a former engineering professor who translated a stint as state engineer into a career in politics.

124

chapter six

In the 1922 election, Scrugham had sided with the drys and defeated an avowed wet in the Democratic primary, as an open letter in the Gazette reminded him in pressing for a veto. His Republican opponent, John H. Miller, though rumored to be a wet during the gubernatorial campaign, voted against the repeal bill in the Senate.113 Party consideration thus did little; in the House, ten of twelve Democrats and seventeen of twenty-­ four Republicans were supportive of repeal, while, in the Senate, eight of eleven Republicans but only three of five Democrats were supportive. While prohibition was not a partisan issue, Scrugham did agree that his campaign bound him to defend the state’s alcohol laws.114 As he had warned he would, Scrugham vetoed the Scott repeal bill on February 5, but in a rather roundabout way that suggested a firm commitment to states’ rights and a concern with the direction the legislature was taking. At the end of his short message, he explained, as many had noted before him, that it made no sense to repeal the state’s prohibition enforcement without instituting another one to replace it. Most of the veto message, however, was about not the bill being vetoed but its prospective successor, Whiteley’s bill adopting the Volstead Act as Nevada’s law. Though not a trained lawyer, Scrugham echoed the constitutional reasoning Massachusetts attorney general Weston Allen had offered in criticizing the Bay State’s proposal to hitch the state’s laws to the federal definition. Scrugham explained that he would support bills to impose state prohibition but not one that simply attached Nevada’s definition of intoxicating to the federal one. “Even by implication the State should not surrender its sovereign right to regulate its own domestic affairs,” he declared, adding that a serviceable bill could adopt “a form which is in accord with the terms of the National Prohibition Act,” but not the National Prohibition Act itself.115 That warning failed to deter the Assembly, which passed Whiteley’s bootstrapped Volstead bill before the end of the week.116 At the same time, the Senate overrode Scrugham’s veto of the enforcement repeal, leaving only the Assembly’s concurrence standing in the way of ending the state’s liquor law.117 Scott, who had sponsored the bill, suddenly reversed his vote and cryptically now agreed that an alternative should be in place before the House overrode the veto.118 Dr. Jones, the ASL’s Nevada representative, quickly scrambled to mobilize his troops to stop the wets, who “seem almost crazy to repeal all prohibition laws in Nevada,” invoking postreferendum California as an example of such a lawless, enforcement-­free state. While the enemy remained discreet—­“there

the dry tide recedes (1922–­23)

125

is no evidence yet of wet caucuses”—­Jones bemoaned the “open secret” that twenty-­seven members were likely to override Scrugham’s veto.119 The next day’s breathless headline, “State Becomes ‘Wet’ as Prohibition Law Is Wiped from Book,” chronicled the Assembly’s veto override. The sensationalist reporting was not unreasonable: the original enforcement referendum had been killed—­repealed over Scrugham’s veto—­and in its place legislators now sought to enact a constitutionally dubious Volstead implementation of the sort the governor had specifically instructed them to avoid. M. A. Diskin, the state’s Democratic attorney general, announced that he had begun to study the pending Whiteley Bill and would issue an opinion on its constitutionality—­a position widely expected to be negative, which would in turn strengthen Scrugham’s implicit threat to veto an enforcement bill that directly ceded the state’s definition of intoxicating to the federal government.120 The Reno Evening Gazette all but predicted that the court would overturn the bill, which the editors believed would probably be justified owing to incompetent legislative drafting: “There is bound to be a radical division of opinion as to the propriety of Nevada, a sovereign state, delegating to Congress the power to enact laws in the future which will automatically become laws of the state . . . a delegation of powers to the federal government to a truly astonishing degree. No less questionable . . . is the wisdom of the state’s lifting an involved law from the federal statutes . . . without even having read it.”121 As expected, Attorney General Diskin condemned the Whiteley Bill for delegating the sovereign powers of Nevada to the US Congress—­and even for a sloppy title that jeopardized its legal acceptability. Scrugham, however, threw up his hands, explaining that he would do nothing to oppose it. Nevada needed a prohibition law, and the legislators had taken it away by passing the Scott repeal law. Vetoing Whiteley would mean that Nevada wholly lacked concurrent enforcement of any kind; let the courts do what they would, and hopefully the legislature would act more responsibly with future legislation.122 The legislature arguably did not meet Scrugham’s standards, passing a memorial requesting that Congress ease the acquisition of medicinal liquor and, more importantly, that it allow the government-­controlled sale of beer and light wines—­hardly the acts of good government prohibitionists.123 The vote was unanimous; the state’s drys had seemingly resigned themselves to a wet desert. That is certainly how at least one outside observer in Wisconsin understood the situation, sighing in March

126

chapter six

that “Nevada has practically taken the same action as New York,” which had formally “petitioned Congress for the repeal of prohibition.”124 The Whiteley Bill (adopting the Volstead Act) became law without Scrugham’s signature, and, as widely expected, the Nevada Supreme Court overturned it on July 3. The flawed title was enough for the majority, which declined to rule on the sovereignty issues. Instead, they merely held that the unclear title violated Article 4, section 17, of the state’s constitution and constituted an excessive burden on the people. (The dissenting justice argued that the title clause aimed only to prevent false or deceptive titles and that everyone would know what “National Prohibition Act” referred to.) On that technicality, the victorious plaintiff’s lawyer declared Nevada a wet state and the “heart of Nevada’s sovereignty [no longer] open to attack.”125 The Gazette lamented the results of the decision, but pronounced it inevitable and preferable to an “almost intolerable . . . surrender of state sovereignty.” In a halfhearted bit of consolation, the editors decided that it was unimportant since few state prosecutions had occurred anyway.126 What did Scrugham think? An intrepid reporter caught him preparing to deliver the Independence Day address in Ely, Nevada. The governor had no comment on the opinion, nor would he call a special session to pass another prohibition law.127 Several months later, in accordance with Coolidge’s request for gubernatorial assistance, Scrugham organized a conference at which he insisted that state law enforcement officials assist Prohibition implementation—­“bearing in mind the limitations placed on the state by the nature of its own laws, or the lack of them.”128 If the people of Nevada wanted prohibition, their legislators would have to try again in 1925. They did not.

The Midwest No meaningful backsliding took place in the Midwest in 1922 and 1923, with legislators largely accepting the arguments behind prohibition legalism and easily defeating efforts to weaken prohibition enforcement—­ indeed, they were often strengthened. As Illinois’s legislature wound down its 1923 session in Springfield, wets looked to attack prohibition in a low-­key way that let them defer the blame to voters (as in Massachusetts) rather than achieve the notoriety that befell Al Smith in New York for endorsing direct legislative repeal. Thus, the Chicago Democrat Thomas O’Grady proposed a referendum

the dry tide recedes (1922–­23)

127

that would allow voters to repeal the state’s prohibition act as well as the search-­and-­seizure law that helped implement it. O’Grady and his bipartisan bloc cobbled together a thin 78–­70 majority suspending the Assembly’s rules and bypassing the dry Republican committees. The debate was particularly unflattering to the ASL and its Illinois leader, Scott McBride, whom wets and drys alike, from both parties, conceded was the power behind the throne in Illinois: “a tyrant,” “too clever,” “the ablest boss,” “a political wasp,” and the “boss [of] . . . an invisible government.”129 The Senate, however, demonstrated its decided lack of sympathy for wet politics: Senator Adolph Marks, a Chicago Republican, lost a bill to repeal the seizure act directly 13–­32, with drys condemning the repeal proposal as akin to “taking up arms against the Constitution.”130 With that demonstration of dry strength, wets did not even bother with a final reading of the O’Grady referendum bill.131 With the failure of the bills, efforts to weaken concurrent enforcement in Illinois all but disappeared until 1927 as dry dominance of the judiciary committees prevented consideration of further antiprohibition measures. Prohibition debate remained active to the south as the ASL’s supporters dominated Missouri politics in a way that allowed them to continue advancing prohibition instead of simply maintaining the status quo, as in Illinois. Although the state’s senior senator James Reed remained an irascible congressional opponent of Prohibition, Jefferson City legislators continued to pass such laws in earnest, regardless of party rule. As a result, Missouri, formerly among the wettest of wet states, now had one of the toughest laws in the country— ­even stronger than Volstead.132 Governor Arthur Mastick Hyde acknowledged the division in his state. The Republican Hyde explained his oath to support the Constitution and its laws as well as his constitutional obligation to execute the state’s prohibition laws, and he reminded citizens of their obligations to follow them until revised. However, he pointedly and repeatedly acknowledged that the experiment might fail and should be open to revision. Seeking to change a law with which one disagreed was perfectly honorable, but criminality was not. In that way: “It is America, and not the Volstead Act, which is on trial.”133 Wet St. Louis, with its legacy of breweries and German culture, would continue to bristle at prohibition, but the rest of the state, especially its Democrats, remained fiercely dry. With Illinois maintaining its prohibition law and Missouri embracing prohibition unreservedly, Wisconsin, the other historically wet midwestern state, began to take the opposite path. Unlike the rest of the country, in

128

chapter six

which both parties’ progressive wings usually were drier, Wisconsin’s prohibitionists and wets were distributed across the spectrum, with a significant progressive wet wing and, eventually, a staunchly conservative dry wing. As with other Wisconsin drys alienated by the ASL, Governor Blaine, a progressive Republican, had fast become disillusioned with prohibition and began drifting from his long-­standing but moderate dry views.134 The fissure with Blaine became even more pronounced over the course of the 1920s as the Wisconsin branch of the ASL threw in its lot with the state’s conservatives, even over equally dry progressives. National ASL members widely criticized the state branch for violating the group’s scrupulously developed, single-­issue strategy and so extensively and unnecessarily aligning with the drys of the Wisconsin right at the expense of Blaine and his progressive drys. ASL endorsements in the 1922 primary election ended up becoming a self-­fulfilling prophecy. For example, one Republican progressive aligned with Blaine reasonably sought an ASL endorsement in the 1922 election on the grounds of his clear dry politics, but the state branch rebuffed him as a “Red, Socialist, Anarchist, and everything else” owing to his friendship with the governor. While his legislative ally lost, however, Blaine soundly defeated the ASL’s candidate in his own primary and went on to defeat the wet Democrat.135 The state ASL thus made a disastrous political miscalculation in not merely endorsing its own ardently dry candidate but also aggressively and needlessly attacking Blaine as a wet enabler. And, just as the ASL was pushing Blaine away by targeting him and his allies, the AAPA decided to cultivate a relationship even though, as a committed but moderate dry, Blaine was arguably closer to the ASL’s preferences than he was to the AAPA’s. But, while the ASL let the perfect be the enemy of the good, the AAPA instead embraced Blaine as the most viable candidate and someone they could work with despite his views, endorsing him not only over the state attorney general, an ardent dry and the ASL candidate, but also over Oshkosh mayor A. C. McHenry, a wet conservative Republican who openly called for repeal of the state’s law and its replacement by one allowing wine and beer.136 Though Blaine himself had never made any claim to wet sympathies, the AAPA evidently, and correctly, predicted that he would eventually prove friendly to the wet cause owing to his generosity with pardons. The AAPA’s decision paid off almost immediately as Blaine began the 1923 session with a civil libertarian attack that everyone rightly interpreted to be directed at the ASL, which had so recently targeted him. In his second inaugural address in January 1923, he worried about an

the dry tide recedes (1922–­23)

129

“unholy and corrupt partnership” with “special interest” groups invading the sanctity of the home—­a thinly veiled demonstration of his contempt for the ASL and the loose interpretations of search-­and-­seizure law that its members were pushing in Wisconsin.137 A trio of legislative efforts to resist Prohibition appeared: competing bills to restrict search and seizure in line with Blaine’s message,138 a memorial seeking modification of the Volstead Act,139 and the Milwaukee Socialist Herman Tucker’s effort to repeal concurrent enforcement altogether.140 It was publicly known that Blaine had told friends that the Severson Act should remain in force, so the concurrent enforcement repeal and a memorial to Congress were both quickly dismissed. The bulk of legislative time went to the third attack, the state’s search-­ and-­seizure bill. This bill, shepherded by Herman Sachtjen, would have replaced the looser reasonable cause standard in prohibition enforcement, restoring the traditional probable cause threshold, and requiring more specific description of the property and places to be seized. In short, as Sachtjen argued, his bill aimed not to change prohibition law but to restore the protections of Section 11 of the Declaration of Rights in the Wisconsin Constitution and the Fourth Amendment of the US Constitution.141 Unsurprisingly, considering the libertarian concerns in the governor’s January message, Blaine came out for the Sachtjen Bill at the end of an otherwise unrelated message on tax policy that he delivered to legislators on March 28. “So long as the Eighteenth Amendment is a part of the land,” he observed, “I believe in upholding the Constitution and the laws enacted under it.” But he noted that the Sheppard Amendment was not the only part of the Constitution. The Sachtjen law was essential, he added, to make the state’s prohibition enforcement conform with the liberties protected by both the federal Constitution and the Wisconsin Constitution. The state prohibition regime, by contrast, seemed to create a totalitarian state: “[The] present search and seizure state law hangs as a threat and menace over every home. . . . No home is secure, no person is secure,” he warned.142 The ASL would be displeased to hear that, but it could forgive this; Wheeler himself had been sympathetic to robust warrant restrictions in drafting the Volstead Act. The surprise that the ASL could not forgive and that caught wets just as off guard was the rest of the announcement, in which Blaine seemed to disavow the spirit not only of his own concurrent enforcement bill (the Severson Bill) passed at the last session but also of the Eighteenth Amendment itself—­a sharp turn for Blaine. He would, he said, continue to implement

130

chapter six

the law (and, in fact, he did), but it was now as a reluctant enforcer of a mistake undermining states’ rights: “The Eighteenth Amendment is the first departure from the fundamental purpose of our federal constitution. That amendment improperly writes into our fundamental law police regulations.” Even worse, he adopted the argument of eastern wets, attacking the Volstead Act as unconstitutional for taking an unduly expansive interpretation of intoxicating liquors and therefore going beyond even the folly of the Eighteenth Amendment. Finally, in closing, he explained that he feared the result of this experiment: “Americans should continue to be citizens and not subjects, and the cherished principle of the security of the home revitalized and re-­established.”143 National Prohibition thus warped the Constitution and had given rise to an American totalitarianism, which could at least be softened by passing a bill restoring constitutional warrant protections. In attacking the Sachtjen Bill, the ASL, perhaps realizing its error in so aggressively driving Blaine into the wet camp, reminded the Senate of the governor’s once-­considerable pride in the Severson Bill. Moreover, they brought Blaine’s own handpicked prohibition commissioner (a wet but con­ scientious public servant) to testify that no one had filed protests alleging unfair search of homes; those convicted had wanted to know only who snitched on them.144 Sachtjen’s bill easily cleared the Assembly but failed to win Senate passage.145 Nevertheless, the state supreme court soon vindicated Blaine and Sachtjen: Wisconsin’s justices effectively enacted its provisions via a judicial ruling in August 1923 that insisted on probable cause and tighter affidavits.146 The ASL had successfully exerted its control over the legislature, but at a steep cost: it had made a powerful and now bitter enemy in the former dry John J. Blaine, and it now faced an increasingly confident AAPA.147 Blaine, like Sachtjen and other wet Wisconsin Republicans, dutifully followed the law, but he now made every effort to make clear his contempt for prohibition. In October 1923, at a meeting of state governors convened by Maine’s Percival Baxter to discuss President Coolidge’s enforcement plans, he joined Albert Ritchie’s states’ rights opposition by flatly announcing that, although Wisconsin enforced its laws well and would continue to do so, he was “opposed to the Eighteenth Amendment and the Volstead Act” and that “the people of Wisconsin know it.”148 By 1924, Blaine wrote a letter offering an olive branch to brewer Fred Pabst, one of the ASL’s bogeymen. In that letter he explained that the absolutism of the organized prohibition movement left it detached from reality: “Wisconsin has very good enforcement of the liquor laws,” he boasted. Still,

the dry tide recedes (1922–­23)

131

to achieve absolute prohibition like the hard-­line drys wanted “it would be necessary to have a law that would destroy practically the entire vegetable kingdom.”149 No longer a small-­town prohibitionist, Blaine still had room to travel before he would draft the Twenty-­First Amendment, but the AAPA’s earlier, seemingly inexplicable decision to back him had proved a solid investment indeed. With Illinois and Missouri both firmly committed to prohibition, Wisconsin had become the only midwestern state contesting the Eighteenth Amendment.

The South Apart from quasi-­northern Maryland, the South remained deeply committed to the maintenance of Prohibition, while other parts of the country began questioning it. The prospect of backsliding appeared in only two states, but legislators almost fell over themselves to line up on behalf of prohibition. Georgia illustrated the humorist Will Rogers’s aphorism that southerners would continue to vote dry so long as they could manage to stagger to the polls. In Washington, Georgia’s representative William Upshaw loudly emphasized the need to redouble efforts on behalf of Prohibition. In response to speculations about the upcoming 1924 election, he predicted that America would not nominate a wet presidential candidate (presumably Al Smith). Moreover, he insisted that “all public officials shall let be known that they practice the spirit of the Eighteenth Amendment,” denouncing the AAPA because any elected officials who joined it had “pledged to violate their oaths of office.”150 But, as wags at the Baltimore Sun chuckled, Upshaw needed to take a strong stand because actual implementation of prohibition in Georgia had collapsed, leaving the state functionally wetter than even Maryland, effectively flouting the Eighteenth Amendment so openly as to risk “secession” and the formation of the “wet Republic of Georgia.”151 Georgia’s federal prohibition director decorously agreed that “in some wet counties we are not receiving cooperation of sheriffs . . . and are working alone.”152 The seeming chaos of the state’s mountain regions led one southern Democrat to break from regional orthodoxy with a counterintuitive proposal. In June, state representative Dr. Craig Arnold proposed repeal of the bone-­ dry law that served as Georgia’s concurrent enforcement law. (Arnold represented Lumpkin County, seen as the worst offender.)153

132

chapter six

Curiously, the debate over concurrent enforcement repeal and states’ rights in Georgia almost exactly reversed the debate occurring in New York. Whereas Empire State wets appealed to states’ rights in trying to eliminate their in-­house enforcement, arguing that states ought not to be coerced into implementing policies they did not want, Arnold recommended state repeal on the grounds of nationalism and good government, albeit with a racial edge. Certain areas of Georgia roads, he lamented, were now “more dangerous than crossing the jungles of Darkest Africa.”154 He sounded Harding-­like themes in suggesting that he was merely standing up for proper enforcement of the Constitution, which he felt would be better achieved through a single actor (in this, unlike Harding).155 He explained that he had not objected to Georgia’s dry laws but opposed the Eighteenth Amendment on states’ rights grounds. But that battle had been lost, and he was “not now contending for our state rights, for they are almost as dead as Hector.”156 Instead, Arnold now offered the counterintuitive argument to repeal concurrent enforcement as a defense of national prerogative: “The Volstead Act . . . is the supreme law of the land. The requisite number of states . . . have put their stamp of approval on it, and therefore it is even more supreme than the congress that passed it. . . . [Authority to enforce the Volstead Act] is backed by the flag of the United States government, the strongest power on the face of the earth.” By way of contrast, Arnold explained, Georgia’s inefficient, extremely decentralized and localist government meant that the state was unable to satisfactorily support federal activity. It was “helpless to . . . compel the reluctant or recalcitrant sheriff” or even to remove him “if he tells the state in so many words where to head in and get off.” Cleanly allocating responsibility to a single, unencumbered actor, Arnold argued, would result in a far more effective regulatory regime.157 He was, in short, making exactly the argument that Lodge had predicted states would: even dry states would soon find it more convenient to shunt enforcement off on the federal government. Further illustrating the reversal of federalism claims in the prohibition South, Arnold’s proposal was criticized as a forfeiture of states’ rights insofar as Georgia had passed prohibition independently of (and earlier than) Volstead, whereas after repeal it would be imposed only from above and by outside agents rather than native sons.158 To make this point clearer, the WCTU’s regular column in the Atlanta Constitution excerpted Harding’s recent Denver speech attacking Al Smith, agreeing: “The spectacle of a state nullifying its own authority, and asking the national government to take over an important part of its

the dry tide recedes (1922–­23)

133

powers, is new. . . . Instead of being an assertion of states’ rights, it is an abandonment of them . . . an abdication.”159 Thus, the WCTU sided with Harding and Nathan Miller in their debate with Smith, contending that the least damage to federalism was done by keeping federal courts and officers from acting in the state. Even more bizarrely, the Atlanta Constitution’s op-­ed board defended Al Smith’s decision to repeal enforcement—­but only if that decision was rooted in grounds other than constitutional logic. The Constitution acknowledged that such arguments were circulating, but it said “overzealous” and “fanatic” drys were too lightly tossing around the terms “defiance,” “virtual secession,” and “states’ rights.” Instead, it echoed Arnold and cited Georgia’s now lawless, moonshine-­brewing mountain region as a justification for the outright elimination of the state’s concurrent enforcement. Divided responsibility, the editors held, made enforcement more difficult, with the states and federal government shunting the burden off onto each other rather than engaging in joint operations.160 Unsurprisingly, Arnold’s bill fell by decisive margins, losing unanimously in the House Temperance Committee, which did not bother discussing it. Arnold had agreed that his bill was unlikely even to get out of committee, but he had hoped that he could try to procure a full floor vote or at least make a speech on its behalf and thereby persuade his colleagues.161 Arnold did not get that chance as the Senate had rushed to express disapproval before even considering the bill, offering a resolution attacking the proposal that passed with forty-­four of the fifty-­one senators in support.162 As a WCTU operative observed, in so voting, “Georgia and Connecticut flatly refused to join New York in its backward step” toward “renown as the nullifier of the Constitution.” (She added that Illinois and Wisconsin, where repeal votes failed, had also abandoned New Yorkers hoping for allies.)163 With the end of Arnold’s long-­shot crusade in Georgia, concurrent enforcement of Prohibition in the Deep South would remain effectively unchallenged until the 1930s. As state legislatures adjourned in the summer of 1923, the nation’s drys had suffered defeats in New York and Nevada and were in probable danger in Wisconsin but had held the line or gained ground everywhere else. Even as members of the out party, incentivized to attack the status quo, nearly all Democratic state chairs opposed modification even of Volstead, much less the repeal of the amendment itself.164 The ASL had, except for New York and arguably New Jersey, avoided the partisan polarization of prohibition that would cripple its ability to wage credible single-­issue

134

chapter six

pressure politics. A rival group, the AAPA, had appeared and continued to press a specifically constitutional, as opposed to a policy-­based, attack on prohibition for distorting federalism, but it had yet to prove its ability to influence state governments. At the national level, the Supreme Court, guided by the once antiprohibitionist William Howard Taft, had become a zealous defender of constitutional prohibition, while the Sixty-­Eighth Congress, though wetter than its predecessor, still leaned strongly prohibitionist. The pioneering single-­issue politics of the ASL were even more effective once it had locked in its policy and shielded it behind constitutional obligation. Far from the rubes portrayed by condescending observers like Mencken or Hofstadter, the ASL’s leadership understood the core insight that V. O. Key would develop in Southern Politics in State and Nation: a disorganized politics favors the maintenance of the status quo. This was doubly so at the state level, where one had to combat not only current state law but also a presumption of deference to the Constitution and a deep antipathy to nullification. Thus, even though many state government officials loathed the Eighteenth Amendment for what they believed were its distortions of federalism and electorates were, in some cases, quite hostile to Prohibition, organized political resistance to it was remarkably limited and quite tame. In short, the nation’s drys had succeeded in building a political consensus on behalf of the constitutional duty to implement the Eighteenth Amendment. The ASL’s political strong-­arming no doubt contributed, as resentful New York Republicans could bitterly attest. But, as the example of the visibly antiprohibition but faithfully enforcing Blaine shows, the ASL and its allies had been equally successful in leveraging the era’s reverence for the Constitution to support prohibition legalism.

chapter seven

Constitutional Obligations (1923–­24)

The country has duly adopted the eighteenth amendment. Those who object to it have the right to advocate its modification or repeal. Meantime it is binding upon the National and State Governments and all our inhabitants.—­President Calvin Coolidge1

W

ith state legislatures and the Sixty-­Eighth Congress both going on recess in June 1923, President Harding, immensely popular but stung by discoveries of the treachery and malfeasance among his circle that would eventually ruin his reputation, resolved to take a summer tour of the West and bask in the goodwill that voters still had for him. For the nation’s drys, Harding had become a serviceable and increasingly reliable enforcer of prohibition—­perhaps the most important convert to this political faith. Then senator Harding had been a moderate wet and, in line with the prevailing Republican orthodoxy, reluctant to use federal power, giving a vacillating Pilate-­like speech on the floor proclaiming, “I am not a prohibitionist . . . and never have pretended to be,” before grudgingly voting for the amendment as “a temperance man.”2 Nonetheless, after ratification, like prohibition legalist Republican executives in state capitols, Harding did seek Prohibition enforcement, albeit unenthusiastically at first. Harding had been slow in coming to believe in Prohibition, which he initially embraced as an electoral tactic to outflank the Democrat James Cox in the 1920 presidential election. Soon, however, as he recounted to the wet

136

chapter seven

New Jersey Republican senator Walter Edge, it had become increasingly personal owing to his oath, which, as he told Edge, required him to insist that Prohibition “is a constitutional mandate.” By 1923, his fears of massive disobedience ruining respect for law had led him to quit even private drinking, although doing so remained perfectly legal. New York’s repeal of the Mullan-­Gage Act shocked him into something of an epiphany, and he moved to dispose of his private (though legal) store of pre-­Volstead liquor as well as more faithfully push prohibition.3 The corrupt Ohio crew with whom Harding had associated himself had thus far seemed to blunt any policy change, but he had recently taken a tough line on Prohibition. In the fall of 1922, he convened the nation’s governors to discuss its enforcement, an event that arguably proved counterproductive when Ritchie hijacked the proceedings with his well-­publicized antiprohibition, states’ rights tirades.4 More notable had been his widely circulated and quoted Denver address and public letter in response to New York’s Mullan-­Gage repeal, in which he seemed to imply that Al Smith was a nullifier. Harding had signaled that the Republican Party would remain resolute in supporting the Constitution, Sheppard Amendment and all. Harding’s seeming turn appeared genuine enough to trigger pressure from those who argued that his speeches extolling the need to enforce the Constitution should apply equally to the nullified Reconstruction amendments. Various op-­ed writers noted the asymmetry, with one asking how southerners would regard a force bill imposed by the federal government.5 The Chicago Tribune noted that the Fourteenth and Fifteenth Amendments were more obviously binding on the states than the concurrent text of the Eighteenth. But, the editors concluded, prohibitionists who had “no regard for any constitutional provision which might prevent them from dictating” their alcohol views would have little problem ignoring Reconstruction, just as they did the Fourth Amendment’s protections of search and seizures, the Fifth Amendment’s protections against double jeopardy, or state constitutional apportionment or referendum requirements.6 As Re­p­ resentative George Tinkham (R-­MA) observed in lobbying Harding, Congress possessed “indisputable evidence” and “common knowledge” that the Fourteenth Amendment was “now scandalously and completely unenforced and nullified.” Not only did this breed contempt for law like the widespread contempt for the Eighteenth Amendment, Tinkham noted, but, by distorting the political process, it actually created even more damage to constitutional self-­government.7

constitutional obligations (1923–­24)

137

Harding seemed to agree, having hinted at a renewed Republican push to protect the civil rights of southern blacks. At the invitation of his friend Oscar Underwood, on October 26, 1921, he delivered an aggressive pro– ­civil rights speech in the South (in Birmingham)—­the first time that had ever occurred—­taking a stronger position than any president had in decades.8 By mid-­1923, Harding had given evidence of a constitutional conversion— ­on Prohibition and perhaps also Reconstruction—­but acting on it first required a purge of his corrupt cabinet and a bit of respite. But whether these would have remained isolated gestures or become parts of a genuine assertion of aggressive constitutional enforcement will never be known as his death during a trip west in August 1923 meant that Calvin Coolidge became the nation’s chief law enforcement officer. As in his governorship, as president Coolidge was torn on Prohibition, split between his hostility to federal regulation and his constitutional scruples, making him like other northeastern, broadly libertarian states’ rights Republicans like Nathan Miller: displeased with prohibition but duty bound by his often-­invoked constitutional oaths and Article II obligations “to take care that the laws shall be faithfully executed”—­in short, a prohibition legalist.9 As in his veto of the Massachusetts beer bill, Coolidge was at his most aggressive in blocking efforts to undermine national Prohibition, for example, when he rebuffed an entreaty from the Association against the Prohibition Amendment (AAPA) seeking presidential support for their efforts to repeal the amendment: a circumspect Coolidge would endorse only their incidental pledge not to obstruct the law.10 But this hostility to obstruction did not translate into enthusiasm for action. Coolidge’s outgoing message to Congress in December 1928 offers perhaps the most public evidence of this ambivalence. Months after Hoover had delivered his Republican national convention acceptance speech fawning over Prohibition as a noble experiment, Coolidge instead offered a brisk and mechanical analysis, taking a studiously neutral, clinical tone on the merits of prohibition but acknowledging its binding legal quality until a hypothetical repeal: “The country has duly adopted the eighteenth amendment. Those who object to it have the right to advocate its modification or repeal. Meantime it is binding upon the National and State Governments and all our inhabitants. . . . [T]he obligation is equally on the States to exercise the[ir] power . . . in behalf of enforcement. The Federal Government is doing and will continue to do all it can in this direction and is entitled to the active cooperation of the States.”11

138

chapter seven

Thus, while his law-­and-­order streak required him to go through the motions and made him believe that Prohibition should be enforced, Coolidge clearly wanted little to do with it himself as president. Instead, he made a particular point of delegating it to lower officials and directing questions and responsibilities either to them or to the states, as was the obvious goal of an October 1923 gubernatorial conference.12 Kyvig’s investigation of the Coolidge presidential papers supports this thesis, reporting that Coolidge would merely acknowledge receipt of correspondence on prohibition without making any substantive response—­not far from the “grim, determined, alert inactivity” of Walter Lippman’s assessment.13 The contemporary journalist and future New York Times editor Charles Merz concurred that Coolidge was honest in wanting Prohibition enforced but added that his general belief in deference to the legislature’s policy leadership led him to make few independent moves toward enforcement.14 Whatever the reason or reasons—­a constitutionally derived fondness for states’ rights, a general belief in presidential deference to legislative leadership or political inactivity, or incompetence— ­Coolidge oversaw the implementation of Prohibition but without any obvious enthusiasm for it, as the New York Times obliquely alluded to in Coolidge’s obituary: “His policy as to prohibition was to enforce the law as long as it was on the statute books.”15 Fortunately for Coolidge, those statute books remained relatively unchanged during his presidency. While Coolidge came to office facing the much wetter Congress elected in November 1922,16 this meant relatively little. For the rest of his presidency, Congress made no major changes to the nation’s alcohol laws. Debates in Congress took the same form throughout the middle of the 1920s, with the threshold of support shifting somewhat on the basis of election cycles, 1922 and 1926 favoring wets and 1924 and 1928 favoring drys. Dry numerical predominance and the equally important control of key committee chairs meant that federal legislation remained more or less at the status quo. At the start of every Congress, wets, supported by the AAPA, offered legislation amending the Volstead Act to allow beer and light wine and restricting search and seizure and double jeopardy. These practices, they warned, did damage to and created contempt for the Constitution, both by exceeding the Eighteenth Amendment’s express grant of power and by ignoring its civil liberties provisions. The debates over the definition of intoxicating were widely held to be pointless, other than that they were full of amusing personal invective. In one particularly cutting exchange, Maryland senator Bruce tweaked his usual Democratic

constitutional obligations (1923–­24)

139

ally, Virginia’s Carter Glass, by asking him whether his personal experience with wine and beer had proved them intoxicating, leading an irritated Glass to shout that he would not know as he had never consumed either. But, despite an occasional convert, like the assistant secretary of the Treasury, who agreed that Congress should tolerate beer and wine, no legislation passed until the final weeks of Coolidge’s presidency, and even that was a strengthening of enforcement.17 Shortly after assuming the presidency, Coolidge assembled the nation’s governors for a conference assessing the nation’s Prohibition regime, urging the states to take the lead in enforcement— ­consistent with his federalist belief in active states and general distaste for national government. The October 1923 conference, chaired by Maine’s Percival Baxter (a states’ rights prohibitionist uneasy about the construction of national power), met him most of the way. It concluded that “the individual states should share with the federal government the duty and responsibility of enforcing the amendment,” a sentiment even wets like Smith agreed to (though after Smith voiced support for Ritchie’s and Blaine’s opposition). Responding to Gifford Pinchot’s demand for Coolidge to take command of the nation’s insufficient prohibition efforts personally, Coolidge icily countered by noting that the Volstead Act charged the commissioner of revenue—­not the president—­with its day-­ to-­day oversight. He further added that “no provision of the Eighteenth Amendment or the national prohibition act contemplates a surrender of state responsibility”—­pledging his “support and protection to the limit, provided by the Constitution . . . against every lawless element.” In short, Coolidge pledged presidential support but not micromanagement, and he insisted that the Constitution left states with the primary obligation to implement the amendment.18 He evidently remembered the warning of Lodge, his state’s senior senator, and would not allow state free-­riding on Prohibition. Rather than heed Coolidge’s call, state officials listened to the siren song of Maryland’s Albert Ritchie, who had used his attendance at the October governor’s conference to decry yet again national Prohibition as an assault on states’ rights. By the 1924 election, backsliding and continued opposition meant approximately one in ten states in the Union were now formally out of compliance with the Eighteenth Amendment. Maryland had never passed a state enforcement law, while drys in Massachusetts had theirs blocked by referenda, Nevada’s self-­defeating law had been overturned, and, most troubling of all, New York had legislatively repealed its law. In New York, Al Smith’s discomfort with trying to balance state sovereignty and constitutional obligation triggered a series of events that nearly

140

chapter seven

saw the return of Nathan Miller’s Mullan-­Gage prohibition law in 1924. Smith’s signing statement on its repeal had awkwardly promised to maintain state cooperation with federal authorities, and one such official, federal prohibition director Palmer Canfield, had specifically requested that Smith do so. As a result, Smith called for a conference of local and state elected officials, law enforcement officers, district attorneys, and other relevant figures to discuss Prohibition and continued to demand appropriate state enforcement in order to fulfill his oath of office “to support the Constitution of the United States . . . [without] any reservation about it . . . with everything in it, whether [I like] it or not.” After all, he noted defensively, he had supported it, with three times as many prohibition enforcement actions after the repeal than before it.19 At the same time, although expecting defeat by the Democratic-­controlled Senate, dry Assembly Republicans nonetheless wanted a chance to go on the record again, presumably to appease the Anti-­Saloon League (ASL). Speaker Machold was attempting to thread the needle between not provoking further ASL attacks on his Republican members while still trying to avoid dry excesses such as the horrifically unpopular double jeopardy that had helped doom Mullan-­Gage. His actions were the clear result of ASL pressure: as the organization’s leadership grumbled that the people were “weary of lax enforcement,” upstate Republicans pleaded for a chance to vote even on a bill that they all knew had no chance of passage. Rather than take the lead in drafting a bill, Machold publicly invited an association of the state’s district attorneys to do so. He agreed with Smith that the ASL’s desire for a so-­called enabling triplet bill, which would authorize local enforcement, was undesirable, and he promised to ask New York’s infamously wet Republican senator James Wadsworth to pursue federal repeal of double jeopardy enforcement.20 Citing the need to restore state sovereignty by bringing criminal enforcement back into state courts, the district attorneys appealed to Smith and the New York legislature in presenting their bill. New York’s “neglect” in fulfilling its Eighteenth Amendment obligation had, “in [their] judgement, constitute[d] an invitation to the Federal Government to assume an exercise within this state of police powers . . . [previously] exclusively exercised by this state.”21 Their proposal, dubbed the Jenks Bill, forbade state prosecutions after federal efforts—­the most that could be done to stop double jeopardy—­and slightly tightened the search-­and-­seizure allowances of Mullan-­Gage but otherwise closely resembled its predecessor.22 Smith continued to take the position that no bill was necessary to comply with the Eighteenth Amendment.23

constitutional obligations (1923–­24)

141

Sufficiently cowed by the threat of the ASL, which visited the House chamber to supervise another bill—­and presumably buoyed by the continuing confidence that either the Senate or Smith’s state opposition would block it—­Assembly Republicans declined to whip the vote themselves.24 Smith’s underdeveloped position remained hard to follow, with the ASL unsurprisingly accusing him of disingenuousness.25 In the end, Smith was saved by polarized politics as the Senate blocked the bill from reaching his desk. A pious, dry-­sympathizing Sunday school teacher who had been a pivotal Democrat in earlier votes bowed to party pressure despite his imminent retirement. Assembly Republicans in turn reneged on their pledge and whipped their members, breaking four of twelve wet holdouts. The result was 77–­71 passage (with eight Republican nays and one Democratic aye) and the Democratic Senate declining to act.26 With New York’s lack of a prohibition law holding, one other state in the Northeast remained in flux, the conservative-­dominated Massachusetts. But just as New York had sharply changed since November 1922, when Empire State voters had booted Nathan Miller, so too had the balance in Massachusetts: the drys’ 100,000 vote loss in the 1922 referendum turned into a narrow victory of less than 1 percent (454,656 to 446,473) in 1924. Although Governor Channing Cox had been wary of spending political capital lobbying for prohibition since the 1922 referendum, he nonetheless joined Maine’s former Republican (and Progressive) governor Carl Milliken and Homer Cummings, former Democratic National Committee head and future attorney general, to campaign for approval of the referendum in November 1924. Cox and Cummings both pitched an enforcement act as nonpolitical statesmanship. Cox argued that it was embarrassing to join Maryland and New York as scofflaws. Although he sympathized with objections to the bill raised in 1922, he argued that those had been corrected and that lawful citizens had no reason to oppose it now. Both the words and the presence of Cummings—­as a prominent dry Democrat—­ resisted efforts to make prohibition a partisan issue. Moreover, his former role as a state prosecutor in Connecticut gave him good government credibility to condemn the patronage that had so corrupted enforcement.27 Unlike other Massachusetts drys, most notably the almost propagandistic Christian Science Monitor, which hailed “the action of the thinking voter who brushed aside theoretical arguments as to ‘constitutional’ and ‘personal liberty,’ ” the ASL took the constitutional challenges seriously in rallying support for prohibition during public debate.28 In the waning weeks of the campaign, ASL superintendent William Forgrave, who also wrote the

142

chapter seven

league’s contribution to the ballot, trained volunteer “crusaders” to understand and refute wet claims in a popular constitutionalist campaign. Summarizing his army’s efforts, Forgrave offered seriatim rebuttals to nearly all the wets’ various legal critiques of prohibition, beginning with the crucial issue of federalism, which again dominated the discourse. First, he explained, the sovereign state of Massachusetts had agreed to a “provision included in no other” amendment creating an obligation of dual enforcement; the amendment was concededly radical, but the state had agreed to cede its autonomy in the most authoritative way possible. Second, echoing Harding’s arguments about federal intervention, Forgrave explained that opponents of enforcement were being counterproductive. He acknowledged the sincerity and intensity of his most committed foes but noted that, though these “loudest opponents of state enforcement are staunch upholders of states’ rights,” they failed to see that nonconcurrence resulted in the federal government “com[ing] in and polic[ing] the side doors and backyards of Massachusetts.” Search-­and-­seizure law remained untouched by the bill, so those concerned about such constitutional violations could not blame prohibition. Only the outcry against U.S. v. Lanza and its authorization of double jeopardy warranted smug treatment from the ASL’s otherwise effective advocate. Although Forgrave noted other fields where states and the federal government could both enforce a law, even without such precedents he would be untroubled: “Anyone trying to bring liquor back into our national life deserves to be punished twice.”29 In framing their response on the ballot, the wet Constitutional Liberty League reiterated that Massachusetts was under no positive obligation and thus refusing to pass a bill was not the proactive obstruction of nullification.30 With the final approval of the state’s concurrent enforcement law in November 1924 and the death that same month of Henry Cabot Lodge, the longtime leader of the Massachusetts Republican Party who had supported its wets, Massachusetts moved clearly into the dry camp—­just as its former governor turned president reluctantly mobilized federal power on behalf of prohibition. As one of the holdouts against ratifying the Eighteenth Amendment, Rhode Island unsurprisingly came closer than most in seeking to hold a disapproving referendum blocking its concurrent enforcement in 1924. Marshaling a coalition of urban Democrats (both from his own Providence as well as from Pawtucket), the Democrat James H. Kiernan successfully discharged and procured Senate passage of a bill holding a repeal referendum.31

constitutional obligations (1923–­24)

143

The malapportioned, Republican-­controlled House, however, ignored the bill and other consideration of prohibition.32 Maryland continued to earn its nickname of the Free State in 1924, with Governor Albert Ritchie continuing to pound prohibition in speeches and meetings with the president, while Baltimore’s wet Republican representative John Phillip Hill battled it in Congress. He and Georgia congressman Upshaw, who had charged Marylanders with treason, already tangled during the session, with Hill impishly gloating that, as a former district attorney who had successfully prosecuted Fourteenth and Fifteenth Amendment violations in Maryland, he recognized the illegitimacy of Upshaw’s seating in a state that functionally prohibited black voting, in violation of section 2 of the Fourteenth Amendment.33 Hill also took every opportunity—­such as proposed constitutional amendments creating national policies on child labor and divorce—­to argue that the Tenth Amendment offered a better guide and that its distortion via Prohibition should remain an outlier that states need not enforce.34 Hill defended that proposition in Annapolis as well as Washington, helping ensure that state enforcement died early in the 1924 Maryland legislative session. (Resolutions against Prohibition fared better.) Although head counting suggested a continued wet majority and Governor Ritchie’s second inaugural address—­reprinted in the Sun as “State’s Duties and State’s Rights”—­made no secret of his antiprohibition views, drys moved forward with a bill anyway.35 Hill, a former US district attorney and constitutional law professor at Johns Hopkins, appeared in Annapolis as the lead witness testifying against the bill. Whatever one’s views on Prohibition, he explained, and he himself came from a long line of temperance activists, it was imperative for the legislature to oppose passage of state enforcement as long as “Congress has usurped those powers of the State.” “When they [were] returned,” he explained, “[only then would it be] time to consider an enforcement act of [Maryland’s] own.” He argued that the Eighteenth Amendment conveyed only powers, not responsibilities, noting: “The fact that Maryland has not yet passed an enforcement act proves that its citizens know more about the Constitution than does Congress.”36 Current and former leaders of the state’s branch of the AAPA added that the enforcement proposal was a “slap in . . . the face” of both Governor Ritchie and the state’s voters, who had overwhelmingly endorsed his well-­ known position in the recent election.37 Ritchie’s strong coattails had helped wipe out the once formidable urban wet Republican faction—­all forty of Baltimore’s members were Democrats in 1924—­leaving only a tiny splinter

144

chapter seven

of two Republicans against prohibition. The House tabled (and the Senate ignored) the enforcement bill, leaving Maryland wet until at least 1927.38 An irate ASL asked Coolidge for increased federal enforcement to finally bring the Free State in line,39 but the league soon had to devote its attentions to ensuring that Albert Ritchie— ­or worse yet, Al Smith— ­did not spread wet politics to the nation at large.

Fall 1924: The Presidential Race The 1922 elections had elevated the more libertarian wing of the Democratic Party to ascendance, with Missouri’s James Reed, New Jersey’s Edward Edwards, and other Democrats overcoming the Wilson faction’s effort to sideline them in the midterm elections.40 This had meant a flurry of congressional proposals to pare back prohibition, but these old-­guard Democrats and self-­styled Jeffersonians had larger ambitions. The 1924 presidential race offered a chance for them to retake the party from what they saw as the nationalist and progressive heresies into which Woodrow Wilson had pulled them. Ritchie had set the tone of the 1924 Democratic race with his Jefferson Day toast in April 1924, in which he explained that the slow erosion of states’ rights through prohibition and grants-­in-­aid constituted the fundamental issue of contemporary politics. He hoped that the parties would cease fighting over issues like the tariff and again split on issues of great principle, especially the division of power between the national government and the state governments.41 In effect, the Maryland governor aspired to be another Martin Van Buren, restoring the Democratic Party as the place for all defenders of constitutional fidelity and states’ rights—­ and Prohibition would be the issue that would let him do it.42 Ritchie was not the only Democratic presidential contender hoping to use Prohibition as a 1924 springboard against Coolidge; Al Smith and Oscar Underwood also hoped to use their antiprohibition and states’ rights personae to rally first primary voters and then the country against the Sheppard Amendment. Contending against their conservative and wet faction was the progressive and dry wing led by Wilson’s son-­in-­law, former Treasury secretary William McAdoo. Wilson had earlier envisioned himself a possible presidential candidate again and, to that end, had in 1923 commissioned Justice Louis Brandeis to draw up a possible Democratic statement balancing prohibition and federalism that he could

constitutional obligations (1923–­24)

145

present to the convention.43 Former Ohio governor James Cox, the 1920 nominee and a member of the eastern conservative bloc, threw his hat in to help deny McAdoo’s nomination; Missouri senator James Reed’s favorite son run likely served the same purpose in trying to reclaim the party’s Jeffersonian roots.44 Al Smith, helped by his ability to hold the key Republican-­leaning state of New York, quickly displaced Ritchie and Underwood as the candidate of choice among the libertarians and wets, with most progressives and nearly all the drys coalescing around McAdoo after Wilson’s candidacy went nowhere. Prohibition and the Klan soon divided the convention. These were not crosscutting but instead mutually overlapping and reinforcing divisions: the progressives tended to be prohibitionists and Klan supporters from the South and West favoring McAdoo, whereas the more eastern-­oriented libertarian wing was both wet and anti-­Klan. Though a southerner, Underwood was in many ways more representative of and closer to the northeastern libertarian wing: his tangles with Hobson and Hobson’s prohibitionist Klan allies in Alabama made him an implacable Klan foe, and it was he who led efforts to implement an anti-­Klan plank in the platform.45 Looking around at the cosmopolitan, boisterous, and very wet city, McAdoo’s supporters were only further convinced of the need for a crusade against foreign vice, a sentiment McAdoo carefully stoked.46 The ASL had, unsurprisingly, set up shop in the convention, seeking to ensure a strongly prohibitionist candidate (in McAdoo) but a moderately prohibitionist platform. With Wheeler releasing a memo warning of a “Smith–­Tammany–­Underwood–­Wall Street” cabal and some league officials openly working from McAdoo’s headquarters—­where they warned that Smith was a dangerous reactionary hiding behind his Catholicism to shield his proalcohol views—­the ASL’s preferences were quite clear.47 Such bold moves in trying to anoint a winner did not carry over to the platform fight, with the ASL again opposing efforts to moralize and instead seeking to leverage the widespread logic of constitutional obligation by portraying prohibition as simple law enforcement. The shadow of 1920 loomed large in another way: before the convention began, Bryan had announced that, after his bitter loss four years before, his goals were to defeat the Underwood/Davis/ Wall Street faction and to keep prohibition front and center.48 His seat on the platform committee suggested the latter possibility, but Wheeler again intervened rather than risk a demonstration of ASL weakness should a tougher plank lose. Thus, Wheeler personally leaned on Bryan—­with whom he had a close working relationship

146

chapter seven

despite his Republican partisanship—­to frame the platform as law enforcement rather than morality.49 The result was a perfunctory section agreeable to all, arguing that the Republican Party had “failed to enforce the prohibition law” while “the Democratic Party pledges itself to respect and enforce the Constitution and all laws.” A brief states’ rights section followed.50 With the party’s two-­thirds rule preventing either Smith or McAdoo from procuring sufficient support to attain nomination, the convention became bogged down in dozens of ballots, earning it the derisive nickname “Klanbake” for the Madison Square Garden’s summer heat. The Klanbake eventually cooled on the 103rd ballot with John W. Davis, an eastern-­oriented, New York–­based constitutional lawyer who had been a West Virginia congressman and Wilson’s solicitor general, serving as the compromise candidate. Davis asked Montana senator Thomas Walsh, a dry Catholic, to be his running mate, but Walsh declined; Smith’s recommendations of Ritchie or New Jersey governor Silzer were both vetoed as too eastern, leading the convention to nominate Bryan’s equally populist and dry brother Charles, the governor of Nebraska, resulting in a bewildering ticket alongside the Wall Street superlawyer.51 On the Republican side, the incumbent and popular Coolidge garnered easy renomination, leading Wisconsin senator Robert La Follette to run a third-­party, Progressive campaign that would offer a nonconservative choice. The Republicans similarly debated attacking the Klan but also declined a frontal assault and remained quiet. The ASL correctly assumed that they would remain solid, with a stock law enforcement plank on Prohibition, so Wheeler declined to attend, merely sending a deputy to keep an eye on things.52 During the general election, Prohibition remained on the sidelines, with Coolidge staying above the fray; what little campaigning occurred was directed at La Follette. Davis obliquely referred to prohibition by indicating skepticism about amending the Constitution and nationalizing power, but he agreed with Coolidge on the obligation for enforcement.53 La Follette, trusted by neither the AAPA nor the ASL, ran a largely single-­issue campaign against corporate malfeasance (and its reactionary allies in the judiciary).54 Nonetheless, the largely wet favorite son Democratic candidates—­ Ritchie, Silzer, and Underwood plus James Cox— ­campaigned hard for Davis. Smith himself was still somewhat lukewarm, but his supporters remained quite enthusiastic. The drys, however, contributed little to the war effort. Walsh had some excuse to remain quiet, with his fellow Democratic

constitutional obligations (1923–­24)

147

senator Burton Wheeler serving on La Follette’s bipartisan Progressive ticket, but, like many of his supporters, McAdoo continued to nurse antieastern conspiracy theories and did little to rally on behalf of Davis.55 McAdoo enthusiasm or not, Davis faced a tough challenge in an election where the choice was between Coolidge and an equally conservative future Liberty League member. Both parties had nominated conservative prohibition legalists whose passionate commitment to states’ rights nonetheless deferred to their belief in the constitutional obligation to enforce the Eighteenth Amendment. Davis not only struggled to distinguish himself from someone with nearly identical views but also faced off against a popular incumbent, a good economy, and an electoral map that favored Republicans. That incumbent fit the mood of the times. As Justice Oliver Wendell Holmes observed in 1924: “While I don’t expect anything very astonishing from [Coolidge], I don’t want anything very astonishing.”56 The 1924 elections returned both Calvin Coolidge and a larger Republican majority to Washington, giving Silent Cal more autonomy from the unreliable bloc of Borah and his fellow farm Republicans, who at least tended to be helpful on Prohibition. (Coolidge had actually offered Borah the vice presidency, surprising many, but the choice is not that strange considering not only that they got on well personally but also that Borah exactly mirrored Coolidge’s views on states’ rights and constitutionalism more generally even if the two often broke on policy.)57 The ASL had an even better year than the GOP did. It managed to elect the driest Congress ever— ­defeating, among others, the incumbent wet Democratic senator David Walsh (Massachusetts), and Ransom Gillett, the former Republican New York legislator turned AAPA leader, now running for Congress as a Democrat. Instead, it celebrated the congressional election of Frederick Davenport, Nathan Miller’s dry legislative lieutenant.58 In one of wet Democrats’ few victories, Al Smith, though beaten for the Democratic presidential nomination, defeated one of the rising stars of the New York GOP, the prohibition legalist Theodore Roosevelt Jr., in his gubernatorial reelection contest.59 Equally as important as the congressional races, by the end of 1924 the ASL’s state efforts had dropped the number of nullifying states to three: notoriously libertine and underpopulated Nevada, the hyperfederalist Maryland, and the immigrant-­dominated New York. With many old-­stock Protestants considering Gotham an alien den of vice—­helped by the disaster at Madison Square Garden—­that rogues’ gallery of states arguably

148

chapter seven

made useful bogeymen in the rest of the country. Only one state legislature (New York) had directly repealed its prohibition law, with Nevada arguably following suit more discreetly (and with far less backlash). The presidential election featured two zealous federalists nonetheless mouthing grim platitudes about the need to use federal power to fulfill constitutional obligations, thereby vindicating drys’ success in convincing even true believers in the states’ rights consensus—­and in both parties— ­of the correctness of prohibition legalism. The nation’s drys could be quite satisfied indeed.

chapter eight

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

It is an invitation to the citizens of Wisconsin to violate the federal law. It precipitates an immediate conflict between the state of Wisconsin and the Union of states to which it belongs. Its only precedent is one that forms a dark chapter in American history . . . the nullification ordinance of South Carolina in 1832 when that state passed an act refusing to abide by a federal law.— ­Governor Fred Zimmerman (R-­WI), vetoing a repeal of the state’s concurrent enforcement law after a popular referendum1

I

f God “maketh his sun to rise on the evil and on the good, and sendeth rain on the just and on the unjust” (Matt. 5:45), on February 15, 1924, Senator Frank Greene (R-­VT) learned that the wages of prohibition also afflicted the wet and dry alike. Like many libertarian-­leaning New En­ glanders, Greene had opposed Prohibition as part of his devout commitment to states’ rights; as a representative in Congress, he had voted against both the 1914 Hobson-­Sheppard and the 1917 Sheppard Amendments.2 But that did not spare him from one of the most infamous events during Prohibition. While walking with his wife in Washington, DC, Senator Greene encountered a prohibition agent giving chase to suspected bootleggers and wildly firing his gun. The senator was grievously wounded, shot in the head. Previously healthy and a relatively young fifty-­four, he managed to survive and continue his service in Congress but remained crippled to the end of his days. (Consistent with his libertarian views, he refused the $7,500 that his fellow members of Congress voted to extend him as compensation—­and doubtlessly to assuage their guilt.)3

150

chapter eight

But beyond such minor embarrassments, prohibitionists could be pleased. New York was an obvious outlier, and Prohibition seemed settled— ­even celebrated—­in much of the Union in the middle part of the 1920s. Some states continued proudly to endorse Prohibition and hail its enforcement.4 Others, even in places like Illinois that were seeing the direct consequences of Prohibition, easily suppressed rogue bill proposals to follow New York, Maryland, and Nevada.5 But, as the presidential and congressional elections illustrated, constitutional obligation, whether freely chosen or browbeaten by the pressure tactics of the Anti-­Saloon League (ASL), was the watchword of America’s elected officials of both parties, even those as deeply committed to states’ rights as the Association against the Prohibition Amendment (AAPA). Since the AAPA had been unable to persuade prohibition legalists of what it believed to be their constitutional error, victory meant bypassing elected officials who feared retribution for oath breaking from both God and the ASL (though perhaps not necessarily in that order). As a result, the AAPA adopted a new strategy against Prohibition: turning to popular referenda instead, making in 1926 a multistate attack as it sought to mobilize the American states’ rights consensus against the Sheppard Amendment and its implementing legislation. The AAPA, which had begun to take shape as the center of resistance to national Prohibition, found referenda a less costly alternative to legislative lobbying and one that carried a stronger and clearer signal. Such a strategy offered mixed chances; early referenda in Massachusetts and California had forestalled state prohibition there, but the most recent contests had indicated majority acceptance even in those states. Still, that track record was better than the legislative option and, especially compared to national lawmaking, allowed the AAPA to pick its battles and play up the states’ rights arguments favored by the organization and its founder, William Stayton. As Henry Curran, another leader (and eventual president), observed in trying to procure a Wisconsin referendum. “Prohibition was won state by state.” It would have to be killed that way too.6 Stayton and the AAPA announced to James Reed’s congressional committee that they had decided to use the initiative process in six other predominantly western states in 1926, while two state legislatures passed bills authorizing referenda.7 But, as wets learned in the wake of the referenda, so committed were elected officials to their perceived constitutional obligations that several prominent Republicans ended their political careers by very publicly

taking alcohol to the people of the states (1925–­28)

151

appealing to those oaths rather than endorse laws they believed committed nullification— ­even when those laws matched their own wet policy preferences.

Before the Referenda Between the reelection of Coolidge and the Hoover-­Smith contest in 1928, northeastern opposition to Prohibition was largely rhetorical: governors of both parties vented about Prohibition’s sins against states’ rights, but legislators worked to keep alcohol policy changes off the legislative agenda, resulting in something of a political moratorium. In 1925, Connecticut’s governor-­elect, Hiram Bingham, who filled his opening address with invocations of state sovereignty, still followed his prede­ cessors in instructing legislators to preserve concurrent enforcement legis­ lation. The Republican Bingham, a Yale archaeology professor and explorer who had led the first American expedition to Macchu Picchu, balanced his well-­known hostility to prohibition’s merits with a respect for established institutions. Sounding like his former Yale colleague William Howard Taft, in his inaugural address he observed that “orderly government cannot exist without obedience to law” and therefore that “it is our duty to do all in our power to see that the Constitution . . . be respected and enforced” rather than risk “anything which leads to disrespect for law.”8 (But Bingham could do little to attack prohibition from Hartford as he had been elected both governor and senator and resigned the governorship, after one day, to go to Washington, where he became one of Congress’s more vocal Republican wets.) A moratorium best characterizes mid-­decade prohibition politics in New Jersey, which, like New York, was perhaps the state in which prohibition most closely matched partisan lines, despite efforts by wet Republicans to claim credit for attacks on Volstead and referenda proposals.9 Between 1924 and 1928, New Jersey Republicans and the state’s Democratic governors remained at loggerheads, with executive calls to weaken or protest Prohibition almost always bottled up in committee. Governor Silzer remained firmly devoted to states’ rights, using an attack on the inheritance tax to remind the legislators of the constitutional guarantee of “the sovereignty of the states”—­a guarantee that would be “worthless if we do not resist every unwarranted encroachment.”10 His successor was even more committed, almost to the point of paranoia, in linking states’ rights and prohibition in a fiery inaugural address.

152

chapter eight

Jealous of other states’ referenda protesting the Eighteenth Amendment, Governor Harry Moore called for a referendum that would let “New Jersey . . . remain in the vanguard . . . on questions of public importance” and pursue “the repeal of the Hobart Act” imposing concurrent enforcement on New Jersey.11 The New York Times had seen that Moore’s states’ rights–­inflected address received wide circulation—­reprinting it in full—­ but Republican Assemblies ensured that New Jersey neither held a referendum nor reconsidered concurrent enforcement.

Legislative Referenda: Wisconsin and New York New Jersey Governor Moore implicitly alluded to the example of states like Wisconsin or neighboring New York where legislatures had authorized nonbinding referenda on grounds that the ASL had difficulty opposing: first, that self-­government required ascertaining the people’s wishes even on controversial topics and, second, that, as merely advisory referenda directing Congress to reconsider policy, they provided no actual obstacle to constitutional enforcement and, hence, no nullification. Legislatively proposed referenda thus reflected prohibition legalism: of the eight prohibition referenda held in 1926, the two scheduled by legislators were both symbolic appeals to Congress rather than direct repeals of the state’s laws. (A third, in Nevada, was initiated by petition but according to legislation passed in 1925.) In Wisconsin, the Milwaukee brewing industry obviously still wanted to resume its enterprises, but its urgency had lessened somewhat. Since the mid-­1920s, brewers had managed to become profitable again by selling cheese, candy, and near beer and by renting their properties. Thus, while they had not been co-­opted into outright support for prohibition like the California grape industry had, prohibition was no longer a life-­or-­ death struggle for their companies.12 If the brewers had (somewhat) made their peace with the new order, the state’s legislators had not, with many becoming open provocateurs in seeking the destruction of Prohibition. The Republican assemblyman Paul Raihle proposed ruthless enforcement in order to discredit prohibition completely. On the floor of the Senate, the Republican Bernhard Gettleman announced that he and his colleague James Barker were both violating the Severson enforcement act by manufacturing wine and that he would be hosting a public party at his home serving alcoholic punch—­to which Wheeler and other drys were invited. The invitation appeared in national newspapers, with the

taking alcohol to the people of the states (1925–­28)

153

boast that it might be legal under Volstead but probably was not under the state’s Eighteenth Amendment enforcement law. State prohibition officials, including former assemblyman Sachtjen, now serving as prohibition commissioner, were doubtful that private home manufacture was even illegal under Severson, but, either way, juries would refuse to convict, so they made it clear they would not pursue Gettleman. An opportunistic federal official showed up, and Gettleman cheerfully invited him in. The prohibition agent declined to join the mirth and merriment but requested permission to take Gettleman’s punch with him, at which point Gettleman told him to leave without a warrant.13 Other officials acknowledged the breakdown of the state’s prohibition order, with Wayne Wheeler describing the situation as a “Wisconsin revolt.”14 Federal officials now turned from their embarrassment and used Gettleman’s party as the pretext to crack down on sacramental wine since Gettleman had procured twenty-­five gallons from his local synagogue despite not having attended services in six years. The discovery of a significant lawbreaking ring among the area’s Jewish population, in which even fake synagogues had been created to procure wine, led the federal government to adopt a draconian exclusion of Milwaukee Jews from Volstead’s sacramental wine exemption—­which in turn made Gettleman a pariah among his community for bringing down federal wrath.15 While Gettleman was serving as a provocateur putting alcohol in the public consciousness, conservative Republicans fought desperately to keep alcohol off the legislative agenda, less because they supported prohibition than because they finally had control of the state party and wanted to implement conservative policies during the 1925 session. They blocked direct legislative efforts to change the state’s concurrent enforcement laws, but Gettleman and the Milwaukee Socialist Walter Polakowski maneuvered to place a nonbinding popular vote on the ballot. The two wets successfully converted a memorial to Congress into a referendum expressing the people’s preference for a modified, beer-­friendly Volstead Act. Even outside Milwaukee and Madison, over 40 percent of Republican legislators supported the referendum (the lone Democrat in either chamber opposed it).16 Formal repeals of concurrent enforcement had failed (though jury nullification meant that few such prosecutions were brought anyway), but Wisconsin voters would have a clear chance to express their views on a half decade of Prohibition. In New York, where the ASL had created exactly the sort of partisan prohibition politics that it sought to suppress nationwide, voters’ staunch

154

chapter eight

antiprohibition sympathies threatened to shift control of the Republican-­ leaning state to Al Smith’s completely wet Democrats. The embattled wet GOP faction, led by Senator James Wadsworth, the elder statesman Elihu Root, and Columbia president Nicholas Murray Butler, maneuvered to reverse that branding by sponsoring a referendum to Congress. Two factors opened space for this attack. First, a forgery investigation and conviction had incapacitated William Anderson, the ASL’s ruthless and successful New York director, whose appeal was denied by Judge (and future senator) Robert Wagner, and whose political end few mourned—­ especially the Coolidge friend who took his job.17 (Following his release, Anderson returned to the prohibition cause, but outside the ASL: his increasingly open anti-­Catholicism, bitter criticism of the ASL, and flirtations with Klan politics made him persona non grata, at least until Wheeler’s death in 1927.)18 Second, Emory Buckner, the federal district attorney for New York, announced that, while he would continue faithfully (and efficiently) enforcing the nation’s Prohibition laws as best he could with the resources provided to him, he too favored prohibition federalism. Buckner, a college pal and legal partner of Elihu Root Jr.’s, had parlayed that friendship, as well as mentoring from Felix Frankfurter, into the federal district attorney posting. Although a known wet, Buckner won almost unanimous praise for conscientiously and zealously, but fairly, enforcing Prohibition laws, especially through his use of “padlocking” techniques—­ which closed—­speakeasies to much media acclaim. Buckner’s success in clamping down on alcohol consumption in New York had made him popular with drys—­and thus a dangerously credible advocate of Volstead change.19 Buckner first proposed that the Volstead Act be amended to allow the states to set the definition of intoxicating and that the federal government would then assist the states in implementing their own policies—­not unlike the Webb-­Kenyon Act. To help demonstrate the disconnect between the law on the books and the people’s wishes, he additionally proposed, and repeatedly and forcefully endorsed, a New York State referendum expressing its citizens’ position on Volstead modification, a position that the AAPA immediately latched on to as the next tactic against Prohibition.20 The state’s powerful and ultrawet Republican senator James Wadsworth, struggling to fend off the partisan branding that seemed to be developing in New York, commissioned Elihu Root to write authorizing legislation and a referendum—­though he cited states’ rights in opposing a congressionally required national referendum being bandied about.21

taking alcohol to the people of the states (1925–­28)

155

Drys insisted on attempting another concurrent enforcement bill in the Assembly over the protests of Republican leadership and the indifference of wet activists, who counted on both the Senate and Smith to stop it and instead focused on the referendum.22 The Wales-­Jenks concurrent enforcement bill was pure position taking, “the great prohibition sham battle of Capitol Hill,” but, pressed by the ASL, Albany legislators went through the motions: the dry Judiciary Committee forwarded the bill without recommendation.23 The Senate, with five GOP defectors providing the majority, blocked the bill, with one of those Republicans comparing New Yorkers’ obstruction of prohibition to the righteous juries, lawyers, and citizens who had opposed the Fugitive Slave Act.24 Several weeks later, on the same day the Senate considered the more important referendum, a bare majority of the Assembly approved the obviously doomed enforcement bill—­with even one of the Republicans voting dry ferociously denouncing the Volstead Act and bitterly lamenting his constitutional obligation to enforce it.25 Seeing themselves encircled by Wadsworth’s influence in the GOP, Republican drys and the ASL made two attempts to retake the party from “the man they most bitterly oppose in New York State.”26 First, in response to the Assembly’s support for the referendum, the ASL had announced it would run a third-­party candidate against Wadsworth that November.27 Second, upstate drys, joining with Democratic wets, moved the referendum vote from a special election to the regular November calendar. Republican wets and even some moderate drys feared that it would do exactly what they had been trying to avoid: restore prohibition to a partisan issue, prevent the possibility of nominating a wet governor, and raise urban turnout. The change, in short, threatened to wipe out the wet GOP foothold and perhaps even the state GOP entirely.28 Wet Republicans now found themselves in a position in which they could either join their dry copartisans in voting to kill the referendum—­thereby making it a partisan vote— ­or walk into the Democrats’ trap. They chose the latter, with the Republican sponsor John Karle asking, “What could be more important than to ascertain how the people of this state feel on the question of states’ rights?” as he and eight wet Republicans joined the Senate’s Democrats.29 With Wadsworth’s surprising endorsement, both chambers agreed to the referendum, with unanimous Democrats and a third of the GOP (twenty-­ eight against sixty-­two in the Assembly and eight against twenty-­one in the Senate) backing the referendum.30 A dry legislator vented that the bill was “the most radical piece of legislation . . . since the time when Southern states were legislating on the right to secede from the Union. . . . You are

156

chapter eight

making it possible for a state to secede from the Union. You are trifling with a great principle to save your political hides.” Another similarly observed that it was “an incitement to nullify the Constitution . . . accomplish[ing] nothing . . . beyond stirring up among the people of a great state a spirit of rebellion against the Constitution.”31 After personally interjecting himself in a hearing in which witnesses alternated charges of nullification with the need to vindicate the most important current issue—­states’ rights—­Smith, undeterred by charges of treason, signed the referendum bill.32 State courts soon upheld the constitutionality of the referendum, setting a second state—­along with Wisconsin— ­on course for popular protests against Volstead.33 After both states passed their authorizing bills, New Jersey’s Democratic senator Edward Edwards (and, to a lesser extent, his Republican colleague Walter Edge) joined others in pushing again for a national referendum. (Edwards and Edge had been whipping boys for Wheeler, who, earlier in the year, singled them out, pledging that “New Jersey will remain a part of the Federal Union, in spite of the efforts of her senators to blast her loose.”)34 In February, the Brooklyn Democrat Emanuel Celler, who would become a long-­standing and influential member of the House Judiciary Committee into the 1970s, had similarly proposed a referendum protesting Volstead on states’ rights grounds.35 William Borah’s opposition, on the grounds that Article V did not contemplate referenda and that the plan was therefore nullification, signaled continued dry hostility, and the New Jersey plan for a national referendum was dropped.36 If the Coolidge administration wanted to mollify states’ rights concerns in advance of state prohibition referenda in the fall of 1926, it went about it in the worst way possible. In April, Assistant Secretary of the Treasury and prohibition chief Lincoln Andrews unveiled a proposed Volstead amendment that would allow DC police to combat bootleggers in Maryland without extradition. This would be pursuant only to investigations in the capital, Andrews promised, and officers would not simply go roving through Maryland as a prohibition force. The proposal immediately raised the ire of wet legislators like James Reed, to say nothing of the Marylanders Albert Ritchie and John Phillip Hill, who decried this invasion of their state’s sovereignty.37 That was a minor mistake compared to what the administration rolled out a month later. Members of the administration, most notably Andrews, had long looked to augment the tiny federal Prohibition enforcement apparatus, resulting in Executive Order 4439, a May 1926 directive allowing

taking alcohol to the people of the states (1925–­28)

157

for the deputization of state and local officials as Treasury agents. Although the attorney general and both the House and the Senate Judiciary Committees signed off on the legality of the plan, it garnered almost universal scorn, even from many drys and Coolidge allies who found it a violation of Coolidge’s background principles and many recent speeches emphasizing states’ rights.38 The friendly New York Herald-­Tribune conceded that the plan was probably constitutional by the letter of the law but found it still unlike the “whole trend of Mr. Coolidge’s government philosophy, which has stressed the importance of state government and the necessity of respecting its integrity.”39 Andrews had aggravated the situation by bluntly explaining that the Prohibition amendment trumped states’ rights. Although he confined his comments to that specific issue owing to the text of the Eighteenth Amendment, not as a general rule—­indeed, it implicitly vindicated strict construction for states’ rights—­the damning sound bite rallied opposition nonetheless.40 Even fierce critics of the plan were quick to agree that Coolidge’s firm commitment to states’ rights meant that responsibility lay with Andrews—­ aided by Coolidge’s inattention— ­or was meant to help dry states implement their alcohol policy, a sort of soft Webb-­Kenyon.41 Although defending Coolidge’s generally evenhanded approach to prohibition, Senator Ed­wards charged that the order was meant to retaliate for Pennsylvania’s wet gubernatorial primary vote and intimidate New York since Coolidge was reputed to have privately condemned Edwards’s proposed referendum as a step toward nullification.42 Local governors pressed back with states’ rights claims; five openly protested—­with New Jersey’s Harry Moore observing that “we might as well divide the states into Federal precincts at once, instead of maintaining them as distinct creations”—­and another seven doubted the order’s constitutionality.43 Even some southerners momentarily rediscovered their states’ rights views, fearing that Coolidge—­who, like Harding, at least nominally pressed for a federal antilynching law— ­could similarly deputize state officials to enforce the Reconstruction amendments.44 An embarrassed Coolidge initially defended the order as one in which states and counties could accept or decline the offer depending on their individual wishes and jurisdictional issues—­reiterating his belief in states’ rights in a lengthy press interview—­but he quietly revoked the order without ever having made appointments with it.45 Andrews served as further embarrassment to prohibitionists in the days after the November midterms when his wife explained that neither of the

158

chapter eight

two Andrews were even for Prohibition. Though they honored it in their personal and professional lives as long as it remained the law, both looked forward to the day it ended. The controversy over the November 1926 prohibition referenda, she noted, “prove[d] that Volsteadism is not the universal expression of opinion in America.”46

The Referenda In addition to the two legislatively proposed referenda, signature-­gathering efforts by the AAPA and its allies placed six referenda on the ballot. As a general rule, the legislative referenda were purely advisory— ­easier to square with concerns about constitutional obligation—­while those advanced by petition sought more direct policy change. California and Montana voters considered petition-­driven efforts to repeal their states’ concurrent enforcement laws, while Missouri considered total repeal of all its liquor laws, a proposal whose radicalism led the national AAPA to withdraw support. Colorado voters proposed repealing prohibition from the state constitution, although the amendment was largely symbolic and prospective: the text pledged no policy change out of step with federal rules. The Nevada referendum fulfilled Edward Edwards’s wish, proposing a national constitutional convention to repeal the Eighteenth Amendment. Although gathered by signatures, the Illinois referendum, like the two legislatively designed referenda in New York and Wisconsin, offered an advisory opinion on Volstead.47 The November vote seemed to validate the AAPA’s strategy of focusing on voters rather than legislators as five of eight contests rejected prohibition, often by huge margins. The advisory referenda proved especially successful, going three for three by large margins. Illinois’s advisory referendum pulled over 60 percent, Wisconsin’s 66 percent, and New York’s a hair below 75 percent. Nevada’s call for a constitutional convention against the Eighteenth Amendment garnered a staggering 77 percent.48 Nonetheless, those numbers were not as impressive as they might first suggest as the ASL had ordered its members to abstain from the irrelevant “trial balloons”; resources were instead focused on blocking the substantive referenda repealing state enforcement.49 Here, the record was more ambivalent, with only one wet victory against three losses, but that result was still heartening to the country’s wets since they had concentrated their efforts in the difficult terrain of the dry West.

taking alcohol to the people of the states (1925–­28)

159

The two clear failures were both the most and the least radical initiatives appearing on the 1926 ballot. The Missouri referendum was the most drastic as its repeal of all the state’s liquor legislation proved so radical that even James Reed opposed it.50 With even Stayton and Reed opposed, the initiative lost handily, by an almost two-­to-­one margin and a 275,000-­vote spread, compared to the 6 percent, 60,000-­vote gap that had instituted the state’s initial statewide prohibition law. Colorado’s situation was somewhat reversed: both parties officially supported prohibition, and, while its initiative would have struck prohibition from the state constitution, it was inoperative until the revocation of the Eighteenth Amendment. Even without any real institutional support from parties, candidates, or newspapers, this ardently dry state generated a 42 percent vote against prohibition, albeit one that disavowed independent constitutional interpretation.51 The AAPA’s great success was in Montana, which some wets had seen as the most important of the referenda months earlier, and the state justified that faith by narrowly voting to repeal its concurrent enforcement law.52 Like the rest of the Upper West and Great Plains, Montana had been a bastion of prohibitionist sentiment. Its senior senator was Thomas Walsh, a powerful member of the Judiciary Committee and one of the nation’s leading Democratic drys. The Republican platform was openly dry; the Democratic platform was silent on the issue, and there were immediate rumblings about the legislature imitating California and reinstituting state prohibition over the referendum, but Montana legislators deferred and left the state wet.53 Since the passage of the Wright Act for concurrent enforcement, California had largely developed two widely diverging prohibition regimes. Reflecting the politics of the midwesterners who had settled southern California, Los Angeles law enforcement officers were quite motivated and active in prohibition enforcement. Conversely, in San Francisco, local enforcement efforts were minimal and more or less open in mocking prohibition—­the county district attorney infamously came and sang with an incarcerated bootlegger on Thanksgiving, saying he needed to cheer up a friend. But even the more motivated federal officials had to adopt a policy of benign neglect; backlogs in federal courts meant that pleas were generous because insisting on a trial endangered the court’s ability to do business. That local jurors were soft on prohibition made violators’ threats in refusing pleas even more credible. One local bootlegger boasted of beating dozens of indictments, while a jury famously found itself before the court for drinking the evidence in a case.54 Matthew Sullivan, a prominent San Francisco Progressive leader and the former chief justice of the state’s supreme court, contributed the 1926

160

chapter eight

ballot’s argument for repeal, which he urged as a state protest against the Volstead Act. Paradoxically, and especially unusually considering his former job, Sullivan held that only by ignoring the law in the short term could greater respect for the Constitution be preserved. Another Bay Area progressive, former Stanford president David Starr Jordan, contributed to the defense of the Wright Act.55 The AAPA’s signature gathering in California reignited that state’s decade-­ long back-­and-­forth conflict over prohibition referenda. While early media reports had California voting to repeal prohibition, its citizens repeated their dry vote of 1922, keeping the state Wright Act by the same 53–­47 margin with which Montanans blocked their concurrent enforcement law. In hindsight, the closeness of the vote is the real surprise as the political climate in California was even less favorable to wet interests than 1922 had been, with changes in both interest group support and the composition of the electorate making California look like the rest of the dry West. State opposition to prohibition was no longer rooted in the Grape Growers Association, which had wound down its lobbying since 1924, leaving the Bay Area to fight prohibition alone.56 Since the last vote, the state’s farmers had discovered that, with some modifications to their planting habits, prohibition worked to their economic advantage. As several wet politicians, most notably James Reed, cheerfully advertised to the American public, prohibition agents could do little about home-­fermented wines and ciders,57 and a gray market in the components for home manufacture soon appeared. Although sommeliers and wine connoisseurs recoiled at the use of inferior grapes, Napa Valley and the other grape-­growing regions soon switched their vineyards to the tough Alicante grapes better suited to packing and cross-­country travel. So great was the demand for California’s grapes that eastern railroad lines became the bottleneck in wine distribution. Rather than destroying the industry, Prohibition had at least doubled the nation’s wine consumption.58 Californians’ unusual tendency to consider prohibition in terms of primarily economic arguments rather than constitutional ideals meant that this was a particularly unwelcome development for the AAPA, which pro­ fessed to be animated primarily by a belief in decentralized federalism, and which campaigned on those grounds elsewhere. With its essential industry now mollified by, if not ecstatic about, the subsequent turn of events and the state’s political leaders never especially interested in the constitutional angle, California’s political system froze out wets. To the extent that decentralized federalism was invoked at all in the

taking alcohol to the people of the states (1925–­28)

161

state, it was generally by drys who argued that vigorous concurrent enforcement would keep federal machinery out.59 Wet Bay Area citizens appeared increasingly quixotic. While the San Francisco–­based Democrats had seemed like they might construct a wet party earlier in the decade, by 1926 the party was defined by the prohibition legalism dominant through the nation. The Democratic Party platform was bone dry and its Senate candidate strongly prohibitionist, condemning “the [referendum’s] effort to nullify the Constitution by repealing the Wright Act.”60 Although much of northern California voted wet, the ascendant power of Los Angeles and other “southerners” meant that the 1926 vote endorsed concurrent enforcement by even more definitive margins than four years earlier.61 (The vote incited proposals to partition the state, a recurring theme in California politics before World War II.)62 There was little to comfort the state’s wets in other races as prohibitionists took control of both parties. The dry progressive Republican C. C. Young took over for Friend Richardson, and the Senate and the House were drier than before, with the wet leadership in the legislature significantly weakened.63 William Mc­Adoo, whose dry faction had taken over the state Democratic Party, gloated that wets of both parties ran behind their prohibitionist copartisans.64 The year 1926 marked the last serious challenge to the state’s prohibition law until the national wave in 1932. Thus, with much of the nation gradually turning against prohibition in the late 1920s, California moved the other way, leaving Nevada (after a doomed repeal effort in Arizona) as the only wet western state. In terms of their effect on Washington, the November 1926 elections were typical antiadministration midterms and thus tended to produce antiprohibition candidates, but it was far from the national wave the AAPA hoped for. Wets did sweep Wisconsin, where the 1926 election became a multipronged prohibition war, with the referendum and both the Senate and the gubernatorial races at least partly fought over alcohol. In the Senate race, Governor Blaine challenged Irvine Lenroot, the onetime progressive senator (and whose fierce opposition to the amendment had been replaced by prohibition zeal); this, in turn, opened up the executive chair in Madison. Blaine had now completely cast aside his small-­town dry persona, disavowing all efforts toward prohibition, sumptuary laws, or anything that he believed coerced morality.65 Although cooler heads prevailed at the ASL, with moderate leadership replacing those who planned to boycott the

162

chapter eight

election, wet forces overwhelmingly carried the day: the referendum passed by a roughly two-­to-­one margin, Blaine defeated the sitting Lenroot, and Blaine’s ally Fred Zimmerman became governor.66 Congressional elections proved somewhat mixed—­wet leaning but with significant casualties from the ranks. The Democratic Senate candidate George Brennan’s effort to ride wet coattails to victory in the Republican-­ leaning Illinois failed as the venal Frank Smith defeated him (although Congress refused to seat Smith). Other wets fared better. In Pennsylvania, the antiprohibition Philadelphia machine candidate William Vare defeated both the highly respected incumbent George Pepper and the powerful dry governor Gifford Pinchot in the Republican Senate primary and then the general election (on top of the state choosing a wet gubernatorial nominee over an ASL-­backed dry).67 The Klan’s strength in Alabama politics helped push Oscar Underwood into retirement, silencing the South’s loudest dissenting states’ rights and antiprohibition voice. (The ardently dry Klan favorite and future Supreme Court Justice Hugo Black replaced him.)68 Edward Edwards, campaigning next door in New Jersey, could no longer rely on his rakish 1920 campaign slogan “wine, women, and song” as the Republican Hamilton Kean matched even his hostility to prohibition—­thus preserving the same number of wets but eliminating one of their leaders.69 But, as pleased as the ASL might be by the defeats of Underwood and Edwards, its most notable success was the Pyrrhic victory over James Wads­ worth, ending the senatorial career of the fiercely wet Republican boss of New York. (Wadsworth would join the core leadership of the AAPA before returning to Washington as a member of Congress.) Disregarding its goal of keeping prohibition nonpartisan, the ASL took vengeance against Wadsworth by running a suicide third-­party “Independent Republican” candidate whose vote total was less than the gap between Wadsworth and the even more antiprohibition Democrat Robert Wagner. The ASL had called for his ouster and got it; nonetheless, it was hard to consider the election a dry victory when the two antiprohibition candidates combined took more than 90 percent of the vote. Wadsworth’s political effectiveness made him dangerous, but his defeat seemed more like spite than the ASL’s grudgingly respected political savvy. The ASL had installed an even wetter Democrat in Wagner, replacing a senator widely respected by drys—­and constitutionally conscientious enough to cast the occasional reluctant dry vote, as, for example, he did in grudgingly backing the Volstead Act that he so hated.70 Now Republicans in New York rightly feared annihilation regardless of their position— ­drys would face destruction from the state’s electorate,

taking alcohol to the people of the states (1925–­28)

163

while wets and even moist prohibition legalists confronted the spiteful wrath of the ASL. Considering that Wadsworth had represented a state in which 75 percent of the voters had just endorsed an advisory referendum calling for repeal of the Eighteenth Amendment, a prohibition legalist, albeit with wetter sympathies than many others, was arguably the best the league was going to get out of New York. But it had effectively insisted on a strategy that many saw as ceding the state to Democrats. Columbia president Nicholas Murray Butler, a leading conservative New York Republican and a close ally of Root’s and Wadsworth’s, bemoaned that his party would end up like the Whigs.71

1927: After the Referenda The Midwest The success of the advisory referenda in Wisconsin and Illinois spurred further midwestern attacks on prohibition. In May 1927, the Illinois House debated repealing the state’s enforcement act by forwarding a binding referendum to the people that would eliminate its prohibition laws. It had given evidence of its wet sympathies some weeks earlier when, citing the November referendum vote, it had approved a joint resolution asking for a convention to revise the Eighteenth Amendment.72 States’ rights arguments were decidedly secondary to agricultural concerns during consideration of the Illinois prohibition repeal bill in 1927. Wets and drys alike defended their position’s effects on Illinois farmers. Newspaper records of the debates do not indicate a wet states’ rights attack; instead, it was House drys who appealed to federalism, condemning Treasury secretary Mellon and the federal prohis, and wanting to ensure that enforcement remained in-­house as long as the Eighteenth Amendment remained on the books.73 Unlike the House debates, those in the Senate grappled with the bill’s con­stitutionality, with drys accusing wets of nullification and Adelbert Roberts, a black Chicago Republican, noting that southern nullification of the Reconstruction amendments was an unfortunate path to follow.74 But, despite the failure of state prohibition in Illinois and its obvious unpopularity, the legislature doubled down again, unmoved until its hand was forced by a 1930 referendum. Voter approval of Wisconsin’s referendum in 1926 emboldened the state’s previously cautious legislators in the 1927 session. The legislature moved

164

chapter eight

to implement the referendum by passing the so-­ called Duncan Bill—­ eliminating penalties for the manufacture or sale of beverages with up to 2.75 percent alcohol by volume. Wisconsin legislators were asserting their prerogative to define intoxicating as they saw fit, not as Washington did.75 The Socialist Thomas Duncan’s bill garnered fierce protests. Assemblyman John Baker called it “almost equal to secession”; the Wisconsin State Journal declared it “nullification in an insidious form,” and still others said that “by inference at least” it was a “dangerous” bill that had Wisconsin defying federal law.76 Senators W. S. Goodland and William Titus had laid the groundwork for opposition to repeal as rooted in prohibition legalism, with both noting that they would repeal the Eighteenth Amendment but remained bound to enforce it until that happy day.77 As a protégé of the once-­dry, now-­wet John Blaine, Governor Zimmerman had not made his own views on prohibition clear. But, if the Duncan Bill was the Wisconsin equivalent of New York’s Mullan-­Gage Bill repealing concurrent enforcement, Zimmerman was no Al Smith. Zimmerman, a member of the state’s progressive wing, had replaced his ally Blaine on the latter’s election to the Senate. Where Smith vacillated in using state political offices as sites of constitutional interpretation, Zimmerman believed doing so to be his duty and issued a detailed veto message on constitutional grounds.78 Zimmerman began with a brief, somewhat technical aside suggesting that the bill’s specifics did not enact the policy proposed by the referendum, but the bulk of the largely educative veto message was a refusal to participate in and plea to dissuade fellow citizens from encouraging what he dubbed nullification. Working through constitutional authorities, he argued that the Duncan Bill violated the supremacy clause of the US Constitution, and he cited the National Prohibition Cases and a similar case from the Massachusetts Supreme Court in fleshing out this position. Moreover, he explained, “this bill would not ‘bring beer back’ but would instead violate a ‘fundamental principle of criminal law that its provisions should be free from all uncertainties and ambiguities.’ ”79 Dueling definitions of intoxicating would only confuse citizens, which is why Blaine had vetoed the even more draconian state bill the previous term and instead put his weight behind the Severson Bill and its Volstead implementation. Zimmerman liberally borrowed from his popular predecessor’s message, repeating the call for harmony between state and federal enforcement. Legalization of beer was not such harmony. Instead, Zimmerman invoked Wisconsin’s proud service in the Civil War as a reminder of where faithless treatment of the Eighteenth Amendment might lead:

taking alcohol to the people of the states (1925–­28)

165

[Although] the enactment of this bill . . . will not in any way prevent the enforcement of the Volstead Act by the federal government . . . [i]t is also clear that this bill is invalid; that it attempts, by indirection, to nullify a law of the United States. . . . It says, in effect, “You may violate the federal law. . . .” It is a pretense to do a thing which is not permissible. It is an invitation to the citizens of Wisconsin to violate the federal law. It precipitates an immediate conflict between the state of Wisconsin and the Union of states to which it belongs. Its only precedent is one that forms a dark chapter in American history . . . the nullification ordinance of South Carolina in 1832 when that state passed an act refusing to abide by a federal law.80

Despite his roots in brewing-­heavy Milwaukee, Zimmerman appealed to Wisconsin’s Union legacy in defending the Constitution against Calhoun. “This doctrine,” he reminded readers, “led to the Civil War twenty-­eight years later.”81 His message received wide circulation, with local newspapers printing it at length or in full on their front pages.82 The state’s newspaper editorial boards seemed impressed with and persuaded by the governor’s logic, with one arguing that Duncan’s epithets were hardly the appropriate “thanks [due Zimmerman] for keeping his inviolate oath of office,” unlike “the wet element which cares nothing for the constitution or laws or . . . oaths.”83 Out-­of-­state newspapers as far as Massachusetts and West Virginia praised Zimmerman for such a thoughtful and educational message.84 With that veto, prohibition enforcement remained uniform throughout the Midwest, although clearly threatened.85 The two midwestern states that held referenda in 1926 were not the only ones whose legislators found new boldness in the wake of the 1926 votes as their neighbors in the old home of Andrew Volstead did so as well. Minnesota Republicans allowed, but voted down, a state referendum calling for modification of the Volstead Act to allow states to define intoxicating.86 The Northeast and the South Massachusetts also came close to holding an advisory referendum (with two questions, one asking for repeal of the Eighteenth Amendment and one calling for more flexible standards of intoxicating). Sufficient signatures were gathered to force a legislative vote (and the standard calls of nullification); only the last-­minute nay by Republican Speaker John C. Hall created a tie vote blocking the referendum.87 Maryland wets also pushed on intoxicating, narrowly failing to petition Congress to amend Volstead to return

166

chapter eight

to states the right to define it within their borders as well as to call for a constitutional convention.88 The West Near misses in Wisconsin and Massachusetts suggested some shift from pro­ hibition, but in hindsight drys ought to have been more concerned about growing disillusionment in Arizona. The Massachusetts legal elite jealously guarded state sovereignty on most issues, and Wisconsin, with a similar legacy of federalist strength, had always been something of an awkward site for prohibition in particular: a high percentage of its population was descended from Germans, for whom beer was an important part of the culture, its brewing industry meant prohibition imposed sharp economic costs, and, perhaps most importantly, its Republican Party was organized in a way that made it not especially comfortable with prohibition. The La Follette branch, which generally led Wisconsin politics, was far more ambivalent on prohibition than most other progressive factions throughout the country. Moreover, its rule was not ironclad, and, as Governor Philipp’s veto showed, the party’s conservative, business-­oriented branch was not particularly keen on prohibition either. By way of contrast, Arizona had every reason to be ardently antialcohol, which is why it unsurprisingly adopted prohibition so soon after statehood. It was largely old-­stock Americans, which had been why its citizens protested against the proposed joint admission with New Mexico’s Spanish-­speaking Catholic Republicans.89 Its limited and precious water was not exactly going to a brewing industry. Most importantly, it combined an ardent progressivism with a civic republican streak that even then flirted with xenophobia. In short, like Los Angeles to the west, Arizona fulfilled every ethnocultural explanation for strong prohibitionism, which is what had happened in the 1910s. The prohibition issue had been quiet in Arizona since William Jennings Bryan had visited in May 1918 to lobby for the state’s ratification vote.90 A 1926 poll of Arizonans showed interest in prohibition reform but still a majority in favor of maintaining its core.91 But, by 1927, even that arch-­dry bastion seemed to be reconsidering. In that year, the Arizona House voted to place an advisory referendum on the ballot by a decisive 31–­18 margin. Representative Guy L. Jones, who hailed from Phoenix’s Maricopa County, requested that the journal print his floor statement, a subtle, textually rooted internal debate grappling with his

taking alcohol to the people of the states (1925–­28)

167

increasingly conflicted beliefs. Jones concurred with the Women’s Christian Temperance Union on the horrors of alcohol and suggested that Arizona had been right to be a semidry state before national Prohibition, and he took pains to remind his listeners that “the Eighteenth Amendment is a part of the Constitution . . . arrived at by the orderly process prescribed for constitutional amendments.” However, he added: “While I give assent to the law and give punctilious observance to it, I have the right, and the duty . . . to seek its modification or repeal in the interest of . . . liberty . . . by using the ordinary parliamentary methods which have secured the passage of other laws.”92 Doing so, Jones continued, by asking for a referendum to help a subsequent appeal to Congress was the fulfillment of the “Jeffersonian principle of democracy” and part of a restoration of the Tenth Amendment and its “wisdom” of leaving all local matters to states and keeping “all rights not specifically conceded” out of the hands of the federal government.93 For Jones, the Sheppard Amendment and the Volstead Act were valid acts of positive law to which he owed obedience as part of his constitutional oath, but they were nonetheless alien to what he understood to be the American political order and ought to be opposed by legitimate means and eventually repealed. The state Senate, however, ignored the bill, and thus we have no referendum from which to determine the extent to which Arizona’s voters agreed with Jones and his fellow representatives. But if Arizona did not get its specific referendum in 1928, there was another potential opportunity to have such a vote that year. The 1928 presidential election between Herbert Hoover and Al Smith became something of an inkblot test of prohibition, with contemporaries—­like generations of later scholars—­fighting to interpret the vote as proof of their political theories.

1928: State Referenda The year 1928 proved to be a difficult one for those trying to gauge the nation’s prohibition sentiments as votes cast for candidates suggested even more support for prohibition, while support for referenda seemed to indicate the opposite. Three states held prohibition referenda in 1928, with wets outright winning two in November after procuring a clear moral victory in a summer special election. Although North Dakota voted to keep its alcohol laws in a petition-­driven June election, wets rightly claimed a moral victory owing to the tight vote. Only a 2.5 percent margin (103,696–­96,837 votes)

168

chapter eight

separated the two camps—­this in a state that was nearly all rural, old Protestant, and progressive/populist leaning and that had entered the Union with prohibition in its constitution, making it, along with Maine and Kansas, firmly part of the prohibition vanguard.94 Prohibition was also reconsidered in North Dakota’s neighbor Montana, whose leading politician, the nominally Democratic, fiercely progressive, and dry senator Burton Wheeler, had been La Follette’s 1924 running mate, and where a referendum had repealed the state’s concurrent enforcement regime in 1926. The vote in 1928 almost exactly mirrored the earlier vote (with roughly 1 percent more wet support), confirming the state’s refusal of concurrent enforcement.95 Massachusetts, the third state to hold a referendum in 1928, illustrated the usual disjuncture between a popular constitutionalist desire to resist the Eighteenth Amendment and the elected legislature’s inability or unwillingness to do so. Rather than make another attempt at a policy-­changing beer bill after 1927’s near miss, Massachusetts wets tried a variety of techniques to procure an advisory referendum on repealing the Eighteenth Amendment altogether. Although initially blocked by both the judiciary and the legislature, wets used a technicality to generate a new petition in July, restoring the advisory repeal referendum to that year’s ballot.96 As in the legislative debate, media coverage was relatively sparse as Bay State voters had been fighting the same fight for almost ten years. One exasperated legislator had justified his turn from wet to dry by claiming that he was tired of debating the issue and wanted to increase the futility of further contesting prohibition. Nonetheless, in a radio address shortly before the election, one of the wet leaders, the former assistant attorney general Alexander Lincoln, explained the constitutional justifications for the advisory referendum: it would restore states’ rights, eliminate the “hideous deformity in the Constitution,” and, crucially, unlike the repeal of state prohibition laws, not engage in nullification.97 The ASL again professed indifference to a purely advisory campaign, but it had clear reason to fear the result. Not only did the wet Al Smith win Massachusetts (which, like Rhode Island, voted Democratic in a two-­party presidential election for the first time since 1896), but the total votes cast for the prohibition referendum also exceeded those cast for Smith by 200,000 votes. That margin, the head of the Constitutional Liberty League argued, indicated that Massachusetts voters preferred straight-­up repeal and “the restoration to the States of local self-­government” rather than a minor shift in beer policy.98 For those trying to generate a constitutional form of resistance to the Eighteenth Amendment, the Massachusetts initiative was

taking alcohol to the people of the states (1925–­28)

169

ideal: it was simply advisory rather than obstructive, and it gave a far clearer indication of voter preferences than a candidate vote—­but candidate votes, not constitutional theory, garnered most of the attention in fall 1928.

1928: The Presidential and Congressional Elections The state advisory referenda were mere undercards in 1928 considering the sharply different alternatives: on the one hand, Al Smith’s election to the White House and, on the other, Herbert Hoover’s drift into a tight alliance with the ASL. While Coolidge remained immensely popular and would have likely swept to a second full term, his inscrutable declaration “I choose not to run”—­ probably owing to lingering grief over the death of his young son—­meant that Hoover—­with whom Coolidge had a testy and uncertain alliance—­ would take that term in defeating Smith. (Whether Hoover was Coolidge’s conservative heir is a much-­debated proposition; he most likely disagreed with Silent Cal’s policies but shared his predecessor’s constitutional conservatism. In effect, he was like Al Smith.)99 The Coolidge prosperity, coupled with the almost celebrity status attributed to the immensely popular Hoover, made a Democratic challenge appear quixotic, but the Happy Warrior was willing to try anyway. In one of his last acts before his death, Wayne Wheeler, terrified at the prospect of Smith making prohibition a partisan issue, secured ASL board approval to intervene in the primary and prevent that possibility.100 Unlike in 1924, however, the ASL had no obvious channel through which to direct its support. With the likely challenger McAdoo, still stinging from an association with the Teapot Dome scandal in his legal practice, declining a rematch, Smith secured the nomination almost by default, but this did not erase the deep divide exposed by the fraught 1924 Democratic primary.101 Not only did Hoover have the 1920s economic boom behind him, but he was also personally popular as an embodiment of the American dream. He seemed to spring up from a Horatio Alger story—­an orphan boy from Iowa who had gone to the booming West (to Stanford) and there became a brilliant, successful, wealthy, and world-­renowned mining engineer. Rather than continue plowing his talents into profit, he retired from business and deployed his logistic genius in the service of the nation and the world, conducting the campaign of European food relief during World War I. There, he was widely credited with averting a famine, and he parleyed those organizational

170

chapter eight

skills into the US Food Administration under Wilson (and the Lever Act). Spurning Franklin Roosevelt’s entreaties to run for president (as a progres­ sive Democrat) in 1920,102 Hoover—­a former Bull Moose backer—­ran a quixotic effort in the Republican primary but quickly fell in line with Warren G. Harding, securing the secretary of commerce slot. The “Boy Wonder,” as the less awed and less government-­friendly Coolidge sarcastically dubbed Hoover,103 had a reputation for scientific policymaking and partnership between an active government and business. He was, in sum, a well-­known national celebrity, an ideal candidate for both progressives and business alike, and boasted a personal background tailor-­made for campaign ads. Al Smith was not so lucky. Even were he not running against the Repub­ lican economic juggernaut, as a Catholic with a clearly identifiable New York accent and mannerisms and roots in the despised Tammany machine, he had a tough path ahead. Many New Yorkers’ displays of provincialism, self-­importance, and boorish behavior had horrified convention goers, and the nation at large, during the 1924 convention.104 McAdoo had strategically exacerbated Democrats’ sense of alienation from Gotham, but Smith did not exactly discourage his reputation for being “as provincial as a Kansas farmer,” to use Mencken’s phrase, someone “not only not interested in the great problems that heave and lather the country,” but someone who “has never heard of them.”105 Instead, as Smith infamously observed, he would “rather be a lamp post on Park Row than Governor of California,” and he assembled his 1928 presidential team almost entirely from New Yorkers.106 Mencken—­who openly confessed himself a partisan of James Reed and Albert Ritchie but who nonetheless greatly appreciated Smith, wrote off the 1928 election as a mere “good show[,] about the best we can ask from . . . [these] pussy-­footing later years”: “Ritchie’s issue of states’ rights, it seem[ed] to me, is likely to make a great deal of progress in the years to come.” But for now, Mencken sighed, the American people were still too much “gluttons for punishment” to be interested in Ritchie’s ambition to remake the party system and its elections about great constitutional principles:107 “They will stand a great many more doses of Federal usurpation before they revolt at last. Today they complain of Prohibition. They will have a lot more to complain of before the tale is told. At the moment the campaign for States’ rights is thus mainly legalistic. . . . But I believe that [Governor Ritchie will be well suited] in 1932 and 1936. There is no telling when some super gorgeous obscenity in the Federal courts may set the plain people to yowling.”108 Mencken may have been wrong about Ritchie’s chances, but he was right in his assessment of the relatively minor differences between the 1928

taking alcohol to the people of the states (1925–­28)

171

nominees. Ideologically, the two were almost interchangeable, business-­ friendly states’ rights progressives wedded neither to unregulated markets nor to radical leveling. On paper, their commitments to Prohibition would have indicated a similar result as both platforms blandly professed faithfulness to law enforcement. The Democrats pledged “an honest effort to enforce the eighteenth amendment and all other provisions of the federal Constitution and all laws enacted pursuant thereto.” The Republicans, citing and paraphrasing Lincoln’s belief in the need to “stick by that Constitution in all its letter and spirit from beginning to end,” noted: “The people through the method provided by the Constitution have written the Eighteenth Amendment into the Constitution. The Republican Party pledges itself and its nominees to the observance and vigorous enforcement of this provision.”109 Thus, Walter Lippman’s complaint that the only difference between the platforms was that the GOP’s was longer seems accurate, and many grumbled that, as in 1924, there was little to vote on other than cultural cues since the candidates were so close in terms of policy and ideology.110 William Leuchtenberg argues that the campaign degenerated into Prohibition and cultural cues since there was nothing else to talk about; with Hoover pushing hard on the all-­American narrative of local farm boy made good, he primed the campaign to be a contest between foreigners and old-­stock Americans.111 The left of the Democratic Party’s progressives grumbled that Smith was too probusiness, an eminently reasonable claim considering that his prominent backers included Nicholas Murray Butler (the conservative Republican president of Columbia) and that he had installed as Democratic National Committee chair John Raskob, a similarly conservative business Republican who shared Smith’s Catholicism and Butler’s fanatically wet views.112 The then-­Jeffersonian-­sounding Franklin Roosevelt seemed to prove the charge, writing letters to constituents praising Smith as more deregulatory than the statist Hoover, who FDR ominously warned had a “paternal” mind looking to move government from “merely advisory and helpful” to “regulatory and dictatorial.”113 For a dry Democratic regular skeptical of business, there was remarkably little to recommend the party’s ticket. His reluctant repeal of New York’s Mullan-­Gage enforcement law had made Smith the de facto leader of American wets and able to appeal to cross-­party voters like Butler. (That he had signed the repeal under duress, rather than as a visionary constitutional entrepreneur like Maryland’s Ritchie, seemed forgotten.) His public declarations—­most notably in his

172

chapter eight

telegram accepting the Democratic nomination—­mixed stock prohibition legalism with championing of the wet cause: he would enforce the Prohibition laws, consistent with his oath, but would lead the effort to achieve their lawful repeal and the restoration of states’ rights.114 This unsurprisingly annoyed dry Democrats, who especially loathed charges of anti-­Catholic bigotry rather than opposition to Smith’s Prohibition stance. Thus, keenly aware of his unpopularity below the Mason-­Dixon line, Smith tried to remind southerners of their supposed historic belief in states’ rights and urged them to apply that creed to Prohibition as well.115 Raskob and his surrogates at the Democratic National Committee quietly adopted a more vicious posture, repeating and inverting black drys’ justification for prohibition: respect for the Eighteenth Amendment could ultimately encourage respect for the Fifteenth and result in a broader northern intervention against white supremacy.116 Or, stated more bluntly by an Alabama judge trying to rally support for Al Smith back home, “the Republican Party still smells strongly of the negro.”117 A similar exchange four years later, during Smith’s abortive 1932 run, reinforces how even comparative racial moderates in the South found this an appealing argument in a presidential campaign. As a recent biography of Huey Long recounted, the populist Louisiana governor disastrously tried to curry favor with then candidate Al Smith by explaining that racism, not moralism, had accounted for Dixie’s support for the Eighteenth Amendment. (Long evidently concluded Smith would rather hear southerners were antiblack than anti-­Catholic.) Thus, a visiting—­and inebriated—­ Huey Long observed to Smith that Smith’s aggressive attacks on prohibition would alienate southerners and again ruin his chances to become president. Southerners enjoyed drinks like other Americans, Long insisted, but they needed to implement a restrictive alcohol regime because “there are some people we don’t want to get it.” The racially progressive Smith quietly excused himself, asking their mutual contact to “come and get this fellow . . . [before I] throw him off the roof.”118 But Smith either did not know or turned a blind eye to Raskob’s efforts to make just that appeal at the 1928 Houston convention. The ASL—­no stranger to such tactics—­failed to block Smith’s nomination, but it could hardly have been disappointed with the final outcome in both the congressional and the presidential elections. Scott McBride, the new (nominal) leader of the ASL, counted a three-­to-­one majority in the House and gloated that “the wet leadership in Congress has been prac­ tically annihilated”—­with the Republican Walter Edge, the lone survivor of

taking alcohol to the people of the states (1925–­28)

173

“the B-­E-­E-­R quartet” of ultrawet senators, not up for election yet but marked for defeat like his three Democratic allies. The “B,” William Cabbell Bruce in Maryland, and Edward Edwards (an “E”) in New Jersey both fell (though Edwards was replaced by a wet Republican), and Missouri’s James Reed—­“the R”—­retired, replaced by a bone-­dry Republican. The only wet surprises and clear victories were Senate races in Massachusetts and Rhode Island—­written off as both quite wet and heavily Catholic—­but even then by thin margins.119 Wet Republicans had warned that Prohibition would doom the GOP, but instead it seemed to help the party expand into long-­forbidden territory. For the first time since the establishment of Jim Crow, Republicans had made inroads in the South, winning almost half the Confederacy, taking Texas, Florida, Tennessee, North Carolina, and Virginia, and coming within 2 percent even in Alabama. A grateful Hoover could offer a significant share of the credit to prohibitionists and the ASL’s James Cannon for that achievement, though perhaps he owed the most to Idaho senator William Borah. Borah proved one of the most effective and active stump speakers for the ticket in 1928, as effective a backer of the GOP as Hoover’s team. His general commitment to states’ rights was well-­known as he prominently opposed other federal expansions throughout the 1920s but argued that the Sheppard Amendment both imposed an obligation and did not jeopardize federalism: it had required changing the Constitution, not just reinterpreting it. Thus, during the 1928 campaign, Borah became perhaps the most popular public speaker in the country, marshaling his status as a constitutional law expert— ­one who had soundly defended the compatibility of Prohibition and constitutional federalism, most prominently when he thoroughly defeated the wet Republican (and eventual Smith defector) Nicholas Murray Butler in a widely publicized debate in April 1927. Borah extensively invoked the contrast of Lincoln’s disavowal of attacking slavery within the states at the start of his presidency with the destruction of slavery after the passage of the Thirteenth Amendment—­“the exercise of the same power as exactly as we exercised in passing the Eighteenth Amendment.” And the states’ rights Webb-­Kenyon? Ineffective, Borah argued, because alcohol shipped through the state too often remained there and thus “the wet states can ship wet into the dry states, but the dry states cannot ship dry into the wet states.” Borah was more than a smart lawyer and convincing speaker: he had approached Hoover in early 1928 to get him on board with Prohibition (and control the platform) rather than let Butler and the wets soft-­pedal it.120

174

chapter eight

Nor had Borah been the only dry government official to barnstorm the coun­ try on behalf of Hoover. Assistant Attorney General Mabel Willebrandt—­ one of the most famous women in America and a genuine celebrity—­not only ran interference for Hoover by deploying Prohibition agents in New York City (to embarrass Smith) but also openly campaigned for Hoover in Protestant churches; the Republican National Committee rebutted charges that she abused her government position by claiming that she was simply freelancing as a private citizen whenever lecturing on behalf of Prohibition.121 Some journalists had (mistakenly) interpreted Coolidge’s failed scheme to deputize state law enforcement agents as a potential effort to align the Republicans with drys against the presumptive Democratic nominee, the wet Al Smith.122 Whatever Coolidge’s calculations had been, the 1928 election seemed to have made that outcome true: Borah’s, the ASL’s James Cannon’s, and Willebrandt’s aggressive interventions all reinforced the idea of the Republican Party—­at least its presidential wing—­as indistinguishable from the dry cause of constitutional enforcement, much to the consternation of the party’s frustrated wets.123 Looking back on the period since the 1924 election, prohibitionists had reason for confidence. After six years of unenthused enforcement by Calvin Coolidge, the new president-­elect had cast his lot with Prohibition and tried to pull the machinery of the Republican Party with him. The Democrats’ flirtation with a wet candidate had been so thoroughly repudiated that even the Solid South had been broken. Many of the leaders of the antiprohibition faction in Congress had retired or been forced out: James Wadsworth, James Reed, Edward Edwards, and Oscar Underwood were gone, while William Borah now had the president’s ear. In terms of state enforcement, Montana had eliminated concurrent enforcement and confirmed its vote in a subsequent election, but it had been the only loss after a trio of states had abandoned enforcement in the early 1920s. Nonetheless, there was cause for concern. Only close calls preserved the concurrent enforcement laws in Wisconsin and North Dakota. Perhaps more troubling from a long-­term perspective, the ASL’s success in controlling legislators in both Washington, DC, and the states did not translate to the voters as referenda demonstrated weaker support among the electorate. The ASL itself was in a period of transition. A long-­ailing Wheeler had died in September 1927, his last major public appearance a debate with Clarence Darrow that Wheeler arguably won but during which a hostile Madison Square Garden crowd had ceaselessly booed him. Decades of tireless devotion to the cause had already weakened the ASL workhorse’s

taking alcohol to the people of the states (1925–­28)

175

health, but tragedy ultimately did him in: He was felled by a heart attack a week after he personally put out a house fire that claimed the lives of his wife and father-­in-­law.124 The ASL nominally replaced him with former Illinois ASL director Scott McBride, but the league’s real power now lay with Wheeler’s Democratic lieutenant, the Methodist bishop James Cannon. Wheeler’s death removed the ASL’s chief strategist and proponent of nonpartisanship, only further easing the much-­criticized apparent blending of the ASL and the GOP that would ultimately help discredit both.125 The ASL’s tight involvement with Hoover risked making its policy that of Anderson’s rigid partisanship rather than Wheeler’s pivotal politics. That could be fine, as long as the Republicans remained a successful governing party. But, of course, they did not. The Great Depression would not only decimate state and federal revenues— ­enabling a new attack on Prohibition as depriving government of necessary tax revenue—­but also soon destroy the GOP’s electoral fortunes, dragging the ASL down with it.

chapter nine

The Noble Experiment (1929–­31)

We settled down to cigarettes, guesses on who’d be the next heavyweight champion . . . [and] the possibilities of Prohibition being either abolished or practiced.— ­The Continental Operative, “The Big Knock-­Over”1 I have been selected by you to execute and enforce the laws of the country. I propose to do so to the extent of my own abilities, but the measure of success that the Government shall attain will depend upon the moral support which you, as citizens, extend. . . . Our whole system of self-­government will crumble either if officials elect what laws they will enforce or citizens select what laws they will support.—­Herbert Hoover, Inaugural Address, March 4, 19292 [Hoover] is the sort of man, who, if he had to recite the Twenty-­Third Psalm, would make it sound like a search warrant under the Volstead Act.—­H. L. Mencken3

U

nlike Calvin Coolidge, who had commissioned a blue-­ribbon crime panel but whose unease with federal power made him more likely to conclude that ultimately “religion [was] the only remedy,” Herbert Hoover from the beginning declared crime a problem to be dealt with by the federal government, offering the first inaugural address in history to do so. The new president took note of federalism, approvingly recognizing: “The authority of the Federal Government extends to but part of our vast system of national, State, and local justice.” But that did not mean that there was no federal role: Hoover called for national pressure to help see the Constitution enforced. That meant that the “standards which the Federal Government establishes have the most profound influence upon the whole

the noble experiment (1929–­31)

177

structure”—­in effect, that he would be assembling a federal commission to investigate law enforcement and induce states to adopt the national government’s superior practices. It also meant shaming those who shirked their duty as he attributed Prohibition’s gaps “to the failure of some States to accept their share of responsibility for concurrent enforcement and to the failure of many State and local officials to accept the obligation under their oath of office.”4 But Hoover did not have to wait for his national commission to report back before fulfilling his Republican national convention pledge to assist the “great social and economic experiment, noble in motive and far-­reaching in purpose.”5 On taking office in March 1929, he had unprecedented enforcement muscle behind him. The 1929 lame-­duck session of Congress had passed the Jones Act, commonly called the Five-­and-­Ten Act for increasing federal Prohibition violation penalties to five years or $10,000. James Cannon, Scott McBride, and the Anti-­Saloon League (ASL) leadership surveyed the results of the 1928 election with pleasure, results that Cannon could point to in pressing the equally ultradry Senator Wesley Jones (R-­WA) to push through his enforcement bill. The ASL had read the 1928 election as a sweeping Prohibition mandate, but the Jones Act’s widely perceived spitefulness—­a perception encouraged by William Randolph Hearst, who compared it to the Alien and Sedition Acts as among the “most menacing piece[s] of repressive legislation” in history—­soon inflamed public opinion.6 Hoover—­grateful to the prohibitionists for his electoral success, confident in government power’s ability to improve society, doggedly devoted to the Constitution, and armed with the Jones Act—­was thus well primed to become a dogged enforcer of the Eighteenth Amendment and a disciple of prohibition legalism. And he would not be alone. Hoover and the new Congress were not the only governing officials in line with the ASL’s priorities: so too were nearly all the state legislatures, with only five wet governors in the entire country.7 The nation’s prohibitionists had control of most states and the federal government, with the president an eloquent defender committed to following through what he understood to be his constitutional obligation. On the other hand, a handful of states were increasingly willing to assert their sovereign prerogative to push back on prohibition by various techniques short of nullification, and wets had found in the referendum a strategy bypassing the electoral pressures of the ASL. Prohibitionists had built up the institutional and intellectual forces to advance what they understood the

178

chapter nine

Constitution to require. Insisting that the Eighteenth Amendment did not go that far in reducing states’ rights, their opponents had finally done the same. Now, facing draconian enforcement, they had even more incentive to fight back. The stage was set truly to test the noble experiment and whether America really wanted the federal government to exercise the states’ traditional police powers over alcohol.

The South (1929–­30) Prohibition had helped give Hoover a toehold in the South, and southern state governments unsurprisingly returned the favor in beating back efforts to weaken state enforcement laws. Between 1929 and 1930, isolated southerners offered localist attacks on national Prohibition—­sounding like the northeasterners who had decried the imposition of the Eighteenth Amendment by Dixie—­but no change actually resulted. Although not amounting to much, by 1929, dry Florida’s consensus had begun to falter, with calls for an in-­house definition of intoxicating emanating from such local worthies as its own supreme court. Florida chief justice William Ellis and his successor, Rivers Buford, were the most prominent of many Floridians invoking traditions of states’ rights and resentment of Yankees in Washington.8 State legislators in Tallahassee, however, clung to the status quo, approving resolutions appealing to Washington for zealous enforcement of Prohibition and the implementation of the draconian new Jones Act.9 The wettest state in the South similarly stuck with Prohibition once more, but the unpopularity of the Eighteenth Amendment became apparent during Louisiana’s special session in September 1930, which foreshadowed the antiprohibition backlash of that November. By a narrow 17–­ 19 vote, the Louisiana Senate narrowly blocked a memorial to Congress seeking repeal of the Eighteenth Amendment.10

The Midwest (1929–­30) By far the most active region in reconsidering Prohibition in 1929 and 1930 was the Midwest. In Nebraska, Republican governor Arthur J. Weaver reiterated his party’s platform, declaring himself “unalterably opposed to the repeal of the state prohibition amendment and the laws enacted thereunder,”

the noble experiment (1929–­31)

179

and adding that he “unreservedly condemn[ed] all suggestions of weakening the national constitution by state nullification.”11 But, while Weaver’s thought represented the mainstream of both his state—­he would be defeated by Nebraska’s former governor, Charles Bryan, the equally dry brother of William Jennings Bryan—­and the region, the traditionally wet states of the Midwest began buckling against Prohibition. Michigan remained draconian in its enforcement, even after a widely reviled law imposing a life sentence for a fourth prohibition violation garnered national press in early January 1929 for convicting a forty-­eight-­year-­ old mother of ten.12 A frustrated minority of Michigan legislators lamented the success with which the state’s leadership had suppressed referenda in previous years, but their quixotic resolution at least managed a floor vote in 1929. Although the vote failed, it offered a new turn, relying solely on claims about prohibition’s lack of efficacy and cost, not federalism.13 By way of contrast, in Missouri, antiprohibitionists carried on Jim Reed’s tradition of attacking the Sheppard Amendment on federalism grounds. The sponsors of a failed states’ rights memorial to Congress rather audaciously turned the usual dry claims of nullification around, insisting that the continued growth of federal power broke the constitutional settlement. In this account, by expanding the interpretation of commerce and especially the Eighteenth Amendment, Congress had made a “progressive assumption . . . of powers reserved to the states, with a consequent nullification of the rights of local self-­government and the functions of sovereignty reserved . . . by the Constitution.”14 But this went nowhere: as one would expect in a state where drys did well in the 1928 election, the House suppressed a vote on repealing the concurrent enforcement law and rejected a proposal to hold a Prohibition referendum.15 The sensational killing of the wife of a small-­time bootlegger in Aurora, Illinois, intensified criticism of Prohibition in Illinois, with the Chicago Tri­ bune on the warpath for months.16 It was still not enough, however, to re­ open the policy window and allow any serious challenge to the state’s pro­ hibition law. As had been the case throughout the decade, despite the state suffering arguably some of the worst prohibition-­induced violence in the nation, Illinois’s Senate Republican leadership ignored the issue despite House pressure to do so—­pressure that in turn came from constituents increasingly disillusioned with the violence, poisoning, expense, and civil liberties violations.17 The lower chamber had unanimously praised Hoover for considering what became the Wickersham Commission, hailing the desire to

180

chapter nine

“provid[e] more adequate and expeditious means of enforcing the law.” (It also requested that he include enforcement of the Fourteenth and Fifteenth Amendments in the commission’s portfolio.)18 At the same time, however, the House pushed for a test suit to reclaim power over the “subject of medicinal liquor, sacramental wine and industrial alcohol or with beverages that are non-­intoxicating in fact”—­with the last clause a possible backdoor effort to legalize beer and light wines.19 The Senate ignored that proposal as well as efforts to modify enforcement funding or redefine the definition of intoxicating. In the face of such continued obstruction and its obvious incompatibility with the preferences of Illinois voters, Democrats moved to bypass the legislature again, while the wet faction of the GOP loudly pleaded for acknowledgment of its existence. Anton Cermak, the boss of the Chicago Democracy (and its mayor from 1931 until his death during the failed Roose­ velt assassination in 1933), began circulating a petition to hold another Prohibition referendum. Unlike the 1926 referendum, this one would have three parts: should Congress repeal Volstead, should Congress repeal the Eighteenth Amendment, and should Illinois repeal its concurrent enforcement act? Although nearly all Chicago Republicans were similarly wet and offered support, Cermak was blunt in rebuffing them and attempting to claim antiprohibition politics as a Democratic wedge issue.20 (He was helped in this by the Republicans’ expected senatorial nomination of the dry progressive Ruth Hanna McCormick, the widow of former senator Joseph McCormick, who was the brother of the much more conservative Chi­ cago Tribune publisher.) Unfortunately for Cermak, his fellow Democrats blocked the plan on the grounds that it would let wet Republicans protest Prohibition while nonetheless backing McCormick. The Cook County GOP, agreeing with that assessment, moved into the void and dispatched its members for signature gathering (and presumably branding). Chicago Republicans quickly procured sufficient petitions to place Cermak’s three questions on the ballot, handing them in to the secretary of state with a prominent photo op claiming party credit for it.21 The imminent referendum vote scared prominent prohibitionist Republicans into hedging moist positions endorsing popular sovereignty—­with the ASL lashing out at the prospect of following the people’s pronouncements instead of its own. One of Illinois’s former Republican senators who had voted for the Eighteenth Amendment now openly declared it a failure and, although insisting that he remained a prohibitionist, pledged his support for whatever the referendum decided.22 Even McCormick backed

the noble experiment (1929–­31)

181

down from her hard-­line prohibitionist views, pledging in August to follow the alcohol position adopted by voters in the referendum, and backing a state party platform doing the same.23 The ASL sought to punish this Illinois Republican treachery just as it had with James Wadsworth in New York, nominating a suicide third-­party candidate to defeat the moist McCormick even if it meant the election of the wet Democrat J. Hamilton Lewis.24 Having lost control of both nominees for US Senate as well as the state house and, as the referendum would almost certainly demonstrate, the people, the true-­believing drys in Illinois were living on borrowed time. They retained control of the Senate for the moment, but they had lost the Land of Lincoln. It was Wisconsin that finally resumed the states’ slow retrenchment of concurrent enforcement laws from the apex reached in the early 1920s. No state had dropped concurrent enforcement since Montana’s vote in 1926, but, in 1929, Badger State legislators put forward both a flurry of resolutions and yet another effort to repeal the state’s concurrent enforcement—­ now without Fred Zimmerman in position to veto it. The state’s leading wets alleged that Prohibition enforcement had become political and retributive rather than professional, as it had been under Blaine’s stewardship. In 1929, both Thomas Duncan, the author of the repeal bill vetoed in 1927, and now US senator John Blaine claimed that heightened federal Prohibition enforcement in Wisconsin was designed to punish the state for replacing the dry Senator Lenroot and coming within a gubernatorial signature of repeal of concurrent enforcement. Duncan conversely charged Zimmerman with selective nonenforcement in Milwaukee as part of an effort to minimize Prohibition’s unpopularity.25 Again vindicating Lodge’s prediction of free riding, and coming dangerously close to vindicating wet fears that Prohibition would ultimately sweep aside states’ rights, some dry newspapers in Wisconsin began to argue that prohibition needed to be centrally administered and backed proposals to repeal state prohibition in order to force centralization from the US government.26 Wets in the state legislature reciprocated by playing off Wisconsin’s reputation for racial progressivism, charging drys who bleated about the need for constitutional fidelity to the Eighteenth Amendment with hypocrisy for neglecting the similarly underenforced Reconstruction amendments. In 1923, Timothy Burke, the longtime state senator from Green Bay, had called for a constitutional convention to end Prohibition, not surprising in such a wet state. What was surprising, however, was his justification, especially considering that he was neither a Democrat nor a random

182

chapter nine

Republican backbencher but one who had served fifteen years, with two stints, including the preceding session, as Senate president. That is to say, Burke had been a key part of the leadership of Wisconsin’s heirs to the Party of Lincoln. But, in bitterly calling for a convention to repeal the Eighteenth Amendment, he sounded almost neo-­Confederate, explaining that the alternative of leaving Prohibition in the Constitution would render it another amendment like Reconstruction, doomed, like them, to end up “in the silent halls of legislative oblivion, conceived in intolerance and born in hysteria, its demoralizing influencing undermin[ing] not only the vicious propensities of its provisions but all law whatsoever.”27 Burke’s bitter proposal had failed, but, in 1929, Wisconsinites more positively deployed Reconstruction against Prohibition. A successful legislative memorial argued not only that it was hypocritical of southerners to preach about the sanctity of enforcing liquor law when openly blocking the Reconstruction amendments but also that Prohibition directly resulted from failure to apply section 2 of the Fourteenth Amendment. Had the constitutional penalty for racial disenfranchisement been appropriately enforced, depriving southern states of much of their House representation, Wisconsin legislators grumbled that at the very least the Volstead Act’s strict definition of intoxicating would never have cleared Congress.28 More dangerous than the steady stream of smug barbs or symbolic protests, however, was the decision to hold a statewide referendum on the Severson Act’s concurrent enforcement.29 The successful advisory referendum in 1926 requesting that Congress modify the Volstead Act had only encouraged further pressure; now state legislators in Madison wanted to put the state’s own policy to the test. The referendum, which would be held almost immediately (in April 1929, a mere month after legislative passage), asked two questions: should the state’s Severson enforcement act be modified to decriminalize beer, and should it be eliminated altogether?30 Newly inaugurated governor Walter Kohler, a conservative-­leaning Republican but a Hoover ally, had pledged himself to the president’s prohibition legalist law enforcement plank. Nonetheless, he was widely believed to be politically independent and a personal wet—­as well as aware of the electoral catastrophe inflicted on Fred Zimmerman for vetoing enforcement repeal. Thus, he tried to stay quiet as long as possible before allowing the referendum.31 By a vote of  350,337–­199,402, the electorate agreed with eliminating the Severson enforcement act, putting the federal and state Republican Parties into direct opposition. In votes on April 17 and May 15, Wisconsin Republicans

the noble experiment (1929–­31)

183

confirmed their electorate’s wishes by passing a repeal of the state’s concurrent enforcement laws. The people’s endorsement through the referendum prompted relatively little change in the Assembly: only five members who had opposed the referendum (including one Milwaukee representative) then voted for repeal, while two backed holding the popular vote but declined to implement the repeal it clearly called for. The Senate, however, shifted more sharply: the referendum initially passed with only one vote to spare, but one Milwaukee and three rural Republicans switched to repeal.32 Invoking “the mandate of the people,” Kohler signed the repeal bill immediately, setting in motion a conflict with the Hoover administration even as the governor insisted that Wisconsinites not mistakenly embrace “the belief that traffic in intoxicating liquors . . . has become lawful or that the saloon will return.” While Wisconsin had eliminated its law, it had not nullified federal law, and Kohler warned the state’s citizens not to forget that “the Constitution of the U.S., the Volstead Act, and the Jones Law are still in full force and effect.” Prohibition commissioner James Doran agreed, noting that the federal government had never counted on Wisconsin’s assistance to the cause and would not start now.33 Federal raids sharply increased, including a none-­too-­subtle major operation implemented on the day of a state Republican Party parade. A GOP member of the Assembly announced plans to protest with a resolution asking the federal government to respect the wishes of the people as expressed by the referendum. In a blatantly partisan appeal to the Hoover administration, he explained that he wanted to remind the administration of “the almost unbroken line of support given by the state of Wisconsin to the Republican Party.”34 This led the provocateur Senator Gettleman—­ himself a Republican—­to bring his own barbed resolution describing the raid on the GOP as a fitting celebration of a party nationally committed to the noble experiment—­and one that showed the Republican commitment to Prohibition had finally become serious enough that it would trigger a repeal backlash. His colleagues obviously killed Gettleman’s resolution, but the exchange encapsulated the party strain caused by Wisconsin voters’ clear preferences.35 Wisconsin’s political class widely interpreted aggressive federal enforcement as pressure aimed at getting the state to restore its prohibition laws, but it seemed to have the opposite effect in spurring defiance. The now former governor Zimmerman continued to follow his mentor Blaine’s example in beginning to attack national Prohibition openly now that he was no longer bound by his constitutional oath.36 Wisconsin was wet.

184

chapter nine

The Northeast (1929–­30) Although the Northeast was the region most consistently hostile to Prohibition, repeal efforts there turned, with two exceptions, relatively muted as a consequence of the Republican victories in 1928. Both Upper New England and the Mid-­Atlantic stayed the same (other than an effort in New Jersey to repeal the state’s concurrent enforcement, which died in a committee dominated by dry Republicans).37 The real battles were in the two lower New England states shaken from their usual GOP vote in the 1928 election. In Rhode Island and Massachusetts, an antiprohibition coalition formed between newly empowered wet Democrats making good on their campaign pledge and a faction of Republicans looking to co-­opt a wedge issue that could permanently undo generations of political control. The decision to hold a Prohibition referendum in Rhode Island in 1930 played out almost identically to the process in Illinois, with both parties struggling to portray themselves as on the right side of the fight against national Prohibition. James Kiernan, a Providence Democrat and longtime prohibition opponent, offered a bill for a clean and simple advisory referendum on the Eighteenth Amendment. The only difference is that, unlike in Illinois, where Cermak’s plans were thwarted by fellow Democrats before Republicans took the initiative, Kiernan saw his proposal killed by a Rhode Island GOP seeking to preempt him and position themselves as the wet choice.38 Almost immediately thereafter, the GOP advanced an Association against the Prohibition Amendment (AAPA) referendum proposal, aggressively claiming credit, to the annoyance of Democrats looking to use Prohibition as a key part of their strategy to realign the state.39 Nonetheless, although Republicans could credibly say that the majority of the party endorsed repeal, GOP leaders carefully manipulated consideration of the bill in the House to paper over their own internal divisions as well as enable them to remain faithful to prohibition legalism. The amendment, after all, was purely advisory, not changing the law, and they worked to keep it that way. Thus, they blocked a roll call that would further reveal their divided numbers, and they also blocked a Democratic modification to the referendum’s text that would have included repeal of the state enforcement bill and therefore implicated legislators’ oaths to enforce the Constitution.40 Republican governor Norman Case signed the bill without fanfare or comment—­perhaps fearing the ASL, although it had reportedly declined to lobby for a veto.41 Thus, as in Illinois, Republican legislators in

the noble experiment (1929–­31)

185

Rhode Island attempted to straddle their wet and dry factions by appealing to a popular sovereignty framework in their platform, pledging to back the outcome of the referendum and its assessment of the Eighteenth Amendment.42 It was, in short, the people’s wish, but it was also consistent with their constitutional obligations—­after all, even Calvin Coolidge’s parting address reminded New Englanders that, like all Americans, they retained the right to seek the elimination of the Sheppard Amendment. Massachusetts legislators had an especially difficult time responding to the 1928 election. On the one hand, a 707,352–­422,655 vote had endorsed the advisory wet referendum, and a smaller margin backed the wet Al Smith. However, drys won even more congressional seats—­including claiming that of the wet Peter Gerry in neighboring, Smith-­voting Rhode Island. Expecting further legislative inaction from the dry GOP, in the fall of 1929 the antiprohibition Constitutional Liberty League relayed an initiative petition to end the state’s concurrent enforcement law. It also invited the AAPA to participate, something the latter was happy to do on seeing the 1928 referendum outpoll Smith and demonstrate a significant contingent of wet Republicans.43 The Constitutional Liberty League and the AAPA assembled support from political celebrities: the endorsement of a once-­dry, retired Republican Speaker who declared, “Not only is [Massachusetts] under no obligation to cooperate . . . but . . . she ought not cooperate . . . [with] an amendment in which she does not believe,” and a visit by Albert Ritchie advertising Maryland’s lack of a concurrent enforcement law.44 A Democratic victory in a Prohibition-­dominated special election in western Massachusetts offered further warning: a congressional district that Republicans had held for almost forty years and from which hailed former Speaker Gillett and President Coolidge had flipped on the death of its wet GOP incumbent.45 The quirks of Massachusetts’s semidirect democracy law meant that legislators again had two choices in the spring of 1930: they could either vote to implement the initiative themselves or vote no, throwing approval back to the voters in that fall’s election, which was thought would generate heightened dry rural turnout to balance the increasing power of the ever more reliably Democratic urbanites.46 The hearings and floor debates repeated the usual arguments about nullification versus states’ rights and noncommandeering.47 The overwhelming dominance of the Republican Party allowed its drys narrowly to overcome the combined opposition from Democrats and their own wet defectors. The urban-­rural split in Massachusetts remained weaker than it was in other states, with many dry urban Republicans joining their rural neighbors in blocking enforcement repeal. The opposition was far

186

chapter nine

more unified as no Democrat, urban or rural, voted for Prohibition. The movement against concurrent enforcement was about one-­sixth of the GOP combining with a uniformly antiprohibitionist Democratic Party—­a party that had gone from a nonentity to almost a third of the general court. A slim majority of the House thus voted to kick it back to the voters, an action with which the Senate concurred by a much larger margin.48 The committee reports on enforcement repeal illustrate both Republicans’ electoral tensions amid changing demographics and an impressive extrajudicial and popular constitutional debate. Far from being ignored amid legislative minutiae, all the committee reports were reprinted, in full, in front-­page articles in the Boston Globe for public understanding of the constitutional politics.49 Nine Republicans filed a perfunctory report, a short three-­paragraph brief observing that the issue was clearly one of great public significance and concluding by dodging the issue: “We . . . believe that we should provide every agency possible for the citizenry of Massachusetts to record itself at the polls.”50 Four of that opinion’s signers offered a supplementary opinion defending the “Baby Volstead” concurrent enforcement law on the merits, with another six dissenters arguing that the legislature should take up the repeal and vindicate states’ rights. The supplementary opinion defending state enforcement repeated Coo­ lidge’s decade-­old veto by refusing to construe public opinion in a way that would conflict with constitutional text. The signatories—­four of the nine Republicans who preferred the public vote—­insisted that the state’s relatively late 1924 prohibition law clearly had been written to implement the Eighteenth Amendment and that repealing it would constitute nullification. Citing both the words of Governor Frank Allen and court cases holding that states were duty bound to enforce the Sheppard Amendment, the authors held that legal propriety tied their hands. Voters might have wanted to see the Eighteenth Amendment repealed in the advisory referendum, but it would be wrong to impute lawlessness to them by having the state change its enforcement policy before the repeal of the Sheppard Amendment. The legislators reminded their peers that the process for lawful change still existed and had to be honored: “We can conceive of no greater breach of that obligation than to aid in destroying one of our laws enacted in support of that constitution, while still recognizing the right to amend that Constitution, as well as our State laws, in the appointed way.”51 The minority, with two Republicans joining four Democrats, argued that failing to implement the petition continued the extended betrayal of “the traditional heritage of States’ Rights, well-­nigh-­abolished when police

the noble experiment (1929–­31)

187

and sumptuary powers were written into the Constitution.”52 “The first step” to correcting that betrayal was repealing concurrent enforcement. “This will not,” the authors insisted, “break down local enforcement” but “simply [hand] back to the Federal Government a grant of power our people do not want”: “The assumption of this power was voluntary, and never obligatory.”53 Whatever the courts said about duties was irrelevant, and, in a clever turn on Salmon Chase’s nationalist opinion in Texas v. White, the minority held that states were not bound to do anything at all. Quoting White, the authors observed: “Our nation is an indestructible Union composed of indestructible states.” What this meant, they argued, was that “Massachusetts, as one of those sovereign states, owes no legal or moral duty to enforce the Federal Prohibition Amendment” since, by its own text, the amendment provided only a power, not a duty: the amendment itself “imposes no such obligation” and instead had generated only lawlessness and violence. The report similarly appropriated the language of another Republican hero, although in a way said hero would almost certainly disapprove of. Invoking Lincolnian themes of self-­government, the dissenters created a straw man, implying that the majority’s insistence on process constituted a betrayal of democracy itself by denying that law could be changed at all.54 In this understanding, realizing the failure of a policy experiment, the people now desired to use their sovereignty to reverse that policy: “To admit that the Eighteenth Amendment cannot be repealed is to confess that the American form of government is a failure.”55 Of course, the majority would have agreed; their stated objection was not to changing policy but to lowering the Constitution’s supermajority and time-­delayed thresholds to mere immediate statutory (or initiative) reversal of constitutional obligation. With the legislature refusing to act, the initiative returned to the voters in the November 1930 election.

1930: The November Election If the first two years of the Hoover administration offered vigorous defenses of Prohibition in the state houses, the 1930 elections almost instantly thawed the policy freeze. A poll released as the 1930 legislative sessions were adjourning offered the parties an unsettling data point to consider as they hashed out their platforms during the summer. A May 1930 poll by Literary Digest, which received responses from one of fifteen American adults, showed that only 30.5 percent of Americans favored full prohibition, that 29.1 percent

188

chapter nine

favored the suppression of hard alcohol but not beer or light wine, and that a massive 40.4 percent favored repeal of the Eighteenth Amendment altogether, a number that had doubled in the last eight years. More troublingly for the drys, the poll appeared to show that thirty-­seven states favored repeal, enough to overturn the amendment.56 In that fall’s conventions, both parties’ state platforms in Connecticut, New Jersey, New York, Washington, and Wisconsin endorsed repeal. Republicans in Illinois and Rhode Island agreed to commit the party to the (foregone conclusions of the) states’ referenda; the Democratic platforms in those states as well as in most of the rest of the Northeast (Massachusetts, New Hampshire, Vermont, and Pennsylvania) and several others (Delaware, Maryland, and even North Dakota) explicitly called for an end to the national Prohibition regime.57 Legislative turnover, especially in the US Senate, led wet and dry activists alike to frame the GOP’s 1930 electoral debacle in line with their own needs. The AAPA and other wets blamed the increasing association of the Republicans with the prohibitionist cause, while prohibitionists played up discontent with “Hoover prosperity” as the Great Depression dragged on. While such efforts seemed plausible enough in the case of elected officials—­some prominent drys did hang on—­the ASL and others had a harder time attributing the antiprohibition referenda to anti-­incumbent rage or retrospective voting on the terrible economy. Of the three states with referenda, Massachusetts was the one in which the ASL invested most heavily,58 consistent with its policy of concentrating its resources in elections that made policy changes rather than offering merely advisory opinions. Dry expenditures in the state doubled those of the AAPA and other wet groups.59 This decision was sensible insofar as the ASL risked little by way of coattails in US elections: both Senate candidates in Rhode Island were explicitly wet, and Illinois’s wet Democrat Hamilton Lewis faced off against the formerly dry, now functionally wet Ruth McCormick, who had pledged to follow the state’s inevitable wet referendum vote and thus provoked nominal ASL support for a third-­party candidate. Nonetheless, the decision to minimize activity in Illinois and Rhode Island would prove consequential down ballot in Springfield. While the Massachusetts referendum—­repealing the state’s concurrent enforcement law—­was indeed the closest of the three states, it was still a blowout, part of an election that all but wiped out the Bay State’s once formidable Republican Party at the statewide level. The most notable losses were Governor Frank Allen and the Senate candidate William Butler, Calvin

the noble experiment (1929–­31)

189

Coolidge’s right-­hand man and onetime head of the Republican National Committee, both of whom ran dry against Democratic wets. The defeat of Butler by the Democrat Marcus Coolidge meant that both the state’s Senate seats would be held by the Democrats for the first time since the Civil War. Even the Christian Science Monitor, which lamented that Massachusetts “voted partially to secede from the Union of sister states,” could not blame the losses on economic circumstances and reluctantly conceded that the election was predominantly about Prohibition. Both Democrats ran well behind the referendum, which won by roughly 250,000 votes, compared to Senator-­ Elect Coolidge’s 112,000 and Governor-­Elect Joseph Ely’s slim 16,000. Moreover, the Democrats winning statewide office were still quite conservative—­ further supporting the explanation that Prohibition and not some other issue accounted for their victory.60 (Ely and the state’s senior senator, David Walsh, who had returned to the Senate in a special election for Lodge’s seat, would both end up with the Liberty League, and Marcus Coolidge, whose halting support for FDR’s program put him among the twenty “unreliable” conservative Democrats, declined renomination in 1936.)61 If the referenda were not enough, the contrast between the two northeastern states Republicans had lost in 1928 offered clear evidence of the electoral suicide of northeastern Prohibition. Republicans in the Massachusetts General Court dug in on Prohibition, obstructing the effort to repeal concurrent enforcement, and nominating drys to statewide races; they were wiped out. Rhode Island Republicans, who had instead chosen to return to their wet positions from a decade before and backed the antiprohibition referendum, made for a successful rebranding: the GOP ticket swept the statewide races, with the most notable victory the selection of a Republican senator in a contest between two wets.62 As in Rhode Island, the advisory Illinois referendum on repealing the Eighteenth Amendment and the state’s concurrent enforcement law won by roughly a three-­to-­one margin. Success was all but preordained, as even the ASL’s nonintervention implicitly acknowledged, but the geography of its victory was the surprising part. Chicago’s vote for repeal exceeded 80 percent wet, but even rural areas, formerly bastions of prohibitionist sympathy, ran strongly antiprohibitionist. Most voted wet, with the rest of the state outside Cook County offering a comfortable three-­fifths in support of repealing both the Sheppard Amendment and Illinois’s concurrent enforcement law.63 Nor did voters count on legislators being intimidated by that referendum or find themselves swayed by the superficial Republican rebranding by which highly publicized Chicago Republicans collected

190

chapter nine

signatures for the referendum. Instead, they intervened more directly, brutally punishing the Republican Senate, which had long blocked efforts to repeal Illinois’s concurrent enforcement law.64 Whether due to Prohibition or pocketbooks, the 1930 congressional election was a clear victory for wets. Democrats picked up a net of eight Senate seats, half of which had been held by drys who were now replaced by wets. The anticipated wet contingent in the House grew by thirty, creating a bloc of ninety-­one confirmed antiprohibitionist members of Congress.65 Nonetheless, there were enough dry successes for the ASL to claim limited vindication, most notably the survival of Governor Gifford Pinchot, one of the most public and committed drys in the nation, who won handily, and Senator Thomas Walsh, a Democratic progressive dry who defeated a wet Republican (despite the state’s 1926 vote to repeal its concurrent enforcement). A dry Delaware Republican also defeated the wet Democratic senator Thomas Bayard. Hostility to Prohibition provided Republicans with one of the brightest spots on election night. New Jersey’s habit of sending wet senators to Washington for once favored the GOP, as voters elected Dwight Morrow, the father-­in-­law of Charles Lindbergh who had won acclaim on his own as the former ambassador to Mexico, where he helped broker internal peace. The day after his election, the New York Herald-­Tribune anointed him a rising leader in the party, noting especially his sound reasoning on Prohibition.66 Thwarted in its efforts to convince Coolidge to pursue a third term in 1928, and never keen on the progressive Hoover, the GOP’s more libertarian eastern wing saw in Morrow a potential champion to dislodge the wildly unpopular incumbent. With Morrow balking and pledging support for Hoover, the business wing and its AAPA allies tried to chase Hoover out by citing the destruction that Prohibition already wreaked on the party. Hoover let it be known that he was in control of patronage and attributed the 1930 election results to disappointing but temporary economic distress, drying up the Morrow boomlet.67 Morrow’s early death in 1931 not only ended a promising political career but also conclusively ended talk of any possible such coup.

The Rule of Law: Sprague and the Wickersham Commission The administration and its prohibitionist allies suffered another embarrassment in New Jersey a month later when a federal district court declared Prohibition unconstitutional. State courts had begun applying the

the noble experiment (1929–­31)

191

exclusionary rule (refusing to admit illegally acquired evidence) in state law enforcement, adopting what the Supreme Court had done for federal rules of evidence in the 1914 case of Weeks v. United States.68 As Ken Kersch argues, the merits of the exclusionary rule were not the only impetus for state courts adopting that standard as many judges recoiled from the excesses of Prohibition by quietly erecting obstacles to its overzealous implementation.69 But ensuring proper warrants and civil liberties protections had been acceptable to the ASL, so, while perhaps a short-­term irritant, these state judicial rulings did not pose a direct threat to Prohibition. United States v. Sprague did. The AAPA, represented by the New York lawyer Selden Bacon, who wrote an AAPA-­distributed pamphlet contrasting the federalism of the Tenth and Eighteenth Amendments, again challenged Prohibition on states’ rights grounds. In brushing aside the holding of the National Prohibition Cases, New Jersey district judge William Clark declared the Eighteenth Amendment an unconstitutional constitutional amendment on the grounds that Article V could not be used to abridge the states’ Tenth Amendment police powers without conventions—­the same argument Elihu Root had made to the Supreme Court in 1920. Clark, a Coolidge nominee, was reportedly advised by the Princeton professor Edward Corwin.70 Clark’s opinion was not just filed away in dusty reports of the federal judiciary: the New York Times printed his text, in full, the day after the opinion came down in December 1930.71 As expected, a unanimous court (speaking through Justice Owen Roberts) quickly and sternly rebuked Clark’s opinion for “hold[ing] that Article V means something different from what it plainly says” and “resorting to ‘political science,’ the ‘political thought’ of the times, and a ‘scientific approach to the problem of government’ ” rather than, as Roberts held, an appropriate textualist-­originalist focus on the words and history of Article V and the Tenth Amendment.72 But Clark’s opinion, however short-­lived, came at an especially embarrassing time for the nation’s drys, bridging the election of November 1930 and the blowback of the long-­awaited and disastrous commission on prohibition enforcement. Hoover’s blue-­ribbon Prohibition commission only further aggravated the nation’s wets. On January 7, 1931, the National Commission on Law Observance and Enforcement—­unofficially the Wickersham Commission after its chairman, the former Taft attorney general George Wickersham—­released its report detailing two years of work on Prohibition. The commission, composed of a bipartisan but generally conservative group of legal luminaries

192

chapter nine

(many of whom were affiliated with the late Chief Justice Taft), issued an ambivalent document that declined to endorse full repeal of the Eighteenth Amendment but that substantively endorsed nearly all the wets’ specific critiques of Prohibition’s implementation, including its disastrous ratification by legislators instead of conventions. Enforcement of Prohibition, the commissioners agreed, had proved a largely ineffective fiasco whose successes had to be measured against dis­ crediting both the federal government and respect for the rule of law. To help restore the reputation of the federal criminal justice system, the Wickersham Commission’s preliminary suggestions, released the year before, had included the use of nonjudicial magistrates accepting pleas as a replacement for badly overloaded federal judges. Although the commissioners acknowledged the constitutional uncertainties of such a plan, they argued that careful definition of petty crimes and the existence of jury options as fallback positions could allow their proposal to be reconciled with case law.73 Such a controversial provision had been made necessary by so-­called bargain days, when federal courts would quickly process Prohibition violators in pro forma proceedings that handed down light punishments, a practice that received particular condemnation as damaging the prestige of the federal judiciary and law enforcement. Whereas “formerly these tribunals were of exceptional dignity, and the efficiency and dispatch of their . . . business commanded wholesome fear and respect,” now criminals laughed.74 Prohibition had not only overburdened the federal criminal justice system but also made an obvious farce of it in the process. The states came off no better as the commission scourged most states for paltry enforcement. “Nullification by failure of state cooperation and acquiesced-­in nullification in homes” had resulted in a system of “virtual local option.”75 Kansas and Virginia were held up as the only states whose governments and population were visibly committed to and providing proper logistic support for antialcohol enforcement.76 Massachusetts’s senior senator (and de facto Republican majority leader) Henry Cabot Lodge had long ago predicted that, after ratification, the states would quickly cease supporting their concurrent enforcement laws and foist the expense on the federal government.77 It had not taken long before events proved him right: Harding’s prominent Denver speech in June 1923 had already complained about the asymmetry, observing: “Since the federal government became in part responsible [for prohibition enforcement] there has been a growing laxity on the part of state authorities about enforcing the law.”78

the noble experiment (1929–­31)

193

Things had only gotten worse in the years afterward, leading to the historian Robert Ferrell’s blunt summary of the era: that the “states behaved shamelessly” regarding Prohibition.79 The federal government did try to make up for (and, perhaps, as Wisconsin wets feared, punish) slacker states, with one study finding that federal prohibition officers made fifty-­one more arrests per 100,000 residents of a state following formal repeal of enforcement laws, confirming the Wickersham Commission’s claim that state enthusiasm determined successful enforcement.80 There was not much state enthusiasm to go around. By the late 1920s, state spending on prohibition had dropped to one-­fourth of what was spent on parks and roughly one-­sixth of what was spent on enforcing fish and game laws. In 1927, only eighteen states were earmarking any funding specifically for prohibition, often pathetic amounts: Utah spent $160 total, Nevada and Missouri spent less than $1,000 each, and seven others less than $25,000 each. Only eight states provided any meaningful financial support— ­even before the Depression.81 President Hoover blundered in presenting the Wickersham Commission’s report as a stirring call to redouble Prohibition enforcement and a vindication of the noble experiment. (He could gather what it really implied: a commissioner reported that Hoover’s “face fell” when he saw the report, and he privately described it as “rotten” and accurately lamented that it “would split the Republican Party from top to bottom.”)82 While the commission’s joint introductory report proposed a significantly modified Prohibition enforcement and various administrative reforms, the commissioners’ individual supplements presented a much more uncertain position, with only one supporting a redoubled Prohibition, most backing a somewhat decentralized and flexible enforcement, and two supporting the clean repeal of the Eighteenth Amendment and the full return of authority to the states. All but the one ardently dry member agreed that a hypothetical amendment should simply authorize Congress to exercise a police power to attack alcoholic beverages but mandate no policy, allowing, in deference to the states, flexibility in terms of the severity of the restrictions. As Commissioner Ada Comstock observed, scaling back the amendment’s command would hopefully generate the popular support necessary to make a more limited Prohibition viable.83 But some change had to happen: as Commissioner Kenneth Mackintosh observed: “The alternative to progress can only be nullification and the consequent ultimate destruction of organized representative authority.”84 While thoroughly scourged on both policy and implementation, drys achieved one victory: the commission embraced the core of prohibitionists’

194

chapter nine

constitutional theory. All the commissioners, including the two who endorsed direct repeal of the Eighteenth Amendment, opposed modifying the Volstead Act with “specious definitions of ‘intoxicating’ ” or consenting to state nonenforcement, condemning such efforts as transparent nullification as long as the Sheppard Amendment existed. “If this is to be done,” the joint report agreed, “we think it ought to be done directly under warrant of the Constitution and not by way of nullification thereof.”85 Still, ringing endorsements of Prohibition these were not.86 Only William Grubb, a conservative judge from Alabama, unequivocally supported the status quo (backed by more enforcement). Grubb’s fellow southerner Monte Lemann, a Louisiana lawyer and the lone holdout refusing to sign the joint report, insisted that repeal of the Eighteenth Amendment was the only sensible solution. (Newton Baker, Wilson’s secretary of war, also endorsed full repeal but found an amendment simply giving Congress prohibition power a serviceable substitute.) As long as states refused to participate, a habit Lemann expected to continue, Prohibition remained logistically impossible. Proposals simply to authorize congressional power would only make the situation worse by bringing the entire political system to a halt as candidates refought Prohibition year after year; moreover, any national policy that was adopted would still coerce states one way or the other. For Lemann, a tough successor to the Webb-­Kenyon Act, already authorized before the Sheppard Amendment, would be the appropriate federal response. Webb-­Kenyon’s sponsor and namesake, the former senator and now judge William Kenyon, endorsed both a repeal proposal and a congressional power amendment. For Kenyon and his fellow commissioner Paul McCormick, an advisory proposal to repeal the amendment cleanly by popular convention offered a constitutionally legitimate national referendum. Both hoped that such a repeal would fail with the people, and instead they favored the commission’s consensus plan for an amendment giving Congress prohibitory power as well as a supplemental plan for government distribution. Nonetheless, that even the moderate commissioners’ position was so deferential to popular opinion—­largely suspected to be wet—­boded poorly for the ASL. While the commissioners disagreed on much, they almost unanimously opposed full repeal lest it bring back the dangerous and politically corrupting saloon. As Wickersham observed in his brief personal addendum to the full joint report: The older generation very largely has forgotten and the younger never knew the evils of the saloon and the corroding influence upon politics, both local and national,

the noble experiment (1929–­31)

195

of the organized liquor interests. But the tradition of that rottenness still lingers, even in the minds of the bitterest opponents of the Prohibition law, substantially all of whom assert that the licensed saloon must never again be restored. It is because I see no escape from its return in any of the practicable alternatives to Prohibition that . . . I have been forced to conclude that a further trial [of the amendment] should be made . . . with the help of the recommended improvements.87

For all the many failures of Prohibition—­and the report noted many—­this was a success that few wanted to see lost. Thus, most endorsed an amendment that authorized Congress to wield police powers against alcohol, rendering it able to suppress the saloon but without handcuffing the government to national teetotaling: “The Congress shall have power to regulate or to prohibit the manufacture, traffic in or transportation of intoxicating liquors within, the importation thereof into and the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes.”88 In endorsing that modified amendment, many of the commissioners explicitly cited the need to guarantee the suppression of saloons, a sentiment that continued for several years: the first draft of the Twenty-­First Amendment would notably include a congressional power to suppress saloons while otherwise constitutionalizing Webb-­Kenyon’s basically states’ rights framework. Somewhat more divisive among the commissioners but still the next closest to consensus after an amendment granting the federal government a discretionary prohibition police power was the preferred use of that power: a government monopoly endorsed by at least six of the eleven commissioners. Commissioner Henry Anderson’s corollary to a police powers amendment would have established a Quebecois-­or Swedish-­style system of national distribution by government monopoly, not unlike the current state distributorships of harder alcohol today. States would have the choice of opting in—­if wet—­and building state networks to receive federally distributed alcohol or remaining dry by declining to establish them.89 In short, with nearly all the commissioners agreeing that Prohibition had clearly and indisputably failed, the question was whether to salvage it and, if so, how. Of the supporters who had not given up on government alcohol control, most held that the solution to save Prohibition was still to end it, bringing back, albeit under the watchful eye of the government, consumption of intoxicating liquors as beverages. That was the comparatively dry perspective on the commission. The president greatly damaged his credibility in torturing the findings of a report that the leaders of the AAPA joked they could have written into

196

chapter nine

a stirring defense of the Eighteenth Amendment. Rather than appearing as the logical engineer and pragmatic technocrat he had built himself up to be, Hoover instead presented himself as a dogmatic, Panglossian, and somewhat deceptive cheerleader for a failed system.90 After all, Wickersham himself said that the report favored the wet critiques, and the media soon scourged Hoover for his seemingly disingenuous and self-­serving presentation of the report.91

1931: The States Respond Although the Wickersham Commission argued that state nonenforcement was tantamount to nullification rather than mere noncommandeering, opponents of Prohibition were unpersuaded and continued to challenge concurrent enforcement on states’ rights grounds. With momentum from the 1930 election, widespread discussion of the Wickersham Report, and frugal state legislators looking to trim expenditures from their Depression-­ravaged treasuries, the AAPA and its wet allies planned to use the 1931 legislative sessions to launch attacks against enforcement regimes in over a dozen states.92 While the AAPA’s vote counting assumed only twenty-­four wet states and thus not enough yet to attack the amendment itself directly, its president, Henry H. Curran, expected to win over the remaining twelve states within a dozen years.93 As usual, Albert Ritchie inaugurated the 1931 Maryland legislature with a blistering states’ rights tirade against the Eighteenth Amendment; now he was joined by Connecticut’s Wilbur Cross, while Massachusetts’s Joseph Ely called for respectful action against the Volstead Act. Despite the gubernatorial bully pulpits and many state party platforms signaling renewed legislative action against Prohibition, by the close of the session in August 1931, all such efforts had failed, and only in Illinois did a substantive measure come close to becoming law. Thus, it was not without reason that the Women’s Christian Temperance Union (WCTU) could later survey the year’s legislative proceedings and gloat: “Nearly 7,000 state legislators . . . considered 115 wet measures and adjourned without modifying or repealing one line of any prohibition law.”94

The South Even in the South, cracks in the prohibition coalition had begun to show after the 1930 election, but these were few, and support for the Eighteenth

the noble experiment (1929–­31)

197

Amendment remained the clear party line in 1931. Memphis’s wet mayor and boss E. H. Crump had been elected to Congress, and Texas and Arkansas also sent antiprohibitionists to Washington.95 Still, a public relations controversy ensnared Huey Long and suggested that open hostility to prohibition remained inadvisable for state officials in Dixie. When asked by the mayor of Atlanta what he was doing to enforce prohibition, Long reputedly boasted, “Not a damn thing,” and he immediately had to backpedal. (Long later claimed that he had been saying that prohibition enforcement was not the governor’s job but within the jurisdiction of sheriffs and local police officers.)96 Thus, while many state legislatures in the rest of the country considered meaningful changes to prohibition laws, Dixie remained committed to it, as illustrated by Alabama’s 1931 prohibition legislation. The closest Montgomery came to repealing any of its prohibition legislation, even as late as 1931, was Senate consideration of the so-­called Edge Near Beer Bill. This basically housekeeping bill would have merely repealed state laws against manufacturing or selling anything that “looks like” or “tastes like” malt, but the Volstead standard for actual alcohol content would nonetheless have applied.97 The Tennessee Senate had a similar sense of public opinion, holding that “the heaviest burden on the hearts of the people is the enforcement of the Constitution” and therefore that they “are looking to the legislature . . . to do whatever they can to honor, uphold, and observe the Eighteenth Amendment.”98 Texas legislators continued to back their senior senator, Morris Sheppard, and his namesake, with the state house overwhelmingly (150–­39) passing a resolution defending the Eighteenth Amendment and the Volstead Act—­though some conceded that they were standing up for the rule of law more than for Prohibition itself.99 Oklahoma’s House overwhelmingly rejected a proposal to repeal the state’s concurrent enforcement law, killing it by a 70–­16 vote.100 In Delaware, even the intervention of the Du Ponts could not defeat Prohibition. Pierre Du Pont, who had guided the state’s branch of the AAPA and had personally funded a private referendum in 1930, appeared to address a special session so that he could make his case for the end of Prohibition. The legislature took him up on it, convening a special session to consider the state’s Klair concurrent enforcement law, but the Senate nonetheless voted down an advisory state referendum to Congress by almost two to one and the repeal of the state’s enforcement law by four to one.101 West Virginia legislators attempted to defeat concurrent enforcement by misdirection hidden behind fiscal conservatism during the economic

198

chapter nine

woes of the Depression. As the session began, Republican governor William Conley unhappily acknowledged that “propaganda against prohibition” was becoming increasingly widespread. Correctly perceiving what any legislative attack would target, he noted that the Department of Prohibition had been widely criticized and that he feared an attempt to, “if not permit, at least condone the sales of liquor” within the state’s borders.102 That was precisely what the House attempted to do, repealing not the state’s concurrent enforcement law but its enforcement bureau. Breaking on sharply partisan lines, twenty-­three of twenty-­six Republicans voted with their governor, but forty-­three of sixty-­six Democrats provided the majority to pass the bill in the House before its death in a committee of the Republican Senate.103 At the end of a contentious session that foundered on budgetary issues, M. Z. White, the Republican Senate majority leader, declared that at least that body could take pride in rejecting an indirect “assault on the very Constitution itself,” thereby keeping “the faith with the expressed wish of the people” who had “firmly written [prohibition] into the Constitution of this state by an overwhelming vote.”104 But, as various senators observed in their back-­and-­ forth colloquy, a slim majority of Republicans in the upper chamber, insulated from the 1930 election by longer terms, would soon no longer be able to obstruct various reforms—­including, presumably, prohibition.

The West Like the far more Democratic South, the Republican-­leaning West remained committed to Prohibition in 1931, with the handful of wet victories easily explained away by drys looking to comfort themselves. In California, the ASL continued to wield power over the local Republican Party, with almost three-­quarters of the legislature dry in 1931.105 Unfortunately for the ASL, its agnosticism on all non-­alcohol-­related issues meant that it declined to throw its support behind either acceptable candidate in the gubernatorial primary. As a result, the incumbent governor, C. C. Young, the head of the progressive wing of the party, and Burton Fitts, the dry conservative, split the prohibitionist vote almost evenly—­ thereby allowing the victory of James Rolph, the longtime mayor of San Francisco and a wet.106 The combination of a dry legislature and a governor who, as mayor, had more or less openly ignored prohibition laws (hence his survival as a Republican in the wet and Democratic enclave) meant that there would be no legislative change. No action was taken on various

the noble experiment (1929–­31)

199

proposals to repeal concurrent enforcement directly or by referendum, to hold a purely advisory referendum on the Eighteenth Amendment, or to issue a states’ rights memorial to Congress calling for either a convention or congressional repeal. Efforts to challenge prohibition fared no better in the other Pacific states. Oregon’s House blocked repeal of the state’s concurrent enforcement amendment, with its tiny Democratic minority just as likely to vote dry (five of seven Democrats siding with prohibition, compared to thirty-­ six of fifty voting Republicans).107 In Washington, both parties’ unequivocally wet platforms in the 1930 election apparently meant little: legislators killed both a memorial to Congress and a bill for a referendum repealing concurrent enforcement.108 The one somewhat circuitous attack made against prohibition fell through indirection at the hands of Washington’s moderate Republican Roland Hartley. After Democrats in Olympia sent a bill that would require certification of intoxicating effects by a new health board established at the state’s university—­in effect, another attempt to exempt lower alcohol-­by-­volume drinks from liquor laws—­Hartley vetoed it on grounds that such a board was unnecessary, not out of any principled defense of the constitutional order.109 While Idaho, the home of William Borah, did not attempt to attack Pro­ hibition, other Mountain West states considered memorials or repeal efforts, only to block them by wide margins. By a 2–­1 vote, Montana’s House killed a memorial beseeching Congress to repeal the amendment and instead permit the states to run Canadian-­style dispensaries.110 In Arizona, Illinois’s newly elected senator, Hamilton Lewis, invited to give a speech to the legislature, was prevented from commenting on Prohibition by the Speaker’s terse observation: “This house is dry.”111 Utah killed a proposal to amend its state constitution and eliminate concurrent enforcement.112 Only Wyoming, the last Mountain West holdout against Prohibition fifteen years earlier, succeeded in passing any bill—­substantive or symbolic— ­challenging Prohibition. After a nearly unanimous decision to soften punishments for violations in 1931, the legislators in Cheyenne bitterly split in agreeing to hold a nonbinding 1932 referendum on the Eighteenth Amendment—­which, after all, even the prohibitionists on the Wickersham Commission advocated to shore up the amendment’s popular legitimacy.113 Thus, from the perspective of even drys, outside the mines of Montana and Nevada, the West remained compliant with the Eighteenth Amendment. Concurrent enforcement itself remained protected, and the only loss was an advisory referendum on the Eighteenth Amendment—­which

200

chapter nine

even Hoover and the Wickersham Commission agreed was the constitutional way to contest Prohibition.

The Northeast While most of the rest of the Northeast continued to try to attack prohibition within the framework of what its legislators understood to be constitutional obligation, the 1930 referendum and election jolted Massachusetts into revolt against Prohibition. Although both chambers were still dominated by Republicans, the legislature of Massachusetts, which had joined New York in eliminating concurrent enforcement with its 1930 referendum, sharply reversed its historic prohibitionism and now almost perfectly matched the longtime wet bastion in leading the charge against national Prohibition in 1931. Unlike the other northeastern governors, neither Joseph Ely nor Franklin Roosevelt pressed hard on Prohibition—­indeed, neither attacked the amendment at all in their inaugural addresses, instead leaving the aggressive attacks to state legislatures happy to make them. New York Republicans hoping to undo the damage brought by their close association with the ASL remembered just how they had been forced into that alliance as the league struck back hard against their former allies. The state GOP platform endorsed repeal of the Eighteenth Amendment, as did its gubernatorial candidate, US Attorney Charles Tuttle, who explained that he hoped to see New York fight against alcohol but nonetheless condemned the Eighteenth Amendment as an invasion of states’ rights. (He opposed a Volstead/Mullan-­Gage-­style law and said that speakeasies and other illicit establishments should be attacked through local nuisance laws.)114 He nonetheless managed to secure the support even of Edmund Jenks, the longtime leader of the state’s Republican drys, by agreeing on enforcement of the Eighteenth Amendment until its repeal.115 But Tuttle’s nuanced position, alongside a dry candidate for lieutenant governor, enabled Roosevelt to position himself as the comparatively antiprohibition candidate. Unlike the AAPA, the ASL continued to reject support for—­and even displayed indifference to— ­certain comparatively dry candidates: it would not take a lesser-­of-­two-­evils approach. From the perspective of the league and its New York branch, an apostate could be tolerated; a heretic could not. Thus, as it had in eliminating James Wadsworth, the wet senator whose constitutional scruples nonetheless led him to vote dry occasionally, the ASL’s leadership signaled endorsement of a political suicide candidate to

the noble experiment (1929–­31)

201

eliminate a moist Republican— ­even if it meant the election of an even wetter Democrat like Robert Wagner or, in this case, Franklin Roosevelt.116 Neither Roosevelt’s second inaugural address as governor nor his opening messages to the New York legislature made any mention of alcohol whatsoever. He had little need to do so as his well-­known belief in a states’ rights position on Prohibition and demonstrated success in winning Republican-­ leaning New York had catapulted him into the position of the clear front-­ runner for the 1932 Democratic nomination.117 In Massachusetts, Governor Ely’s inaugural address embraced temperance, in both demeanor and policy, as one might expect of an out-­party interloper in a long line of Republicans. Rather than inveigh against the framers of the Eighteenth Amendment as fanatic moralists or as violators of states’ rights, Ely charitably framed them as visionaries trying a noble experiment, acting “in the interest of temperance, sobriety, and the public safety.” Experience had demonstrated that these aspirations simply did not translate into practical benefit; still, the same spirit that guided them should continue to animate Massachusetts. Thus, Ely merely called for Massachusetts citizens to continue the work begun in their referendum against concurrent enforcement and now petition for a change to the Volstead Act so that alcohol policy would be made “on a reasonable, sane, and enforceable basis, in the interest of temperance and sobriety and the peace and good order of the Commonwealth and of the country.”118 Albany and Boston both acted as Ely wished: both legislatures issued memorials to Congress calling for reconsideration of the Eighteenth Amendment, whether by constitutional conventions or advisory referendum.119 Roosevelt, largely staying quiet on Prohibition, also sounded like other northeastern governors in attempting to pay proper deference to the Constitution and the rule of law. In commenting on his state’s memorial for a referendum, he happily observed that it would be interpreted as a proper Article V call for a congressionally proposed amendment and thus that he would forward it.120 But otherwise he remained cagey on Prohibition, much to the irritation of his eventual rivals in the 1932 Democratic race. With both states having eliminated enforcement of lighter alcohol, there was comparatively little, short of explicit nullification and obstruction of federal officials, that they could do to oppose Prohibition. New York tried nonetheless, coming within one Senate vote of passing a bill that would “devise an initial plan for the manufacture, sale, transportation, and distribution by the state of alcohol beverages”—­in short, New York would draw up a provisional dispensary law akin to the Canadian model. That deadlocked

202

chapter nine

vote—­repeated two weeks later—­spared Roosevelt from the awkwardness of having to take a stand on such a provocative law as he was preparing for his presidential campaign.121 Thwarted in this direct assault, Albany legislators managed to pass a medicinal liquor law that they disguised in part of the education code and aimed to use as a test case.122 For a wily political operator working to position himself as a moist flexible enough to adjust to shifting political winds, Roosevelt could not have asked for a better bill. He had, after all, badgered Al Smith to cite constitutional obligations in vetoing New York’s prohibition enforcement repeal law in 1923—­while also appalling him by proposing passage of a new law that would nominally provide, but actually defund, such enforcement.123 Now, as FDR tried to outmaneuver the former mentor who had recruited the reluctant, polio-­stricken Roosevelt to run for governor in 1928 but from whom he had now broken124 —­he had an ideal platform: veto a complicated law on the grounds that it was badly drafted while expressing sympathy for its objective. As Roosevelt observed in his veto message, the objective was to “finally . . . determine whether a sovereign state of the Union has the right to pass laws” regulating medicinal liquor “even if such laws go beyond the scope and limits of federal statutes.” He shrewdly explained: “With this purpose of having the liquor question raised for final determination, I am . . . in sympathy.” But, he concluded, reluctantly, the bill itself “contained so complicated and extravagant provisions as to make it impossible of approval.” He helpfully outlined ways to modify the bill to provoke such a test case—­ but at the end of the day issued a veto and could remain a moist.125 Roosevelt, who had very publicly decried any loose interpretation of the commerce clause that threatened to sweep away federalism, continued to position himself as a states’ rights devotee throughout 1931, urging New Yorkers to “study the special powers which have been given over to the Federal government by the sovereign states which form our Union, remembering that all powers not so delegated still vest in the states themselves.”126 It was smart politics: federalism united Americans where Prohibition divided them. Other northeastern states, following the largely conciliatory course, focused on memorials and thus proved disappointing to wet hard-­liners. Connecticut, Rhode Island, and New Jersey all tried to balance attacking national Prohibition while still maintaining what they understood to be their constitutional obligations: in each state, legislators beat back efforts to repeal state concurrent enforcement while passing memorials to Congress seeking repeal of the Eighteenth Amendment and the full restoration of states’ rights.

the noble experiment (1929–­31)

203

New Jersey, where both state party platforms endorsed repeal on states’ rights grounds and where the newly elected Dwight Morrow called for the end of national Prohibition, proved more mixed but still advanced a constitutional attack on the Eighteenth Amendment.127 The Garden State’s off-­year elections had largely insulated the state’s Republican Party from the 1930 massacre—­and thus the GOP retained more than three-­to-­one margins in both chambers128 —­but the Republicans nonetheless recognized that the same wet tide that had destroyed their party elsewhere would likely flow their way. Though Governor Morgan Larson’s address convening the legislative session ignored Prohibition, the state’s Republican legislators did not. The insurgent Republican Emerson Richards and the former majority leader Anthony Siracusa quickly brought concurrent enforcement repeal proposals, but each chamber’s judiciary committee swiftly killed their proposals.129 Instead, the more moderate position—­a memorial to Congress aiming to repeal the Eighteenth Amendment—­seemed more likely to advance since it was pushed by Senate majority leader (and judiciary chair) Crozer Reeves and backed by the Republican National Committee. In requesting that Congress repeal the Eighteenth Amendment, Reeves’s memorial insisted on “adhering to the system of government established by the founders” in which “the true function of the Federal government [is] to secure to every state freedom from interference . . . in the enforcement of its laws.” But mixed with that belief in states’ rights was a promise to support the rule of law, consistent with the Republican platform’s pledge to support enforcement before repeal. Until the repeal of the Eighteenth Amendment and its replacement by one assisting states in their own alcohol policy— ­essentially, a constitutionalized Webb-­Kenyon Act—­the memorial pledged enforcement of the Sheppard Amendment. Despite support of the GOP leadership, however, it failed to get a floor vote, bogged down in legislative minutiae.130 In drawing up the state GOP platform for the 1931 gubernatorial election, Dwight Morrow reiterated the party’s 1930 pledge to see the amendment repealed and states’ rights restored, but his new language gestured to prohibition legalism by adding that the state’s Republicans “favor proper procedure to accomplish this purpose.”131 By October, however, the legislature’s efforts to contest the Sheppard Amendment by proper constitutional procedure had ended, marking an important turn in New Jersey’s fight against prohibition. In convening yet another special session, New Jersey’s legislators simply implored Hoover to seek modification of the Volstead Act not only to let states choose their own policies but also to generate much-­needed revenue.132 In endorsing a

204

chapter nine

solution rejected even by ardent wets like Wadsworth, Underwood, and the Wickersham dissenters, New Jersey Republicans finally cast aside their long-­held constitutional scruples. In Connecticut, Democratic governor Wilbur Cross, taking over after fifteen years of Republican domination, railed against Prohibition, but, like his predecessors such as Templeton and Bingham, he too wanted it done by the book. He thus continued the hard-­line states’ rights positions of those previous governors who had attacked prohibition as a violation of federalism and a demonstration of the failure of mandating moralism. Moreover, he reiterated the same tension between state sovereignty and constitutional obligation that Templeton had observed in his 1923 inaugural address, which had railed against the Eighteenth Amendment’s attack on states’ rights and its coercion of the nonratifying Connecticut while praising the state’s love for the Constitution in nonetheless following the obligation of law in passing concurrent enforcement.133 Cross now did the same. He reiterated that Prohibition was a coercive disaster, “never ratified by the General Assembly . . . [which was] unwilling to cede to the National Government rights originally reserved to the states”: “It is a dubious path into the Kingdom of Heaven through jails and prisons. It is my conviction that the only way out . . . is the ultimate repeal of the Eighteenth Amendment and the return . . . to the several states [of alcohol policy other than what the federal government regulated in interstate commerce].” He remained committed to obedience to the law and constitutional propriety, proclaiming: “I trust that you [the legislators] will express your disapproval . . . in ways you deem most appropriate.” He suggested: “It would be perfectly proper for you to memorialize Congress on the Volstead Act and the Eighteenth Amendment.” Thus, the legislature could either call for a constitutional convention or request that Congress directly repeal the amendment.134 Some sources speculated that Cross would nonetheless endorse an effort to repeal the state’s concurrent enforcement law,135 but the state Senate prevented that test by killing the bill 13–­19 on a party-­line vote.136 (Cross would express skepticism about state repeal preceding constitutional change in 1933, so it seems likely that this was more wishful thinking than a position based on any clear evidence.) Instead, legislators followed the model explicitly endorsed by Cross’s inaugural, asserting in a memorial to Congress that a new amendment would again ensure that liquor control would be “reserved to the several states.” Before this petition to repeal the Eighteenth Amendment would be forwarded to Congress, however, Connecticut voters would approve it

the noble experiment (1929–­31)

205

in a purely advisory referendum in 1932.137 In short, Connecticut legislators continued their tradition of joining robust protest of Prohibition with constitutional scruples—­and now with the added legitimacy of popular voting (in a state that did not have a strong tradition of referenda). Thus, with the notable exception of Pinchot’s Pennsylvania and the traditionally dry trio of Maine, New Hampshire, and Vermont, the Northeast was basically in agreement in calling for the end of national Prohibition by the end of 1931. The split was over constitutional obligation. On one side were those states whose officials resented the Eighteenth Amendment’s restriction on states’ rights but reluctantly accepted them as part of the Constitution. On the other were states whose governing class implicitly rejected obligations coming from the Eighteenth Amendment, whether out of a principled federalist belief (that repealing concurrent enforcement was mere noncommandeering) or simply disinterest in constitutionalism (because either they or their constituents did not care about it). Thus, while Connecticut, Rhode Island and New Jersey Republicans decided that they would refrain from repealing state concurrent enforcement until the repeal of the Sheppard Amendment, all of them joined the two pariahs, Massachusetts and New York, in calling for that change. In some ways, there was little more that they needed to do. Massachusetts wets had blazed a path to repeal that other states could imitate. In the populist states of the Far West, with their strong initiative and referenda systems, the AAPA and its allies could use signature gathering to force referenda. Legislators in states without such democratic responsiveness could similarly decide to pass laws creating their own referenda, pledging support for popular sovereignty as a way to get prohibition off the agenda and with minimal disruption to the party system.

The Midwest In 1931, several states of the Midwest seriously considered whether to follow Wisconsin’s repeal of concurrent enforcement; only one would come close to success, but attacks on Prohibition expanded both geographically and ideologically. As the Depression wore on, legislators hostile to the Eighteenth Amendment increasingly invoked policy matters, with the farming economy and concerns about tax revenues supplementing and in some cases displacing the largely federalist critiques previously offered against prohibition. Armed with the voters’ imprimatur repealing Wisconsin’s law, legislators in Madison continued finding new ways to protest even more zealously

206

chapter nine

than they had in the last session. They asked for a constitutional convention to repeal the Eighteenth Amendment.138 As they had in 1929, they again asked for Congress to provide a nationwide referendum.139 They invoked economic claims of tax revenue and stimulating demand.140 They argued (correctly) that a careful reading of the Wickersham Committee’s individual reports revealed a far more damning indictment of the national prohibition regime than was contained in the widely mocked cover letter.141 They insisted that Canada’s highly regulated regime of alcohol distribution offered an example worth imitating.142 And, finally, consistent with the skepticism of federal power deeply seated in the state’s political culture, they invoked the most common argument that the Eighteenth Amendment, “ratified through hysteria under the stress of war conditions,” aimed to convert the Constitution into “a declaration of police powers” and “an invasion of the rights of sovereign states [and] their citizens.”143 The coalitions were quite stable: two to one or better in both chambers for nearly all the protests listed above. An impatient special session in 1932 even asked Congress immediately to authorize states to set the definition of intoxicat­ ing since Eighteenth Amendment repeal—­which the legislators assumed would happen—­would still take too much time.144 Having done the hard work of repealing concurrent enforcement, Wisconsin’s state representatives could now take credit for easy attacks on the national enforcement regime. One South Dakota legislator offered a very different proposal to correct the Sheppard Amendment, notable less for its importance—­as it was totally ignored—­than for its unusual argument joining robust national power and wet sympathies. Beginning with the usual litany of horrors, he observed that Prohibition had brought lawlessness and gross violations of constitutional rights. Thus, unsurprisingly, his alternative amendment would have changed the amendment by investing Congress with discretion to set alcohol policies—­Prohibition would be optional but not required, a proposal not dissimilar to the Wickersham Commission’s. Absent among his list of the Sheppard Amendment’s evils, however, was centralization or the violation of states’ rights. Instead, arguing that federalism spillover inevitably made alcohol regulation impossible at the state level, he proposed that Congress and only Congress be allowed to control the taxing, licensing, regulation, or suppression of alcohol uniformly across the entire country.145 But that as well as an advisory referendum on Eighteenth Amendment repeal and, more controversially, a bill to change South Dakota’s definition of intoxicating were all killed in a quick succession of voice votes.146

the noble experiment (1929–­31)

207

In Michigan, protest against Prohibition again focused on its economic effects. (Other midwestern states would also pick up that line of argument, but in addition to, not instead of, more constitutional claims.) Thus, representatives in Lansing offered a pragmatic proposal framing the Depression as a policy window justifying emergency powers; the need to generate tax money without squeezing impoverished citizens offered a good reason to decriminalize wine and beer (generating alcohol sales) while priming demand for agricultural products.147 Floor votes killed proposals for a memorial to Congress seeking modification of Volstead and for an advisory statewide referendum.148 What was not killed was a cider bill that would, like the Volstead Act, not define intoxicating for purposes of cider—­but that would, owing to the evidentiary standards it would have established, have made prosecutions impossible, thus indirectly legalizing hard cider within the state. Michigan’s almost uniformly Republican legislature backed the bill.149 As had Zimmerman in neighboring Wisconsin in vetoing that state’s more general concurrent enforcement repeal, Republican governor Wilber Brucker argued this was nothing but “an attempt by the legislature to nullify a portion of the constitutional mandate” and vetoed the bill.150 Other midwestern states demonstrated the strength of Prohibition sen­ timent in 1931, holding votes rather than burying repeal efforts in committee. In Iowa, where the governor promised that “any law contemplating nullification would be declared by the courts . . . as void,” legislators allowed a vote to repeal the state’s concurrent enforcement— ­only to kill the bill on a humiliating 95–­6 margin, with all six dissenters Democrats.151 Legislators in Columbus, Ohio, considered the repeals of various prohibition statutes as well as petitions for constitutional conventions to repeal the Eighteenth Amendment, which were banished to committee. But the most important vote was not shuffled away: a futile attempt to repeal the state’s concurrent enforcement amendment was allowed a failed roll call vote (losing by a two-­to-­three ratio).152 Republicans in neighboring Indiana managed to protect the state’s prohibition regime for one more term. Although the Indiana branch of the Ku Klux Klan—­which had dominated its Republican Party in the 1920s and discreetly installed Edward Jackson as governor—­had collapsed owing to scandal,153 prohibition survived one more term, lasting until the state’s Democratic Party took over in 1933. Minnesota legislators remained committed to the regime of national Prohibition but recognized that the Volstead Act was under siege. As they had

208

chapter nine

in 1927, they voted to block a referendum that would have considered repealing the Eighteenth Amendment or requesting modification of Volstead to allow states to set the definition of intoxicating.154 Instead, both chambers reiterated support for national authority (but against prohibition) with the so-­called if bill, directly hitching the state’s definition of intoxicating to whatever Congress might set it to, present or future—­presumably higher.155 Governor Floyd Olson, a radical Farmer-­Labor candi­date who had replaced the conservative Republican Theodore Christiansen, agreed with the legislature that prohibition was a matter properly handled by the federal government and that legislators were merely getting out of the way.156 Illinois thus proved to be the only midwestern state to pose a serious threat to prohibition in 1931. Nonetheless, as had occurred in neighboring Wisconsin a few years earlier, its governor blocked such efforts even though doing so was an obviously losing position. Illinois voters’ approval of the nonbinding referendum to repeal the state’s concurrent enforcement bill and the selection of the wet senator Hamilton Lewis in 1930 clearly demonstrated the dangers of prohibition support in 1931. The House directed its fire toward arguably the two most constructive ways to resist the amendment: a direct petition for its repeal by Congress and an end to state concurrent enforcement. The resolution, a standard states’ rights, police powers claim, cleared the House on a voice vote but was ignored by the Republican-­held Senate.157 However, that did not herald a continuation of the old, obstructionist Senate that had killed so many other attacks on prohibition in the preceding decade. With its vote on March 25, 1931, the Senate agreed with the House in repealing the Illinois Prohibition Act and concurrent enforcement.158 Republican governor Louis Emmerson, the former secretary of state who had defeated his corrupt GOP predecessor, found himself ensnared in a constitutional controversy. Despite being on the wrong side of almost three-­quarters of his state’s voters, Emmerson echoed the themes of earlier law-­and-­order governors and cited constitutional obligation in blocking the bill. Emmerson’s veto condemned the bill as nullification, arguing that the voters did not, in good conscience, endorse such anarchy but instead made clear their hostility to the Eighteenth Amendment and wanted its repeal. For Emmerson, then, like Coolidge, a rule of construction meant that the people’s will had to be glossed through their sovereign decisions as enacted in constitutional text; any other reading was untenable. The legislators might have chosen to interpret an ambiguous mandate to authorize nullification, but Emmerson could not. In defending this position, the governor cited the

the noble experiment (1929–­31)

209

Illinois Republican Party’s 1930 platform pledging its members both to faithful law enforcement and to respecting the results of the referendum. (Unlike the wet-­leaning Coolidge, however, Emmerson was a true-­believing leader of the dry faction who had opposed the party’s moist platform.)159 Reconciling his electoral mandate to fulfill both those claims as well as his oath meant following the law while seeking its change through constitutional means. Emmerson was thus blunt: “National action should precede state action.” Until the Eighteenth Amendment had been appropriately repealed, the state could not simply opt out of constitutional government with sloppily drafted legislation. The bill’s drafting language, Emmerson argued, fit this since it resulted in the repeal of all state liquor controls, including the state’s aggressive, pre-­Volstead local option regime that had made even most of Chicago dry. Emmerson displayed the same discomfort with Calhounian politics as other governors institutionally obligated to enforce the law, unpopular as such enforcement might be. For him, the bill was not just symbolic protest but a profoundly unconstitutional and consequently immoral change in policy. “It is quite evident,” he observed, “that the repeal of these acts is not a mere gesture of disapproval of prohibition, as some would have it appear.” Instead, it was far more dangerous, not only forcing him and other state officers to violate their oaths, but also “tend[ing] to strike at the fundamental unity of national government under the Federal Constitution.” The bill had “only one purpose”: “to hinder and thwart and make impossible” the enforcement of a part of the Constitution’s text. It was “not the orderly and legal method for securing this change [but instead] smacks of lawlessness and rebellion.” Emmerson was clear: the governor who would not veto such legislation “fails in his constitutional duty.”160 That duty, however, came with clear and easily anticipated costs: Emmerson did for Illinois Republicans what Hoover did for the nation’s: branding the party on the wrong side of Prohibition, with electorally devastating results. That the Republicans nominated a wet candidate and adopted a “dripping wet” platform proved irrelevant; the wet Democrat Henry Horner easily triumphed in 1932.161 As 1931 closed, the WCTU could indeed observe that drys had been effective in blocking all antiprohibition policy change, but there were several obvious signs that things would get much worse for them. First, as had been the case since 1920, many of those nominally classed as drys had no great love of Prohibition but found themselves duty bound to enforce it. Efforts to propose advisory referenda, which prohibition

210

chapter nine

legalists had from the beginning endorsed as the right way to contest the Sheppard Amendment, significantly outperformed calls for either repeal of state concurrent enforcement or tweaking the definition of intoxicating. This is unsurprising since such techniques unthreaded the ASL’s decades-­ long campaign to knit prohibition and constitutional obligation so tightly together that anything but full-­throated support of the amendment would be regarded as tantamount to nullification. Thus, while the ASL and the WCTU could crow that no policies had changed, it was constitutional obligation, not underlying dry sympathy, providing the support. Such legalists, who loved the Constitution more than they hated alcohol, were a help during the 1931 legislative sessions, but there was no reason to assume that they would be during the 1932 campaigns. With the electorate potentially in flux, legalists loudly chafing under Prohibition were functional wets as far as public opinion went, helping poison voters against the Eighteenth Amendment (even if they might disapprove of voters’ overly blunt signals in achieving that, such as by supporting prerepeal Volstead modification). Second, the ASL and the WCTU no longer faced an empty field. Not only had the AAPA steadily grown in strength, but William Stayton’s states’ rights–­devoted organization now had a key and, by some accounts, even more powerful ally, the Women’s Organization for National Prohibition Reform (WONPR), led by Pauline Sabin, whose husband was an AAPA executive but who was as well connected or better connected than he was. (They had different connections—­while he was a Democrat, she was a long-­term libertarian Republican influential in the Republican National Committee.) WONPR, which had arisen in 1929 to counter the WCTU, achieved almost immediate success in enlisting massive numbers of women against Prohibition, even as it was led by a handful of elite socialites. It soon managed to surpass even the AAPA in membership and arguably influence in fighting Prohibition.162 Third, voters willing to let national Prohibition exist in theory but not in fact increasingly confronted a meaningful enforcement regime that made them recoil not from its implications but from its implementation, especially implementation by federal officials. The halfhearted and delegatory form of enforcement under Coolidge now had real teeth under Hoover’s supervision. In 1928, Hoover had paraphrased Lincoln’s observation from the celebrated Lyceum Address to observe that the best way to both vindicate a good law and discredit a bad law was to enforce it robustly, and he had done just that.163

the noble experiment (1929–­31)

211

The Jones Act’s brutal penalties had gone a long way toward generating sympathetic news stories of seemingly disproportionate sentences, but, even without it, Prohibition enforcement had tightened significantly. Pursuant to an interim Wickersham Commission proposal in 1930, Hoover had convinced Congress to move the Bureau of Prohibition from the lackluster Department of the Treasury into the Department of Justice—­though the ASL worried that this would lead to further state inactivity and free riding. Surveillance of industrial alcohol was now more zealously enforced—­ even after drys had insisted that manufacturers begin poisoning it during the closing years of Coolidge’s presidency (over Treasury secretary Mellon’s protest).164 Old ladies going to prison and young people going blind seemed an ever less understandable price to pay for a drier country. Fourth, in several states, drys had to rely on senates if they were to succeed in blocking antiprohibition efforts raised by more recently elected lower chambers. Just as in the US Senate, the longer terms of the states’ upper chambers were meant to slow down—­but not ultimately stop—­policy change desired by the people. If another election showed that this was not a temporary wave of passion but a sustained slow tide of public opinion, prohibitionist senators would be pulled to sea in the next election. Fifth, Republican incumbents enforcing Prohibition, whether out of con­ viction or legalism, helped make the party the presumptive dry ticket even as individual members sought to avoid that branding—­the fates of Prohibition and the GOP were increasingly linked. As Emmerson showed in his quixotic defense of Illinois’s laws, Hoover’s embrace of the Wickersham Com­mission was the most prominent but by no means only example of executive zeal for the amendment, making it easy for a low-­information voter to cast out the GOP—­including both true-­believing and legalist drys. At the same time as the Republicans moved toward the drys, the once equally prohibitionist Democratic Party had largely and rapidly become an antiprohibition party, at least outside the South (and Oregon). Bryan was dead, and William McAdoo, not yet a senator from California, had mostly been out of the public eye for years. As Kyvig’s study of the fall of Prohibition shows, a group of wet Al Smith allies, including former Republicans like John Raskob, had wrested control of the Democratic Party’s central machinery between 1928 and 1932.165 At the state level, Democrats might have wielded tiny numbers throughout the Midwest and in parts of New England, but they had achieved clear branding as the party to which voters could turn to assail prohibition. Finally, and relatedly, the Depression made it even more improbable that dry Republican incumbents would survive, even in the unlikely event

212

chapter nine

that citizens’ prohibition preferences remained constant. Just as dry Republicans had benefited from the positive economy in the late 1920s, with some voters willing to swallow wet preferences to keep the good times rolling, the lingering Depression risked not just the disappearance of that goodwill but perhaps even the reverse, as drys engaging in economic retrospective voting might consider voting for Democrats despite their wet politics. The increasing frequency with which wet politicians supplemented (and, in some cases, substituted) their federalist critiques of Prohibition with financial worries offered a way to link the two that could appeal to pocketbook voters disinterested in legal reasoning. Drys had defeated all the legislative assaults on prohibition in 1931, and the relatively few legislatures meeting during an election year limited the potential policy losses in 1932. Like the WCTU, the Christian Science Mon­ itor refused to see the clear trajectory. Instead, it gloated that the AAPA would be able to marshal only twenty-­one confirmed wet senators at the start of 1932—­a pickup of one in fifteen years, thereby achieving the “sixty-­ four necessary for repeal in the year 2576.”166 They were off by a few years.

chapter ten

The Dam Breaks (1932–­33)

There is as much chance of repealing the Eighteenth Amendment as there is for a hummingbird to fly to Mars with the Washington Monument tied to its tail.—­Senator Morris Sheppard (D-­TX), September 19301 The Eighteenth Amendment was . . . put in the Constitution by a slow process of development. The next Congress will be as dry as this, and the amendment will remain.—­Senator Sheppard, June 19322

T

hough his Sheppard-­Towner Maternity Act had ended in 1929, killed by Calvin Coolidge’s commitment to federalism, Morris Sheppard was not obviously wrong to survey American politics in 1930 and declare the unassailability of his other signature project, the Eighteenth Amendment, considering that it would take three-­fourths of the Union to eliminate it.3 Yes, Maryland, Montana, Nevada, New York, and Wisconsin—­mostly wet states whose initial acquiescence had been surprising—­had revolted (with Massachusetts destined to follow a month later), and others appeared to be teetering. Nonetheless, dry strength in the rest of the country certainly appeared strong enough to preserve the skeleton of national Prohibition. But, by the middle of 1932, such a statement would not be a hopeful but plausible interpretation of the facts: it would be sheer delusion. In April 1932, Literary Digest ran an updated poll indicating a rapid turnover in public attitudes against Prohibition: 74 percent now favored repeal of the Eighteenth Amendment, including clear majorities in nearly every state

214

chapter ten

(with Kansas at 49.8 percent, North Carolina at 49.9 percent, and Mississippi at 50.0 percent).4 But the poll’s release confirmed what everyone seemed to know already. During the early part of the year, state legislators in the Northeast who had tried to preserve constitutional forms found themselves unwilling or unable to remain attached to such nuance and simply abandoned prohibition, often by relinquishing the duty to their voters. The presidential wings of both parties signaled the end of the prohibition status quo, disagreeing only on how radical change could be while still remaining faithful to the Constitution—­which in turn emboldened summer special sessions. Only Congress initially held out, but, by the end of the year, it too recognized the results of the antiprohibitionist wave election—­both legislators and referenda—­and realized that the noble experiment had ended. Viewed solely in light of their spring 1932 sessions, Massachusetts and New York behaved as model antiprohibition states, protesting the amendment, but resisting further efforts to undermine its enforcement. A Massachusetts memorial asking Congress to modify Volstead to use a 4 percent standard went nowhere, but, somewhat surprisingly, Massachusetts legislators debated whether they had gone too far in eliminating alcohol enforcement.5 The House actually decided— ­on a voice vote—­to restore enforcement of alcohol above 4.5 percent alcohol by volume (ABV) before the bill’s death in the Senate.6 In New York, the Association against the Prohibition Amendment (AAPA) and the Women’s Organization for National Prohibition Reform (WONPR) encouraged dry legislators’ futile effort to restore concurrent enforcement to demonstrate prohibition’s electoral weakness, but most bills died in committee.7 New York’s Senate passed on provoking or endangering Roosevelt by ignoring the Assembly’s resurrection of the last session’s vetoed medicinal liquor bill.8 The Assembly also advanced Louis Cuvillier’s resolution requesting that Congress modify the Volstead Act to “restore to New York State its sovereign right to determine a system of control” over alcohol—­ including its revenues—­but the Senate passed on this too.9 Nonetheless, the two bills that both chambers did agree on would have satisfied even Herbert Hoover: both ignored bills establishing state liquor dispensaries but did formally request that Congress repeal the Eighteenth Amendment.10 Other northeastern legislators’ long-­standing attempts to straddle wet politics and perceived constitutional obligation finally collapsed in 1932. Of the three states whose 1931 sessions saw them memorialize Congress to repeal the Eighteenth Amendment but maintain concurrent enforcement,

the dam breaks (1932–­33)

215

in 1932 only Connecticut—­ whose legislature did not even meet—­ left concurrent enforcement untouched. Whether the state’s legislators would have acted against concurrent enforcement directly is unknown; citizens of the Constitution State instead had to await the results of the referendum against the Eighteenth Amendment that Hartford legislators had approved in 1931.11 By way of contrast, legislators in both Rhode Island and New Jersey cast votes to eliminate their state’s concurrent enforcement regimes and join Massachusetts and New York in nullifying national Prohibition. The same Rhode Island Republicans who had balked at modifying the state’s enforcement law in 1931 now acted directly to relax the state’s concurrent enforcement laws, which would no longer apply to beverages below 3 percent ABV—­in effect, a beer bill. Nonetheless, they simultaneously eased requirements to secure a warrant and expanded the ability to declare sites nuisances.12 In short, they were attempting to crack down on harder liquor while allowing consumption of beer. Democrats argued that the bills were both a half measure and too draconian, respectively, but the Republican floor leader explained that adopting a strong enforcement regime for a non-­Volstead prohibition standard was a “declaration of independence by the State from what it believes to be an unwarranted interference in her own internal affairs.” A Providence Baptist church agreed, unhappily reporting that the bill would “make Rhode Island secede from the United States.” Governor Norman Case, a Republican, had earlier hedged, insisting on “proper state cooperation . . . as long as the Eighteenth Amendment is in force.” Now, on signing the bills, Case explained that they would protect the “safety of our citizens, [the] security of our property . . . [and] the peace and good order of the community.”13 Case was right. Wets had not ushered in a period of lawlessness and wet paradise; in fact, they soon found themselves lamenting that the state’s police continued to cite their constitutional oaths and turn violators over to the federal government.14 In New Jersey, Democratic governor Harry Moore observed with pleasure that Republicans seemed to be reversing on prohibition, adding that he hoped that enough of them would join with his Democratic Party to achieve at long last their goals of repealing state enforcement.15 The charge was somewhat unfair since many—­perhaps even most—­had always agreed with the Democrats’ states’ rights charges against the amendment but found themselves constitutionally bound to enforce it. Nonetheless, Moore was right to see a change among Republicans, who now cloaked themselves in popular sovereignty by voting not for a direct repeal of the Hobart Act’s concurrent enforcement but for a binding

216

chapter ten

referendum that would do the same. After a January 1932 special session of the 1931 legislature narrowly killed a repeal bill in the Assembly, the now Democratic majority of the 1932 regular session deigned to let the Republican sponsor, former majority leader Anthony Siracusa, again take the lead, discharging his bill as a gesture of magnanimity demonstrating that Democrats would use their rare and newfound control of Trenton prudently. (Republicans still held the Senate, but the majority leader was now Emerson Richards, one of the party’s wettest members.) Siracusa, who had also shepherded the enforcement bill in the special session, explained that the era of constitutional nicety was over: while he agreed that the proper order would be to repeal the Eighteenth Amendment first and then withdraw the state’s law, he also noted that the people of New Jersey “want action, not logic.”16 The Senate declined to follow the lead of Siracusa’s boldness, letting the people take the fault for such action: in addition to ignoring a request to change the Volstead Act, the dry wing of the Republican Senate joined with two dry Democrats and barely killed direct repeal.17 Instead, they offered two referenda, one against the Eighteenth Amendment (which the House declined to support) and one a binding repeal of the Hobart enforcement act.18 Much less divisive were calls for a constitutional convention to revoke the Eighteenth Amendment, advanced by Republican Senate majority leader Richards with nearly unanimous support in both chambers,19 and the decision to repeal the obsolete, judicially blocked Van Ness Act.20 New Jersey’s legislature had thus called for the end of the Eighteenth Amendment and authorized the foregone conclusion that the state’s voters would eliminate concurrent enforcement. Thus, while these northeastern state legislatures disagreed on whether they could repeal concurrent enforcement or remained bound to enforcement by constitutional obligation, they all agreed that Congress ought to move for the repeal of the Sheppard Amendment. Memorials to that effect did not fall on deaf ears as congressional wets made a serious effort to go through the unquestioned constitutionally proper method of ending national Prohibition. In March, the Pennsylvania Republican James Beck, the conservative former solicitor general and an influential constitutional thinker, and the Maryland Democrat John Linthicum sought to discharge a resolution that would repeal the Eighteenth Amendment and replace it with a states’ rights option. Beck savagely mocked drys who now proclaimed the Constitution

the dam breaks (1932–­33)

217

sacrosanct and immutable once it appeared that their amendment would lose but who had taken a rather different tone in changing it at the cost of local government a decade and a half ago. The March 14 vote indicated that drys retained a clear majority (227 to 187), with relative parity between the parties. (Dry Republicans held a 112–­97 advantage and prohibitionist Democrats a similar 114–­90.)21 Beck had never expected to win the vote: what the AAPA had hoped to do in convincing him to sponsor the referendum, however, was to force every member of Congress on the record in the election year, and, on that, Beck and the AAPA had succeeded.22 Wets seeking to ascertain popular preferences got another boost two months later, with George Wickersham declaring that, although he opposed the full repeal of the Eighteenth Amendment, he nonetheless believed “more strongly than ever” in a national referendum on Prohibition to clearly determine the “sober, informed, and deliberate opinion of the people,” which would take place in a nonelection year to get a clearer signal unclouded by partisan politics.23 While James Beck’s failed vote forced members of Congress to declare their views before the election, the leading presidential candidates carefully maneuvered to blur their own positions in the lead-­up to the nomination. In the Republican camp, as H. L. Mencken observed, the wets were furiously, desperately wet, fearing that their party would be discredited for years to come if it did not get on the right side of Prohibition and call for a return to states’ rights.24 Nicholas Murray Butler and other Republican wets wielded a widely published letter from John D. Rockefeller Jr. disavowing the family’s previous strong support for the prohibition of alcohol. The leader of the Baptist Rockefellers, longtime and public champions of prohibition and the Anti-­Saloon League (ASL), now pleaded with the GOP to make repeal of the Eighteenth Amendment part of the platform, as Butler was attempting to do. Nothing would have pleased his teetotaling clan more, Rockefeller explained, than Prohibition’s success, but events made him sadly conclude that national Prohibition had proved counterproductive to the cause of temperance that they had cherished for so long. Thus, after discussing Butler’s proposed platform—­an extended historical exegesis of the importance of constitutional federalism and states’ rights dating back to Lincoln’s 1860 platform—­he indicated that he hoped to see a clean, full repeal, after which states could maintain their enforcement infrastructure with the aid of the federal government, in effect, a restored Webb-­Kenyon.25 Rockefeller’s action triggered serious consideration not only by the Republican leadership but also by many others. A few days later, Alfred Sloan, the head of General Motors and another prominent industrial

218

chapter ten

titan linked with prohibition, followed suit in disavowing the Eighteenth Amendment.26 A week after that, the Chicago Defender, the leading black newspaper, joined the bulk of the nation’s newspapers in opposition to the amendment.27 Even William McAdoo, preparing to launch his Democratic campaign for US senator from California, now tried to save face by releasing a statement in favor of a resubmission of Prohibition to the electorate in an advisory referendum. Anticipating constitutional objections wondering what authorized such a vote, his statement breezily invoked the general welfare clause of the tax power, denying that “any right of the states would be invaded by any such action.”28 Despite all the support coming from and inspired by Rockefeller, however, Republican wets had two obstacles. First, an explicit endorsement of repeal would be a hard pivot considering that the GOP’s presidential leadership had seemingly gone all in for Prohibition and the support of the ASL in previous years. Second, southern Republicans remained devoted to Prohibition. Thus, the platform’s final text professed a middle ground not unlike the Wickersham Committee’s recommendations: constitutionalizing Webb-­Kenyon, and ceding back all alcohol police powers except for those involving the suppression of saloons, but firmly rejecting “nullification by nonobservance” until then. This moderate platform, savagely mocked by wets (such as Connecticut senator Hiram Bingham) and drys (like William Borah) alike, survived a floor vote—­690–­460 for full repeal of the Sheppard Amendment.29 Borah, Butler, and others from a wide spectrum of views on Prohibition believed that a majority of nonsouthern Republicans at the convention—­the more relevant number owing to the uncompetitive Solid South—­supported the platform change.30 Thus, northeastern Republicans protested that southern Republicans who would never actually be elected determined the margin; it was Republicans in Connecticut, New York, or New Jersey who would pay for that declaration of principle. Hoover later claimed that he also wanted full repeal in the 1932 plank but that the platform committee forced the compromise platform on him and that he had agreed to go along to try to keep Borah on board.31 But the position—­if not quite a principle—­was declared: the Republicans would be the moist party in 1932. Of the five leading Democratic candidates—­Albert Ritchie, Al Smith, House Speaker John Nance Garner of Texas, and Ohio’s Newton Baker, who had been Wilson’s secretary of war and a wet member of the Wickersham Commission—­Franklin Roosevelt was the only candidate not openly for repeal.32

the dam breaks (1932–­33)

219

Roosevelt had been the clear favorite since his success in the 1930 gubernatorial election, demonstrating that he could win in the Republican-­ leaning New York (with its massive electoral vote haul). Moreover, unlike Smith, he was seen as acceptable in the South. As the presumptive favorite, he simply needed to remain above the fray: an evasive position would keep drys in line until he had secured the nomination over Smith, at which point he could pivot against Hoover and the Republicans, who had taken essentially the same position that Roosevelt himself had carried into the convention. Until the very end, Roosevelt continued with the evasive and moderate record he had carefully cultivated for years: whether urging Al Smith to veto the Mullan-­Gage repeal of the state’s prohibition laws while defunding them to appease wets, offering different impressions of his views in upstate and downstate New York, or endorsing Dwight Morrow’s Webb-­Kenyon-­style amendment in 1930.33 Roosevelt again tried to position the Democrats’ 1932 platform so that it served his own interest, just as he had two years previously. In the 1930 gubernatorial election, he had arranged for an ardently prorepeal Democratic platform in New York so that he could pivot against both it and the wet Republican nominee, maintaining his bona fides as a moderate.34 Now Roosevelt tried to do the same, opportunistically shifting his po­ sition— ­even within the same convention. As the 1932 Democratic con­ vention began, he initially supported a muddled platform on Prohibition not unlike his own position.35 An incensed Al Smith sought to use his control of the New York delegation—­loyal to him, not Roosevelt—­to ensure a wet plank, block Roosevelt’s nomination, and perhaps claim it for himself. Roosevelt initially held to his moderate views, leading his former mentor to prepare a savage attack on Prohibition (and, by extension, Roosevelt himself); fifteen minutes before Smith’s scheduled speech, Roosevelt dramatically reversed and publicly endorsed full repeal, helping deflate the Smith boom.36 His campaign manager, James Farley, now pushed for Smith’s wet platform in order to eliminate any lingering appeal of Smith or Albert Ritchie—­after all, if the party was going to be officially committed to Prohibition repeal, it might as well pick the most electable nominee.37 The Democratic Party and its candidate had now openly thrown their weight behind the end of Prohibition, while the Republicans had functionally done the same This was especially true after Hoover went even further than the moist platform in offering his full support not simply to resubmission, as the platform held, but to an end to the regime of national Prohibition. In his speech accepting the GOP nomination on August 11,

220

chapter ten

he forthrightly recognized that “a change is necessary” because, despite his hopes, Prohibition had succeeded only in destroying the saloon. Rather than forfeit those hard-­won gains, he held that any such amendment should ensure “that in no part of the United States shall there be a return of the saloon system.” Beyond that, however, he desired to see states set their own alcohol policy since local control and states’ rights were the “very essence of our government,” and to that end he endorsed constitutionalizing Webb-­ Kenyon: any amendment should ensure that the states would be supported by “absolute guarantees in the Constitution of the United States to protect each state from interference and invasion by its neighbors.”38 With the implicit imprimatur of the national parties, state legislatures meeting in special budgetary sessions now attempted to attack prohibition. Louisiana had been the last southern state to get on board with prohibition and was, unsurprisingly, the first to end it. In fighting Prohibition, the state’s legislators went even further than its citizen Monte Lemann, the wet lawyer and Wickersham Commission member who refused to sign the consensus document on the grounds that it did not call for the end of the Eighteenth Amendment—­but even he had had opposed efforts to repeal enforcement laws as long as the amendment survived. By way of contrast, Huey Long’s regime—­never one to be overly concerned with legal nicety—­pushed aggressively against the Eighteenth Amendment even when clearly warned that doing so was illegal. The legislature not only called for the ostensibly proper form of resistance—­a constitutional convention to repeal the amendment—­but also established an unheard-­of Louisiana state referendum that would abolish the so-­called Hood Act and the state’s other prohibition laws at the 1932 election.39 Floor debate was not a model of legal probity. The only opponent willing to speak out against a failed direct repeal bill had not objected on the grounds that the proposal violated federal law—­far from it as he agreed that the Eighteenth Amendment was an appalling violation of states’ rights. Instead, he warned that directly repealing the law would prompt a heavy-­handed federal response—­a dangerous prospect for someone who openly admitted to taking a drink whenever he wanted as his protest for states’ rights.40 Although the state legislative bureau contended that the referendum was illegal—­not because of the US Constitution’s supremacy clause but because the Louisiana Constitution did not provide for binding referenda except in amending the constitution itself—­in July 1932 the legislature approved the referendum.41 The prohibitionist opponents of the referendum, resigned to the inevitable, waived debate and allowed the vote to create

the dam breaks (1932–­33)

221

a November referendum.42 (Confirming the legislative bureau’s worries, courts struck down the bill after the election, but the state’s legislators took voters’ cue and quickly repealed state prohibition in March 1933.)43 Wets in West Virginia took advantage of the state’s financial woes, convincing previously obstinate drys to buck their constitutional obstruction and join them in terminating prohibition. This was not merely replacement, as no intervening election had occurred; instead, legislators— ­even those who had proudly congratulated themselves for constitutional fidel­ ity— ­decided that the need was too great to follow what they previously held to be the law’s dictates. Owing to the legislators’ inability to make a workable budget in West Virginia’s 1931 legislative session, Governor Conley summoned a special session—­where a joint budgetary committee now recommended repealing prohibition enforcement as a desperate measure of fiscal prudence. Armed with that imprimatur, the Senate not only relented in its opposition but also passed the bill overwhelmingly. Seven Republicans continued to oppose the bill, but all eleven Democrats joined with eleven Republicans to pass it, including Majority Leader M. Z. White, who but a year before had praised his colleagues for helping him defend the Constitution by blocking what was effectively the same bill. One senator observed that he had always been faithful to prohibition and had defended it throughout this session but could no longer. He believed that he could now vote as he did, discarding both prohibition fidelity and his own preferences in order to follow the recommendation of a joint budgetary committee. The House bypassed its regular rules and immediately repassed the bill with a supermajority, flipping thirteen Democrats and six Republicans who had opposed the bill the year before.44 On the advice of his attorney general, Governor Conley vetoed the bill, along with several others, on constitutional grounds. What is noteworthy, however, is that he avoided any substantive defense of prohibition or even constitutional fidelity to the Sheppard Amendment: instead, his objection derived solely from the limited discretion of the legislature in an extraordinary session. The West Virginia Constitution specifically prohibited special sessions from passing legislation unrelated to the call summoning them—­in other words, any legislation in a special session had to be germane to the call. From his perspective, Conley had issued a call to work on budget issues, and the legislature had responded by eliminating prohibition.45 Members had anticipated this objection and in the floor debate explained why they believed that their elimination of concurrent

222

chapter ten

enforcement on fiscal grounds had firm footing in state precedents.46 The veto override was a formality, with the previous supermajorities holding.47 Prohibition was gone in West Virginia, brushed aside rather than forthrightly attacked, but, from the perspective of a constitutional legalist, this was arguably the worst outcome. The wet vote did not even follow from a constitutional argument like Albert Ritchie raised in nearby Maryland, invoking states’ rights and anticommandeering to refute the drys’ constitutional claims, or even the plausible deniability of Nevada. In Charleston, legislators did not disavow their previously stated constitutional beliefs and obligations: they simply conceded that the fiscal situation proved more important. Indiana’s special session gave drys one last set of legislative victories in 1932 as the Republican Senate killed various wet initiatives pushed by the now overwhelmingly Democratic House, but even they eventually consented to a referendum on the Eighteenth Amendment. The Senate unsurprisingly ignored a House-­backed repeal of the state’s bone-­dry law,48 but the two chambers soon launched into a contest of misdirection and evasion in trying to make prohibition go away— ­despite both state platforms endorsing repeal of concurrent enforcement.49 On July 25, the House attempted to move Democratic representative Jacob Weiss’s complicated bill, which nominally expanded medicinal liquor but actually modified the definition of intoxicating and allowed its use for “personal consumption,” which, as one opponent observed, was an obvious end run around the Prohibition amendment.50 Two and a half weeks later, on August 12, the Republican Senate approved the so-­called Weiss Bill—­but only after, to avoid responsibility, the Republicans completely changed it by attaching a binding referendum, even assuming that the Democrats and their wet GOP allies went along with the plan (which most rightly predicted they would not).51 Efforts to hammer out an agreement in conference failed, with the House floor managers turning the table on drys by attacking the Republicans’ effort to contort the Constitution— ­of Indiana. As in Louisiana, where the legislative bureau had noted that the state constitution did not allow binding referenda, the House floor leaders attacked the dry GOP for illegally delegating lawmaking without any such provision in the state charter, all so that they could cover themselves politically.52 So eager was the Senate to avoid direct responsibility that it even ignored a moderate, bipartisan resolution approved by the House that sought to have Congress make such changes to the Volstead Act “as are constitutionally possible.”53

the dam breaks (1932–­33)

223

Texans offered one final summer blow to prohibitionist hopes and embarrassment to their senior senator, functionally adding one more state to those calling for an end to Sheppard’s amendment. Democrats placed a question on their July 23 primary asking whether the Eighteenth Amendment should be resubmitted to the states; it passed overwhelmingly, by more than two to one. Drys tried to downplay the vote as unrepresentative of the general Texas electorate because primary-­eligible Democrats were disproportionately wet, party loyalty rules temporarily prohibiting anyone who had contributed to Hoover’s surprise 1928 statewide win from voting in the primary. Nonetheless, the wide margin embarrassed and closely matched Texas’s 60 percent wet numbers from the Literary Digest poll, with perhaps a few drys thinking like Wickersham in favoring a vote in the hope of vindicating and relegitimating prohibition in November.54

The 1932 Election and the 1933 Lame-­Duck Session Like the 1928 election, and unlike the bitterly ideological 1936 contest that would follow, the 1932 campaign proved frustratingly vague for many political observers unclear what, exactly, the election was about. Although, like much of the nation’s political class, Roosevelt himself favored focusing on economic policies, Democratic Party elites were more interested in Prohibition. (Not all the political class favored that economic lean; the myopic Mencken unsurprisingly urged Democrats to let the Depression go as an issue and instead run against Prohibition.)55 Vague statements from the Democrats—­happily letting discontent with the state of the economy do the work—­made it impossible to assess whether they were challenging Hoover from the right or from the left. With both parties remaining vague in outlining their economic agenda, Prohibition became, by default, at least one clear division.56 That made it easy for the WONPR and its formerly Republican leader, Pauline Sabin, to endorse the Democratic slate. A few hard-­line Repub­ licans—­but not Sabin herself— ­quit the organization, arguing that the GOP was moving in the right direction and endorsing prohibition states’ rights, but others went along since the Democrats had unequivocally endorsed repeal. The AAPA, more risk averse to burning the 40 percent of the GOP for repeal—­whose votes would be needed in Congress—­re­ mained guarded, praising the Democratic platform while reiterating that its members should vote candidate by candidate and insisting that it would focus on down-­ballot races.57

224

chapter ten

With both national parties giving tacit approval to the end of Prohibition—­ differing primarily on how orderly that end would be—­and state legislators ceding responsibility through referenda, voters throughout the country confirmed the expiration of the noble experiment. Unlike in earlier elections, which saw dry candidates elected concurrently with wet referenda, in this election antiprohibition congressional candidates thrived, with wet Democrats knocking off both dry and legalistic Republicans. In the House, Democrats and Farmer-­Labor candidates took 101 seats from Republicans; in the Senate, they claimed a dozen seats. Among the casualties in the upper chamber were two leading Republican wets (Hiram Bingham, who narrowly lost in the general election, and John Blaine, who lost in the primary and whose seat Democrats claimed in the general) as well as Wesley Jones, the author of the draconian prohibitionist Jones Act. While attributing issue mandates from representative elections is usually a dangerous endeavor,58 the mutually reinforcing messages of the 1932 elections were unmistakable. Whether voters approved of Franklin Roosevelt’s still nebulous visions for economic recovery or not, they certainly did not have to swallow his Prohibition views: every clear chance to attack state prohibition met voter approval. In North Dakota and Michigan, initiative petitions to amend those states’ constitutions eliminated the constitutional mandate for prohibition (and, in the case of Michigan, authorized government dispensaries). In the Mountain and Far West, referenda eliminated state enforcement in Arizona, California, Colorado, Oregon, and Washington. In addition, Wyoming and Connecticut voters approved the legislatively proposed advisory referenda calling for repeal of the Eighteenth Amendment.59 Unlike the 1930 California gubernatorial election, which would be regarded as the consequence of drys’ tactical error, the 1932 election in the Golden State could not be attributed to a fluke of electoral politics and split support. Instead, voters returned a wet legislature and, lest that be attributed to Depression retrospective voting, also approved two specifically antiprohibition initiatives: one repealing the Wright concurrent enforcement law and the other instituting a liquor regulation regime on repeal of the Eighteenth Amendment. Orange and Riverside Counties narrowly voted to keep the Wright Act; every other county voted to repeal it, including by margins of five to one in San Francisco and a remarkable two to one in formerly dry Los Angeles.60 On certification of the Wright repeal vote, the wet Governor Rolph scandalized dry society by not only pardoning a thousand people imprisoned for prohibition violations but also agreeing

the dam breaks (1932–­33)

225

to allow a condemned man to make a final meal request of eight ounces of whiskey.61 Just to the east, Arizona voters easily approved a referendum repealing the state’s enforcement law by an almost two-­to-­one ratio. Isolated as a federal interloper, the chief prohibition officer in the state sagely observed that he and his twelve deputies would continue enforcing the law, and he appealed to the oaths of state and local officers to help him, but his resigned tone confirmed the de facto end of prohibition in Arizona.62 The ardently prohibitionist Republican Plains and Pacific states voted like the urban immigrant Northeast; dry Democratic Arizona did the same. Louisiana, admittedly the wettest state of the Democratic South, backed repeal of the state’s Hood enforcement act. The lack of other southern referenda (beyond Texas’s summer vote) left open the possibility that southern states might potentially vote against repeal, but the results coming from the rest of the ardently prohibitionist states demonstrated what the Literary Digest poll had hinted: that there was no longer sufficient support to make attacking the Eighteenth Amendment dangerous in most of the country. On December 5, the lame-­duck session of Congress met. Much to the annoyance of James Beck, whose discharge petition had failed in March, Speaker of the House and Vice President Elect John Nance Garner called for an immediate vote to repeal the Eighteenth Amendment rather than waiting a few days to allow lobbying of persuadable drys. The proposal came up shy of the necessary two-­thirds support by only six votes, but its passage in 1933 would be inevitable: over half the repeal opponents would be gone at the start of the Seventy-­Third Congress in March.63 Nonetheless, the AAPA and the WONPR recognized the need to hold a vote in the early months of 1933 so that state legislatures—­many of which met every other year—­could ratify the now inevitable amendment. In the Senate, the outgoing John Blaine—­the former proud prohibitionist of Wisconsin—­ offered a repeal amendment in January modeled after the Wickersham (and Hoover) proposal, one that would restore most state prerogatives on alcohol, preserving only the federal government’s power to suppress saloons. The AAPA and the WONPR came out against Blaine’s amendment, charging that it was not full repeal and instead preserved an admittedly limited federal police power. Swayed by that critique, senators modified Blaine’s proposal, also changing the ratification process to be undertaken by conventions. Blaine had argued that legislative ratification would be quicker, but wets feared that, unlike citizens, legislators would be more threatened by the ASL. With the formerly dry Senator Joseph Robinson (D-­AR) breaking a filibuster by Morris

chapter ten

226

map 3.  State prohibition as of the end of 1932

Sheppard, the Twenty-­First Amendment passed the Senate 63–­23; after consideration, the House then agreed to the amendment by a vote of  289–­121. Repeal had the support of 79 percent of Senate Democrats, 67 percent of Senate Republicans, 85 percent of House Democrats, and 55 percent of House Republicans.64 President-­Elect Roosevelt could thus turn his attention away from Prohibition and to the economic efforts of the Hundred Days, letting the states work through the ratification convention process. With the incoming governing coalition of the federal government now pledged to attack the Sheppard Amendment—­and by the indisputably proper means of a formal amendment—­states no longer found themselves resisting but concurrently supporting Washington’s Prohibition constitutionalism. Although he had declared himself in favor of changing the Eighteenth Amendment, Hoover nonetheless remained doggedly committed to what

the dam breaks (1932–­33)

227

he understood to be his constitutional obligation in the interim. Thus, even after the November election, he had pledged to veto any Volstead modification that occurred before ratification of a repeal amendment, arguing that it would be nullification—­for which the New York Times scourged him for intruding into the Supreme Court’s domain in pronouncing his own interpretation of intoxicating.65 Roosevelt, however, was willing to do what the Times criticized and sign off on his own definition of intoxicating: however, he agreed with those who held that low-­ABV beverages did not count. Thus, he requested that Congress modify the Volstead Act to permit “beverages of such alcoholic content as is permissible under the Constitution”—­whatever that might be. Congress proposed, and Roosevelt signed, the Cullen-­Harrison Act (modifying the federal Volstead standard to allow 3.2 percent alcohol), which went into effect on April 7, 1933.66 With the repeal amendment proposed on February 20, 1933, attention turned back to state legislatures, nearly all of which moved to change their alcohol laws or establish contingent changes following the repeal ratification. But constitutional constraint survived even to the end. In Connecticut, represented by stalwart opponents of Prohibition who had nonetheless maintained concurrent enforcement, state enforcement narrowly survived. In his address opening the session, Governor Wilbur Cross, the state’s first Democratic governor in years, explained that he did not favor concurrent enforcement repeal but that he would not oppose it either if Congress delayed the ending of the Sheppard Amendment.67 The evenly divided Senate voted to repeal concurrent enforcement, but the Republican-­dominated House blocked repeal on a voice vote.68 Even parts of the South—­and not just Louisiana—­moved to terminate state enforcement before ratification of the Twenty-­First Amendment. In April 1933, Governor David Sholtz endorsed Florida legislators’ effort to repeal the state’s prohibition amendment, and, mirroring federal policy, he soon signed five bills allowing near beer, light wines, and the like in the interim. He had support from the legal community: the head of Florida’s branch of the antiprohibition Voluntary Committee of Lawyers had lobbied his professional colleagues extensively, so much so that six of every seven members of the state bar favored repeal in 1932. Themes of states’ rights sounded prominently at the state convention ratifying the Twenty-­First Amendment.69 While the state activities outlined above represent only a sliver of prohibition lawmaking, the establishment of conventions marked the state legislators’ primary prohibition activities in 1933. The AAPA and the Voluntary Committee of Lawyers, an organization based in the New York legal

228

chapter ten

community, distributed throughout the country model convention legislation that passed easily (except in the South). Not all states were quite as zealous as Arizona—­which modified the model legislation to punish faithless electors with criminal convictions and the cancellation of their votes. Grounded in both deference to the people and constitutional fidelity, the ratification conventions were often unanimous, perfunctory affairs, with only the Carolinas voting to preserve the Eighteenth Amendment.70 On December 5, 1933, the Twenty-­First Amendment had been ratified, almost exactly fulfilling the Prohibition Party leader Eugene Chafin’s deathbed prediction that the once invincible prohibitionists would taste failure within fifteen years.

chapter eleven

Conclusion Prohibition and American Constitutionalism

They thought they could make prohibition as strong as the Constitution, but instead they have made the Constitution as weak as prohibition.—­Pauline Sabin, head of WONPR1

A

s William Anderson, the disgraced former Anti-­Saloon League (ASL) hatchet man, surveyed the political wreckage of the dispatched Eighteenth Amendment, he could declare only the obvious: he and his allies should have amended the Constitution to give Congress the power to set liquor laws rather than mandate an inflexible policy.2 But they had not settled for a half measure, and thus, rather than simply appeal to Congress, his opponents had spent a decade and a half waging a slow campaign to rip the amendment from the Constitution. Those foes now savored their final victory. Many of the leaders of the effort to undo the Sheppard Amendment were justly rewarded with membership in the repeal conventions. Elihu Root, Al Smith, James Wadsworth, Pauline Sabin, Henry Curran, and Nicholas Murray Butler were selected for the New York convention. Governor Herbert Lehman’s inaugural speech honored most of them by name, and the convention extended those honors in choosing Smith as president and the eighty-­nine-­year-­old Root honorary president.3 On his selection, a triumphant Root crowed: “The American people will have learned . . . vital lessons, and learned them forever: . . . that our constitution[al] government rests upon two bases, national strength and self-­government . . . both

230

chapter eleven

essential to the continuance of our free democracy.”4 In Maryland, Governor Ritchie agreed, hopefully noting that states’ rights was not merely the teaching of Thomas Jefferson but a cause “better than parties and higher than partisanship” and unifying American thought, as Maryland had demonstrated.5 Illustrating that point, John Phillip Hill, the wet Maryland Republican representative, was rewarded with the chairmanship of the Free State’s convention. The theatrical Hill, declaring the “original freedom” of the Constitution now satisfactorily restored, came in a “pallbearer costume” to bury Prohibition.6 His fellow Marylander Captain William Stayton, who had headed the Association against the Prohibition Amendment (AAPA) for a decade and a half, was honored with a celebratory dinner at the Waldorf-­Astoria, where, in addition to victorious accolades for his beloved cause of states’ rights, he was presented with an engraved silver punch bowl on December 5, 1933—­used to serve now-­legal alcohol.7 Others from the Prohibition fight could not enjoy their victory. Taft and Oscar Underwood had died in the interim. Vermont’s senator Frank Greene, who had never fully recovered from the prohi’s gunshot wound, succumbed to complications from surgery in December 1930.8 Edward Edwards did not bring his rakish “wine, women, and song” to the New Jersey convention for an even more tragic reason. He shot himself in the head in 1931, following his 1928 Senate defeat (and subsequent political blackballing by the state’s Democratic Hague machine), the death of his wife and brother, the loss of his fortune in the Wall Street crash, and a cancer diagnosis.9 The once politically invincible Ritchie, who had been offered the vice presidency in 1932 but turned it down, not only saw the Roosevelt administration sell out his Jeffersonian states’ rights ideals but also shockingly lost his own quest for reelection in 1934 after daring to cross the president.10 With the repeal of the Eighteenth Amendment, states moved to establish a wide range of prohibition policies. Fulfilling Justice Louis Brandeis’s then-­recent dictum that federalism enabled laboratories of democracy,11 states experimented with all the proposals made by the various members of the Wickersham Commission. Some adopted state distributorships modeled after those used in Canadian provinces, as Gifford Pinchot had pushed through in Pennsylvania in 1933;12 others reverted to more liberal regimes, with most slowly converting to local option in the years after the Repeal Amendment. Kansas remained dry for another fifteen years before restoring local option in 1948 and Mississippi another eighteen, finally reverting to local option in 1966. The ASL limped on, rebranding

conclusion: prohibition and american constitutionalism

231

and merging into the Temperance League in 1950, a far cry from the kingmakers of American government. Its rivals in the AAPA also soon fell into their own disrepute after an initial rush of enthusiasm in founding the Liberty League. The league was organized to contest Franklin Roosevelt’s centralization of power, moving it from the states to the federal government and from the Congress to the presidency. Its members had defeated big government with Prohibition, and they planned similarly to overcome what they now saw as his treachery. Nearly all the leading antiprohibitionists, such as Smith, Wadsworth, Beck, Ritchie, Reed, Stayton, and Sabin, either joined or supported the Liberty League’s efforts, to say nothing of the business leadership of the AAPA, such as the Du Ponts, Raskob, and Jouett Shouse. The league’s leadership also included John Davis, the states’ rights lawyer and former solicitor general who had been the Democrats’ 1924 nominee. Davis’s example illustrated the league’s support from other reluctant prohibitionist legalists such as Nathan Miller, who had accepted Prohibition as constitutional while rejecting its philosophy of centralized federal power. The league similarly extended an invitation to Hoover, but, though he found himself in agreement with many of its positions, he declined to join a group whose most prominent Democratic members had so slandered him in the 1932 election.13 While well funded and with more support than the flailing Republican Party in 1936, the Liberty League flopped even more spectacularly. Republican National Committee chair John D. Hamilton was probably right to grumble later: “The Lord himself couldn’t have beaten Roosevelt in 1936, much less the Liberty League.” Thus, in decisively staking the election on federalism (rather than leaving the Republicans to temporarily flail), the league made a catastrophic error.14 Al Smith, who in 1935 rejected entreaties to run on the GOP platform,15 instead threw his support behind Alf Landon and urged fellow Jeffersonian Democrats to do the same. Unfortunately for Smith and the rest of the Liberty League, the opulence of their gala dinner in January 1936, where Smith laid out their constitutional case against the New Deal, proved easy fodder for Roosevelt’s Democrats to attack as a mere plutocratic gathering. This discrediting, in turn, further enabled Roosevelt to equate traditional federalism with economic royalism in the 1936 campaign that crushed the league, allowing the once loudly federalist Roosevelt to claim a mandate for his nationalizing constitutional vision.16 Indeed, the old-­guard libertarians of the wet movement might well have helped achieve a constitutional centralization even more distressing to

232

chapter eleven

Raskob and his allies than the Prohibition that they defeated. By having the Democratic Party appeal to urban immigrant populations on the issue of alcohol, they mobilized new voters and helped trigger a realignment of class politics that would, ironically, see those same groups now use their agency to support Roosevelt’s expansive vision of government.17 Many former members of the Bureau of Prohibition ironically fared better than both the ASL and the AAPA /Liberty League, even with the constitutional termination of their job, since they were soon able to direct their attention to the suppression of other chemical vices. The Repeal Amendment’s federalism said nothing about other substances, and the Narcotics Bureau, led by the former Bureau of Prohibition officer Harry Anslinger, turned to the suppression of other vices, albeit without the support of anything like the Volstead or Jones Acts or a constitutionally authorized federal police power. The Marijuana Tax Act of 1937 supplemented the old Harrison Act in using financial pressure to attack the use of marijuana, while all but nine states passed a uniform state narcotic drug law between 1932 and 1939.18 And, after the Court’s constitutional revolution in the 1930s and 1940s, which held that anything that affected interstate commerce could be regulated under that power, the federal government could begin not merely taxing but directly regulating marijuana too. Libertarian critics and constitutional originalists have wondered why, if an amendment was needed to allow a federal ban on alcohol, one was not similarly required to proscribe marijuana (as well as the many other things swept under the commerce clause), but the Court’s controversial holding in Wickard v. Filburn did Wayne Wheeler’s job instead.19 If former prohibition officers thrived in the wake of the Twenty-­First Amendment, how had the Constitution and the rule of law fared? After all, there had been fifteen years of intense and thoughtful debate—­to say nothing of ruined political careers—­based on the assumption that they and particularly their federalism mattered to the American polity. Did they, in the end? What does Prohibition tell us about constitutional fidelity, especially beyond the judiciary? No serious movement ever occurred to actually nullify Prohibition by proactive state interference with federal enforcement, with even opponents pledging to allow national agents to go about their business—­sometimes even to condone or vote for Prohibition implementation. This is not surprising, considering that nullification remained discredited even among those who considered themselves deeply committed to states’ rights and constitutional decentralization.

conclusion: prohibition and american constitutionalism

233

What is surprising is how difficult it was to nullify Prohibition by repealing state concurrent enforcement. The ASL’s careful control of the party system, consciously preventing the sorting of prohibition into an organized partisan issue, joined with constitutional scruples as officials whose policy preferences were known to be wet—­and whose electorates were known to be even wetter—­nonetheless zealously implemented what they took to be their state’s duty. Wet politicians found themselves repeatedly frustrated by the ASL’s stranglehold on electoral politics and their own fidelity to their constitutional oaths— ­even after citizens increasingly turned against Prohibition, as the reelection of drys paired with wet referenda repeatedly showed. Here, prohibitionists’ success in formulating an intellectually robust constitutional case for prohibition strengthened it in the short term but ultimately helped contribute to the complete collapse that Eugene Chafin had feared on passage of the Volstead Act. Because Borah and others had worked so hard to reconcile the problem of states’ rights and prohibition with robust textualism and constitutional enforcement—­forcing even constitutionally conscientious wets to fall in line—­there was no middle ground possible. By elevating the Volstead Act to equal the sacred writ of the Constitution and defining passive state nonenforcement as nullification, drys forced state government officials either to break their oaths or to fall on their electoral swords: to attack prohibition was to attack the Constitution. That the constitutional mandate seemed to defy both personal preferences and often electoral incentives also illustrates the degree to which nonjudicial actors took constitutional obligation seriously. Stated bluntly, the fight over Prohibition offers strong evidence for the constraining power of law and institutional obligations; it was not simply serving as a rationalization for policy and electoral preferences, as legal realists would hold.20 That is not to say that such high-­minded considerations always won out or that they were disconnected entirely from political beliefs—­indeed, the robust commitment to federalism clearly derived from the political and constitutional regime of the time.21 Prohibition thus serves as an important case study of both extrajudicial constitutional interpretation— ­constitutional interpretation by legislators, governors, and other elected officials—­and the related phenomenon of popular constitutionalism, considering citizens’ interpretations even if not al­ways expressed through formal institutions (especially Article V).22 Rather than cede constitutional debate to the Supreme Court or even Congress, state legislators and governors interjected themselves into the

234

chapter eleven

conflict over the ambiguous Eighteenth Amendment. In so doing, they re­ jected not only the forfeiture of interpretive authority associated with contemporary notions of judicial supremacy but also more majoritarian visions of popular constitutionalists. They used their offices as constitutional rallying points, offering impressive and subtle arguments on constitutional politics that also served as important civic educative discourse. Those prohibition legalists who ended up as functional drys defended formalism, insisting that constitutional change could take place only via textual amendment. Thus, Calvin Coolidge, Nathan Miller, and Fred Zimmerman cited their oaths in openly defying voters’ wishes, adopting a countermajoritarian vision that elevated constitutional obligation over both democratic immediacy and their own policy preferences. Wets had more obvious reasons to oppose the Eighteenth Amendment, but it is striking that, despite the obvious difficulty of appealing to the logic of an unconstitutional constitutional amendment or subtle noncommandeering doctrines, most chose to make federalism, rather than individual rights or policy benefits, the core of their attack on Prohibition. Relatedly, despite all the disagreements, the constitutional debate for and against the enforcement of the Eighteenth Amendment illustrated a consistent, widely held vision of American federalism in which participants disputed specific applications but shared the same basic assumptions. Although wets and drys came out differently in their applications of constitutional theory, that theory was remarkably widespread, ensuring that constitutional debate was actual conversation rather than talking past one another. Other than a handful of nationalists, concentrated among southern Democrats and a few isolated progressives, nearly all the political participants remained deeply committed to a consistent position of moderate federalism; the only disagreement was the extent to which textual change had affected that constitutional framework. That disagreement drove fifteen years of debate, ultimately seeing the repeal of the Eighteenth Amendment and the conclusion of one of America’s most sustained campaigns of constitutional struggle outside the courts. The states’ fight against Prohibition thus serves as a model example of what various scholars have described as extrajudicial constitutional interpretation.23 As Mark Graber has noted, our myopic fixation on case law has obscured the fact that Reconstruction Republicans—­much like Publius in the Federalist—­believed that elected officials, not judges, had to be the primary guarantors of constitutional enforcement.24 So, too, did those on both sides of the Prohibition debate.

conclusion: prohibition and american constitutionalism

235

But, if its debates are an obvious credit to the serious constitutional thinking conducted by legislators and other party elites of both sides and suggest the real possibility of meaningful constitutional interpretation and enforcement by noncourt actors, Prohibition offers a less obvious vindication of “popular constitutionalism.”25 Critics have long warned that—­to the extent that it can be clearly gleaned at all—­popular constitutionalism does not seem especially consti­ tutional and that it instead threatens to evacuate the law for immediate policy preferences, resulting in something between government by Westminster par­ liament and plebiscitary referenda. In George Thomas’s apt summary, such projects “blur the line not only between constitutional interpretation and constitutional amendment but between interpretation and revolution.”26 Unless one believes that defiant citizens subscribed to Elihu Root’s arcane unconstitutional constitutional amendment theory (holding that the Eighteenth Amendment exceeded the possibilities of Article V) and therefore that citizens were justified in ignoring it, Prohibition initially does appear to present a significant obstacle to popular constitutionalism. Nonetheless, reconciliation between popular constitutionalism and the American citizenry’s actions during Prohibition is quite possible. I will first make the opposite case—­that Prohibition proves that citizens rejected con­ stitutionalism and respect for the rule of law—­before showing how the elec­ torate arguably behaved consistently with constitutional obligations. A serious popular (or civic) constitutionalism, as opposed to simply popular representation, arguably must respect and honor the claims of state officials pleading that their hands were bound by constitutional provisions over fervent policy wishes. Otherwise, one vindicates every charge made by both prohibition legalists and ardent drys alike, that hostility to Prohibition discredited the rule of law itself. Political actors opposing Prohibition consistently assumed and spoke as if the voters shared their substantive commitment to both the rule of law and federalism. After all, as an impressed (and pleased) Alexis de Tocqueville had once observed, the average American whom he had encountered could offer an educated explanation of what powers belonged to the states or the federal government under the Constitution.27 Legal elites long contended that Prohibition’s nationalizing attack on con­ stitutional structure and American localist communitarianism generated resentment that resulted in a contrarian hostility discrediting prohibition itself. In this account, voters’ anger at centralization undermined even the old state dry laws that predated Volstead, just as Theodore Roosevelt had

236

chapter eleven

warned in opposing national Prohibition early in its consideration and his friend Lodge had echoed in 1917. One can thus find numerous commentators, including American Bar Association president (and future chief justice) Charles Evans Hughes, crediting passage of the Sheppard Amendment with an intense backlash against all forms of prohibition. John Burgess, then one of America’s leading political scientists, agreed that, because state prohibition had been widely accepted in so much of the country, the average citizen cared less that he “was to be totally deprived of his right to determine for himself what he would drink [than he did that the] jurisdiction of the States was to be reduced.”28 As Captain Stayton, the head of the AAPA claimed, many people bristled against what they saw as imposition from afar: “The Marylander is quite willing to yield . . . to a law he believes oppressive, provided it was passed by his own people, but his innate sense of independence resents the efforts of Kansans to impose . . . what he believes to be a smug piece of sanctimonious humbuggery.”29 Federal administrators sometimes observed that states that had been reasonably dry before national Prohibition turned progressively wetter, owing both to miserly states trying to foist prohibition responsibilities on federal agents and local citizens’ contempt for what they believed to be federal coercion as opposed to local decisionmaking—­in effect, that they protested the Eighteenth Amendment by defying the state laws they had once tolerated.30 Did the Sheppard Amendment inspire such a citizen backlash against outside interference? Lisa McGirr argues yes—­but not due to any fondness for the constitutional principle of states’ rights that Hughes or Stayton cited. Instead, she argues, the antipathy of the working classes toward Prohibition resulted from resentment at having values imposed on citizens not from another location but from another class as they objected to an elitist system they perceived to be widely unjust and disparate in application. Wickersham official James Forrester, dispatched to ascertain popular views on prohibition through a massive set of interviews, consistently found: “Many . . . believe that the prohibition amendment and its enforcing act was never seriously intended . . . to be applied to any but the working man. They complain that the wealthy . . . can and do violate the prohibition laws with impunity and without interference or censure.”31 William Howard Taft—­no populist—­had agreed, condemning the scattered nullification proposals coming from his former colleague (Yale president emeritus) Arthur Hadley and others as the products of “the luxury-­loving rich.”32

conclusion: prohibition and american constitutionalism

237

Walsh’s study of prohibition in Maryland similarly concluded that there were two tracks of argument operating there, with the elite extrajudicial and popular constitutionalisms agreeing only that Prohibition was wrong: “The states’ rights argument [was] perhaps the most cited argument used . . . by many of the wets within Maryland’s political structure, from the inception of the policy through its termination.” By way of contrast: “The majority of people in Baltimore and Maryland . . . did not criticize the Prohibition policy based upon the states’ rights argument or the idea that the tradition of dual federalism had been trampled upon.”33 Throughout Prohibition, voters often seemed unforgiving of claims of constitutional obligation made by functional drys— ­even by those who had opposed Prohibition in the first place. Figures like Zimmerman, Miller, or Hiram Bingham, like many northeastern state legislators, perhaps best illustrated this: many of them made no secret of their contempt for prohibition, and fought to see it repealed, but nonetheless refused to go along with attacks on the Constitution itself. The legalists made cognizable constitutional claims that were distinct from policy—­and suffered defeat. The pessimistic case for voter fidelity to the Constitution thus goes something like this: political elites considered Prohibition within the realm of localism versus consolidationism, the background assumptions of the Tenth Amendment against the ambiguous obligations of the Eighteenth, and what we would now describe as the noncommandeering doctrine, and they did so impressively. But, for all these admirable efforts to make the constitutional debates of Prohibition widely approachable and circulated—­through reprinted speeches in national and local papers or public debates at libraries—­at the end of the day, it did not matter to the citizenry: voters never cared about federalism, and they insisted on turning out conscientious constitutionalists who would not give them what they wanted, which was alcohol by any means necessary, including lawlessness. As argued by New Jersey assemblyman Siracusa, who eventually threw up his hands rather than see conscientious northeastern Republicans wiped out, constitutional niceties were simply not on his constituents’ minds. They simply wanted to be left alone with their alcoholic beverages, shielded from bluenoses whether they came from home or afar. In summary, then, the grim case would hold that the constitutional structure of federalism and a shared belief in its legitimacy among politicians offered the procedural tools to fulfill voters’ wishes eventually, but, the minute they failed to deliver their preference, voters were hostile to those processes and structures.34 Stated more bluntly, citizens refused to be bound

238

chapter eleven

by the Constitution and punished those conscientious politicians who tried to be, and thus the popular constitutionalism of Prohibition was not constitutionalism at all but instead a populist anticonstitutionalism. It was the popular constitutionalism of the speakeasy. Such an interpretation is plausible: voting behavior literature has consistently shown that citizens fail to meet the high hopes of democratic theorists.35 Nonetheless, one need not adopt such constitutional nihilism (at least not during the Prohibition era): the case against popular constitutionalism is not as grim as it is sketched above. For one, the actual number of drinkers was comparatively small: as later studies of Prohibition have shown, it successfully reduced the total number of Americans drinking while perhaps creating a subset who drank more, especially among the elite.36 Defiance of Prohibition may have been fashionable, but it was fashionable among journalists, academics, and other information elites whose myopia in extrapolating from their peers’ experiences likely led them to exaggerate the lawlessness of a country where Prohibition actually had a significant, successful effect in reducing liquor consumption.37 The working class, rightfully resenting Prohibition for its classism, nonetheless did less to attack it publicly than did the “luxury-­loving rich” Taft condemned. Moreover, their resentment aligns with another streak of Jacksonian thought deeply embedded in American political practice: the resentment of class legislation aimed at producing special privilege, in this case, the right of the elites to engage in behavior they wanted to suppress among others.38 One could stretch this even further and argue that, strictly speaking, neither the Eighteenth Amendment nor the Volstead Act prohibited the use of alcohol (nor indeed the home production of wines or ciders), further narrowing the number of Americans rejecting the Constitution’s demands. But one need not make such a tortured move to defend the electorate against charges that they pushed for nullification by either repeal of state concurrent enforcement or constitutionally dubious modifications to the definition of intoxicating. For one thing, advisory referenda—­the clearly constitutional option— ­outperformed both those options. But even the most extreme form of opposition to the amendment—­repeal of state concurrent enforcement—­is not so controversial. If we adopt the notion that the Supreme Court is the most legally constrained institution taking constitutional forms seriously, then the voters got it right in repealing state concurrent enforcement, engaging in what contemporary scholars

conclusion: prohibition and american constitutionalism

239

of progressive federalism have approvingly dubbed uncooperative federalism.39 Miller, Zimmerman, and other legalists who paid for their conscientious constitutionalism deserve respect for that principled stand, but it does not mean that they were correct in insisting that the states were obligated to help with enforcement. Smith, Ritchie, and others made their case loudly, eloquently, and repeatedly, convincing not only the voters but eventually the Supreme Court, which vindicated their position and adopted the noncommandeering doctrine in the 1990s. Wide swaths of Justice Scalia’s opinion in Printz v. United States or the Court’s recent decision striking down a federal mandate requiring that states ban gambling read almost identically to Ritchie’s speeches, suggesting that the voters’ decision to repeal concurrent enforcement through referenda and legislative elections was at the very least a plausible and good-­faith interpretation of constitutional obligation.40 That 1920s federal officials had always merely requested, rather than directly mandated, state prohibition enforcement indicates that they shared the noncommandeering doctrine and the narrower reading of the necessary and proper clause as understood by modern originalists.41 Note, too, that no serious candidate or political official proposed or received electoral support for actual nullification. A similar rehabilitation can defend efforts to change state and federal law to modify the definition of intoxicating. The sponsors of the Eighteenth Amendment could not agree on the meaning of intoxicating, making it difficult to claim that a modification of the definition was an attack on the Constitution. If Wheeler and his allies could achieve passage and ratification of the Eighteenth Amendment only by maintaining plausible deniability that perhaps intoxicating was a term of art limiting only harder liquors, it again becomes difficult to indict voters for similarly dabbling in that plausible territory. The full repeal of the Volstead Act before the end of the Sheppard Amendment would have been the clearest possible example of nonlegal populism riding roughshod over constitutional mandates: but it is a counterfactual, not a piece of evidence. It did not happen. Even after wets ran up an electoral landslide in 1932 and there was strong evidence that three-­quarters of Americans supported an end to Sheppard’s handiwork, Prohibition was not fully repealed before the Twenty-­First Amendment’s ratification. Instead, the 1933 modification to Volstead adopted the more limited definition of intoxicating liquor as harder alcohols, just as many had understood it in ratifying the amendment in 1918 and 1919. The American people created national Prohibition by a constitutional amendment, and they terminated it with another. In between were fifteen

240

chapter eleven

years of serious constitutional debate, nearly all of which took place outside the courts. Instead of being confined to the newly built Marble Palace, the meaning of federalism was carefully considered in Congress, the states, and the streets. The front pages of newspapers printed thoughtful veto messages and gubernatorial addresses, musings about concurrent enforcement, John Calhoun, nullification, oaths and obligations to support and take care that laws be faithfully executed, and what we would today call the noncommandeering doctrine. As both our indifference to citing (and being constrained by) the enumerated powers and our increasingly casual flirtations with nullification in present-­day discourse attest, such robust and sustained constitutional dialogue has not always been the norm in American political practice.42 Perhaps, if we take seriously the lessons from the debates over Prohibition, it could be again.

coda

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

We say we like the Tenth Amendment, until we start talking about this.—­Senator Rand Paul (R-­KY), asked about federal marijuana laws during a presidential primary debate1

I

n September 2015, the first Republican presidential debate of the 2016 campaign was held at the Ronald Reagan Library in Simi Valley, California, under the watchful eye of former first lady Nancy Reagan, who famously declared “Just Say No!” and whose antidrug political campaign helped scuttle her husband’s Supreme Court nomination of conservative federal judge Douglas Ginsburg.2 The Simi Valley debate began a surprising trend in the other GOP debates: conservatives defended marijuana legalization, albeit of a limited form. While the states’ constitutional fight over Prohibition in the 1920s offers lessons and insights into more general conversations about federalism and extrajudicial interpretation, it is even more relevant to the conflict between state legalization of marijuana and ongoing federal prohibition of that substance.3 Structurally speaking, the issues appear to be quite similar at the state level, and, in the most important policy aspects, they are. In both cases, states have declared that they will not make possession of a certain substance a state crime or deploy state resources to combat it.4 And, as with states repealing their liquor laws in the 1920s and denying nullification, legalizing states have not made any effort to obstruct federal enforcement of the Controlled Substances Act.

242

coda

Nonetheless, there are some important differences. As the attorneys general of Nebraska and Oklahoma pointed out, Colorado went beyond simply repealing its marijuana laws (which would, they conceded, be legal) and into a murkier area by establishing legal frameworks and taxing and regulatory regimes to deal with the state’s marijuana market.5 Whether this amounts to a conflict with federal law, as the prohibitionists insisted, is a more difficult question, but states are doing more than the simple passivity of the 1920s. The differences in terms of federal response are even more striking. In both cases, the Supreme Court had already affirmed the constitutionality of the relevant statute authorizing federal suppression of the substance. The National Prohibition Cases upheld the Volstead Act as appropriate implementing legislation directly under the Eighteenth Amendment. The Court’s route vindicating congressional regulation of in-­state marijuana is more circuitous: Gonzales v. Raich (2005) upheld the authority of Congress to suppress marijuana because of the expansive New Deal precedent of Wickard v. Filburn (1942), which itself had upheld Congress’s prerogative to suppress even admittedly in-­state activity if that activity, taken in the aggregate, then substantially affected interstate commerce. In theory, the enforcement duties of both a Prohibition-­era and a modern president are identical. Although Hoover specifically rooted his constitutional obligation in the Eighteenth Amendment, the supremacy clause and the take-­care clause impose the same constitutional obligation on a current president to enforce Congress’s laws passed pursuant to the Constitution—­ in this case, the Controlled Substances Act. That is to say, if the Court’s Wickard/Raich line of precedents is correct and the commerce clause authorizes Congress to pass such a law, the president’s resulting enforcement obligations would be identical. That duty does not necessarily occur, however, if the president believes that the law in question is itself unconstitutional, a doctrine developed from the departmentalist theories of Thomas Jefferson, Andrew Jackson, and Abraham Lincoln arguing that their constitutional obligations required them not to enforce such a law.6 Such a presidential claim has yet to appear in the federal-­state marijuana conflict. Unlike Clarence Thomas (who would overturn the underlying Wickard as inconsistent with the more limited original meaning of the commerce clause) or many others who believe that such a blanket suppression of marijuana exceeds Congress’s legitimate commerce clause powers, the Obama administration did not challenge Raich, presumably since such a robust vision

pot and popular constitutionalism

243

of federal authority undergirds much of the contemporary Democratic Party’s reform agendas. Instead, the Obama administration invoked prudence and its prosecutorial discretion to justify largely withdrawing enforcement from legalizing states, at least as far as possession is concerned. In December 2012, shortly after Colorado and Washington’s initiatives passed, Obama announced that there were “bigger fish to fry” than using federal law enforcement resources to pursue users in states with legal cannabis.7 In August 2013, the Department of Justice explained that, provided the states established reasonable regulations, it would both refrain from suing legalizing states and effectively cease enforcement of marijuana possession in such states outside a list of enforcement priorities. (Among those priorities was a Webb-­Kenyon-­like insistence on “preventing the diversion of marijuana from states where it is legal under state law . . . to other states.”)8 Several months later, Attorney General Holder announced that the administration would allow state-­ licensed marijuana businesses to have access to the banking system without prosecution to avoid the public safety problem of the large sums of cash that they would be forced to hold otherwise.9 This generated significant criticism akin to the nullification issue raised by 1920s drys, with critics arguing, much as with Obama’s immigration executive orders,10 that such categorical rules exceeded the individual focus of prosecutorial discretion and amounted to a policy choice not to enforce congressional statutes—­in violation of the take-­care clause of the Constitution. While the Obama administration’s reticence in discussing marijuana enforcement in constitutional terms follows from its constitutional interpretation, it also mirrors the broader popular discourse on marijuana, which has occurred on largely nonconstitutional grounds. This is perhaps the most significant difference between the states’ and allied interest groups’ fights against federal alcohol and marijuana legislation. It is a counterintuitive difference: the opposition to Prohibition on constitutional grounds was voiced more strongly even though the constitutional case was weaker. National alcohol prohibition had the force of a formal constitutional amendment and a (superficially) unified Supreme Court case backing it (National Prohibition Cases).11 By way of contrast, the current marijuana regime lacks an analogous, explicit authorizing amendment, and a divided Supreme Court case upheld it (Raich).12 Nor is there any ambiguous concurrent enforcement language plausibly imposing an affirmative constitutional obligation on the states to suppress marijuana: unlike the executive branch,

244

coda

which is tasked with enforcing the laws passed by Congress, neither members of Congress nor state officials have any implied mandate to be prohibition legalists creating marijuana statutes. An extremely crude search of newspaper coverage offers impressionistic support for a difference in popular discourse. Using the six largest papers by circulation, digitized in both ProQuest’s historical and its current searches, nine years from May of the respective year in which the Court handed down its rulings (so May 1920–­29 and 2005–­14), a search for articles mentioning both states’ rights and marijuana or prohibition or beer returned 445 stories from the 1920s period and only 97 from the modern period.13 Why the difference? Whereas both sides in the 1920s tried to reconcile their arguments within a shared language of constitutional rhetoric, today the different sides are more likely simply to talk past each other. One might argue that there is relatively little overlap between support for states’ rights as a constitutional principle and opposition to marijuana prohibition as a policy goal: the loudest critics of marijuana laws on federalism grounds come from Republican elites applying their general rhetorical preference for states’ rights, but most members of the GOP have leaned prohibitionist at the state level, so this is functionally inconsequential. Conversely, contemporary Democrats tend to oppose marijuana prohibition but are consolidationist in constitutional orientation.14 This produces little popular constitutionalism discussing contemporary prohibition. The 2016 Democratic Party platform, the first to advocate a liberalization of marijuana legislation, reads very differently than the robustly states’ rights platform of its 1932 forebears (or even that of that year’s GOP). It called for not a repeal but a reclassification and framed its discussion not in constitutionalism but common sense: “Because of conflicting laws concerning marijuana, both on the federal and state levels, we encourage the federal government to remove marijuana from its list as a Class 1 Federal Controlled Substance, providing a reasoned pathway for future legalization.”15 The New York Times’s different tones similarly reflect this change. Its 2014 editorial coming out for marijuana legalization mustered an opaque reference to federalism that did not even implicitly invoke constitutional decentralization. Instead, in something of a truism, the editors declared: “[Congressional repeal] will put decisions on whether to allow recreational or medicinal production and use where it belongs—­at the state level.”16 Contrast that with the Times’s federalist, antiprohibition opinions in the 1920s, consistent with its generally states’ rights perspective.17 Other prominent antiprohibition newspapers in the 1920s such as the Baltimore Sun and

pot and popular constitutionalism

245

the Washington Post have stayed out of the marijuana legalization debate; one instead finds such attacks on federal marijuana laws among more conservative sources. For example, the conservative opinion journal the National Review famously came out for an end to federal drug laws in 1996; its more recent update defended the repeal of federal laws on primarily states’ rights grounds, with a parsing of the implications for interstate commerce doctrine.18 Unlike the analogous declarations of state sovereignty made in the 1920s, Washington’s statutory initiative repealing the state’s marijuana law avoided invocations or constitutionalism and instead rooted itself in prudent policy.19 Similarly, Colorado’s amendment was notably silent on issues of federalism, with a preface holding: “In the interest of the efficient use of law enforcement resources, enhancing revenue for public purposes, and individual freedom, the people of the state of Colorado find and declare that the use of marijuana should be legal for persons twenty-­one years of age or older and taxed in a manner similar to alcohol.”20 The “arguments for” Amendment 64 entry in Colorado’s voter guide did make a singular passing mention of the federal government, but it was again one rooted in policy. Thus, the guide observes: “The adoption of Amendment 64 will send a message to the federal government and other states that marijuana should be legal and regulated and that industrial hemp should be treated differently than marijuana.”21 Some effort was made to appeal to libertarianish Tea Party Republicans in campaign messaging, but the amendment’s text itself makes no mention of the federal government.22 This significant rhetorical difference is broadly true of interest groups as well. Both the prohibitionist Anti-­Saloon League (ASL) and the opposition Association against the Prohibition Amendment (AAPA) did nearly all their fighting in the 1920s on constitutional grounds, but advocates of marijuana legalization have been less likely to do so. The Marijuana Policy Project (MPP) and the National Organization for the Reform of Marijuana Laws (NORML) almost exclusively focus on policy rather than popular constitutionalism and, as the state initiatives illustrate, are far more likely to invoke Depression-­era rhetoric about tax revenue for balanced budgets than antigovernment sentiment. NORML’s amicus brief in Gonzales v. Raich made the same sort of Tenth Amendment, states’ rights arguments as did the more broadly based libertarian organizations (like the Cato Institute) or state legislatures (including the conservative, pro–­drug control southern trio of Alabama, Louisiana and Mississippi).23 Nonetheless, NORML’s interest in shaping a specifically

246

coda

constitutional discourse is quite different from the AAPA’s. Whereas the AAPA conscientiously organized itself as a constitutionalist, states’ rights–­ oriented organization seeking the restoration of the status quo ante—­and nearly all its documents and lobbying focused on that24 — ­one would be hard-­pressed to say the same of NORML or the MPP—­which are more conventional single-­issue groups. Stated another way, it is unlikely that the leadership of NORML or the MPP will, after achieving success, join a group devoted to federalism like the AAPA brass did in forming the nucleus of the Liberty League. Moreover, the primary donor to marijuana legalization efforts—­the modern-­day equivalent of Pierre Du Pont—­is George Soros, a progressive financier who does not share Du Pont’s doggedly libertarian politics or constitutionalism.25 In short, the constituency for marijuana legalization on states’ rights grounds has almost wholly separated from the constituency for supporting its legalization on policy grounds; the divorcing of progressivism and decentralization means that those seeking legalization have lost access to a potentially powerful rhetorical tool. To the extent that this evasion has been strategic, however, in tailoring the message to generally progressive-­leaning states, this will likely have to change when legalization advocates exhaust the list of referenda states and must turn to legislators in Congress (unless they persuade the Supreme Court to reconsider Raich). Marijuana activists hoping to achieve federal repeal before generational turnover will need the support of conservative Republicans who might agree that marijuana regulation is a policy good but could be persuaded that the federal government ought not be involved as a question of states’ rights. Why might legalization activists mobilize a popular or extraconstitutionalist federalist framing? Did not Prohibition’s example seem to show that voters ultimately just wanted their substance, regardless of the procedural fetishism of the political class? First, as the example of Prohibition shows, elected officials can be meaningfully constrained by constitutional beliefs even when those beliefs conflict with policy preferences. That is why several aggressively pro-­prohibition state attorneys general nonetheless sided with Angel Raich: because they argued the commitment to the constitutional value of federalism took precedence. Such legalists might not expend political capital or serve as policy entrepreneurs on such an issue, but they can possibly be persuaded to go along when others do.

pot and popular constitutionalism

247

Second, persuasion and demobilization would likely be necessary because electoral pressure exerted on behalf of marijuana legalization would be far weaker than during Prohibition. Even overwhelming popular support for marijuana among the electorate would be difficult to translate to policy reform owing to changes in the party system between the Prohibition era, when first the ASL and then the AAPA could utilize single-­issue pressure politics, and today. Ideological and constitutional polarization between the parties means that few voters will cross over in a general election, as Pauline Sabin and other Republican wets for Roosevelt did in 1932. When there were both minimal federal activity and relatively little difference between the parties (as in the 1920s and 1932), one could afford to cross over (or vote for a third-­party protest candidate) with relatively little perceived policy cost: judicial nominations, immigration policy, nontariff taxes, etc. would be the same. But the nationalization of politics and the widening disagreement between the parties means that this is no longer true. Voters are far more willing to vote for even profoundly disliked candidates as the price of blocking the other side’s policy (and judicial appointments). Anthony Downs long ago noted that, for defection to be effective, party dissidents must believe (1) that the policy differences between the two parties are fairly negligible and (2) that those defectors must be sufficiently future oriented in being willing to trade a loss in the current election for longer-­term payoffs in the future.26 Neither of those conditions appears applicable in this case. As a result, except for the small number of truly single-­issue marijuana voters, electoral pressure leading to legislative replacement would have to come in a primary. Here, the status quo forces of restriction have an advantage since older voters, who tend to be most hostile to marijuana legalization, are also the most reliable primary voters. Therefore, even a Democratic takeover of Congress and the presidency would be unlikely to provide the numbers to achieve federal repeal in the short term. Older Democratic politicians, uneasy about being seen as soft on crime,27 will lag significantly behind their more aggressively prolegalization voters. Dianne Feinstein, the senior senator from California, is still among the most hard-­line antimarijuana members of Congress.28 Thus, assuming that the Supreme Court does not strike down federal enforcement against in-­state marijuana, success requires a states’ rights bill capable of gaining the support of libertarian-­leaning, anti–­federal government Republicans. Prominent Republicans—­including, notably, those

248

coda

running for president in 2016—­have endorsed a robustly states’ rights position on marijuana. Rand Paul made the Tenth Amendment a centerpiece of his 2016 campaign, attacking some of his rivals for insufficient commitment to it when they did not share his belief in marijuana federalism.29 GOP runner-­up and former constitutional lawyer Ted Cruz (TX) similarly expounded a states’ rights position consistent with the rest of his federalist viewpoints.30 Before bolting to the Libertarian Party, on whose ticket he ran in 2012 and 2016, former New Mexico governor Gary Johnson ran as a Republican endorsing the end of federal marijuana laws. Even back in 2010, Rick Perry’s Fed Up!, ghostwritten by Chip Roy, who later became Cruz’s chief of staff and in 2018 was elected to Congress, called for federal legalization of marijuana even as it endorsed state suppression.31 Cruz’s close ally Mike Lee, the senator from Utah and a former Supreme Court clerk who has been dogged in calling for a reassessment of commerce clause jurisprudence, would presumably be another sympathizer.32 Nor were these simply the southwestern libertarian wing of the party as some of the most mainstream Republicans have similarly adopted an antimarijuana but pro–­states’ rights position. Jeb Bush, who frequently invoked the Tenth Amendment throughout his failed presidential campaign, added that, while he opposed marijuana use, he too considered it a states’ rights issue.33 Carly Fiorina, whose father was a conservative federal judge, added that she “agree[d] with Senator Paul [on marijuana]”: “I agree with states’ rights.”34 Former Indiana governor Mitch Daniels, a quintessential mainstream Republican, had similarly endorsed a federalist position on mari­ juana in 2012.35 Finally, if one assumes that legal elites are more interested in questions of procedural values like federalism than are their voters, there is not such a divide here. Instead, more robust polling than existed in the 1930s indicates a tight overlap between more elite and popular understandings of the Constitution on this issue. This polling suggests a possible latent sympathy that needs to be primed and that could demonstrate that legislators following procedural federalist beliefs need not fear electoral punishment. Polls consistently show that supermajorities of Democrats support the legalization of marijuana but that Republicans oppose it (though by shrinking margins). That partisan effect reverses, however, when adding in a states’ rights gloss. Polling shows that between 20 and 25 percent of respondents are against legalization on policy grounds but also oppose federal restrictions and believe that states should decide. State-­level polls taken during the 2016 presidential election were remarkably consistent in finding

pot and popular constitutionalism

249

that between two-­thirds and three-­quarters of voters in early primary states (including the socially conservative bastions of South Carolina and Iowa) opposed federal intervention in states with legal marijuana. That the numbers were surprisingly consistent across Democrats and Republicans, despite polls consistently showing a gap between the parties on whether to legalize marijuana, suggests that that margin is balanced by conservatives who are anticannabis but also anti–­federal power.36 Thus, in this case, electoral incentive and constitutional belief overlap, and the revealed preferences of the 2016 Republican presidential candidates—­ both those rushing to be the most extreme conservatives (Cruz and Paul) and mainstream establishment types (like Bush)—­indicate that there is growing internal acceptance of a federalist position on marijuana to be mobilized when trying to repeal/modify the federal Controlled Substances Act. A states rights’ framing would also lay the groundwork for a legislative policy that would help soften the transition from full national prohibition to full national legalization—­in effect, reversing the ASL’s plan of using an intermediate stop in 1913. Rather than endorsing a full federal repeal, legalization advocates could consider, as an interim measure, a Webb-­Kenyon for marijuana offering robust federal assistance interdicting importation into nonmarijuana states only. This would allow antimarijuana members of Congress to justify a flip, or, at least, nonobstruction, on both federalist grounds and the grounds of the protection of their own policy preferences within their state—­resurrecting the “model federalism” of the original Webb-­Kenyon Act.37 In theory, one need not ever even repeal such a law or deal with Congress ever again but instead simply turn to lobbying at the state level, which activists would need to target anyway. Left-­leaning advocates of legalization would do well to remember that the Twenty-­First Amendment likely would not have passed if states wanting to maintain local prohibition had not been allowed to do so (and had not believed that they would be supported in that choice). Today, reframing the conflict to include federalism helps procure the support of the one-­ third of Republican legal elites, voters, and even presidential candidates whose ideological preferences are crosscutting. Prohibition has often been held up as the archetypal issue bringing together wildly divergent interests: the so-­called bootlegger-­and-­Baptist coalition. But federalism, too, can create strange political alliances and incentives as the effort to legalize marijuana will likely soon show.

Abbreviations

S

tate legislative journals are in the form of JS [STATE INITIAL] year, page. Congressional journals are in the form of CR [numbered Congress.Session], page:

CR: Congressional Record JA: Journal of the Assembly JH: Journal of the House Journal of the Senate JS: Minutes of the Assembly MA: AR: Arizona Republican /Republic AC: Atlanta Constitution BG: Boston Globe BS: Baltimore Sun CSM: Christian Science Monitor CT: Chicago Tribune LAT: Los Angeles Times NMP: Nathan Miller Papers, Syracuse University NSJ: Nevada State Journal NYHT: New York Herald-­Tribune (post-­1924 merger) NYTR: New York Tribune (premerger) NYT: New York Times PPAS:  Public Papers of Alfred E. Smith (Albany, J. B. Lyon, various dates) PPFDR:  Public Papers of Franklin D. Roosevelt, 48th Governor (Albany, J. B. Lyon, various dates) REG: Reno Evening Gazette

252

abbreviations

SFC: San Francisco Chronicle SJMN: San Jose Mercury News STLPD: St. Louis Post-­Dispatch WP: Washington Post Wickersham Commission Report (National Commission WCR:  on Law Observance and Enforcement and Report on the Enforcement of the Prohibition Laws of the United States)

Notes Chapter One 1. Michael Lerner, Dry Manhattan: Prohibition in New York City (Cambridge, MA: Harvard University Press, 2007), 279. 2. “State Rum Referendum Wins at Albany,” NYHT, 4/20/1926, 1. 3. For the legal history of the case, see http://www.scotusblog.com/case-files/cases​ /nebraska-and-oklahoma-v-colorado; and Ernest A. Young, “Marijuana, Nullification, and the Checks and Balances Model of Federalism,” in Nullification and Secession in Modern Constitutional Thought, ed. Sanford Levinson (Lawrence: University Press of Kansas, 2016), 125–­45. 4. The states conceded that a pure repeal law would be constitutional; the regulatory apparatus also attached to Colorado’s Amendment 64 is what they hold to be preempted by the Controlled Substances Act and thus in violation of the supremacy clause. Nebraska and Oklahoma v. Colorado, Brief in Support of Motion for Leave to File Complaint, 12/18/2014, 5–­15, 15. 5. Nebraska and Oklahoma v. Colorado, Colorado Brief in Opposition, 3/27/2015, 16–­18. 6. Gonzales v. Raich, 545 U.S. 1 (2005). 7. “Nebraska, Oklahoma in Border War with Colorado over Marijuana,” LAT, 2/7/2015; Mario Loyola, “Why Are Conservatives Fighting Colorado’s Legal Weed?” Atlantic, 1/5/2015, http://www.theatlantic.com/politics/archive/2015/01/why-are-con​ ser​vatives-fighting-colorados-legal-weed/384186. 8. Brief of the States of Alabama, Louisiana, and Mississippi, as Amicus Curiae in Support of Respondents in Ashcroft v. Raich, 10/13/2004. 9. Randy Barnett, “The Ninth Circuit’s Revenge,” National Review, 6/9/2005, http://www.nationalreview.com/article/214646/ninth-circuits-revenge-randy-barnett. Raich was a controversial outlier from Scalia’s past and subsequent federalism votes and dependent on Wickard v. Filburn, 317 U.S. 111 (1942), a case that he later explicitly disavowed. Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation

254

notes to pages 3–5

of Legal Texts (St. Paul, MN: Thomson/ West, 2012), 405–­6 (describing Wickard as a “willful judicial distortion” and “expand[ing] the Commerce Clause beyond all reason”). 10. “Supreme Court Declines to Hear Challenge to Colorado’s Marijuana Laws,” NYT, 3/21/2016. 11. Dashiell Hammett, Crime Stories and Other Writings (New York: Library of America, 2001). 12. “Hoover Formally Notified, Voices Issues, Opposes Dry Law Repeal or Nullification,” NYT, 8/12/1928, 1. 13. David Kyvig, “Sober Thoughts,” in Law, Alcohol, and Order: Perspectives on National Prohibition, ed. David Kyvig (Westport, CT: Greenwood, 1985), 3–­20, 6. 14. Carroll v. United States, 267 U.S. 132 (1925) (though the Court insisted on clear probable cause). 15. U.S. v. Olmstead, 277 U.S. 438 (1928). 16. U.S. v. Lanza, 260 U.S. 377 (1922). 17. Lisa McGirr, The War on Alcohol: Prohibition and the Rise of the American State (New York: Norton, 2015). 18. James Morone, Hellfire Nation: The Politics of Sin in American History (New Haven, CT: Yale University Press, 2003), 283. 19. Julie Novkov, “Bringing the States Back In: Understanding Legal Subordination and Identity through Political Development,” Polity 40 (2008): 24–­48. 20. Emily Zackin, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights (Princeton, NJ: Princeton University Press, 2013); Sanford Levinson, Framed: America’s 51 Constitutions and the Crisis of Government (New York: Oxford University Press, 2012); John Dinan, State Constitutional Politics (Chicago: University of Chicago Press, 2018), and The American State Constitutional Tradition (Lawrence: University Press of Kansas, 2006); G. Alan Tarr, Understanding State Constitutions (Princeton, NJ: Princeton University Press, 1998); Jeffrey Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law (New York: Oxford University Press, 2018). 21. Keith Whittington, Political Foundations of Judicial Supremacy (Princeton, NJ: Princeton University Press, 2007). 22. On political debate as civic education, see Colleen Sheehan, “Madison v. Hamilton: The Battle over Republicanism and the Role of Public Opinion,” American Political Science Review 98 (2004): 405–­24; and Larry Kramer, “ ‘The Interest of the Man’: James Madison, Popular Constitutionalism, and the Theory of Deliberative Democracy,” Valparaiso University Law Review 41 (2007): 697–­754. 23. Expecting wholly disinterested constitutional argument is unrealistic—­the more we can explain away self-­interested reasoning, the more impressive/conclusive the constitutional debate is, but the constitutionalist nature of such debates is not binary but a spectrum incentivized by Madison’s system. See Ernest Young, “Federalism as a Constitutional Principle,” University of Cincinnati Law Review 83 (2015):

notes to pages 5–7

255

1057–­82, esp. 1078–­80; and Richard Primus, “The Riddle of Hiram Revels,” Harvard Law Review 119 (2006): 1680–­1734, 1692–­94. 24. The ASL claimed, not unreasonably, that Wheeler was the most powerful man in America at one point. Daniel Okrent, Last Call: The Rise and Fall of Prohibition (New York: Scribner, 2010), 41. 25. Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2005); Bruce Ackerman, We the People: Foundations (Cambridge, MA: Harvard University Press, 1993); Mark Tushnet, Taking the Constitution Away from the Courts (Princeton, NJ: Princeton University Press, 2000); Elizabeth Beaumont, The Civic Constitution (New York: Oxford University Press, 2014); John Finn, Peopling the Constitution (Lawrence: University Press of Kansas, 2014); G. Alan Tarr, “Popular Constitutionalism in State and Nation,” Ohio State Law Journal 77 (2016): 237–­80. 26. Neil Devins and Louis Fisher, The Democratic Constitution (New York: Oxford University Press, 2004); J. Mitchell Pickerill, Constitutional Deliberation in Congress (Durham, NC: Duke University Press, 2004); George Thomas, The Madisonian Constitution (Baltimore: Johns Hopkins University Press, 2008); Andrew Busch, The Constitution on the Campaign Trail: The Surprising Political Career of America’s Founding Document (Lanham, MD: Rowman & Littlefield, 2007); Keith E. Whittington, “Extrajudicial Constitutional Interpretation: Three Objections and Responses,” North Carolina Law Review 80 (2002): 774–­852. 27. Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, NC: Duke University Press, 1992); Barry Cushman, “Regime Theory and Unenumerated Rights: A Cautionary Note,” University of Pennsylvania Journal of Constitutional Law 9 (2006): 263–­79. 28. Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton, NJ: Princeton University Press, 2004); Howard Gillman, “The Collapse of Constitutional Originalism and the Rise of the Notion of the ‘Living Constitution’ in the Course of American State-­Building,” Studies in American Political Development 11 (September 1997): 191–­247. 29. On the era’s marked commitment to constitutionalism even in popular culture, see Maxwell Bloomfield, Peaceful Revolution: Constitutional Change and American Culture from Progressivism to the New Deal (Cambridge, MA: Harvard University Press, 2001). 30. New York v. United States, 505 U.S. 14 (1992); Printz v. United States, 521 U.S. 898 (1997); Murphy v. NCAA 584 U.S. —­—­(2018). 31. On the late nineteenth-­and early twentieth-­century development of ideology reinterpreting the Civil War and the South to be about federalism rather than slavery, see Gary W. Gallagher and Alan T. Nolan, eds., The Myth of the Lost Cause and Civil War History (Bloomington: Indiana University Press, 2000). For the inaccuracy of this as an original matter, arguing that the seceding states and their leaders pitched secession on grounds of slavery rather than federalism,

256

notes to pages 8–10

see Charles B. Dew, Apostles of Disunion: Southern Secession Commissioners and the Causes of the Civil War (Charlottesville: University of Virginia Press, 2002); and James W. Loewen and Edward Sebesta, eds., The Confederate and Neo-­ Confederate Reader: The Great Truth about the Lost Cause (Jackson: University of Mississippi Press, 2011). For a recent work connecting the Lost Cause framing of antinationalist federalism as the forge of the postwar Jim Crow South, see Paul Herron, Framing the Solid South: The State Constitutional Conventions of Secession, Reconstruction, and Redemption, 1860–­1902 (Lawrence: University Press of Kansas, 2017). For Adams’s views, see Henry Adams, John Randolph (Boston: Houghton Mifflin, 1883), 281–­83; and Adam Freedman, A Less Perfect Union: The Case for States’ Rights (New York: Broadside, 2015), 76–­77.

Chapter Two 1. Abraham Lincoln, “Address to the Washington Temperance Society of Springfield, Illinois” (2/22/1842), in Speeches and Writings, 1832–­1858 (New York: Library of America, 1989), 89–­90. 2. Norman Clark, Deliver Us from Evil: An Interpretation of National Prohibition (New York: Norton, 1976), esp. 22–­23. 3. Rogers Smith, “Beyond Tocqueville, Myrdal, and Hartz: The Multiple Traditions in America,” American Political Science Review 87 (1993): 549–­66. For other work tending to reconnect American liberalism and republicanism more tightly, as Tocqueville did, see Paul Carrese, Democracy in Moderation: Montesquieu, Tocqueville, and Sustainable Liberalism (New York: Cambridge University Press, 2016); David Ericson, The Debate over Slavery: Antislavery and Proslavery Liberalism in Antebellum America (New York: New York University Press, 2000); and Gordon Wood, Creation of the American Republic (1969), 2nd ed. (Chapel Hill: University of North Carolina Press, 1998), x–­xii. 4. Richard Hofstadter, The Age of Reform: From Bryan to F.D.R. (New York: Knopf, 1955). For an account of prohibition based on Hofstader’s analysis, see Andrew Sinclair, Era of Excess: A Social History of the Prohibition Movement, with a preface by Richard Hofstadter (New York: Harper & Row, 1964). For a critical revisionist account, see Clark, Deliver Us from Evil, 11, 42. 5. Hofstadter, preface to Sinclair, Era of Excess, viii. 6. Kyvig, “Sober Thoughts,” 9–­10. James Timberlake’s Prohibition and the Progressive Movement, 1900–­1920 (Cambridge, MA: Harvard University Press, 1963) walks through these various cases in detail. 7. Timberlake, Prohibition and the Progressive Movement; Okrent, Last Call, 9–­31; Carol Mattingly, Well-­Tempered Women: Nineteenth-­Century Temperance Rhetoric (Carbondale: Southern Illinois University Press, 2000).

notes to pages 10–13

257

8. McGirr, War on Alcohol; Morone, Hellfire Nation, 281–­350; Timberlake, Prohibition and the Progressive Movement, 32. 9. Besides the work cited in the previous note, see also Thomas R. Pegram, Battling Demon Rum: The Struggle for a Dry America, 1800–­1933 (Chicago: Ivan R. Dee, 1999). On the development of southern prohibition before the movement linked with the ASL, see Ann-­Marie Szymanski, “Beyond Provincialism: Southern Progressivism, Prohibition, and State Building,” Journal of Southern History 69 (2003): 107–­36. 10. Fabian Franklin, “Relation between Law and Its Enforcement,” BS, 11/25/1924, 13. 11. In another project, I demonstrate that, with a few exceptions, like Oscar Underwood, southern states’ rights claims were largely a cover for white supremacy, primarily invoked when national policy possibly threatened the racial order. (Moreover, even those like Underwood who were consistently states’ rights oriented often linked that to white supremacy.) Instead, on issue after issue, the reputed southern devotion to states’ rights failed to materialize, surprising the many contemporaries who realized that northern state legislatures were arguably more committed to it as a general rule. Sean Beienburg, “Progressive Federalism” (Tempe: Arizona State University, n.d., typescript). 12. Oscar W. Underwood, Drifting Sands of Party Politics (New York: Century, 1928), 382–­83. 13. Max Barber, “Claims Prohibition Started in South as Curb on ‘Bad’ Negroes,” Pittsburgh Courier, 2/20/1932, 5. 14. Morone, Hellfire Nation, 292–­300. See also CR 65.1, 451, justifying a vote for the amendment on precisely these grounds. 15. Thomas R. Pegram, “Temperance Politics and Regional Political Culture: The Anti-­Saloon League in Maryland and the South, 1907–­1915,” Journal of Southern History 63 (1997): 57–­90, 75–­77; Timberlake, Prohibition and the Progressive Movement, 120–­23, 155; Okrent, Last Call, 42–­43, 90–­91. 16. Morgan Kousser, The Shaping of Southern Politics: Suffrage Restrictions and the Establishment of the One-­Party South, 1880–­1910 (New Haven, CT: Yale University Press, 1974); W. E. B. Du Bois, Black Reconstruction in America (1935), ed. Henry Louis Gates Jr. (New York: Oxford University Press, 2007). 17. Okrent, Last Call, 230–­31. 18. Thomas R. Pegram, “Hoodwinked: The Anti-­Saloon League and the Ku Klux Klan in 1920s Prohibition Enforcement,” Journal of the Gilded Age and Progressive Era 7 (2008): 89–­119, 118. 19. H. L. Mencken, A Carnival of Buncombe, ed. Malcolm Moos (Baltimore: Johns Hopkins University Press, 1956), 104. 20. Pegram, “Hoodwinked.” 21. McGirr, War on Alcohol, 132–­55. 22. McGirr, War on Alcohol, 90.

258

notes to pages 13–14

23. Lerner, Dry Manhattan, 35, 201–­2; Morone, Hellfire Nation, 292–­300; Brian Jolet, “Wet Chicago: Prohibition and the Development of the Informal Alcohol Economy” (PhD diss., Loyola University of Chicago, 2012), 279. Although Prohibition battleground Maryland boasted The Afro-­American, the third most circulated black-­published newspaper in the country, it paid little attention to Prohibition. Michael Thomas Walsh, “Wet and Dry in the ‘Land of Pleasant Living’: Baltimore, Maryland and the Policy of National Prohibition, 1913–­1933” (PhD diss., University of Maryland, 2012), 251–­54. 24. Chicago Defender, 5/31/1919, cited in Jolet, “Wet Chicago,” 40. For a fuller treatment of the Chicago newspapers’ positions, see ibid., 38–­45, 279. Nonetheless, black newspapers— ­even those like the Defender that had supported Prohibition early—­similarly reversed course after concluding that enforcement was systematically and racially biased. Ibid., 279; McGirr, War on Alcohol, 90–­91. 25. Lisa G. Materson, For the Freedom of Her Race: Black Women and Electoral Politics in Illinois, 1877–­1932 (Chapel Hill: University of North Carolina Press, 2013), 154–­60. The National Association of Colored Women and other black women’s groups feared the increasing rhetoric bundling the Eighteenth Amendment and Reconstruction and worried that the collapse of the former would lead to the formal repeal of the latter. As a result, they solidified their support of Prohibition even as the rest of the country turned against it. 26. Timberlake, Prohibition and the Progressive Movement, 69–­78. 27. On the growth and reception of scientific skepticism of alcohol, see Timberlake, Prohibition and the Progressive Movement, 40–­55; and Steven Goldberg, “Putting Science in the Constitution: The Prohibition Experience,” in Kyvig, ed., Law, Alcohol, and Order, 21–­34. The American Medical Association quickly reversed course, disavowing the wartime resolution in 1926, and was considered a prohibition foe soon after. Goldberg, “Putting Science in the Constitution,” 28. 28. Timberlake, Prohibition and the Progressive Movement, 100–­125. 29. Mark Edward Lender, “The Historian and Repeal,” in Kyvig, ed., Law, Alcohol, and Order, 177–­205, 179. 30. Clark, Deliver Us from Evil, 12–­13, 57, 135, 176. 31. William John Jackson, “Prohibition as an Issue in New York State Politics, 1836–­1933” (PhD diss., Columbia University, 1974), 144. 32. Louis Hartz, The Liberal Tradition in America (New York: Harcourt, 1955), 228–­83. 33. Paul Murphy, “Societal Morality and Individual Freedom,” in Kyvig, ed., Law, Alcohol, and Order, 68–­72. 34. Paul Carter, “Prohibition and Democracy: The Noble Experiment Reassessed,” Wisconsin Magazine of History 56 (1973): 189–­201, 192; Harry S. Warner, Prohibition: An Adventure in Freedom (Westerville, OH: World League against Alcoholism, 1928). 35. Lincoln, “Address to the Washington Temperance Society,” 89–­90. See also Ken I. Kersch, Constructing Civil Liberties (New York: Cambridge University Press, 2004), 7.

notes to pages 15–18

259

36. Carter, “Prohibition and Democracy,” 192; Warner, Prohibition. 37. McGirr, War on Alcohol, 17. 38. Kersch, Constructing Civil Liberties, 77–­78. 39. Unlike Hartz (Liberal Tradition in America), who argued that this turn toward proactive central government advancing positive rights was a natural outgrowth of liberalism, many conservatives argue that this ideology was a new tradition that appropriated the term liberalism but described collectivism rather than individualism, a claim long raised by Herbert Hoover, as in his June 10, 1936, address to the Republican convention. See also Ken I. Kersch, “Constitutional Conservatives Remember the Progressive Era,” in The Progressives’ Century: Political Reform, Constitutional Government, and the Modern American State, ed. Stephen Skowronek, Stephen Engel, and Bruce Ackerman (New Haven, CT: Yale University Press, 2016), 130–­54. 40. Morone, Hellfire Nation, 292; Carter, “Prohibition and Democracy.” 41. J. S. Mill, On Liberty (1859), in J. S. Mill: On Liberty and Other Writings, ed. Stefan Collini (Cambridge: Cambridge University Press, 1989), 1–­115, 96–­100. 42. On early American alcohol consumption, see William Rorabaugh, The Alcoholic Republic: An American Tradition (Oxford: Oxford University Press, 1981). On the turn from temperance to prohibition, see Ann-­Marie Szymanski, Pathways to Prohibition: Radicals, Moderates, and Social Outcomes (Durham, NC: Duke University Press, 2003). 43. See Mill, On Liberty, chs. 4 (on fermented drinks) and 5. 44. Wynehamer v. New York, 37 N.Y. 378 (1856). For the list of these early state passages, see the online appendix. 45. Again, see the online appendix.

Chapter Three 1. CR 63.3, 585. 2. Alexis de Tocqueville, Democracy in America (1840), ed. Harvey Mansfield and Delba Winthrop (Chicago: University of Chicago Press, 2000), 641. 3. Kurt T. Lash, The Lost History of the Ninth Amendment (New York: Oxford University Press, 2009); James R. Stoner, Common-­Law Liberty (Lawrence: University Press of Kansas, 2003), 125–­49; William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth Century America (Chapel Hill: University of North Carolina Press, 1996); Gary Gerstle, “The Resilient Power of the States across the Long Nineteenth Century,” in The Unsustainable American State, ed. Lawrence Jacobs and Desmond King (Oxford: Oxford University Press, 2009), 61–­87. 4. George W. Carey, The Federalist (The Gideon Edition), ed. George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2001) (Federalist 39, 44, 46).

260

notes to pages 18–20

5. Jack P. Greene, The Constitutional Origins of the American Revolution (Cambridge: Cambridge University Press, 2010); Forrest McDonald, States’ Rights and the Union: Imperium in Imperio, 1776–­1876 (Lawrence: University Press of Kansas, 2000); Aaron N. Coleman, The American Revolution, State Sovereignty, and the American Constitutional Settlement, 1765–­1800 (Lanham, MD: Lexington, 2016); Alison LaCroix, The Ideological Origins of American Federalism (Cambridge, MA: Harvard University Press, 2011). 6. Mugler v. Kansas, 123 U.S. 623 (1887). 7. For the most thorough treatment of the passage, reception, and subsequent follow-­up efforts by Jefferson and Madison, see Christian Fritz, American Sovereigns: The People and America’s Constitutional Tradition before the Civil War (New York: Cambridge University Press, 2009). 8. For Jefferson’s draft language of the Kentucky Resolution, see Wayne D. Moore, Constitutional Rights and Powers of the People (Princeton, NJ: Princeton University Press, 1996), 244. For the text of the Virginia Resolution, see http://avalon.law.yale​ .edu /18th_century/virres.asp. Both in the report of 1800 and in the 1830s, Madison argued that efforts to interpret his resolution as calling for state obstruction of federal policy, as Calhoun claimed, were false and that he meant the resolution to be only a declaration and signal. See Drew McCoy, The Last of the Fathers: James Madison and the Republican Legacy (Cambridge: Cambridge University Press, 1989), 130–­50. Later scholars have tended to agree. See Fritz, American Sovereigns; and Moore, Constitutional Rights and Powers of the People, 346–­65. On how this would take a specifically originalist direction, see Jonathan Gienapp, “How to Maintain a Constitution: The Virginia and Kentucky Resolutions and James Madison’s Struggle with the Problem of Constitutional Maintenance,” in Levinson, ed., Nullification and Secession, 53–­90. 9. Ironically, Federalist-­dominated New England state legislatures had refused to join the resolutions because their legislators believed the resolutions did not stand for protest but were instead unilateral state vetoes of federal legislation—­ and thus they substantively anticipated all the claims against nullification that Madison and others would invoke. See Herman V. Ames, State Documents on Federal Relations (Philadelphia: University of Pennsylvania Press, 1906), 16–­25. 10. For the primary sources illustrating New England resistance in the War of 1812, see Ames, State Documents, 54–­88; and Fritz, American Sovereigns, 211–­16. 11. For Madison’s instructions to suppress the convention if it called for insurrection, see Fritz, American Sovereigns, 216. See also ibid., 211–­16; Ames, State Documents, 54–­88; and Mark Brandon, Free in the World (Princeton, NJ: Prince­ ton University Press, 1998), 182–­86. 12. U.S. v. Peters, 9 U.S. 115 (1809); Ames, State Documents, 45–­47; Sean Wilentz, The Rise of American Democracy (New York: Norton, 2005), 141–­42; Simon Snyder to James Madison, 4/6/1809, National Archives, Founders Online, https://founders .archives.gov/documents/Madison/03-01-02-0118. John Taylor had outed Madison

notes to pages 20–23

261

as the author in March 1809. “Virginia Resolutions,” 12/21/1798, Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-17-02-0128. 13. James Madison to Simon Snyder, 4/13/1809, National Archives, Founders Online, https://founders.archives.gov/documents/Madison/03-01-02-0132; “Madison’s First Public Crisis: Olmstead v. the Executrices of the Late David Rittenhouse, 6 April–­6 May 1809 (Editorial Note),” Founders Online, National Archives, http:// founders.archives.gov/documents/Madison/03-01-02-0117. 14. John C. Calhoun, Union and Liberty: The Political Thought of John C. Calhoun (Indianapolis: Liberty Fund, 1992); James H. Read, Majority Rule versus Consensus: The Political Thought of John C. Calhoun (Lawrence: University Press of Kansas, 2009). 15. In what follows, I draw on Richard E. Ellis, The Union at Risk: Jacksonian Democracy, States’ Rights, and the Nullification Crisis (Oxford: Oxford University Press, 1987); and Keith E. Whittington, “The Political Constitution of Federalism in Antebellum America: The Nullification Debate as an Illustration of Informal Mechanisms of Constitutional Change,” Publius: The Journal of Federalism 26 (1996): 1–­24. 16. Herman Belz, ed., The Webster-­Hayne Debate on the Nature of the Constitution: Selected Documents (Indianapolis: Liberty Fund, 2000), 74. 17. Belz, ed., Webster-­Hayne Debate, 125, 135. 18. Belz, ed., Webster-­Hayne Debate, 460–­75. 19. Belz, ed., Webster-­Hayne Debate, 474; Ellis, Union at Risk, 87. 20. Ableman v. Booth, 62 U.S. 605 (1859). For the state resolution, see Ames, State Documents, 303–­5; and Wilentz, Rise of American Democracy, 676–­77. 21. James H. Read and Neal Allen, “Living, Dead, and Undead: Nullification Past and Present,” in Levinson, ed., Nullification and Secession, 91–­124, 111. 22. Brandon, Free in the World, 183–­85; Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War (New York: Oxford University Press, 1995), 133–­44. 23. Congressional Globe, 36.2, 487. See also Bradley D. Hays, “Nullification and the Political, Legal, and Quasi-­Legal Constitutions,” Publius: The Journal of Federalism 43 (2013): 205–­26. 24. For the centrality of this in the antebellum period, see Ellis, Union at Risk. For nullification’s demise, see Fritz, American Sovereigns. 25. Texas v. White, 74 U.S. 700 (1869), 725. Brandon describes the Texas v. White opinion as “fundamentally incoherent.” Brandon, Free in the World, 168. For similar contemporary criticism, see also Cynthia Nicoletti, Secession on Trial (New York: Cambridge University Press, 2017), 313–­26. Building off Lincoln’s analysis in vetoing Wade-­Davis (see n. 27 below), logically the Court could take one of two positions. First, it could decide that secession was legal or that the states had destroyed themselves and, thus, that, according to the conquered provinces or state suicide theories favored by Congress, the now territories could be governed

262

notes to pages 23–25

by Congress directly in the form of Reconstruction. Alternatively, the justices could (like Lincoln) reject secession and, thus, believe that, with the Confederate coup suppressed, federal authority reverted to the normal constitutional rule of states’ rights (and not Reconstruction). Instead the justices cobbled together the two seemingly incompatible theories. 26. CR 63.3, 560. 27. Lincoln’s First Inaugural Address repeatedly held that states’ rights preserved slavery in those states where it already existed—­but not the territories—­while also condemning secession. Lincoln pocket vetoed the Wade-­Davis Reconstruction Act, holding that Reconstruction was illegal without temporary wartime emergency powers and thus that states’ rights resumed being the rule, unless one accepted compact theory secession, which he did not. Michael Burlingame and John R. Turner Ett­ linger, eds., Inside Lincoln’s White House: The Complete Civil War Diary of John Hay (Carbondale: Southern Illinois University Press, 1999), 217–­18. 28. Mark Wahlgren Summers, The Ordeal of the Reunion: A New History of Reconstruction (Chapel Hill: University of North Carolina Press, 2014); Michael Les Benedict, “Preserving the Constitution: The Conservative Basis of Radical Reconstruction,” Journal of American History 61 (1974): 65–­90, and “Preserving Federalism: Reconstruction and the Waite Court,” Supreme Court Review 1 (1978): 39–­79; Gerstle, “The Resilient Power of the States”; Earl Maltz, “Reconstruction without Revolution: Republican Civil Rights Theory in the Era of the Fourteenth Amendment,” Houston Law Review 24 (1997): 221–­79; Pamela Brandwein, Rethinking the Judicial Settlement of Reconstruction (Cambridge: Cambridge University Press, 2011); Kurt T. Lash, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (New York: Cambridge University Press, 2014), 3–­8, 79–­83. 29. Slaughterhouse Cases, 83 U.S. 36 (1873), 82. 30. Charles Larsen, “Nationalism and States’ Rights in Commentaries on the Constitution after the Civil War,” American Journal of Legal History 3 (1959): 360–­69. 31. I thank Richard Bensel for initially framing this to me as a conceptual two-­by-­two. 32. Matthew S. Brogdon, “Defending the Union: Andrew Jackson’s Nullification Proclamation and American Federalism,” Review of Politics 73 (2011): 245–­73. 33. Sean Beienburg, “Neither Nullification nor Nationalism: The Battle for the States’ Rights Middle Ground during Prohibition,” American Political Thought 7 (2018): 271–­303, 275–­76; Belz, ed., Webster-­Hayne Debate, 23, 110. On Marshall’s denials, see McCulloch v. Maryland, 17 U.S. 316 (1819), 405; and the “Friend of the Constitution” letters reprinted in Howard Gillman, Mark A. Graber, and Keith Whittington, American Constitutionalism: Powers, Rights, and Liberties (New York: Oxford University Press, 2014), 169–­72. 34. Sidney Milkis, The President and the Parties (Oxford: Oxford University Press, 1993), and Political Parties and Constitutional Government (Baltimore: Johns Hopkins University Press, 1999).

notes to pages 26–29

263

35. I thank Mark Graber for suggesting the term to me. 36. John Phillip Hill, “A State’s Rights Remedy for Volsteadism,” North American Review 221, no. 827 (1925): 635–­40, 639. See also “Passive Resistance against Dry Law Urged,” BG, 10/30/1924, 13a. For examples of the rhetoric of nullification in popular discourse, see Bartlett C. Jones, “Nullification and Prohibition, 1920–­ 1933,” Southwestern Social Science Quarterly 44 (1964): 389–­98; and David E. Kyvig, Repealing National Prohibition (Chicago: University of Chicago Press, 1979), 66–­67. 37. Charles Merz, The Dry Decade (New York: Doubleday, 1932), 290–­93. 38. James Benson Sellers, The Prohibition Movement in Alabama, 1702–­1943 (Chapel Hill: University of North Carolina Press, 1943), 194. 39. Millard E. Tydings, Before and After Prohibition (New York: Macmillan, 1930); Archibald E. Stevenson, States’ Rights and National Prohibition (New York: Clark Boardman, 1927). 40. Mencken, Carnival of Buncombe, 93. 41. Richard Hamm, Shaping the Eighteenth Amendment: Temperance Reform, Legal Culture, and the Polity, 1880–­1920 (Chapel Hill: University of North Carolina Press, 1995), 73–­94. 42. Clark Distilling Co. v. Western Maryland Railway Co., 242 U.S. 311 (1917). 43. Hamm, Shaping the Eighteenth Amendment, 211. 44. Justin Steuart, Wayne Wheeler, Dry Boss (1928; reprint, Westport, CT: Greenwood, 1970), 81–­86. 45. Hamm, Shaping the Eighteenth Amendment, 214, 217. 46. Hamm, Shaping the Eighteenth Amendment, 220–­23. 47. Hill, “A State’s Rights Remedy for Volsteadism,” 639. 48. Morone, Hellfire Nation, 311. 49. K. Austin Kerr, Organized for Prohibition: A New History of the Anti-­ Saloon League (New Haven, CT: Yale University Press, 1985), 138–­42. 50. For the floor debate on Hobson and Morrison, see CR 63.2, 736–­45 (12/11/1913) (the initial Hobson proposal), 63.3, 329 (12/17/1914) (the initial proposal of HJR389, Morrison’s alternative amendment). For the debate on the first failed attempt to pass the Hobson amendment, during which the federalism implications were considered at length, see CR 63.3 (12/22/1914), 495–­614. The vote on Morrison’s alternative appears in ibid., 613, and the roll call on Hobson’s on ibid., 616. On Sheppard’s sponsorship of Webb-­Kenyon, see Hamm, Shaping the Eighteenth Amendment, 213. 51. “New Bill Makes Liquor Straight State Issue,” Washington Times, 4/24/1915, 6. 52. CR 63.3, 589. 53. CR 63.3, 586–­91. 54. CR 63.3, 585. 55. CR 63.3, 591. 56. CR 63.3, 527–­29. Champion v. Ames, 188 U.S. 321 (1903). Anticipating the Court’s New Deal jurisprudence, some drys had reportedly considered trying to build on these precedents by suppressing in-­state alcohol as necessary to regulate

264

notes to pages 30–34

interstate commerce. “New Bill Makes Liquor Straight State Issue,” Washington Times, 4/24/1915, 6. 57. For Garrett (D-­TX), see CR 63.3, 526. For other examples of those arguing that adding a specific constitutional power did not threaten federalism, see Hubert Stephens (D-­MS), ibid., 593–­94; Edwin Webb (D-­NC), ibid., 529; and Edward Saunders (D-­VA), ibid., 562–­63. Saunders was a former Virginia judge, Webb a future federal circuit court judge. 58. CR 63.3, 537. 59. Steward Machine Co. v. Davis, 301 U.S. 548 (1937) (on the taxing and spending powers); Wickard v. Filburn, 317 U.S. 111 (1942) (on commerce). 60. “Veto Message Regarding Funding of Infrastructure Development” (5/27/1830), https://millercenter.org /the-presidency/presidential-speeches /may-27-1830-veto​ -message-regarding-funding-infrastructure. 61. CR 63.3, 599. 62. CR 63.3, 503. 63. CR 63.3, 526. 64. CR 63.3, 570. 65. CR 63.3, 539. 66. CR 63.3, 616. For party data of the roll call vote, see “Prohibition Turned Down,” BS, 12/23/1914, 1; and Morone, Hellfire Nation, 301. 67. CR 63.3, 497–­501. See also Robert Henry of Texas, ibid., 541, raising the same point. 68. CR 63.3, 506. 69. CR 63.3, 507. 70. CR 63.3, 506. For similar examples of southern congresspersons linking prohibition and federal enforcement of black rights, see Aswell (D-­LA), ibid., 582; Dupre (D-­LA), ibid., 592; and Henry (D-­TX), ibid., 543. 71. For Mann, see CR 63.3, 530–­31. For Barchfield, see ibid., 555. 72. CR 63.3, 505. 73. CR 63.3, 533. 74. For the ASL’s success in using such techniques to achieve success where early antialcohol efforts had failed, see Szymanski, Pathways to Prohibition. 75. CR 63.3, 588–­89. Morrison planned to propose his amendment in the following session, but it was not seriously considered again. “New Bill Makes Liquor Straight State Issue,” Washington Times, 4/24/1915, 6. 76. Kyvig, Repealing National Prohibition, 5. 77. Okrent, Last Call, 72–­73; Morone, Hellfire Nation, 310. 78. Okrent, Last Call, 94; Merz, Dry Decade 56; “Wadsworth Urges Repeal of Dry Law,” NYHT, 1/25/1927, 1; “Still Found on Farm of Sheppard, Dry Law Author,” BS, 9/7/1920, 1; “Still Found on Senator’s Farm,” NYT, 9/7/1920, 2. 79. Robert Post, “Federalism in the Taft Court Era: Can It Be Revived?” Duke Law Journal 51 (2002): 1519–­26.

notes to pages 34–35

265

80. Quoted in Clark, Deliver Us from Evil, 124. 81. Roosevelt supported national prohibition as an eventual goal but in 1914/1915 argued that the time was not yet appropriate and that the institution of national prohibition would create a backlash. See Theodore Roosevelt to William Allen White (letter 5895), 7/6/1914, in Letters of Theodore Roosevelt, vol. 7, The Days of Armageddon, ed. Elting E. Morison (Cambridge, MA: Harvard University Press, 1954), 773; and Theodore Roosevelt to Raymond Robins (letter 5996), 6/3/1915, in Letters of Theodore Roosevelt, vol. 8, The Days of Armageddon, ed. Elting E. Morison (Cambridge, MA: Harvard University Press, 1954), 930 (supporting local prohibition wherever feasible). The week before Congress approved the amendment in 1917, Roosevelt wrote a letter in which he explicitly endorsed temporary wartime prohibition and offered a sympathetic word to permanent prohibition. This letter was publicly released and printed in the New York Times two weeks later. See Theodore Roosevelt to Clarence True Wilson (letter 6271), 12/12/1917, in ibid., 1259; and “Roosevelt Favors Partial Prohibition,” NYT, 12/25/1917, 2. 82. The Lever Act, officially the Food and Fuel Control Act, passed in 1917. Its chief sponsor was Frank Lever, whose sponsorship of the Smith-­Lever Act, a cooperative grant-­in-­aid program funding agricultural colleges, laid the groundwork for Morris Sheppard’s other signature legislation, the Sheppard-­Towner Maternity Act. See Beienburg, “Progressive Federalism.” 83. Okrent, Last Call, 100. 84. Hamm, Shaping the Eighteenth Amendment, 238–­39. 85. For the Senate debate preceding the August 1 vote, see CR 65.1, 5585–­5627, 5636–­66. For the House debate preceding the December 17 vote, see CR 65.2, 421–­70. 86. CR 65.1, 5587. Penrose (R-­PA) (ibid., 5636), Warren (R-­WY) (ibid., 5652), Underwood (D-­AL) (ibid., 5555), Calder (R-­NY) (ibid., 5636), and Weeks (R-­ MA) (ibid., 5644) additionally pointed to their support for the states’ rights Webb-­ Kenyon to explain their opposition to Sheppard’s amendment. Shafroth (D-­CO) justified his yea vote on the grounds the Webb-­Kenyon regime would fail (ibid., 5658). Stone (D-­MO) unhappily explained that the amendment violated states’ rights but voted yea to allow the states to ratify or not (ibid., 5625). 87. CR 65.1, 5586. 88. Gard (D-­OH), CR 65.2, 428; Greene (R-­MA), ibid., 437; Parker and Ramsey (R-­NJ), ibid., 447. Echoing the voices of frustrated southern dissenters in the 1914 debate, several Democrats cited (and sometimes read aloud from) historic party platforms pointing to their party’s states’ rights commitment, often in tandem with recitations of their own support for their states’ prohibition laws and, among southerners, with references to the implications for the South’s racial order: Huddleston (D-­AL), ibid., 462; Fitzgerald (D-­NY), ibid., 463; Heflin (D-­AL), ibid., 457–­58. By way of contrast, Graham (R-­IL) pronounced federalism obsolete (ibid., 440). 89. CR 65.2, 433. 90. CR 65.2, 439.

266

notes to pages 36–40

91. Timberlake, Prohibition and the Progressive Movement, 176–­78. 92. CR 65.2, 438. 93. CR 65.2, 477–­78. 94. Kerr, Organized for Prohibition, 130–­33. 95. Pegram, Battling Demon Rum, 145; Steuart, Wayne Wheeler, Dry Boss, 116–­ 21. See also Okrent, Last Call, 31–­32, 102–­3. 96. Jeffrey Lucker, “The Politics of Prohibition in Wisconsin, 1917–­1933” (MA thesis, University of Wisconsin, Madison, 1968), 19. 97. Michael Lewis, “Access to Saloons, Wet Voter Turnout, and Statewide Prohibition Referenda, 1907–­1919,” Social Science History 32 (2008): 373–­404. 98. Kyvig, Repealing National Prohibition. 99. Michael Munger and Thomas Schaller, “The Prohibition Repeal Amendments: A Natural Experiment in Interest Group Influence,” Public Choice 90 (1997): 139–­63, 151. 100. Pleased by the success of this strategy, after passing the amendment Hobson, Wheeler, and the ASL decided to wield their temporary demographic majority as long as possible, successfully convincing dry allies to block the constitutionally required 1920 reapportionment until 1929. Okrent, Last Call, 72–­73, 80–­82, 240–­41. 101. Kerr, Organized for Prohibition, 140–­41. 102. On the 1884 election, see Mark W. Summers, Rum, Romanism, and Rebellion: The Making of a President, 1884 (Chapel Hill: University of North Carolina Press, 2003), 234–­36, 294–­95. 103. Kyvig, Repealing National Prohibition, 12. 104. The initial insight was made during prohibition—­in Peter Odegard’s Pressure Politics: The Story of the Anti-­Saloon League (New York: Columbia University Press, 1928)—­but the definitive account, using the papers of the ASL, is Kerr, Organized for Prohibition. 105. CR 63.3, 500. 106. On Wheeler’s indifference to personally wet dry votes, see Okrent, Last Call, 125; and Pegram, Battling Demon Rum, 115. The Prohibition Party and its leader, Eugene Chafin, charged the ASL with being so single-­minded that it would work with, and indeed encourage, southern racism when helpful to the cause. Roger C. Storms, Partisan Prophets: A History of the Prohibition Party (Denver: National Prohibition Foundation, 1972), 31; Pegram, “Hoodwinked,” 106–­9. 107. Okrent, Last Call, 125–­27. 108. Sinclair, Era of Excess, 277–­80. 109. Okrent, Last Call, 109–­10; Lerner, Dry Manhattan, 26. 110. Kyvig, Repealing National Prohibition, 13; Merz, Dry Decade, 50. For both the full text of the veto message and coverage of the override, see “Dry Veto Upset by House,” CT, 10/28/1919, 1. 111. Pegram, Battling Demon Rum, 149; Kerr, Organized for Prohibition, 183. See also CR 65.2, 456, 465, 469.

notes to pages 40–44

267

112. Okrent, Last Call, 109–­11. On the contested definitions of intoxicating, see the online appendix. 113. Kerr, Organized for Prohibition, 183. 114. The section below discussing Wheeler’s concessions draws on Okrent, Last Call, 108–­12, except where noted. 115. Hamm, Shaping the Eighteenth Amendment, 242; Pegram, Battling Demon Rum, 148. 116. Timberlake, Prohibition and the Progressive Movement, 181. 117. Okrent, Last Call, 94. 118. Hamm, Shaping the Eighteenth Amendment, 242. 119. Henry Alan Johnston, What Rights Are Left? (New York: Macmillan, 1930), 14, 74–­114. 120. Merz, Dry Decade, 82–­83. 121. McGirr, War on Alcohol, 12; CR 65.1, 5647. 122. For the 1919 Volstead debate, see the online appendix. 123. For a summary of the two debates, see Hamm, Shaping the Eighteenth Amendment, 235–­50. 124. Hamm, Shaping the Eighteenth Amendment, 249. 125. CR 66.1, 2430–­43, 2447–­51; Hamm, Shaping the Eighteenth Amendment, 248–­50. 126. Proceedings of the Forty-­First Annual Meeting of the New York State Bar Association (Albany, NY: Argus, 1918), 182–­84. 127. Kyvig, “Sober Thoughts,” 6. 128. Beienburg, “Progressive Federalism.” 129. Tydings, Before and After Prohibition, 123. For a summary of contemporary thought on the radicalism of Prohibition, from left and right, supporter and opponent, see Robert Post, “Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era,” William and Mary Law Review 48 (2006): 1–­185, 12–­14. 130. The classic discussion of unconstitutional constitutional amendments is Walter F. Murphy, “An Ordering of Constitutional Values,” Southern California Law Review 53 (1980): 703–­60. 131. Sinclair, Era of Excess, 143–­44; “Assails Dry Law as Invasion of State’s Rights,” AR, 3/9/1920, 1. 132. On Root, I draw on William Schambra, “The Saviors of the Constitution,” National Affairs 10 (Winter 2012), https://www.nationalaffairs.com/publications/detail /the-saviors-of-the-constitution. 133. Schambra, “The Saviors of the Constitution”; Elihu Root, “How to Preserve the Local Government of the States” (speech presented 12/12/1906), printed as How to Preserve the Local Government of the States (New York: Brentano’s, 1907). 134. Jackson, “Prohibition as an Issue in New York State Politics,” 82. 135. Alexander Bickel, “Mr. Taft Rehabilitates the Court,” Yale Law Journal 79 (1969): 1–­46, 19.

268

notes to pages 45–48

136. Everett V. Abbott, “Inalienable Rights and the Constitution,” Columbia Law Review 20 (February 1920): 183–­95; Selden Bacon, “How the Tenth Amendment Affected the Fifth Article of the Constitution,” Virginia Law Review 16 (1930): 771–­91. Note that, like Root, both Abbott and Bacon were members of the New York legal community, which bitterly condemned a nationalized police power. For other members, see also Johnston, What Rights Are Left? and Jones, “Nullification and Prohibition,” 396–­98. 137. Kyvig, Repealing National Prohibition, 17–­18; “Fighting to Void Dry Amendment,” AC, 3/30/1920, 2. 138. David Brian Robertson, “Madison’s Opponents and Constitutional Design,” American Political Science Review 99 (2005): 225–­43. 139. Robertson, “Madison’s Opponents and Constitutional Design”; Bacon, “How the Tenth Amendment Affected the Fifth Article of the Constitution,” 772. 140. CR 65.2, 447 (Ramsey, R-­NJ), 464 (Graham, R-­PA). 141. Kyvig, Repealing National Prohibition, 17–­18; “Rhode Island Sees Dry Law Invade Rights,” Detroit Free Press, 3/2/1920, 1; “Assails Dry Law as Invasion of State’s Rights,” AR, 3/9/1920, 1. 142. “Governors Nearly All for Dry Rule,” CSM, 2/20/1920, 9; “Vermont Governor with the Wets,” CSM, 2/20/1920, 9; “The Prohibition Amendment,” NYT, 1/21/1920, 6. 143. “Prohibition and the Supreme Court,” The Nation 109 (1919): 818–­19, quoted in Post, “Prohibition in the Taft Court Era,” 50. 144. Post, “Prohibition in the Taft Court Era,” 49; Kyvig, Repealing National Prohibition, 17–­18. 145. National Prohibition Cases, 253 U.S. 350 (1920), 389. 146. National Prohibition Cases, 253 U.S. 350 (1920), 393. 147. National Prohibition Cases, 253 U.S. 350 (1920), 386. 148. National Prohibition Cases, 253 U.S. 350 (1920), 402, 393. See also ibid., 407 (Clarke, dissenting). 149. National Prohibition Cases, 253 U.S. 350 (1920), 401–­6, esp. 402 (McKenna, dissenting). 150. National Prohibition Cases, 253 U.S. 350 (1920), 407–­10 (Clarke, dissenting). 151. National Prohibition Cases, 253 U.S. 350 (1920), 411. As he warned in private letters, former Utah senator Sutherland, not yet on the Court, held largely the same position. He believed that the Eighteenth Amendment’s grant of concurrent power ought to be construed in the way that will “most prevent the destruction of the historic relations of the Federal and State governments” and that the federal government could wield only “appropriate” powers that did not infringe on state prerogatives. Post, “Federalism in the Taft Court Era,” 1541–­44, and “Prohibition in the Taft Court Era,” 55–­56. 152. For an extended retrospective treatment of the Court’s rulings, see “Supreme Court’s Rulings in Liquor Law Test Cases Have Been Uniformly Dry,” NYHT, 3/23/1930, B1.

notes to pages 48–53

269

153. National Prohibition Cases, 253 U.S. 350 (1920), 389 (C. J. White concurring). 154. National Prohibition Cases, 253 U.S. 350 (1920), 392. 155. National Prohibition Cases, 253 U.S. 350 (1920), 387. 156. CR 65.2, 424. 157. U.S. v. Lanza, 260 U.S. 377 (1922). 158. National Prohibition Cases, 253 U.S. 350 (1920), 390 (C. J. White concurring). 159. Kyvig, Repealing National Prohibition, 2. 160. Kyvig, Repealing National Prohibition, 18–­19. 161. “Address to the Members of the General Court of 1921” (1/5/1921), JH NH 1921, 27. 162. Harry David Ware, “Alcohol, Temperance, and Prohibition in Arizona” (PhD diss., Arizona State University, 1995), 318–­19. 163. Kyvig, Repealing National Prohibition, 2. Kyvig collects quotes from a number of other such fatalists, including James Wadsworth, Clarence Darrow, Samuel Gompers, and Walter Lippman. Ibid., 53–­54. 164. Henry J. Abraham, Justices and Presidents: A Political History of Appointments to the Supreme Court, 3rd ed. (New York: Oxford University Press, 1992), 170–­72. 165. Kyvig, Repealing National Prohibition, 32 (quote); Alpheus T. Mason, William Howard Taft: Chief Justice (New York: Simon & Schuster, 1965), 224. On Taft’s commitment to federalism, see William Howard Taft, Our Chief Magistrate and His Powers (New York: Columbia University Press, 1916), 56. For how Taft applied that to his opposition to a national prohibition amendment, see “For Local Option, Mr. Taft Explains,” NYT, 1/24/1915, 10. For Taft’s initial hostility to Prohibition as well as his almost prophetic expectations of how it would play out, see Post, “Federalism in the Taft Court Era,” 1540–­43, and “Prohibition in the Taft Court Era,” 85–­94. 166. Post, “Prohibition in the Taft Court Era.” 167. Reginald Roberts, “Protecting the Public Welfare and Morals: Political Institutions, Federalism, and Prohibition” (PhD diss., California Institute of Technology, 2001), 111, quoting Storms, Partisan Prophets, 32.

Chapter Four 1. “ ‘Sponge Squad’ Dries Up Joy of Bay State Men,” CT, 6/7/1920, 1. 2. “ ‘Sponge Squad’ Dries Up Joy of Bay State Men,” CT, 6/7/1920, 1. 3. Hawke v. Smith, 253 U.S. 221 (1920). 4. McGirr, War on Alcohol. 5. I use the census’s regional definitions: http://www2.census.gov/geo/pdfs/maps​ -data/maps/reference/us_regdiv.pdf. By the Northeast I mean New England, New York, New Jersey, and Pennsylvania and by the West the Pacific states and the Mountain West. The division of the Midwest and the South is more controversial.

270

notes to pages 54–58

Missouri, sometimes classified as southern, is a poor fit for purposes of prohibition, and thus I adopt the census’s classification of it as midwestern. Unlike the rest of the old-­stock, heavily non-­Lutheran Protestant South, Missouri had a significant and highly influential German-­descended population, popular referenda, and a tendency to follow the more demographically similar Midwest. 6. The thirty-­sixth state ratified on January 16, with the fortieth (Wisconsin) having done so by January 17. (New Mexico ratified on January 20, Nevada on January 21, New York and Vermont on January 29, and Pennsylvania on February 25.) New Jersey would ratify on March 9, 1922. For a summary of ratification totals, see R. M. Boeckel, “The States and the Prohibition Amendment,” Editorial Research Reports, 1931 (Washington, DC: CQ Press, 1931), http://library.cqpress​ .com/cqresearcher/document.php?id=cqresrre1931022500. 7. Post, “Prohibition in the Taft Court Era,” 18–­19. 8. Samuel Wilson, “Reply to Edwards on Prohibition,” NYT, 8/29/1920, X6. 9. CR 63.3, 519. 10. Underwood, Drifting Sands. 11. Robert K. Murray, The 103rd Ballot: Democrats and the Disaster in Madison Square Garden (New York: Harper & Row, 1976), 51–­52. 12. Underwood, Drifting Sands, 343. 13. Underwood, Drifting Sands, 390, 406–­11. 14. Underwood, Drifting Sands, 54. 15. Douglas B. Craig, After Wilson: The Struggle for the Democratic Party, 1920–­1934 (Chapel Hill: University of North Carolina Press, 1992), 53. See also Underwood, Drifting Sands, 45, 372–­75, 385. 16. Craig, After Wilson; Murray, 103rd Ballot, esp. 51–­53; Okrent, Last Call, 69–­70; “Harding Says Negro Must Have Equality in Political Life,” NYT, 10/27/1921, 1; John F. Kennedy, Profiles in Courage (New York: Harper & Row, 1956), 226–­27; Evans C. Johnson, Oscar Underwood: A Political Biography (Baton Rouge: Louisiana State University Press, 1980), 403. On the Bourbons and race, see Du Bois, Black Reconstruction. 17. V. O. Key Jr., Southern Politics in State and Nation (New York: Knopf, 1949). 18. Okrent, Last Call, 69–­70. 19. HB117, JH DE 1919, 452; JS DE 1931, 587. 20. SB11, JS LA 1921, First Extra Session, 44–­45 (amendments agreed to without a vote), 58–­59 (final vote 22–­18 on 9/28). 21. “Parker Opposition Forces Quick Shift on State Dry Law,” New Orleans Times-­Picayune, 9/7/1921, 3; “Prohibition Bill Unsatisfactory to Dry Law Head,” New Orleans Times-­Picayune, 9/14/1921, 1. 22. “State Baptists Urged to Fight for Prohibition,” Baton Rouge State-­Times Advocate, 11/18/1921, 15; JS LA 1921, 58, 331; JH LA 1921, 61, 501. 23. SCR5, JS LA 1921, First Extra Session, 59–­60. 24. JS LA 1921, First Extra Session, 60; “Dry Fight Looms Despite Removal of Teeth in Bill,” New Orleans Times-­Picayune, 9/25/1921, 28.

notes to pages 58–62

271

25. H. L. Mencken, The American Language: Supplement II (New York: Knopf, 1948), 602–­3. 26. “An Enemy’s Trench,” AR, 2/9/1918, 4. 27. Walsh, “Maryland and the Policy of National Prohibition,” 156–­59. My account below and elsewhere in discussing Maryland is heavily indebted to Walsh’s thorough treatment of the state’s prohibition experience. 28. “Prohibition,” BS, 1/15/1918, 6. 29. “Prohibition,” BS, 1/15/1918, 6. 30. “Scores Dry Amendment,” BS, 1/25/1918, 3. 31. JS MD 1918, 111–­12. 32. JS MD 1918, 113–­14. 33. “Prohibition Victory Indicated in Senate,” BS, 1/11/1918, 1. 34. “Scores Dry Amendment,” BS, 1/25/1918, 3. 35. Hamm, Shaping the Eighteenth Amendment, 199. 36. “Bryan Jumps into Dry Fight,” BS, 1/30/1918, 1. Bryan was consistent; unlike many populists, he had been quite sympathetic to courts, criticizing specific decisions, but resisting institutional attacks on them. See William G. Ross, A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890–­1937 (Princeton, NJ: Princeton University Press, 1994), 35–­37; and Stephen Engel, American Politicians Confront the Court: Opposition Politics and Changing Responses to Judicial Power (Cambridge: Cambridge University Press, 2011), 233. 37. William Jennings Bryan, “Our Dual Government,” The Reader 9 (1907): 349–­56; Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (New Haven, CT: Yale University Press, 2011); Jeff Taylor, Where Did the Party Go? William Jennings Bryan, Hubert Humphrey, and the Jeffersonian Legacy (Columbia: University of Missouri Press, 2006), 187–­88. 38. “Bryan Jumps into Dry Fight,” BS, 1/30/1918, 1. 39. “Bryan Jumps into Dry Fight,” BS, 1/30/1918, 1. 40. JS MD 1918, 146–­50; “Frick Hits at Drys,” BS, 1/26/1918, 3. For the equivalent House action, see “Day’s Work in Detail,” BS, 2/9/1918, 3. 41. “Drys Force the Fighting,” BS, 2/2/1918, 1; “Drys Carry Senate 19–­7,” BS, 2/3/1918, 1. Senator Orlando Harrison, representing the Eastern Shore’s Worcester County and the most vicious dry in alleging corruption, would join the Frick/Norris states’ rights cabal in later years (Beienburg, “Progressive Federalism”). Some drys had encouraged the wet filibuster, hoping to stall time to kill a bill on Baltimore annexation, the session’s other major controversy. 42. “Dry Fight Goes Over,” BS, 2/7/1918, 3; “Big Victory for the Drys,” BS, 2/8/1918, 1. 43. Walsh, “Maryland and the Policy of National Prohibition,” 92–­98. 44. JS MD 1918, 201–­2. 45. “Dry Bill Goes Through,” BS, 2/14/1918, 3. 46. “Dry Bill Goes Through,” BS, 2/14/1918, 3.

272

notes to pages 62–67

47. “Big Victory for the Drys,” BS, 2/ 8/1918, 1; “A Democrat,” “Is the Government of Maryland a Theocracy or a Democracy?” BS, 1/26/1918, 6. 48. Lerner, Dry Manhattan. On Anderson’s Maryland failures, which nonetheless impressed Mencken, see Pegram, “Temperance Politics.” 49. “Maryland Dry Bill Killed,” WP, 3/13/1918, 2; Walsh, “Maryland and the Policy of National Prohibition,” 109. 50. Walsh, “Maryland and the Policy of National Prohibition,” 119. 51. Walsh, “Maryland and the Policy of National Prohibition,” 120–­22. 52. Walsh, “Maryland and the Policy of National Prohibition,” 285–­90. 53. Walsh, “Maryland and the Policy of National Prohibition,” 294. 54. “Governor Ritchie Warns of Federal Power,” NYT, 1/21/1926, 23. 55. Walsh, “Maryland and the Policy of National Prohibition,” 410. 56. See Mencken, Carnival of Buncombe. 57. Kyvig. Repealing National Prohibition, 40–­42. 58. Walsh, “Maryland and the Policy of National Prohibition,” 309–­11. 59. Hill, “A State’s Rights Remedy for Volsteadism,” 635–­40; Walsh, “Maryland and the Policy of National Prohibition,” 303–­9. 60. Walsh, “Maryland and the Policy of National Prohibition,” 284. 61. Walsh, “Maryland and the Policy of National Prohibition,” 308. 62. Mencken, American Language: Supplement II, 602–­3. 63. Walsh, “Maryland and the Policy of National Prohibition,” 297–­98. 64. Margaret Law Callcott, The Negro in Maryland Politics, 1870–­1912 (Baltimore: Johns Hopkins University Press, 1969), 114–­33; Gordon H. Shufelt, “Jim Crow among Strangers: The Growth of Baltimore’s Little Italy and Maryland’s Disenfranchisement Campaigns,” Journal of American Ethnic History 19 (2000): 49–­78. 65. “Big Victory for the Drys,” BS, 2/8/1918, 1. 66. “Beer Test Appeal May Be Filed Today,” NYT 5/26/1919, 19; Morone, Hellfire Nation, 301. 67. Mencken, Carnival of Buncombe, 183. 68. JS WY 1917, 15. 69. Sinclair, Era of Excess, 196. 70. Spencer Olin, California’s Prodigal Sons: Hiram Johnson and the Progressives, 1911–­1917 (Berkeley: University of California Press, 1968). 71. For ratification and legislators’ explanations of their votes, see SJR4, JS CA 1919, 54–­56; JA CA 1919, 80–­82. On the Harris Act, see SB390, JS CA 1919, 546, 1020–­23; JA CA 1919, 1059. 72. “Harris Act Held Important to California,” SJMN, 10/19/1920, 1. 73. “Argument in Favor of Prohibition Act,” in Amendments to the Constitution of California Adopted by the Legislature and Approved by the Voters, with Statement of Vote for and against Each Amendment, 1883–­1920, and History of Direct Legislation, 1912–­1920 (Sacramento: California State Printing Office, 1921), Amendment 2 (1920).

notes to pages 67–70

273

74. “Number 5: Constitutional Amendments of 1920,” Transactions of the Commonwealth Club of California 15 (1921): 269–­71, 269. 75. Merz, Dry Decade, 334. 76. “Many Propositions Fail,” LAT, 11/ 4/1920, 15; “Harris Act Hit Hard,” LAT, 11/5/1920, II-­3. 77. The Chronicle warned that retrying dry legislation in the wake of a popular vote both showed the weakness of direct democracy and the possibility that legislators would soon need to engage in their own “nullification” in order to balance budgets warped by incompatible popular votes. “Taxation and the Popular Will: It May Ultimately Result in a Resort to Nullification Projects,” SFC, 2/6/1921, E6. 78. “Brief Facts on State Amendments to Aid Voters,” LAT, 11/1/1920, II-­1; “Citizenship and the Law,” LAT, 11/23/1920, II-­4. 79. “Citizenship and the Law,” LAT, 11/23/1920, II-­4. 80. “Citizenship and the Law,” LAT, 11/23/1920, II-­4. 81. “Defeat of the Harris Act,” SJMN, 11/10/1920, 6. 82. “Defeat of the Harris Act,” SJMN, 11/10/1920, 6. 83. Search and seizure was a notable exception, but it too was bundled within claims about uniform law enforcement. 84. California Grape Protective Association, “Vote ‘No’ on . . . Harris Act,” San Jose Evening News, 10/27/1920, 4; “President of California Grape Growers’ Exchange Answers Questions of Prohibition Leader,” San Diego Union, 10/30/1920, 16; “Enforce the Volstead Act,” LAT, 11/5/1920, II-­4. 85. “Defeat of the Harris Act,” SJMN, 11/10/1920, 6; “Drys Lose California Fight,” SFC, 4/8/1921, 1. 86. “Next State Assembly Will Be Wet by Majority of Four, but Senate May Have Dry Margin,” SFC, 11/17/1920, 9. 87. “Harris Fathers New Measure in Legislature,” SFC, 1/6/1921, 1. 88. “Harris Predicts Victory for His Second Dry Law,” SFC, 1/12/1921, 3. 89. “Drys Lose California Fight,” SFC, 4/8/1921, 1. 90. “Dry Champions Victors in California Senate Fight,” SFC, 4/20/1921; “Dry Bill Passes Both Houses,” SFC, 4/28/1921, 1; AB849, JS CA 1921, 1905; JA CA 1921, 1464. 91. “Governor Favors Harris Dry Bill; Hints He’ll Sign,” SFC, 1/18/1921, 2. 92. “Wright Bill Is Now Law,” LAT, 5/8/1921, I-­1. 93. “Dry Law Victory in California,” CSM, 5/13/1921, 8. 94. AJR5, JA CA 1921, 736; “Wets Gain Victory over Drys in State Assembly,” SFC, 3/19/1921, 1. 95. SJR1 and 2, JS CA 1921, 2528, 2602. 96. “Grape Growers Going to People on Prohibition,” San Diego Union, 5/5/1921, 3. 97. HF958, Laws MN 1921, 507; JH MN 1921, 1116; JS MN 1921, 1108. 98. On the ethnocultural rather than the geographic, partisan, or ideological prohibition voting patterns in Illinois, see John Buenker, “Illinois and the Four

274

notes to pages 70–75

Progressive-­Era Amendments to the United States Constitution,” Illinois Historical Journal 80, no. 4 (Winter 1987): 210–­27, 220, and “The Illinois Legislature and Prohibition, 1907–­1919,” Journal of the Illinois State Historical Society 62 (1969): 363–­84. 99. SB450, JH IL 1921, 979; JS IL 1921, 1036. 100. Charles Merz, “Jim Reed of Missouri,” The Independent 117 (11/6/1926): 529–­30, H. L. Mencken, “Editorial,” American Mercury 16 (1929): 410–­12. Reed was not without progressive admirers. Senator John Blaine (R-­WI), who considered even the progressive Hoover a reactionary, wished that Democrats would nominate him in 1928 so that he could have someone to vote for. “Reads Blaine Out of Party,” NYT, 3/28/1928, 29; Patrick G. O’Brien, “John J. Blaine: An Independent Progressive during ‘Normalcy,’ ” Wisconsin Magazine of History 60 (Autumn 1976): 25–­41, 29–­30. 101. CR 64.2, 541. 102. Texas v. White, 74 U.S. 700 (1869), 725. 103. Article 2.3, Missouri Constitution of 1875. 104. Hawke v. Smith, 253 U.S. 221 (1920). 105. “Dry Amendment Ratified by Missouri Legislature,” STLPD, 1/16/1919, 1. 106. SJR1; JS MO 1919, 17–­18; JH MO 1919, 40–­41; HB335, JH MO 1919, 1961; JS MO 1919, 1514; “Prohibition Enforcement Bill Goes to Governor,” STLPD, 5/2/1919, 2. 107. “Governor Proclaims Missouri Bone Dry,” STLPD, 11/29/1920, 1; “Saloon Men Contribute $1000,” STLPD, 3/10/1919, 12. 108. “How New Amendments Will Be Made Effective,” STLPD, 11/24/1920, 17. 109. “Strong Enforcement Features in Dry Bill,” STLPD, 5/4/1919, B8; “Plans for Strict Enforcement of State Dry Law,” STLPD, 11/24/1920, 17. 110. David Thelen, “La Follette and the Temperance Crusade,” Wisconsin Magazine of History 47 (Summer 1964): 291–­300. 111. Lucker, “The Politics of Prohibition in Wisconsin,” 2–­5. My account of Wisconsin’s prohibition relies heavily on the thorough work of Lucker. 112. Lucker, “The Politics of Prohibition in Wisconsin,” 6–­15. 113. Lucker, “The Politics of Prohibition in Wisconsin.” 114. Lucker, “The Politics of Prohibition in Wisconsin.” For further discussion of the anti-­German appeals, see Paul Glad, “When John Barleycorn Went into Hiding in Wisconsin,” Wisconsin Magazine of History 58 (1984): 119–­36, 130. 115. Lucker, “Prohibition in Wisconsin,” 18–­20. 116. O’Brien, “Blaine: An Independent Progressive,” 36; CR 65.2, 469. 117. Jonathan Jay Kasparek, “ ‘The Highest and Noblest Ideals of Our Fathers’: Philip La Follette and the Wisconsin Progressive Party, 1925–­1946” (PhD diss., University of Wisconsin, 2003), 43. 118. JS WI 1921, 774; JA WI 1921, 1108–­9; “Veto Message of Assembly Bill 16A /Matheson Bill” (5/30/1921), in ibid., 1333–­35.

notes to pages 75–80

275

119. Lucker, “Prohibition in Wisconsin,” 43, 31–­42. 120. Lucker, “Prohibition in Wisconsin,” 45–­49. The AAPA quotation is from “Wets Organize to Fight Drys,” Milwaukee Journal, 3/10/1922, 9.

Chapter Five 1. “Governor Edwards Presents Dry Issue at Cummings Dinner and Argues State Rights,” WP, 2/6/1920, 1. 2. Calvin Coolidge, “Veto Message on HB38” (5/6/1920), in JS MA 1920, 721–­22. 3. See introduction, n. 31. 4. New England was itself dividing between its more urban, immigrant, and Catholic southern states and its older-­stock, rural northern states. Duane Lockard, New England State Politics (Princeton, NJ: Princeton University Press, 1959). 5. See the online appendix. 6. About a thousand votes separated the wet from the dry vote. “Saloons Win in Vermont,” CT, 3/5/1903, 4. 7. Kyvig, Repealing National Prohibition, 12. 8. Percival Clement, “Inaugural Address” (1/10/1919), in JS VT 1919, 723–­24. On Clement’s 1903 activism, see “Saloons Win in Vermont,” CT 3/5/1903, 4. 9. JS VT 1919, 54. 10. HB141, JH VT 1921, 343. The law passed by voice vote. 11. Emery San Souci, “Inaugural Address” (1/4/1921), in JH RI 1921, HJ7. 12. Stevenson, States’ Rights and National Prohibition, 101–­18. 13. See chapter 3, n. 137. 14. Everett Lake, “Inaugural Address” (1/5/1921), in JH CT 1921, 62–­63. 15. McCulloch v. Maryland, 17 U.S. 316 (1819), 421; “High Court Rules State Can Enforce ‘Dry’ Act,” Bridgeport Telegram, 5/6/1921, 18. 16. “Prohibition Not to Be Ratified This Session,” Bridgeport Telegram, 6/7/1921, 1; JS CT 1921, 1416, 1427; JH CT 1921, 1410; “State Prohibition Enforcement Bill Passed by House,” Bridgeport Telegram, 5/20/1921, 1; “Effects of Cut in Dry Forces; Dry Bill Advanced,” CSM, 5/23/1921, 7; “May Carry Five Gallons: Connecticut Senate Passes a Novel Dry Enforcement Act,” NYT, 5/26/1921, 14. 17. JS MA 1918, 510. 18. JS MA 1919, 492. 19. “Urge Legislators to Ignore Beer Vote,” BG, 2/11/1920, 1; “Wets Gain Ground in Bay State Towns,” BG, 3/2/1920, 1. 20. “Repudiating Prohibition,” STLPD, 3/4/1920, 22; “Yankee Backsliders,” NYT, 3/4/1920, 10. 21. JH MA 1920, 1270, 1340. 22. “Wets Train Guns on State House,” BG, 2/10/1920, 1; “Dry Leader Replies to Wets’ Arguments,” BG, 2/121920, 16. See also the online appendix.

276

notes to pages 80–84

23. “Opinion Not to Be Sought,” CSM, 4/2/1920, 4. 24. JS MA 1920, 427–­28; JH MA 1920, 655–­56. 25. CR 65.1, 5587. On Roosevelt’s constitutionalism, see Theodore Roosevelt: An Autobiography (New York: Macmillan, 1913), 379–­428; and Jean M. Yarbrough, Theodore Roosevelt and the American Political Tradition (Lawrence: University Press of Kansas, 2012). 26. CR 65.1, 5587. On Lodge and Root, see Schambra, “Saviors of the Constitution.” 27. “Mr. Butler Plans Race for Senate; Louis A. Coolidge, Opponent of Prohibition, Also to File,” CSM, 12/29/1923, 7; Sheldon M. Stern, “Henry Cabot Lodge and Louis A. Coolidge in Defense of American Sovereignty, 1898–­1920,” Proceedings of the Massachusetts Historical Society 87 (1975): 118–­34. 28. JS MA 1920, 589–­91, 594. 29. “House Votes for 2.75 Beer,” BG, 4/29/1920, 12. 30. JH MA 1920, 850–­52; JS MA 1920, 697. 31. On Coolidge’s personal views on Prohibition, see Robert Sobel, Coolidge: An American Enigma (Washington, DC: Regnery, 1998), 4, 254, 281; Donald R. McCoy, Calvin Coolidge: The Quiet President (New York: Macmillan, 1967), 303; and Robert S. Ferrell, The Presidency of Calvin Coolidge (Lawrence: University Press of Kansas, 1998), 95. 32. See John Locke, “A Letter concerning Toleration” (1689), in A Letter concerning Toleration and Other Writings, ed. Mark Goldie (Indianapolis: Liberty Fund, 2010), 52–­53; George Washington, “Farewell Address” (1796), http://avalon .law.yale.edu /18th_century/washing.asp; and Daniel Dreisbach, “George Washington on Religion’s Place in Public Life,” in The Future of Religion in American Politics, ed. Charles Dunn (Lexington: University Press of Kentucky, 2009), 99–­113, esp. 112–­13. 33. Calvin Coolidge, “Veto Message on HB38” (5/6/1920), in JS MA 1920, 721–­22. 34. Calvin Coolidge, “Veto Message on HB38” (5/6/1920), in JS MA 1920, 721–­ 22. See also Federalist 78: “Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act.” Carey, ed., Federalist, 407. 35. On Tocqueville’s constitutionalism, connecting originalism and popular sovereignty, see Alexis de Tocqueville and Gustave de Beaumont in America: Their Friendship and Their Travels, ed. Olivier Zunz and Arthur Goldhammer (Charlottesville: University of Virginia Press, 2011), 311–­13, 351; Tocqueville, Democracy in America, 95–­96; and Robert Kraynak, “Tocqueville’s Constitutionalism,” American Political Science Review 81 (1987): 1175–­95, 1190–­91. For an elaboration of this position, arguing that originalism is the only constitutional theory consistent with popular sovereignty (by validating the ability of the people to exercise their own sovereignty by amending the Constitution rather than having it amended for

notes to pages 84–88

277

them), see Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Lawrence: University Press of Kansas, 1999). 36. On Lincoln’s insistence on following the letter of the law unless the law was properly changed, even when unpopular, see Abraham Lincoln, “Address to the Young Men’s Lyceum of Springfield” (1/27/1838), in Speeches and Writings, 1832–­1858, 28–­36, 32–­33. On secession’s spiral, see Abraham Lincoln, “July 4th Message to Congress,” in Speeches and Writings, 1859–­1865 (New York: Library of America, 1989), 246–­61, 250. 37. Calvin Coolidge, “Veto Message on HB38” (5/6/1920), in JS MA 1920, 721–­22. Coolidge would voice similar themes in his Fourth Annual Message in 1926. See Post, “Prohibition in the Taft Court Era,” 98. 38. “Beer in Massachusetts,” NYT, 5/8/1920, 14. 39. “Beer Bill Vetoed in Massachusetts,” CSM, 5/7/1920, 5. 40. “Labor Raps Coolidge for 2.75 Beer Veto,” BG, 5/10/1920, 16. 41. “Deception on Beer Measure Alleged,” CSM, 10/13/1920, 4; “Test of 2.75 Beer Act,” CSM, 1/22/1921, 2. 42. “Massachusetts Keeps on Voting on Prohibition,” CT, 3/19/1921, 2. 43. “Sentiment for Prohibition Grows,” CSM, 4/19/1921, 10. 44. “Coordinate Dry Laws Are Sought,” CSM, 3/3/1921, 4. 45. HB1612, JH MA 1921, 77, 899–­903; “State’s Dry Law Passed to Senate,” CSM, 5/12/1921, 5; “Dry Enforcement Measure Favored,” CSM, 5/2/1921, 7. 46. JS MA 1921, 728–­31, 752. 47. “Allen’s Words Strike Sparks,” BG, 2/15/1923, 12. 48. JS MA 1921, 800. 49. JS MA 1921, 817–­18, 841; “Enforcement Bill in Supreme Court,” CSM, 5/26/1921, 2. 50. This was obviously, from the Monitor’s perspective, not to his credit. Edwards’s beliefs were “incompatible with the genius of our Federal Government” and proved the governor either “woefully ignorant . . . in the inherent fundamental principles of our American government, or criminally antagonistic to the perpetuity of our Republic”: “In either case, he stands disqualified as the governor. . . . [W]e pity New Jersey.” “State Rights versus Prohibition Enforcement,” Ohio State Monitor, 3/6/1920, 4. 51. “The Assembly Attacked and Defended,” NYTR, 1/18/1920, A1. 52. “Edwards and Anti-­Prohibition: ‘No Nullification,’ ” NYT, 1/18/1920, X5. 53. New Jersey Democratic Party Platform of 1919, reprinted in Legislative Manual of New Jersey 1920 (Trenton, NJ: State Gazette Publishing Co., 1920), 249. 54. On Edwards’s supposed preelection declaration, see “ ‘Dry’ Issue to Fore in Jersey Election,” NYT, 11/4/1919, 6. For his disavowal, see “The Eighteenth Amendment Brings State’s Rights to the Front Again,” NYTR, 1/4/1920, SM6. 55. “Elections Next Tuesday May Give Political Trend,” STLPD, 11/2/1919, A1. 56. “ ‘Dry’ Issue to Fore in Jersey Election,” NYT, 11/4/1919, 6. 57. “ ‘Wets’ Elect E. G. Edwards in New Jersey,” NYTR, 1/5/1919, 1. 58. “New Jersey Will Defy Prohibition,” WP, 12/25/1919, 1.

278

notes to pages 88–92

59. “Edwards to Fight U.S. on ‘Dry’ Law,” NYTR, 11/7/1919, 1. 60. “Jerseys Wets Fire Their Opening Gun,” NYT, 1/1/1920, 17. 61. William Runyon, “Governor’s Message” (1/13/1920), in MA NJ 1920, 22. 62. Edward Edwards, “Inaugural Address,” in “Edwards Sworn In; Launches Fight on ‘Drys,’ ” NYTR, 1/21/1920, 5. 63. “Edwards to Fight U.S. on ‘Dry’ Law,” NYTR, 11/7/1919, 1; “The Eighteenth Amendment Brings State’s Rights to Fore,” NYTR, 1/4/1920, SM6. 64. “Edwards and Anti-­Prohibition: ‘No Nullification,’ ” NYT, 1/18/1920, X5. 65. “McCran Backs Jersey’s Right to Define Beer,” NYTR, 2/10/1920, 5. 66. “Jersey Governor Opens ‘Wet’ Fight,” NYT, 1/21/1920, 5. 67. “Jersey Governor Opens ‘Wet’ Fight,” NYT, 1/21/1920, 5. 68. “Jersey Bill Will Allow Beer Sale,” SFC, 1/4/1920, W1; “Holds State Is First,” WP, 12/29/1919, 2. 69. “Jerseys Wets Fire Their Opening Gun,” NYT, 1/1/1920, 17; “Gov. Edwards Signs Jersey 3.50 Beer Bill,” NYTR, 3/3/1920, 6. 70. “3.5% Beer Bill Passes Jersey House,” NYTR, 2/25/1920, 1. 71. “Jersey Gets 3½% Beer Act,” CT, 3/2/1920, 1. 72. Laws NJ 1920, ch. 3, 14–­15. 73. “Gov. Edwards Signs Jersey 3.50 Beer Bill,” NYTR, 3/3/1920, 6. 74. “3.5% Beer Bill Passes Jersey House,” NYTR, 2/25/1920, 1. 75. “Jersey Faces ‘Beer Revolt,’ If 3.50 Is Sold,” NYTR, 2/26/1920, 1. 76. “Roper to Ignore State Laws on Prohibition,” CT, 2/29/1920, 13; “Will Enforce Dry Act in New York,” BG, 5/26/1920, 4. 77. “Edwards’s ‘Wet’ Speech Widens Rift in Party,” NYTR, 2/7/1920, 9. 78. “Edwards to Urge Anti-­Prohi Plank for Democrats,” AC, 2/23/1920, 1. 79. “Governor Edwards Presents Dry Issue at Cummings Dinner and Argues State Rights,” WP, 2/6/1920, 1; “Edwards’s ‘Wet’ Speech Widens Rift in Party,” NYTR, 2/7/1920, 9. 80. “Edwards’s ‘Wet’ Speech Widens Rift in Party,” NYTR, 2/7/1920, 9; “Governor Edwards Will Fight,” WP, 2/7/1920, 6. 81. “Edwards to Urge Anti-­Prohi Plank for Democrats,” AC, 2/23/1920, 1. 82. “Wants Cummings Out,” WP, 1/22/1920, 1; “Nullificationists Are Challenged,” CSM, 3/22/1920, 5. 83. “Edwards Leads Hoover in Poll of Dry Iowa,” NYTR, 2/13/1920, 5. 84. “Edwards Ready for Convention,” LAT, 6/5/1920, 13. 85. “State Sovereignty Issue, Says Edwards,” BS, 6/7/1920, 3. 86. “U.S. Court Will End Dry Rule,” NYTR, 5/11/1920, 3; “Supreme Court Voids Volstead Law, Is Report,” SFC, 5/16/1920, W1. 87. Samuel Wilson, “Reply to Edwards on Prohibition,” NYT, 8/29/1920, X6. 88. Samuel Wilson, “Reply to Edwards on Prohibition,” NYT, 8/29/1920, X6. 89. JS NJ 1921, 259; MA NJ 1921, 78. 90. JS NJ 1921, 533; MA NJ 1921, 238.

notes to pages 92–97

279

91. Edward Edwards, “Veto Message on Assembly Bill 43” (3/22/1921), in MA NJ 1921, 758; Edward Edwards, “Annual Message” (1/10/1922), in JS NJ 1921, 9. 92. JS NJ 1921, 738; MA NJ 1921, 789–­90. 93. Kerr, Organized for Prohibition, 146. 94. Kerr, Organized for Prohibition, 395; Okrent, Last Call, 131. 95. Robert A. Slayton, Empire Statesman: Rise and Redemption of Al Smith (New York: Free Press, 2001), 106–­11; Mencken, Carnival of Buncombe, 204. 96. Al Smith, “Annual Message” (1/1/1919), in PPAS 1919, 33; “Statement by Governor on the Ratification of . . . the Federal Constitutional Amendment” (1/30/1919), in ibid., 713. 97. “Smith Asks State Repeal of ‘Dry’ Vote,” NYTR, 1/8/1920, 1; “Governor Calls for a Referendum on Dry Amendment,” NYT, 1/8/1920, 1; Al Smith, “Annual Message” (1/7/1920), in PPAS 1920, 32. 98. Al Smith, “Annual Message” (1/7/1920), in PPAS 1920, 32. 99. “Smith Asks State Repeal of ‘Dry’ Vote,” NYTR, 1/8/1920, 1; “Governor Calls for a Referendum on Dry Amendment,” NYT, 1/8/1920, 1. 100. Lerner, Dry Manhattan, 17. 101. “Smith Tells Republicans to Nominate Anderson,” NYTR, 1/9/1920, 10. 102. “Text of Platform Adopted by State Democratic Meeting,” NYTR, 2/27/1920, 6; “Democrats of N.Y. Ask Dry Law Repeal,” NYTR, 2/27/1920, 1. 103. “Republicans Plan ‘Dry’ Referendum,” NYT, 3/10/1920, 4. 104. “Governor Signs 2.75 Beer Bill,” NYTR, 5/25/1920, 1. 105. “ ‘Wets’ and ‘Drys’ Clash at Capital,” NYT, 3/17/1920, 17. 106. “Pastor Who Quit League to Reveal Its Methods at Anti-­Saloon Inquiry,” NYTR, 3/5/1920, 1. 107. “Hiss Anderson from Floor at Beer Hearing,” NYTR, 3/31/1920, 1. 108. “Legislature Ends After 37-­Hour Session; Passes Beer and Anti-­Socialist Bills,” NYT, 4/25/1920, 1. 109. “Legislature Ends After 37-­Hour Session; Passes Beer and Anti-­Socialist Bills,” NYT, 4/25/1920, 1. The ASL would remember Roosevelt’s frank admission that he supported the legality of beer and wine. Lawrence H. Madaras, “Theodore Roosevelt, Jr. versus Al Smith: The New York Gubernatorial Election of 1924,” New York History 47 (1966): 375. 110. “Drys to Demand That Smith Grant Beer Bill Hearing,” NYTR, 4/26/1920, 3. 111. “Beer Bill Approval Practically Sure,” NYT, 5/21/1920, 1; “Hearing Shows Smith Friendly to 2.75 Beer,” NYTR, 5/21/1920, 1. On Smith’s terse signing statement professing deference to the legislature, see “Governor Signs 2.75 Beer Bill,” NYTR, 5/25/1920, 1. 112. Al Smith, “Signing Statement on Bill . . . Declaring Beer Containing 2.75% . . . Non-­Intoxicating” (5/24/1920), in PPAS 1920, 418. 113. “Governor Signs 2.75 Beer Bill,” NYTR, 5/25/1920, 1; “The Walker 2.75 Act,” NYTR, 5/26/1920, 12.

280

notes to pages 97–101

114. “New York Man to Name Hoover in Convention,” LAT, 6/6/1920, I1; “Hoover Named by Judge Miller,” LAT, 6/6/1920, I2; “Hoover Makes Strong Plea for Judge Miller,” NYTR, 10/23/1920, 3. 115. Miller’s commitment to federalism pushed him to lead the fight against Sheppard-­Towner. See Beienburg, “Progressive Federalism.” 116. Nathan Miller, Reflections (1953), NMP. On the oath, see also “Newspaper Interview” (10/31/1922), box 4, NMP. See also “Speech at Gotham and Washington Heights School” (10/30/1922), box 4, NMP. 117. “Miller Flays Enright for Invading Homes,” Syracuse Herald, 9/30/1921. 118. “Newspaper Interview” (10/31/1922), box 4, NMP. 119. “Smith Invites Law-­Breaking, Miller Asserts,” NYTR, 10/29/1920, 5. 120. Jackson, “Prohibition as an Issue in New York State Politics,” 161–­62; Nathan L. Miller, “Recommending Repeal of Liquor Tax Law and the Passage of an Effective Prohibition Enforcement Act” (1/12/1921), in Public Papers of Nathan L. Miller (Albany, NY: J. B. Lyon Printers, 1924), 67–­70. 121. Jackson, “Prohibition as an Issue in New York State Politics,” 131. 122. Jackson, “Prohibition as an Issue in New York State Politics,” 59, 144. 123. That control meant that the Mullan-­Gage Act was more severe than the Volstead Act, additionally criminalizing possession of alcohol. Lerner, Dry Manhattan, 77; Kyvig, Repealing National Prohibition, 56–­57. 124. William Sproul, “Inaugural Address” (1/21/1919), in JS PA 1919, 103. 125. “ ‘Presumptive Guilt’ Clause May Be Cut from ‘Dry’ Measure,” Philadelphia Inquirer, 4/5/1921, 2. 126. HB1237/SB997, JH PA 1921, 1984–­85, 3333–­34, 3631–­32; JS PA 1921, 2623–­24.

Chapter Six 1. Al Smith, “Signing Statement on AB1614” (6/1/1923), in PPAS 1923, 301. 2. “W.C.T.U. President Scores Dry Officer,” BS, 10/2/1924, 11; Walsh, “Maryland and the Policy of National Prohibition,” 294; “Evans Assails Smith and Catholic Church,” NYT, 10/28/1926, 16. See also “Text and Pretext: Nullification,” AC, 9/25/1927, C2. On the invocation of nullification and secession by the WCTU elsewhere, see “Fire Turned on Wright Act Foe,” LAT, 10/2/1926, A18. 3. State Cooperation: Federal and State Responsibility under the Concurrent Power (Washington, DC: US Government Printing Office, 1930), 36. 4. Sellers, Prohibition Movement in Alabama, 193–­94. 5. “Evans Assails Smith and Catholic Church,” NYT, 10/28/1926, 16. 6. Hays, “Nullification and the Political, Legal, and Quasi-­Legal Constitutions”; Congressional Globe, 36.2, 487.

notes to pages 101–107

281

7. William McAdoo, The Challenge: Liquor and Lawlessness against Constitutional Government (New York: Century, 1928), 75, 77, quoted in Jones, “Nullification and Prohibition,” 394. 8. William E. Borah, “The State’s Duty under Prohibition,” NYT, 7/28/1929, 1. 9. See chapter 3, n. 166. 10. Jill Gill, “Borah, Lynching, and the Wrong Side of History: How States’ Rights Aligned Idaho and the South on Race,” Blue Review (2013), https://theblu​ ereview.org/william-borah-lynching-history; Beienburg, “Progressive Federalism.” 11. G. Edward White, The Constitution and the New Deal (Cambridge, MA: Harvard University Press, 2002), 207. 12. Jackson, “Prohibition as an Issue in New York State Politics,” 175–­76. Miller also suffered the wrath of many of the state’s newly enfranchised female voters, criticizing the League of Women Voters (in the same breath, he criticized a hypothetical League of Men Voters). He also declined to pass a state bill implementing the Sheppard-­Towner Maternity Act. See Beienburg, “Progressive Federalism.” 13. Al Smith, “Inaugural Address” (3/3/1923), in PPAS 1923, 62–­63. 14. For a critique of Wynehamer as a formative instance of dubious fundamental rights substantive due process, as opposed to the more historically rooted, separation-­of-­powers variant, see Nathan S. Chapman and Michael McConnell, “Due Process as Separation of Powers,” Yale Law Journal 121 (2012): 1672–­1807, esp. 1768–­70. 15. “Attacks Dry Ratification,” NYT, 2/13/1923, 23. 16. “Attacks Dry Ratification,” NYT, 2/13/1923, 23. 17. JS NY 1923, 683–­84; JA NY 1923, 2560. 18. “N.Y. Blocks Dry Support,” WP, 3/7/1920, 31. 19. “Newspaper Interview” (1922/10/31), box 4, NMP. 20. Slayton, Empire Statesman, 194–­95. 21. Lerner, Dry Manhattan, 93–­94; Slayton, Empire Statesman, 194–­95; Kyvig, Repealing National Prohibition, 56–­57, 147; Jackson, “Prohibition as an Issue in New York State Politics,” 171–­72. 22. On Smith’s health and occupational safety reforms, see Slayton, Empire Statesman, 96–­99. 23. Slayton, Empire Statesman, 170. 24. Michael E. Nelson, The Legalist Reformation: Law, Politics, and Ideology in New York, 1920–­1980 (Chapel Hill: University of North Carolina Press, 2001), 20–­22. 25. Slayton, Empire Statesman, 172–­74. 26. For Smith’s opposition to grants-­in-­aid and Sheppard-­Towner and a bibliography of his thought, see Beienburg, “Progressive Federalism.” 27. See chapter 3, n. 132. 28. “Million Bet on N.Y. Dry Act in Fear and Hope,” CT, 5/29/1923, 1. 29. Kyvig, Repealing National Prohibition, 56–­57. 30. Smith, “Signing Statement on AB1614,” 293–­303.

282

notes to pages 107–113

31. Smith, “Signing Statement on AB1614,” 298; Post, “Prohibition in the Taft Court Era,” 37–­38. 32. “See Smith as Wet Leader,” NYT, 6/3/1923, 1. 33. Smith, “Signing Statement on AB1614,” 296. 34. Smith, “Signing Statement on AB1614,” 297. 35. Smith, “Signing Statement on AB1614,” 298. 36. Smith, “Signing Statement on AB1614,” 301. 37. “Simeon Fess Communicates with Governor [Smith]” (3/17/1923), in PPAS 1923, 533. In a long public response to Fess, Smith rejected claims that he wanted to see the Eighteenth Amendment “violated” and extensively pledged his fidelity to law enforcement, noting that Republican and Democratic New Yorkers alike agreed with him. Ibid., 535–­36. 38. Lerner, Dry Manhattan, 279. 39. “Smith Has Thrown His Chances Away, Western Wets Say,” NYT, 6/15/1923, 1. 40. “Southern Democrats Solid against Any Wet Candidate,” CSM, 6/26/1923, 1. 41. Post, “Prohibition in the Taft Court Era,” 32–­33; “See Smith as Wet Leader,” NYT, 6/3//1923, 1. 42. For the text of Harding’s speech, see “Harding Pledges Dry Enforcement, Hits Smith Hard,” NYT, 6/26/1923, 1; and “The Question of States’ Rights,” AC, 7/1/1923, E8. 43. “Harding Pledges Dry Enforcement, Hits Smith Hard,” NYT, 6/26/1923, 1; “The Question of States’ Rights,” AC, 7/1/1923, E8. 44. “The President on Prohibition,” CT, 6/27/1923, 8. 45. “Republican State Platform of 1921,” in Legislative Manual of New Jersey 1922 (Trenton, NJ: State Gazette Publishing Co., 1922), 119. 46. “Democratic State Platform of 1921,” in Legislative Manual of New Jersey 1922, 121–­23. 47. JS NJ 1922, 670; MA NJ 1922, 772–­73; Edward Edwards, “Veto Message on Assembly Bill 478” (3/15/1922), in ibid., 897. 48. MA NJ 1922, 922–­23; JS NJ 1922, 825. 49. JS NJ 1922, 629; MA NJ 1922, 779–­80, 818. 50. “Dry Law Victory in California,” CSM, 5/13/1921, 8. 51. “Inaugural Address” (1/16/1923), in MA NJ 1923, 78–­81. 52. “Inaugural Address” (1/16/1923), in MA NJ 1923, 78–­81. 53. On the referendum and convention call, see MA NJ 1923, 806–­8; and JS NJ 1923, 647. On the modifications to the state’s enforcement act (Assembly Bills 129/131), see MA NJ 1923, 813. 54. Okrent, Last Call, 142–­45; James A. Kehl and Samuel Astorino, “A Bull Moose Responds to the New Deal: Pennsylvania’s Gifford Pinchot,” Pennsylvania Magazine of History and Biography 88 (1964): 37–­39. 55. Gifford Pinchot, “Why I Believe in Enforcing the Prohibition Laws,” Annals of the American Academy of Political and Social Science 109 (1923): 284–­85, and “Prohibition

notes to pages 113–117

283

and Law Enforcement,” North American Review 222 (September–­November 1925): 57–­ 60; “To Question Candidates: Pinchot Will Ask Views,” NYT, 1/3/1924, 19. 56. Frank Whelan, “An Answer to the End of Prohibition; State Liquor Stores Are Legacy of Former Pa. Gov. Gifford Pinchot,” Allentown (PA) Morning Call, 3/23/1997, http://articles.mcall.com/1997-02-23/news/3131589_1_gifford -pinchot-state-stores-liquor. 57. Julien Comte, “ ‘Let the Federal Men Raid’: Bootlegging and Prohibition Enforcement in Pittsburgh,” Pennsylvania History 77 (2010): 166–­92. 58. Comte, “ ‘Let the Federal Men Raid,’ ” 171; Okrent, Last Call, 142–­45. 59. Emery San Souci, “Annual Address” (1/3/1922), in JH RI 1921, HJ9. 60. JS RI 1922, 4/7/1922, SJ5–­SJ6. 61. State Cooperation, 35. 62. Charles Templeton, “Biennial Message,” JS CT 1923, 46–­47; “No Great Problem Seen in Prohibition,” CSM, 12/14/1923, 4. 63. On repeal, see SB352 in JS CT 1923. On petitioning Congress to amend Volstead to allow beer, see SJR23 in JS CT 1923; and “Connecticut ‘Dry’ Repeal Move Lost,” NYT, 6/6/1923, 3. 64. “Connecticut Is for Return of Liquor Sanity,” CT, 6/11/1923, 1. 65. Percival Baxter, “Inaugural Address” (1/4/1923), in Maine Legislative Record 1923, 20–­21. On Baxter’s alliance with Miller against Sheppard-­Towner, see Beienburg, “Progressive Federalism.” 66. “Seeks New State Dry Laws,” NYT, 1/5/1922, 3. 67. “Wets and Drys Renew Struggle at State House,” BG, 2/18/1922, 1. 68. “Wets and Drys Renew Struggle at State House,” BG, 2/18/1922, 1. 69. JH MA 1922, 750–­53; JS MA 1922, 683–­84. 70. “Petition by 25,293 for Referendum,” BG, 8/12/1922, 2. 71. “Mr. Allen Refutes Coolidge Dictum,” CSM, 10/27/1922, 4. 72. “Mr. Allen Refutes Coolidge Dictum,” CSM, 10/27/1922, 4. 73. “Republicans Held Responsible for Success of State Dry Code,” CSM, 10/17/1922, 2. 74. “Wets Expect Labor to Get Voting Order against Prohibition,” CSM, 7/25/1922, 1. 75. “Sparks Fly at Wet-­Dry Debate on State Law,” BG, 11/11/1922, 1. 76. “Cannot Nullify Dry Amendment,” Boston Herald, 11/2/1922, 28. 77. The Constitutional Liberty League would repeat the logic of this manifesto almost exactly in its contribution to the 1924 referendum on concurrent enforcement. See “Part of the Ballot That Puzzles Many: The Referendum Page as It Will Appear,” BG, 11/2/1924, A6. 78. “Is Massachusetts Playful,” Boston Herald, 11/9/1922, 22. 79. “Lack of State Dry Code Decried,” CSM, 12/30/1922, 6; “Sparks Fly at Wet-­Dry Debate on State Law,” BG, 11/11/1922, 1. For the ASL’s entry on the ballot—­adopting the arguments outlined above—­see “Wets Fail to File Arguments,” CSM, 9/16/1922, 1.

284

notes to pages 117–122

80. “Old Laws Invoked for Prohibition,” CSM, 11/29/1922, 3. 81. “Wetter and Wetter,” BG, 11/10/1922, 16. 82. “Governors for Strict Dry Rule, 13 to 2,” NYTR, 12/19/1922, 1. 83. “Governor Cox on Dry Laws,” and “Cox and Leonard on Prohibition,” both Springfield (MA) Republican, 12/19/1922, 10. 84. “Gov. Cox Advises Biennial Sessions,” CSM, 1/4/1923, 1. 85. JH MA 1923, 763–­65; JS MA 1923, 645–­46; “Prohibition Issues Figure Prominently in Legislature,” CSM, 1/30/1923, 2; “Record Number of Bills Forecast,” CSM, 1/10/1923, 5; “Prohibition Bills Topic of Hearing,” CSM, 2/15/1923, 2; “Allen’s Words Strike Sparks,” BG, 2/15/1923, 12. 86. “Record Number of Bills Forecast”; “Prohibition Bills Topic of Hearing”; “Allen’s Words Strike Sparks”; “Roberts Favors Dry Referendum: Loves Democracy More Than Prohibition, He Says,” BG, 2/16/1923, 8. 87. JH MA 1923, 812–­17; JS MA 1923, 642. 88. Channing Cox, “Veto Message on HB 1501” (1923), in Addresses and Messages to the General Court, Proclamations, Official Addresses, Correspondence, and Statements of Governor Channing H. Cox, 1921–­24 (Boston: Commonwealth of Massachusetts, 1924), 180. For the failed veto override, see JH MA 1923, 875–­79. 89. “Denounces Foes of Enforcement,” BG, 12/5/1923, 2. 90. “Woolwine for Beer and Wine,” LAT, 9/20/1922, I-­3. 91. “Anti-­Woolwine Wave Rising in Protest of Wet Attitude,” CSM, 10/12/1922, 1. 92. Philip Chase, “William McAdoo: The Last Progressive” (PhD diss., University of Southern California, 2008), 195. 93. “Both Sides Confident in Miller-­Smith Vote Today; Contests in All States,” NYTR, 11/7/1922, 1; “Richard Quarters Close, Woolwine Blamed for Dry Act,” SFC, 11/14/1922, 8. 94. “The Nation Watching the Campaign,” SJMN, 10/30/1922, 6. 95. “Bryan’s Advice, Scuttle Ships,” LAT, 9/22/1922, II1. 96. “A Fair Dry Statement,” Riverside (CA) Enterprise, 10/30/1922, 4. 97. “Volstead Act Becomes Part of State Law,” SFC, 11/11/1922, 1. 98. “Results in California,” Riverside (CA) Daily Press, 11/8/1922, 12. 99. On Nevada vice tourism, see Russell R. Elliott, A History of Nevada (1973), 2nd ed. (Lincoln: University of Nebraska Press, 1987), esp. xii, 248, 285, 375. 100. “Liquor Repression,” REG, 1/18/1923, 4. 101. “Liquor Bills Reports Delayed,” REG, 1/18/1923, 2. 102. “Dry Laws’ Repeal Is Voted by Senate,” REG, 1/29/1923, 2; “Veto of Dry Law Repeals Is Expected,” NSJ, 2/2/1923, 1. 103. Merz, Dry Decade, 278. 104. “Dry Law Repeal May Bring Veto,” REG, 1/30/1923, 2. 105. “Drys Are Stirred by Action of Senate,” REG, 1/30/1923, 2; “Methodists Urge Repeal Bill Veto,” REG, 2/5/1923, 2. 106. “Wait and See,” NSJ, 1/30/1923, 4.

notes to pages 122–127

285

107. “Liquor Repression,” REG, 1/18/1923, 4; “The Prohibition Repeal Bills,” REG, 1/30/1923, 4. 108. “Dry Law Repeal Not ‘Economy Measure’ Says Senator Scott,” NSJ, 2/1/1923, 1. 109. “Light Wine and Beer Law Asked in Resolution of Assemblyman,” NSJ, 2/2/1923, 2. 110. “Repeal of State Dry Laws Now Goes to Governor,” REG, 2/1/1923, 1, 3. 111. “Volstead Measure for Nevada Is Proposed,” REG, 2/2/1923, 2. 112. “Repeal of Initiative Dry Law Will Be Vetoed by Scrugham,” REG, 2/2/1923, 2. 113. “Repeal of State Dry Laws Now Goes to Governor,” REG, 2/1/1923, 1, 3. 114. “Repeal of Initiative Dry Law Will Be Vetoed by Scrugham,” REG, 2/2/1923, 2; “Veto of Dry Law Repeals Is Expected,” NSJ, 2/2/1923, 1. 115. James Scrugham, “Veto Message of SB2,” in JS NV 1923, 64. 116. “Assembly Passes Volstead Measure for Nevada,” REG, 2/8/1923, 1. 117. “Dry Laws Repeal Passed over Governor’s Veto,” Salt Lake Tribune, 2/14/1923, 16. The Senate’s vote was 12–­5. 118. “Rejection of Veto Creates Stir at Capital,” REG, 2/14/1923, 2. Scott now also worried that the proposed Whiteley alternative had constitutional problems. 119. “Jones Begins War to Sustain Veto,” REG, 2/16/1923, 2. 120. “State Becomes ‘Wet’ as Prohibition Law Is Wiped from Books,” NSJ, 2/17/1923, 1. 121. “The Whiteley-­Scott-­Volstead Legislation,” REG, 2/17/1923, 4. 122. “Text of Opinion on Whiteley Act Ready to Be Transmitted,” NSJ, 2/19/1923. 123. JS NV 1923, 113. 124. “Prohibition Editor Has a Gloomy View of His Cause,” Sheboygan (WI) Press-­Telegram, 3/19/1923, 1. 125. “Whiteley Prohibition Law Declared to Be Invalid,” NSJ, 4/4/1923, 1. For the opinion text, see “Supreme Court Gives Reasons Why State Dry Law Is Invalid,” REG, 4/44/1923, 2. 126. “The Whiteley Act Decision,” REG, 4/4/1923, 4. 127. “No Extra Session Scrugham States,” REG, 4/4/1923, 1. 128. “Anti-­Rum Force of Nevada Will Map War Today,” NSJ, 12/12/1923, 1. 129. “Illinois House Votes, 78–­70, to Take Up Dry Repeal,” NYT, 6/13/1923, 1; “Illinois Senate Kills Repealer House Sought,” NYTR, 6/13/1923, 2. 130. SB495, JS IL 1923, 1154; “House Wets Win as Senate Drys Kill State Repeal,” CT, 6/13/1923, 1. 131. HB842, “Playing Politics: 53d Assembly’s Favorite Game,” CT, 6/19/1923, 2. 132. JH MO 1923, 1263–­65; JS MO 1923, 1094; “Missouri Dry Law Exceeds Federal,” CSM, 5/31/1923, 13. 133. Arthur Mastick Hyde, “First Biennial Message” (1/4/1923), in Proclamations of Governor Arthur Mastick Hyde, vol. 12 (Columbia: State Historical Society of Missouri, 1930), 46–­47.

286

notes to pages 128–133

134. Lucker, “Prohibition in Wisconsin,” 52–­54. 135. Lucker, “Prohibition in Wisconsin,” 56. 136. Lucker, “Prohibition in Wisconsin,” 52–­54. 137. John J. Blaine, “Annual Message” (1/11/1923), in JA WI 1923, 46–­47. 138. The Sachtjen Measure, AB259, in Index to the Journals of the Wisconsin Legislature, 1923. 139. The Peterson Bill, AJR29, in Index to the Journals of the Wisconsin Legislature, 1923. 140. AB11, in Index to the Journals of the Wisconsin Legislature, 1923. 141. Capital Times, 2/9/1923, cited in Lucker, “Prohibition in Wisconsin,” 59–­60. 142. For the text of Blaine’s message, affixed to a discussion of state tax policy, see JS WI 1923, 569–­70. 143. JS WI 1923, 569–­70. On the surprise of the message, see Lucker, “Prohibition in Wisconsin,” 62. 144. Lucker, “Prohibition in Wisconsin,” 63–­65. 145. AB259, JA WI 1923, 810; JS WI 1923, 972–­73. 146. Lucker, “Prohibition in Wisconsin,” 65. 147. “Wisconsin Wets Organize Mighty Political Machine to Shelve Dry Lawmakers,” CSM, 9/22/1923, 1. 148. “Governors Adopt Pledge to Coolidge of Help on Dry Law,” NYT, 10/20/1923, 1. 149. Glad, “When John Barleycorn Went into Hiding,” 135. 150. “Wet Tactics under Fire in Congress,” CSM, 3/2/1923, 1; “Dry President in 1924, Declares Georgia Leader,” CSM, 1/15/1923, 1. 151. “Georgia Secedes Again,” BS, 2/10/1923, 6. 152. “Georgia Assembly Gets Dry Repealer,” WP, 7/6/1923, 3. 153. “Georgia Assembly Gets Dry Repealer,” WP, 7/6/1923, 3. 154. “Georgian Charges Open Dry Violation,” BS, 7/26/1923, 6. 155. “Seeks to Repeal Georgia Dry Law,” BS, 7/6/1923, 2. 156. “Georgian Charges Open Dry Violation,” BS, 7/26/1923, 6; “Record on Dry Law Defended by Arnold,” 7/26/1923, 3. 157. “Dry Law Repeal Bill Explained by Arnold,” AC, 7/3/1923, 2. 158. “Says Georgia Will Never Repeal Bone Dry Law,” AC, 6/17/1923, C4. 159. “Harding Pledges Dry Enforcement, Hits Smith Hard,” NYT, 6/26/1923, 1; “The Question of States’ Rights,” AC, 7/1/1923, E8. 160. “Divided Responsibility,” AC, 5/20/1923, D4. 161. “Arnold to Urge Dry Law Repeal on House Floor,” AC, 7/7/1923, 4. 162. “Georgia Committee Back Dry Law,” NYT, 7/12/1923, 19; “Repeal of State Prohibition Law Is Defeated,” AC, 7/29/1923, D6. 163. “Georgia WCTU,” AC, 7/22/1923, D5. 164. “Democratic Party Proves Dry,” CSM, 5/14/1923, 1.

notes to pages 135–140

287

Chapter Seven 1. Calvin Coolidge, “Sixth Annual Message” (12/4/1928), http://millercenter​ .org/president /coolidge/speeches/speech-3812. 2. CR 65.1, 5648. 3. Sinclair, Era of Excess, 258–­59; Kyvig, Repealing National Prohibition, 29; “Harding Looms as Dry Leader in 1924 Fight,” BS, 12/10/1922, 1. 4. “Governors for Strict Dry Rule, 13 to 2,” NYTR, 12/19/1922, 1. 5. “The Other Amendments,” NYT, 7/1/1923, XX8; “The President on Prohibition,” CT, 6/27/1923, 8. 6. “Prohibitionists and the Constitution,” CT, 6/11/1923, 8. 7. “Negro Right to Vote Is Urged on Harding,” NYT, 12/14/1922, 2. 8. “Harding Says Negro Must Have Equality in Political Life,” NYT, 10/27/1921, 1; John Dean, Warren G. Harding (New York: Times Books, 2004), 125–­27; Robert K. Murray, Warren G. Harding (1969; reprint, Newtown, CT: American Political Biography Press, 2012), 399–­402. 9. Like Miller, Coolidge sharply distinguished between powers exercised by the states and Washington, e.g., supporting an appropriation to maternity health when administered by Massachusetts or Congress in regulating DC, but attacking Sheppard-­ Towner when Congress intervened in the states themselves. See Beienburg, “Progressive Federalism.” 10. “Dry Act Foes Fail to Win Comfort in Appeal to Coolidge,” NYTR, 1/22/1924, 3. 11. Coolidge, “Sixth Annual Message.” 12. McCoy, Calvin Coolidge, 303; Paul Johnson, “Calvin Coolidge and the Last Arcadia,” in Calvin Coolidge and the Coolidge Era, ed. John Earl Haynes (Washington, DC: Library of Congress, 1998), 3–­14, 4. 13. Kyvig, Repealing National Prohibition, 30. 14. Merz, Dry Decade, 109–­10. 15. “Unusual Political Career of Calvin Coolidge, Never Defeated for an Office,” NYT, 1/6/1933, 3. 16. “Wets Rush Beer Bills as Congress Begins Session,” NYTR, 12/21/1922, 1. 17. Okrent, Last Call, 61–­62, 89–­90. On Bruce’s remark, see “Angry Scenes Mark Congress Debates on Volstead Law,” NYT, 3/11/1926, 1. 18. “Coolidge Insists States Back Nation to Limit in Enforcing Dry Law,” NYHT, 10/21/1923, 1; “Governors Adopt Pledge to Coolidge of Help on Dry Law,” NYT, 10/20/1923, 1; “Governors Accept Coolidge Program to Back Up Dry Law,” NYT, 10/21/1923, 1; “Prohibition,” folder 40, Percival Baxter Papers, Maine State Library. 19. “Proceedings of Prohibition Enforcement Conference,” and “Governor Calls Conference of State, County, and Local Officials to Discuss the Subject of Prohibition Enforcement,” both in PPAS 1924, 513–­19 (quote 515); “Governor Smith Calls Dry Law Meeting,” NYT, 2/8/1924, 6; “Gov. Smith Demands ‘Dry’ Enforcement,” NYT, 2/21/1924, 1.

288

notes to pages 140–145

20. “Republicans Plan New State Dry Act,” NYT, 2/26/1924, 1; “Machold Calls on State Prosecutors to Draft ‘Dry’ Bill,” NYT, 2/27/1924, 1; “Dry Issue Looms Big in Legislature,” NYT, 3/6/1924, 19. 21. “Ask Smith to Back New State ‘Dry’ Bill,” NYT, 3/1/1924, 15. 22. “New State Dry Law Offered in Assembly: District Attorneys’ Measure Allows Search of Autos without a Warrant,” NYT, 3/11/1924, 6. 23. “Dry Issue Looms Big in Legislature,” NYT, 3/6/1924, 19. 24. “Republicans Move for State Dry Law,” NYT, 3/5/1924, 19; “Will Clash Again on New Dry Bill,” NYT, 3/18/1924, 23. 25. “Poland Assails Smith on ‘Dry’ Law Stand,” NYT, 2/23/1924, 3. 26. “New State Dry Law Nears Final Vote,” NYT, 4/2/1924, 21; “Jenks Bills for State Dry Act Pass Assembly,” NYHT, 4/10/1924, 11; “State-­Wide Dry Act Passed by Assembly,” NYT, 4/10/1924, 25; “Bills Flood Senate in Closing Hours,” NYT, 4/11/1924, 2. 27. “Demand Law Enforcement,” BG, 1/22/1924, 1. 28. “New Congress Wins Many New Advocates,” CSM, 11/6/1924, 1. 29. “State Dry Law Crusade Taken to Electorate,” CSM, 9/19/1924, 1. For Forgrave’s contribution to the ballot, see “Part of the Ballot That Puzzles Many,” BG, 11/2/1924, A6. 30. “Part of the Ballot That Puzzles Many,” BG, 11/2/1924, A6. 31. J RI 1924, 3/18/1924, HJ3–­HJ4, and 3/25/1924, HJ1, HJ3–­HJ4. 32. J RI 1924, 1/10/1924, SJ1, 4/29/1924, SJ6, 3/28/1924, SJ11, and 4/10/1924, SJ7. 33. “Georgia Negroes Are Not Denied Right at Polls,” AC, 1/4/1924, 1; “Upshaw Elected Illegally,” CT, 1/6/1924, 7. 34. “Hill Decries State Rights’ Invasions,” BS, 4/2/1924, 2. 35. “State’s Duties and State’s Rights,” BS, 1/10/1924, 11; “Legislature Waits on Ritchie Budget,” BS, 1/20/ 1924, 4. 36. “Predicts Repeal of Volstead Act: Representative Hill Tells Senate Committee Congress Eventually Will Act,” BS, 2/8/1924, 6. 37. “Predicts Repeal of Volstead Act,” 6. 38. JH MD 1924, 232. 39. “Dry Forces Ask Drastic Action for Maryland,” BS, 2/17/1924, 12. 40. “No Return of Wilsonism,” NYTR, 11/9/1922, 12. 41. For Ritchie’s text, see “Ritchie Cites States’ Rights as Chief National Issue,” BS, 4/23/1924, 7. 42. On Van Buren’s formation of the Democratic Party to vindicate states’ rights, updating Jefferson and Madison’s formation of the Democratic-­Republican Party to do the same, see Milkis, President and the Parties; and Gerald Leonard, The Invention of Party Politics: Federalism, Popular Sovereignty, and Constitutional Development in Jacksonian Illinois (Chapel Hill: University of North Carolina Press, 2002). 43. Post, “Prohibition in the Taft Court Era,” 44–­46.

notes to pages 145–153

289

44. Murray, 103rd Ballot, 85–­87. My account of the 1924 Democratic race is largely drawn from Murray’s 103rd Ballot as well as Craig’s After Wilson. 45. On Underwood’s 1924 fight with the Klan, see Murray, 103rd Ballot; Craig, After Wilson, 60–­61; and Johnson, Oscar Underwood, 384–­408. 46. David Burner, Politics of Provincialism: The Democratic Party in Transition, 1918–­1932 (Cambridge, MA: Harvard University Press, 1986), 114–­15. 47. Murray, 103rd Ballot, 107, 144–­45. 48. Murray, 103rd Ballot, 83, 144–­45. 49. Murray, 103rd Ballot, 107, 144–­45. 50. “1924 Democratic Party Platform,” http://www.presidency.ucsb.edu /ws/?pid =29593. 51. Murray, 103rd Ballot, 211. 52. Murray, 103rd Ballot, 227. 53. Murray, 103rd Ballot, 249. 54. Murray, 103rd Ballot, 241. 55. Murray, 103rd Ballot, 244–­45. 56. McCoy, Calvin Coolidge, 263. 57. McCoy, Calvin Coolidge, 245–­47. 58. “New Congress Wins Many New Advocates,” CSM, 11/6/1924, 1. 59. Madaras, “Theodore Roosevelt, Jr. versus Al Smith.”

Chapter Eight 1. “Veto Message of AB 535/Duncan Bill,” JA WI 1927, 2447–­49. 2. CR 63.3, 616, and 65.2, 469–­70. For Greene’s states’ rights views, see Beienburg, “Progressive Federalism.” 3. “Shot by Dry Agent Hits U.S. Senator,” NYT, 2/16/1924, 1; “Senator Greene Refuses $7,500 Voted to Him by Congress,” NYT, 3/15/1927, 1; “U.S. Senator Greene of Vermont Dead,” NYT, 12/18/1930, 25. 4. For example, Oklahoma’s 1924 SR2 hailing the Eighteenth Amendment. Acts OK Special Session 1924, 224. 5. For example, SB535 and 536, JS IL 1927, 1816. 6. Lucker, “Prohibition in Wisconsin,” 118. 7. “Dry Referendums in Six States Sought by Wet Association,” WP, 7/1/1926, 1. 8. Hiram Bingham, “Inaugural Address,” in JH CT 1925, 53, 55. 9. “ ‘Wet’ Politics at Trenton,” NYT, 1/29/1926, 20. 10. George Silzer, “Annual Message” (1/12/1926), in MA NJ 1926, 27. 11. “Inaugural Address of Gov. Harry A Moore,” NYT, 1/20/1927, 9. 12. Lucker, “Prohibition in Wisconsin,” 78. 13. Lucker, “Prohibition in Wisconsin,” 79–­84; “Invites Drys to Drink,” BG, 4/4/1925, 9; “U.S. Takes Up Gettleman Defiance,” CT, 4/20/1925, 1.

290

notes to pages 153–157

14. Lucker, “Prohibition in Wisconsin,” 82. 15. Lucker, “Prohibition in Wisconsin,” 81–­86. 16. Laws WI 1925, 710; SJR42, JS WI 1925, 746–­47, 1028–­29; JA WI 1925, 1402–­3; Wisconsin Blue Book 1925, 644–­55; Lucker, “Prohibition in Wisconsin,” 90–­93. 17. “Anderson Out as Dry League Superintendent,” NYTR, 2/10/1924, 5; “Arthur J. Davis Gets Anderson’s Dry League Job,” NYTR, 2/20/1924, 2; “Prison Term Begins Today for Anderson,” NYTR, 3/25/1924, 1; “The End of Andersonism,” NYTR, 1/31/1924, 10. 18. Pegram, “Hoodwinked,” 113. 19. Lerner, Dry Manhattan, 154–­60; “Liquor Referendum Draw Fire of Drys,” NYT, 3/11/1926, 5; “The Meaning of the Plebiscite,” NYHT, 4/21/1926, 24. 20. “Wet Association for Vote,” NYT, 3/11/1926, 5; “Buckner Calls People ‘Real Boss’ of Dry Law,” NYHT, 4/1/1926, 2. 21. Jackson, “Prohibition as an Issue in New York State Politics,” 200–­201; “Wadsworth Opposes Poll on Prohibition,” BG, 3/15/1926, 5. 22. “State Dry Bill Goes to Fore at Albany,” NYT, 3/15/1926, 2. 23. “Dry Conflict at Albany Stirs Party Orators,” NYHT, 3/18/1926, 3. 24. “N.Y. Senate Defeats Dry Bills, 27–­24,” NYHT, 3/23/1926, 1. 25. “Wets Lay Ruin of Youth to Dry Law,” NYHT, 4/14/1926, 1; JH NY 1931, 1780–­82. 26. “Victory Likely for Referendum Monday Night,” NYHT, 4/16/1926, 17. 27. “Wet Referendum to Win in Senate; Assembly Hits Drys,” NYT, 3/31/1926, 1. 28. “Drys in State Aid Plan to Defer Poll,” NYT, 4/3/1926, 2; “Stick to November for State Poll,” NYT, 4/4/1926, 1. 29. “Referendum Bill Passed,” NYT, 4/14/1926, 1. 30. “State Rum Referendum Wins at Albany,” NYHT, 4/20/1926, 1; “Victory Likely for Referendum Monday Night,” NYHT, 4/16/1926, 17. 31. “State Rum Referendum Wins at Albany,” NYHT, 4/20/1926, 1; “Wets Win in Assembly,” NYT, 4/20/1926, 1. 32. “Governor Will Sign Bill for Referendum on Dry Law Change,” NYT, 5/19/1926, 1. 33. “State Referendum on Dry Act Upheld by Supreme Court,” NYT, 8/14/1926, 1. 34. “Wants Jersey ‘on Map,’ Not under Table,” NYT, 1/26/1926, 23. 35. “Asks a Referendum on Volstead Act,” NYT, 2/10/1926, 10. 36. “Borah Stand Balks at Nation-­ Wide Poll on Prohibition Act,” NYT, 6/2/1926, 1; “Senate Committee Kills Referendum,” NYT, 4/4/1926, 1. 37. “Andrews Seeks Dry Change Act to Invade State,” BS, 4/3/1926, 1. 38. Merz, Dry Decade, 191–­93. 39. “Confusing and Unsound,” NYHT, 5/23/1926, A6. 40. “Dry Law Ends State Rights: Andrews Holds U.S. Is Supreme Police Power,” CT, 5/23/1926, 1; “State Rights Waived,” NYHT, 5/23/1926, 1.

notes to pages 157–163

291

41. “Coolidge Dry Order Aimed to Aid States,” NYHT, 5/26/1926, 3; “A Confessed Mistake,” NYT, 5/25/1926, 26; “Coolidge Defends Dry Order as Valid,” NYT, 5/26/1926, 1. 42. “State Rights Waived,” NYHT, 5/23/1926, 1; “Silent Road Is Preferred by Coolidge,” NYHT, 5/16/1923, A1. 43. “Give State Rights’ Views: Five Governors Oppose,” NYT, 5/25/1926, 1. 44. “Coolidge Adds Officers of States to U.S. Dry Forces,” NYHT, 5/22/1926, 1. 45. “Coolidge Dry Order Aimed to Aid States,” NYHT, 5/26/1926, 3; “Coolidge Defends Dry Order as Valid,” NYT, 5/26/1926, 1; Merz, Dry Decade, 190–­93. 46. “Dry Chief’s Wife Says, ‘We Don’t Like Dry Law,’ ” CT, 11/5/1926, 12.” 47. For a concise listing of all the relevant proposals’ texts, see “Dry Law Faces Referenda Test in Eight States,” CSM, 10/5/1926, 1. 48. Merz, Dry Decade, 344. 49. “Prohibition Goes to the Polls in Nine States,” NYT, 10/17/1926, XX4. 50. “Prohibition Goes to the Polls in Nine States,” NYT, 10/17/1926, XX4. 51. “Colorado Wet Showing Is a Surprise,” NYT, 11/4/1926, 9. 52. “Montana Vote May Turn Scale in Liquor War,” BS, 3/14/1926, 1. 53. “Wet Success Held Fleeting,” LAT, 11/12/1926, 7. 54. Gilman Ostrander, The Prohibition Movement in California, 1848–­1933 (Berkeley: University of California Press, 1957), 172–­76. 55. Ostrander, Prohibition Movement in California, 187. 56. Ostrander, Prohibition Movement in California, 184, 186. 57. Okrent, Last Call, 337; Sinclair, Era of Excess, 204. 58. John R. Meers, “The California Wine and Grape Industry and Prohibition,” California Historical Society Quarterly 46 (1967): 19–­32; Okrent, Last Call, 176–­80. 59. “Save the Wright Act,” LAT, 10/11/1926, A4. 60. “All Classes Rally to Defend the Wright Act of California,” CSM, 10/1/1926, 4A. 61. “Wet and Dry State Map as Shown by Wright Act Vote,” LAT, 11/6/1926, 2; “California Split on ‘Liberal’ Issues,” LAT, 11/6/1926, 1. 62. “Capital Splits on Interpreting Vare’s Success,” NYHT, 5/20/1926, 2. 63. “Dry Law Upheld by Wide Margin in California,” CSM, 11/51926, 1. 64. “Dry Vote Analyzed by McAdoo,” LAT, 11/6/1926, 1. 65. Lucker, “Prohibition in Wisconsin,” 96–­98. 66. Lucker, “Prohibition in Wisconsin,” 90–­93, 99. 67. “Vare Victory Thrills Wets in Country,” NYHT, 5/20/1926, 3; “Capital Splits on Interpreting Vare’s Success,” NYHT, 5/20/1926, 2. 68. On Underwood’s decision not to run, see Johnson, Oscar Underwood, 416–­18. 69. On Edwards’s 1920 campaign, see Brian Greenberg, “The Progressive Era,” in New Jersey: A History of the Garden State, ed. Maxine N. Lurie and Richard Veit (New Brunswick, NJ: Rutgers University Press, 2012), 227. 70. “No Help to Prohibition,” NYHT, 11/9/1926, 26. 71. “Republican Doom Seen by Butler,” LAT, 11/8/1926, 2.

292

notes to pages 163–167

72. HJR10, JH IL 1927, 344–­46. 73. “House Passes Bill Providing a Referendum,” CT, 5/19/1927, 1; “Illinois House Votes to Repeal Dry Laws,” WP, 5/19/1927, 5. 74. “Dry League Cries Frantically for Help in Illinois,” CT, 5/30/1927, 3; “Senate Defeats Wet Bill Asking for Referendum,” CT, 6/16/1927, 4. 75. JA WI 1927 1374, 1507–­8; JS WI 1927, 671; Wisconsin Blue Book 1927, 586–­ 89, 674–­89. 76. Lucker, “Prohibition in Wisconsin,” 100–­110. 77. “Speculate on What Zimmerman Will Do with Beer Measure,” Appleton (WI) Post-­Crescent, 6/30/1927, 24. 78. “Veto Message of AB 535/Duncan Bill,” JA WI 1927, 2445. 79. “Veto Message of AB 535/Duncan Bill,” JA WI 1927, 2446–­47. 80. “Veto Message of AB 535/Duncan Bill,” JA WI 1927, 2447–­49. 81. “Veto Message of AB 535/Duncan Bill,” JA WI 1927, 2449. 82. See, e.g., “Zimmerman Vetoes 2.75 Beer Bill,” Appleton (WI) Post-­Crescent, 7/22/1927, 1; “Governor Rejects Beer Bill,” Manitowoc Herald, 7/22/1927; and “Governor Vetoes the Duncan Beer Bill,” Oshkosh (WI) Daily Northwestern, 7/22/1927, 1. On Duncan’s grumbling alongside the veto message, see “Zimmerman Vetoes Duncan Beer Bill,” Sheboygan (WI) Press, 7/22/1927, 1. The quote comes from a piece several days later: “Wet Fanaticism,” Appleton (WI) Post-­Crescent, 7/29/1927, 6. 83. For a compilation of reactions, see “Press of State Upholds Veto of Beer Bill,” Rhinelander (WI) Daily News, 7/25/1927, 4. 84. “The Wisconsin Beer Bill,” Charleston (WV) Daily Mail, 7/30/1927, 4; “A Conscientious Governor,” Springfield (MA) Republican, 7/23/1927, reprinted as “Views of the National Press,” Charleston (WV) Daily Mail, 8/6/1927, 4. 85. On the failed veto override, see JS WI 1927, 2518. 86. JH MN 1927, 474–­75. 87. “1,000,333 Sign Dry Referendum Petition Presented to the Massachusetts Legislature,” NYT, 2/17/1927, 20; “The Vote Kills Poll on Liquor,” BG, 3/16/1927, 1; JH MA 1927, 526–­28. 88. JH MD 1927, 302–­3, 66–­67. 89. See, e.g., letters to the editor—­including from Guy L. Jones, whose 1927 floor speech on prohibition I discuss below—­submitted to the Outlook during early 1906 opposing proposals to jointly admit both states. New Outlook, vol. 82 (New York: Outlook Publishing Co., 1906), 232–­34. See also Thomas E. Sheridan, Arizona: A History (Tucson: University of Arizona Press, 2012), 181; and Paul Frymer, Building an American Empire: The Era of Territorial and Political Expansion (Princeton, NJ: Princeton University Press, 2017), 201–­5. 90. Ware, “Alcohol, Temperance, and Prohibition in Arizona,” 306–­7. 91. Ware, “Alcohol, Temperance, and Prohibition in Arizona,” 320. 92. JH AZ 1927, 579. 93. JH AZ 1927, 580.

notes to pages 168–170

293

94. “Et Tu, North Dakota,” NYHT, 7/2/1928, 12. 95. Merz, Dry Decade, 334. 96. “Plan Dry Law Referendum,” NYT, 7/20/1928, 5; “Dry Law Question to Be on Ballots,” BG, 10/16/1928, 15. 97. “Lincoln Advocates ‘Yes’ on Dry Poll,” BG, 11/6/1928, 8. 98. “Says Wets Won Here by Quarter Million,” BG, 11/10/1928, 1. 99. After serving as a laissez-­faire bogeyman, Hoover and his progressivism is now seen in contrast to Coolidge and his more libertarian philosophy, as Coolidge himself had believed. Burner (Politics of Provincialism, 196) holds that Hoover was to the left of Smith, while Murray (103rd Ballot, 263) argues that Hoover bridged La Follette’s progressivism and the New Deal, laying the groundwork for a cooperative vision rooted in intellectualism and engineering. McGirr (War on Alcohol, xxi–­xii [see also 191]) concludes that Hoover’s “lifetime of vigorous state building was hidden behind a reputation as an ‘individualist’ ” but that he instead laid the groundwork for FDR, who lacked Hoover’s constraining unease with federal power; in effect, McGirr holds Hoover to be similar to Al Smith, a political progressive and constitutional conservative. See also William Leuchtenberg, The Perils of Prosperity (Chicago: University of Chicago Press, 1958), 232–­40. Hoover’s recently released private memoirs of his fight against the New Deal vindicate this latter characterization, revealing someone who was comfortable with active government but retained a profound commitment to the Madisonian system dividing power among different branches of the federal government as well as between the federal and the state governments, all of which Hoover believed the Roosevelt administration was sweeping away. So terrified did Hoover become that he tried to convince Chief Justice Charles Evans Hughes to leave the Court and run in the 1940 election on a platform vindicating the Constitution against an autocratic Roosevelt. The Crusade Years, 1933–­1935: Herbert Hoover’s Lost Memoir of the New Deal and Its Aftermath, ed. George Nash (Palo Alto, CA: Hoover Institution Press, 2013), 489–­91. See also Gordon Lloyd and David Davenport, “The Two Phases of Herbert Hoover’s Constitutional Conservatism,” in Toward an American Conservatism: Constitutional Conservatism during the Progressive Era, ed. Joseph Postell and Jonathan O’Neill (New York: Palgrave Macmillan, 2013), 235–­66. 100. Okrent, Last Call, 292. 101. For the argument that the divide was predominantly ethnocultural, between old-­stock Protestants and newer Americans, primarily ethnic Catholics, see Burner, Politics of Provincialism. For the account interpreting it as more plainly ideological, see Craig, After Wilson. 102. On Roosevelt’s recruitment of Hoover, see Jean Edward Smith, FDR (New York: Random House, 2007), 176–­77; and David Pietrusza, 1920: Year of the Six Presidents (New York: Carroll & Graf, 2007), 112–­15, 138–­39. 103. Coolidge respected Hoover’s talents but was uneasy about his comfort with using government power. Nonetheless, even with those reservations, he helped

294

notes to pages 170–177

clear the way for Hoover as his successor. See McCoy, Calvin Coolidge, 390–­94; and Sobel, Coolidge, 241–­42. 104. Murray, 103rd Ballot, 81, 175; Burner, Politics of Provincialism, 114–­15. 105. Mencken, Carnival of Buncombe, 142–­43. 106. Leuchtenberg, Perils of Prosperity, 134; Murray, 103rd Ballot, 274. 107. Mencken, Carnival of Buncombe, 149. 108. Mencken, Carnival of Buncombe, 149. 109. “1928 Democratic Party Platform,” http://www.presidency.ucsb.edu /ws​ /index.php?pid=29594; “Republican Party Platform of 1928,” http://www.presi​ dency.ucsb.edu /ws/index.php?pid=29637. 110. Craig, After Wilson, 130; Slayton, Empire Statesman, 275. 111. Leuchtenberg, Perils of Prosperity, 232–­34, 238–­40. 112. Slayton, Empire Statesman, 238, 245–­61, 275. 113. Craig, After Wilson, 165. 114. “Governor Gives His Views,” NYT, 6/29/1928, 1; “The Reasons for the Concord Which Led to the Nomination of Governor Smith at Houston,” NYT, 6/30/1928, 9. 115. Slayton, Empire Statesman, 200–­201; Craig, After Wilson, 175. 116. Craig, After Wilson, 191. 117. Sellers, Prohibition Movement in Alabama, 206. 118. Richard D. White Jr., Kingfish: The Reign of Huey P. Long (New York: Random House, 2009), 164. 119. “Newly Elected Congress to Be Dryer Than Last,” LAT, 11/11/1928, 5. 120. Clark, Deliver Us from Evil, 188–­92; “Borah Wins Prohibition Debate over Butler,” NYT, 4/9/1927, 1. 121. Lerner, Dry Manhattan, 248–­50. 122. “Coolidge Adds Officers of States to U.S. Dry Forces,” NYHT, 5/22/1926, 1. 123. Lerner, Dry Manhattan, 252–­54, 288. 124. Okrent, Last Call, 288–­99. 125. Kerr, Organized for Prohibition, 239–­41, 252.

Chapter Nine 1. Hammett, Crime Stories, 563. 2. Herbert Hoover, “Inaugural Address” (3/4/1929), http://millercenter.org /president /hoover/speeches/speech-3570. 3. Mencken, Carnival of Buncombe, 262. 4. “Coolidge Deplores Rise in Crime; Religion Is the Only Remedy,” NYT, 10/21/1925; Herbert Hoover, “Inaugural Address” (3/4/1929), http://millercenter​ .org/president /hoover/speeches/speech-3570; McGirr, War on Alcohol, 191. 5. “Hoover Formally Notified,” NYT, 8/12/1928, 1.

notes to pages 177–183

295

6. Okrent, Last Call, 316–­19. 7. Okrent, Last Call, 316–­19; “Newly Elected Congress to Be Dryer Than Last,” LAT, 11/11/1928, 5. 8. John J. Guthrie Jr., “Rekindling the Spirits: From National Prohibition to Local Option in Florida, 1928–­1935,” Florida Historical Quarterly 74 (1995): 23–­39. 9. JH FL 1929, 563. 10. JS LA 1930 (Special Session: September), 16; “Senate Defeats Move to Permit Dry Referendum,” New Orleans Times-­Picayune, 9/18/1930, 4. 11. Arthur J. Weaver, “Inaugural Address” (1/3/1929), in JH NE 1929, 111. 12. Okrent, Last Call, 319. 13. HCR48, JH MI 1929, 1409. 14. JH MO 1929, 1020–­21. 15. SJR14, JS MO 1929, 1813; JH MO 1929, 1277–­78. 16. “The Massacre in Aurora,” CT, 3/31/1929, 12; Okrent, Last Call, 318–­19. 17. On the turn from Prohibition among Illinois citizens, see Jolet, “Wet Chicago,” 255–­69. 18. JH IL 1929, 565–­66. 19. JH IL 1929, 1165–­66; JS IL 1929, 1150. 20. “Illinois Dry Test Is Asked,” CT, 5/17/1930, 1; “GOP Hastens to Take Hand in Dry Referendum,” CT, 5/18/1930, 6; “Cermak Rejects GOP Offer to Aid in Wet Test,” CT, 5/19/1930, 7. 21. “Ask Illinois: Wet or Dry?” CT, 6/5/1930, 1; “Wet Test Asked by 400,000,” CT, 8/12/1930, 1; “Cermak Calls GOP Petition a Dry Maneuver,” CT, 8/13/1930, 4. 22. “Sherman, Once Dry of Senate, Backs Vote Test,” CT, 6/17/1930, 14. 23. “GOP Pledges to Obey Voters on Prohibition,” CT, 8/23/1930, 1; “High Spots in Mrs. McCormick’s Talk,” CT, 8/23/1930, 6. 24. “Antisaloon League to Fight Mrs. McCormick for Senate,” WP, 9/7/1930, M1; “Dry Boss Dictatorship,” CT, 9/6/1930, 10. 25. Lucker, “Prohibition in Wisconsin,” 114–­16. 26. Lucker, “Prohibition in Wisconsin,” 120. 27. SJR14, JS WI 1923, 79–­81. The original version died in committee; a modified version shorn of the anti-­Reconstruction preface and calling merely for repeal of the amendment passed 18–­14. Ibid., 790. On Burke, see Wisconsin Blue Book 1923, 607. 28. AJR42, JA WI 1929, 446–­47; JS WI 1929, 567; Laws WI 1929, 1076. 29. SJR14, JS WI 1929, 209–­10; JA WI 1929, 354–­56. 30. Session Laws WI 1929, 1068. 31. “Legislature Faces Bitter Fight as Result of Election,” Appleton (WI) Post-­ Crescent, 4/4/1929, 15; “Wisconsin’s Big Issue: Dry Vote and Wet Tastes,” CT, 3/27/1929, 23; “Wet Wisconsin,” Time, 6/10/1929, 17; “Kohler Acts on His Own Judgement Led by No Group,” Oshkosh (WI) Daily Northwestern, 6/17/1929, 12; “State Press on the Repealer,” Sheboygan (WI) Press, 6/6/1929, 12. 32. JS WI 1929, 866; JA WI 1929, 794–­95.

296

notes to pages 183–190

33. “Wet Wisconsin,” Time, 6/10/1929, 17. 34. Lucker, “Prohibition in Wisconsin,” 123–­25. 35. For Gettleman’s resolution, see SJR100, JS WI 1929, 1114. 36. Lucker, “Prohibition in Wisconsin,” 126–­27. 37. AB250, MA NJ 1929, 233. 38. “Repeal Referendum Bill Tabled in Rhode Island,” BG, 1/10/1930, 21. 39. JS RI 1930, 2/28/1930, S3–­S4. 40. “Rhode Island GOP Favors Repeal Poll,” BG, 2/21/1930, 8; “Rhode Island Vote on Dry Law Favored,” BG, 3/1/1930, 12; “Rhode Island House Votes for Dry Poll,” BG, 3/6/1930, 10. 41. “Rhode Island Will Vote on Prohibition,” BG, 3/9/1930, A12; SB66, Session Laws RI 1930, 63. 42. “Dry Test in Rhode Island,” NYT, 9/4/1930, 24. 43. “Wets Plan Drive in Massachusetts,” NYT, 11/13/1929, 12. 44. “Battle on Dry Law Looms in Bay State,” NYT, 11/24/1929, E1. 45. “A Republican Upset,” NYT, 2/13/1930, 18. 46. “Politics and Politicians,” BG, 3/30/1930, A13. 47. “Wets and Drys Clash over Bill,” BG, 1/29/1930, 1; “Drys Answer Wets Attack on State Act,” CSM, 4/1/1930, 1; “Dry Law Repeal Beaten Again in Massachusetts,” NYHT, 4/3/1930, 16. 48. JH MA 1930, 630–­33; JS MA 1930, 481. 49. “Majority Favors State Liquor Vote,” BG, 3/28/1930, 1. 50. JS MA 1930, 477. 51. JS MA 1930, 477–­78. 52. JS MA 1930, 477. 53. JS MA 1930, 480. 54. Contrast this to Lincoln’s insistence on following the letter of the law unless properly changed, even when unpopular. See Lincoln, “Address to the Young Men’s Lyceum of Springfield.” 55. JS MA 1930, 479. 56. Kyvig, Repealing National Prohibition, 117. 57. Kyvig, Repealing National Prohibition, 142. 58. “Wet Ballots Swamp Drys in Referendum,” CT, 11/5/1930, 1. 59. “Repeal Outlay Less Than Half Dry Cost,” BG, 12/10/1930, 11. 60. “Democratic Sweep in Massachusetts,” CSM, 11/5/1930, 1; “Plain Verdicts,” BG, 11/5/1930, 18. 61. On Marcus Coolidge, see James Patterson, Congressional Conservatism and the New Deal (Lexington: University Press of Kentucky, 1967), 30, 49–­50, 70–­72, 349. 62. “Rhode Island State Solid,” NYT, 11/6/1930, 4. 63. “Wet Ballots Swamp Drys in Referendum,” CT, 11/5/1930, 1. 64. “Senate Swings to State Dry Law Repeal,” CT, 11/8/1930, 1; “Assembly for State Dry Law Repeal,” CT, 11/9/1930, 1.

notes to pages 190–196

297

65. “Wets Gain in House,” NYT, 11/5/1930, 1. 66. “Mr. Morrow Wins,” NYHT, 11/5/1930, 18. 67. “Morrow Boom Speeds Up under G.O.P. Defeats,” CT, 11/8/1930, 4. 68. Weeks v. United States, 232 U.S. 383 (1914). 69. Kersch, Constructing Civil Liberties, 81. 70. G. B. Granger, “Validity of the Eighteenth Amendment,” Editorial Research Reports, 1931 (Washington, DC: CQ Press, 1931), http://library.cqpress​ .com/cqresearcher/cqresrre1931012600; David E. Kyvig, “Amending the U.S. Constitution: Ratification Controversies, 1917–­1971,” Ohio History 83 (1974): 156–­69, 162–­64. Bacon had been involved in a law review debate on unconstitutional constitutional amendments. See chapter 3, n. 135. 71. “Text of Judge Clark’s Decision,” NYT, 12/17/1930, 22–­23. 72. United States v. Sprague, 282 U.S. 716 (1931), 730. 73. “U.S. National Commission on Law Enforcement of Criminal Laws of the United States: Publication Number 1: Proposals to Improve Enforcement of Criminal Laws of the United States,” Document 252, 71st Cong., 2nd sess., 1/13/1930, 10–­11. 74. WCR, sec. 3, p. 101; Sinclair, Era of Excess, 211–­12. 75. WCR, sec. 3, p. 106. 76. WCR, sec. 3, pp. 72–­73; Sinclair, Era of Excess, 264. 77. CR 65.1, 5587. For a Democrat raising the same point, see CR 65.2, 444. 78. “Harding Pledges Dry Enforcement, Hits Smith Hard,” NYT, 6/26/1923, 1. 79. Ferrell, Presidency of Calvin Coolidge, 106–­7. 80. Roberts, “Protecting the Public Welfare and Morals,” 128–­30. 81. Ferrell, Presidency of Calvin Coolidge, 106–­7; Merz, Dry Decade, 206; Pegram, Battling Demon Rum, 159. 82. McGirr, War on Alcohol, 226, 235. 83. Ada Comstock, WCR, 199–­200. 84. Kenneth Mackintosh, WCR, 272. 85. WCR, 112–­13, 134–­37. 86. The supplemental statements appear at the end of the WCR, beginning on p. 153. 87. George Wickersham, WCR, 284. 88. WCR, 146. 89. Kenyon, Loesch, Mackintosh, McCormick, and Pound also endorsed the idea, and Wickersham thought it admirable in theory but was skeptical of its application in America. 90. Kyvig, Repealing National Prohibition, 111–­15. 91. Sinclair, Era of Excess, 370. 92. “Wets to Take Issue to 14 Legislatures,” NYT, 1/11/1931, 32. For a summary of state enforcement laws as of 1931, see Boeckel, “The States and the Prohibition Amendment.”

298

notes to pages 196–202

93. For the AAPA’s whip list, see “Asserts 24 States Now Favor Repeal,” NYT, 1/12/1931, 5. 94. “Lists Wet Defeats by Legislatures,” NYT, 8/3/1931, 38. 95. “Wets Gain in House,” NYT, 11/5/1930, 1. 96. “Atlanta Mayor and Huey Long Dispute,” Sarasota-­Herald Tribune, 10/2/1931, 3. 97. Roberts, “Protecting the Public Welfare and Morals,” 163. 98. SR30, Public Acts TN 1931, 486–­87. 99. JH TX 1931, 165–­71. 100. JH OK 1931, 699–­700. 101. For Du Pont’s appearance and the subsequent joint session, see JS DE 1931, 143, 189. For the referendum (SB148), see ibid., 623. For repeal of concurrent enforcement, see ibid., 625. 102. William Conley, “Message Convening Legislative Session” (1/14/1931), in Appendix A of JS WV 1931, 21–­23. 103. JH WV 1931, 444; JS WV 1931, 363. 104. JS WV 1931, 1056. 105. Ostrander, Prohibition Movement in California, 182. 106. Ostrander, Prohibition Movement in California, 187–­89. 107. JSH OR 1931, 422, 248. 108. JS WA 1931, 118; JH WA 1931, 284, 846, 858; Kyvig, Repealing National Prohibition, 142. 109. Roland Hartley, “Veto Message on SB241,” JS WA 1931, 715. 110. JH MT 1931, 533–­34. 111. “Washington Letter,” Rushville (IN) Republican, 3/17/1931, 4. 112. SJR2, JS UT 1931, 269. 113. JS WY 1931, 438–­39; JH WY 1931, 358. On the referendum, see HJR4, JH WY 1931 376; JS WY 1931, 520; and Laws WY 1931, 249. 114. “Tuttle Won’t Sign a State Dry Law Like Volstead Act,” NYT, 10/3/1930, 1. 115. “Jenks Says Tuttle Is Hope of Drys,” NYT, 10/19/1930, 1. 116. “Anti-­Saloon Leader Denounces Tuttle,” NYT, 10/13/1930, 3. 117. Franklin D. Roosevelt, “Second Inaugural Address” (1/1/1931), in PPFDR 1931, 11, and “Annual Message to the Legislature” (1/7/1931), in ibid., 40. 118. “Address of Gov Ely and Its Suggestions,” BG, 1/9/1931, 25; Senate File no. 1, Legislative Documents of Massachusetts 1931, 26–­27. 119. JS MA 1931, 367–­68; Acts and Resolves MA 1931, 785. On New York’s call for a constitutional convention, see AB4, JH NY 1931, 334; and JS NY 1931, 658. On petitioning Congress for a national referendum, see JA NY 1931, 1065–­66; and JS NY 1931, 1358. 120. “Signing Statement on Assembly Bill Int. 4. Pr. 4” (3/3/1931), in PPFDR 1931, 331–­32. 121. JH NY 1931, 1071–­72; JS NY 1931, 660, 1024, 1104.

notes to pages 202–206

299

122. JH NY 1931, 1519, 1933–­34; JS NY 1931, 658. 123. Smith had continued to back repeal on states’ rights grounds and rejected a 1924 FDR memo declaring that prohibition repeal was a “red herring” and that “a temperate people are a happy and contented people and to that all [his] acts and words will bend.” Quoted in Conrad Black, Franklin Delano Roosevelt, Champion of Freedom (New York: Public Affairs, 2014), 161. 124. On Smith’s effort to recruit Roosevelt in 1928—­and the Republicans’ effort to discredit Smith for doing so—­see James Tobin, The Man He Became: How FDR Defied Polio to Win the Presidency (New York: Simon & Schuster, 2013), 261–­74; and “Roosevelt Backed Smith Six Times,” NYT, 2/9/1932, 20. 125. Franklin D. Roosevelt, “Veto Message on Bill to Amend the Education Law” (4/23/1931), in PPFDR 1931, 288, and “Address before the Conference of Governors, New London, 7/16/1929,” in The Public Papers and Addresses of Franklin D. Roosevelt, vol. 1, The Genesis of the New Deal, 1928–­1932, 367, http:// quod.lib.umich.edu /p/ppotpus /4925052.1928.001/419?page=root;rgn=works;size =100;view=image;rgn1=author;q1=roosevelt%2C+franklin. 126. Franklin D. Roosevelt, “Constitution Day Proclamation” (9/8/1931), in PPFDR 1931, 28. 127. “NJ Republican Party Platform of 1930,” and “NJ Democratic Party Platform of 1930,” in Legislative Manual of the Legislature of New Jersey 1932 (Trenton, NJ: MacCrellish & Quigley, 1931), 137, 147. The Democratic platform was sarcastic in noting the Republicans’ “conversion to the Democratic principle of State’s rights.” 128. Legislative Manual of the Legislature of New Jersey 1932, 661–­62. 129. AB8, MA NJ 1931, 66; SB36, JS NJ 1931, 23. 130. “Reeves Introduces Resolution Asking 18th Amendment Repeal,” Trenton (NJ) Times, 1/1/1931, 1, 9; “Wet Bills Split Jersey Houses in Opening Session,” NYHT, 1/14/1931, 8. On SJR1 (misprinted at one point as AJR1), see JS NJ 1931, 20, 26, 562, 1468; “Strong Leadership Accepted,” Trenton (NJ) Times, 1/14/1931, 5; “Hearing Planned for Prohibition,” Trenton (NJ) Times, 2/3/1931, 1; and “Partisan Warfare in Senate as End Is Reached,” Trenton (NJ) Times, 4/23/1931, 3. 131. “Both Democrats and Republicans Assail Dry Laws,” Trenton (NJ) Times, 5/26/1931, 1. 132. JS NJ 1931, 1178, 1197–­98; “Stormy Debate as Legislature Asks for Beer,” Trenton (NJ) Times, 10/10/1931, 1, 3. 133. JS CT 1925, 46. 134. “Dry Law Repeal Urged by Cross,” NYHT, 1/8/1931, 1; JS CT 1931, 58–­60. 135. “State Dry Act Repealer Offered in Connecticut,” NYHT, 1/22/1931, 2. 136. JS CT 1931, 491–­92. 137. JS CT 1931, 1378–­80; JH CT 1931, 1413–­14. 138. AJR17, 1931. For the legislative histories of the resolutions discussed below, consult the compilation in Index to the Journals of the Wisconsin Legislature, 1931.

300

notes to pages 206–211

139. SJR15, Index to the Journals of the Wisconsin Legislature, 1931. 140. JS WI 1931, 74; JA WI 1931, 586–­87. 141. SJR25, Index to the Journals of the Wisconsin Legislature, 1931. 142. AJR18, Index to the Journals of the Wisconsin Legislature, 1931. 143. AJR167A, Session Laws of WI 1931, 958. 144. SJR29, JS WI, Special Session 1932 (in JS 1931), 382; JA WI, Special Session 1932, 468. 145. SCR7, JS SD 1931, 303–­4. 146. JS SD 1931, 435, on SJR4 (referendum) and HB119 (beer bill). 147. HCR3, JH MI 1931, 55–­56; “Asks Michigan to Legalize Beer and Wine,” CT, 1/14/1931, 10. Other proposals, such as HCR20 (a memorial to Congress to repeal the Eighteenth Amendment) and SJR3 (to amend the state’s constitution to repeal concurrent enforcement), were ignored. 148. HCR48 (Volstead modification), JH MI 1931, 1408; HCR8 (advisory referendum), JS MI 1931, 81, 152. 149. JH MI 1931, 1379–­80; JS MI 1931, 1247–­48. 150. JH MI 1931, 1585–­86. 151. JH IA 1931, 241–­42, 280; Boeckel, “The States and the Prohibition Amendment.” 152. SB3 and 7, JS OH 1931, 972; HB27, JH OH 1931, 1062. On convention resolutions, see HJR14 and SJR6. 153. Indiana and Oregon were arguably the two northern states where the Klan wielded the most power in the 1920s. Thomas R. Pegram, One Hundred Percent American: The Rebirth and Decline of the Ku Klux Klan in the 1920s (Chicago: Ivan R. Dee, 2011). 154. On the referendum, see JH MN 1931, 584. 155. On the definition of intoxicating, see Laws MN 1931, ch. 305/SF499, 374; JS MN 1931, 746; and JH MN 1931, 1449–­50. 156. “Liquor Bill Definition Is Now Given,” Albert Lea (MN) Evening Tribune, 4/24/1931, 9. Minnesota’s legislature was officially nonpartisan but dominated by conservative Republicans. 157. HJR6, JH IL 1931, 45–­46, 666; JS IL 1931, 1217. 158. HB1, JH IL 1931, 105–­6; JS IL 1931, 588–­89. 159. “GOP Pledges to Obey Voters on Prohibition,” CT, 8/23/1930, 1. 160. Louis Emmerson, “Veto Message on HB1,” JH IL 1931, 426–­28. 161. “A Dripping Wet Plank Adopted by State G.O.P.,” CT, 5/28/1932, 1; Jolet, “Wet Chicago,” 286–­88. 162. Kyvig, Repealing National Prohibition, passim; Okrent, Last Call, 289–­90. 163. Okrent, Last Call, 319. 164. Kyvig, Repealing National Prohibition, 111–­12; “Dry Enforcement in Mitchell’s Hands,” NYT, 7/1/1930, 4; “New Test for Prohibition,” NYT, 7/13/1930, 51; Okrent, Last Call, 286–­88.

notes to pages 211–217

301

165. Kyvig, Repealing National Prohibition. See also Craig, After Wilson, 180–­204. 166. “An End to Wet Fiddling,” CSM, 1/23/1932, 18.

Chapter Ten 1. Kyvig, Repealing National Prohibition, 2. 2. “Wet Plank Moves Gain in Both Parties,” NYT, 6/7/1932, 1. 3. On the fall of Sheppard-­Towner, see Beienburg, “Progressive Federalism.” 4. Kyvig, Repealing National Prohibition, 151–­52; R. M. Boeckel, “Prohibition after the 1932 Elections,” Editorial Research Reports, 1932, vol. 2 (Washington, DC: CQ Press, 1932), 85–­102, http://library.cqpress.com/cqresearcher /cqresrre1932081100. 5. JS MA 1932, 319. 6. HB521, JH MA 1932, 503; JS MA 1932, 686–­87. 7. “State Dry Law Bill Surprises Albany,” NYT, 1/29/1932, 38; “Wets and Drys Clash at Albany over Jenks Bill,” NYT, 2/25/1932, 11; “Curran Dares Drys to Jenks Bill Vote,” NYT, 2/25/1932, 2. 8. JA NY 1932, 1518–­19. 9. JA NY 1932, 653, 1009. 10. JA NY 1932, 334–­35; JS NY 1932, 658; “Albany Leaders Plan to Avoid Liquor Action,” NYHT, 2/7/1932, 17; “Assembly Wets Put through Two Bills,” NYT, 3/3/1932, 2. 11. For the referendum text, see Laws CT 1931, 285–­86. 12. S57, Session Laws RI 1932, 3–­6; S60, ibid., 8–­10. 13. “Face Fight to Get 3 Percent Beer,” BG, 2/7/1932, A6; “Rhode Island Legalizes Beer,” BG, 3/2/1932, 11; “Governor Signs 3 PC Beer Bills in Rhode Island,” NYHT, 3/2/1932, 8. 14. “Rhode Island Law Opens Few Saloons,” BG, 3/11/1932, 5. 15. Harry Moore, “Inaugural Address” (1/19/1932), in MA NJ 1932 (regular session), 99. 16. “Assembly Votes 42–­15 to Repeal Jersey Dry Act,” NYHT, 1/19/1932, 36; “Dry Repeal Passes New Jersey House,” NYT, 1/19/1932, 1. On the special session attempt, see “Surprise Move for Jersey Dry Law Fails,” NYT, 1/5/1932, 1. 17. AB3, MA NJ 1932, 77; JS NJ 1932, 377–­78. 18. “Referendum Wins in Jersey Senate,” NYT, 3/29/1932, 40. For the Assembly vote, see “Jersey to Vote on Repeal of Dry Enforcement Law,” NYHT, 6/9/1932, 7; SB2, JS NJ 1932, 378–­79, 669; and MA NJ 1932, 1312. 19. SJR1, JS NJ 1932, 38, MA NJ 1932, 114. 20. SB4, JS NJ 1932, 380; MA NJ 1932, 1372–­73. 21. “Wet Bloc Polls 187,” NYT, 3/15/1932, 1; Sinclair, Era of Excess, 374. 22. Kyvig, Repealing National Prohibition, 151.

302

notes to pages 217–220

23. “ ‘Poll Wets’—­Wickersham,” CT, 5/9/1932, 1. 24. Sinclair, Era of Excess, 374–­75, 384–­86. 25. “Repeal Dry Law!—­John D. Jr.,” CT, 6/7/1932, 1. The article includes the full text of Rockefeller’s letter as well as Butler’s proposed Prohibition platform and federalism discussion. See also “Wet Plank for G.O.P. Spurred by News of Day,” CT, 6/7/1932, 3. 26. “Sloan, a Former Dry, Asks Repeal as Cure for Business Slump,” NYT, 6/12/1932, 1. 27. “Mr. Rockefeller Speaks,” Chicago Defender, 6/18/1932, 14. 28. “McAdoo, Arch Dry Democrat, Is for Dry Law Referendum,” CT, 6/9/1932, 2. 29. “Wet Plank Moves Gain in Both Parties,” NYT, 6/7/1932, 1; Kyvig, Repealing National Prohibition, 155–­56. For the final text, see “Republican Party Platform of 1932,” http://www.presidency.ucsb.edu /ws/index.php?pid=29638. 30. Their beliefs were corroborated by a contemporary political scientist. See John C. Gebhart, “Movement against Prohibition,” Annals of the American Academy of Political and Social Science 163 (1932): 172–­80, 180. 31. Herbert Hoover, The Memoirs of Herbert Hoover: The Great Depression, 1929–­1941 (New York: Macmillan, 1952), 318–­20. Newspapers had been reporting that the White House preferred a “tepid resubmission plank.” “Wet Plank for G.O.P. Spurred by News of Day,” CT, 6/7/1932, 3; Mencken, Carnival of Buncombe, 252–­53. 32. Lerner, Dry Manhattan, 295. 33. Sinclair, Era of Excess, 380–­86. 34. Clark, Deliver Us from Evil, 205; Sinclair, Era of Excess, 380–­86. 35. Lerner, Dry Manhattan 295–­96; Jackson, “Prohibition as an Issue in New York State Politics,” 227–­31. For similar assessments of Roosevelt’s opportunism, see Kyvig, Repealing National Prohibition, 147; Sinclair, Era of Excess, 378–­82; “Roosevelt the Opportunist,” LAT, 10/31/1932, 1; and Mencken, Carnival of Buncombe, 240, 254. 36. Lerner, Dry Manhattan, 295–­97. 37. Sinclair, Era of Excess, 384–­85. 38. “Text of the Speech Delivered by President Hoover in Accepting Renomination,” NYT, 8/12/1932, 4; “Throng Sees Notification, President Goes Beyond His Platform by Urging Dry Law Change,” NYT, 8/12/1932, 1; “Mr. Hoover’s Conversion,” NYT, 8/12/1932, 14; Boeckel, “Prohibition after the 1932 Elections.” 39. SCR3, JS LA 1932, 126; JH LA 1932, 340. 40. “Louisiana House Rejects Move to Repeal Hood Act,” New Orleans Times-­ Picayune, 6/24/1932, 6. 41. SB2, JH LA 1932, 1482; JS LA 1932, 240, 1320. For the legislative bureau’s protest, see ibid., 1320; and “Dry Referendum Bill Disapproved by State Bureau,” New Orleans Times-­Picayune, 6/18/1932, 2. For the floor debate, see “Louisiana Legislature Votes to Give People Chance to Register Views on 18th Amendment,”

notes to pages 221–225

303

New Orleans Times-­ Picayune, 6/9/1932, 1–­2; and “Louisiana Repeal Measure Passed, Vote in Prospect,” New Orleans Times-­Picayune, 7/6/1932, 10. 42. “Louisiana House Votes Dry Law Referendum,” BG, 7/6/1932, 14. 43. Joy Jackson, “Prohibition in New Orleans,” Louisiana History 19 (1978): 261–­84, 283. 44. JS WV 1932, 204–­5; JH WV 1932, 439–­40. 45. “Veto Message of SB41 Etc.” (8/8/1932), in JS WV 1932, 296–­301. 46. JH WV 1932, 543–­46. 47. JH WV 1932, 614–­15; JS WV 1932, 330. 48. HB662 (bone-­dry repeal), JH IN 1932, 59–­60. 49. “Indiana Remains Dry but Allows Betting,” NYT, 8/21/1932, E6. 50. HB625, JH IN 1932, 198–­201. 51. JS IN 1932, 507–­9; JH IN 1932, 578–­79; “Weiss Bill Transformed into Referendum,” Lake County Times (Hammond, IN), 8/11/1932, 1, 10. 52. JS IN 1932, 602; JH IN 1932, 625–­27; “Indiana Senate Votes Today on Dry Referendum,” CT, 8/12/ 1932, 8; “ ‘Dry’ Senate Balks Repeal, Wright Law,” Valparaiso (IN) Vidette-­Messenger, 8/18/1932, 4; “Indiana Remains Dry but Allows Betting,” NYT, 8/21/1932, E6. 53. HCR20/21, JH IN 1932, 487, 513–­15; JS IN 1932, 597. 54. “Wets at Capital Hail Texas Anti-­Dry Vote,” NYT, 7/26/1932, 2; Boeckel, “Prohibition after the 1932 Elections.” 55. Lerner, Dry Manhattan, 298–­301. 56. Kyvig, Repealing National Prohibition, 168. 57. Kyvig, Repealing National Prohibition, 161–­62, 167–­68; “Gov. Ritchie to Be Roosevelt Guest; Repealers Only to Get Votes of Allied Wets,” LAT, 8/31/1932, 8. 58. Robert Dahl, “Myth of the Presidential Mandate,” in Politicians and Party Politics, ed. John Geer (Baltimore: Johns Hopkins University Press, 1998), 239–­58; William Leuchtenberg, “When the People Spoke, What Did They Say? The Election of 1936 and the Ackerman Thesis,” Yale Law Journal 108 (1999): 2077–­2114; Barry Cushman, “Mr. Dooley and Mr. Gallup: Public Opinion and Constitutional Change in the 1930s,” Buffalo Law Review 50 (2002): 7–­102. Bruce Ackerman’s influential theory of constitutional change notably assumes the opposite. See his We the People: The Civil Rights Revolution (Cambridge, MA: Belknap Press of Harvard University Press, 2014), 70–­71. 59. Kyvig, Repealing National Prohibition, 168; “Nine States Voted Repeal of Dry Laws,” Wall Street Journal, 11/15/1932, 4. 60. “Vote to Scrap Dry Act Heavy,” LAT, 11/10/1932, 8; Ostrander, Prohibition Movement in California, 196. 61. “Death of the Wright Act,” LAT, 12/14/1932, A4; “Wright Act Rule Ends,” LAT, 12/19/1932, 1; Ostrander, Prohibition Movement in California, 197. 62. Ware, “Alcohol, Temperance, and Prohibition in Arizona,” 323–­25. 63. Kyvig, Repealing National Prohibition, 169.

304

notes to pages 226–230

64. Kyvig, Repealing National Prohibition, 168–­72. 65. “Beer and the Constitution,” NYT, 11/21/1932, 16. 66. Franklin D. Roosevelt, “Message to Congress on the Repeal of the Volstead Act” (3/13/1933), http://www.presidency.ucsb.edu /ws/?pid=14551. 67. JS CT 1933, 52. 68. JH CT 1933, 726. 69. Guthrie, “Rekindling the Spirits,” 29–­34. 70. North Carolina’s electorate voted against holding a convention; South Carolina held one but voted to retain the amendment. On the state conventions, see Kyvig, Repealing National Prohibition, 172–­80; John Dinan and Jac Heckelman, “Support for Repealing Prohibition: An Analysis of State-­Wide Referenda on Ratifying the 21st Amendment,” Social Science Quarterly 95 (2014): 636–­51. For the proceedings, see Everett Brown, ed., Ratifying Conventions of the Twenty-­ First Amendment: State Convention Records (Ann Arbor: University of Michigan Press, 1938). For examples of states’ rights discussion, see Connecticut (ibid., 61, with Cross speaking), Florida (ibid., 69–­71), Pennsylvania (ibid., 355), Utah (ibid., 410–­12), Virginia (ibid., 439–­40), and West Virginia (ibid., 487).

Chapter Eleven 1. “Women Urge State Option on Dry Law,” NYHT, 2/14/1930, 1. 2. Jackson, “Prohibition as an Issue in New York State Politics,” 262. 3. Kyvig, Repealing National Prohibition, 180; Brown, ed., State Convention Records, 297–­98. 4. Brown, ed., State Convention Records, 303. For Wadsworth’s remarks, see ibid., 305. 5. Brown, ed., State Convention Records, 193–­94. 6. Walsh, “Maryland and the Policy of National Prohibition,” 305–­9. 7. Kyvig, Repealing National Prohibition, 183. 8. “Senator Greene Buried,” NYT, 12/21/1930, 25. 9. “Edward I. Edwards Ends Life by Bullet,” NYT, 1/27/1931, 1. 10. Ritchie’s refusal of the vice presidential nomination makes for a fascinating counterfactual that could have radically reshaped party politics. Had Ritchie accepted, and had the 1932 assassination attempt on Roosevelt succeeded in killing him instead of Anton Cermak, the Democratic Party would have been led by arguably the most zealous states’ rights–­believing, strict-­constructionist figure in national politics, making the New Deal, and certainly the Democratic realignment into the party of activist government, a much more complicated, if not impossible, development. On Ritchie’s refusal, see James Benesch Levin, “Albert C. Ritchie: A Political Biography” (PhD diss., City University of New York, 1970), 382–­83, 391–­92.

notes to pages 230–235

305

11. New State Ice Co. v. Liebmann, 285 U.S. 262 (1932), 311. 12. “An Answer to the End of Prohibition; State Liquor Stores Are Legacy of Former Pa. Gov. Gifford Pinchot,” Allentown (PA) Morning Call, 2/23/1997. 13. For the continuity between the AAPA and the Liberty League, see Kyvig, Repealing National Prohibition, 183–­202; George Wolfskill, The Revolt of the Conservatives: A History of the American Liberty League, 1934–­1940 (New York: Houghton Mifflin, 1962); and Frederick Rudolph, “The American Liberty League, 1934–­1940,” American Historical Review 56 (1950): 19–­33. On Hoover’s spurning of the league, see his Memoirs: The Great Depression, 454–­55. 14. David Pietrusza, “New Deal Nemesis,” Reason 9, no. 9 (1978): 29–­31. 15. On Smith’s recruitment, see Jordan A. Schwarz, “Al Smith in the Thirties,” New York History 4 (1964): 316–­30, 322. 16. Kyvig, Repealing National Prohibition, 190–­99; Wolfskill, Revolt of the Conservatives; Rudolph, “The American Liberty League.” 17. McGirr, War on Alcohol, 160–­61, 187–­88. 18. McGirr, War on Alcohol, 217–­19. 19. Ilya Somin, “Gonzales v. Raich: Federalism as a Casualty of the War on Drugs,” Cornell Journal of Law and Public Policy 15 (2006): 508–­50, esp. 542–­43. 20. Rogers Smith, “Historical Institutionalism and the Study of Law,” in Oxford Handbook of Law and Politics, ed. Keith Whittington, R. Daniel Kelemen, and Gregory A. Caldeira (Oxford: Oxford University Press, 2010), 47–­59. For the classic realist interpretation, see Jeffrey Segal and Harold Spaeth, The Supreme Court and the Attitudinal Model Revisited (New York: Cambridge University Press, 2002). 21. Barry Friedman, “Taking Law Seriously,” Perspectives on Politics 4 (2006): 261–­76; Michael Bailey and Forest Maltzman, “Does Legal Doctrine Matter?” American Political Science Review 102 (2008): 369–­84, 372; Howard Gillman, “What’s Law Got to Do with It? Judicial Behavioralists Test the ‘Legal Model’ of Judicial Decision Making,” Law and Social Inquiry 26 (2001): 465–­504. 22. See chapter 1, nn. 25 and 26. 23. See chapter 1, nn. 25 and 26. 24. Mark Graber, “The Second Freedmen’s Bureau Bill’s Constitution,” Texas Law Review 94 (2016): 1361–­1402. 25. Sean Beienburg and Paul Frymer, “The People against Themselves: Rethinking Popular Constitutionalism,” Law and Social Inquiry 41 (2016): 242–­66. 26. Thomas, Madisonian Constitution, 3–­5, 158, 237; Whittington, Political Foundations of Judicial Supremacy, 48; Larry Alexander and Lawrence B. Solum, “Popular? Constitutionalism? The People Themselves: Popular Constitutionalism and Judicial Review,” Harvard Law Review 118 (2005): 1594–­1640, esp. 1617–­20. For friendly amendments in the form of a civic constitution taking such critiques into account, see Beaumont, Civic Constitution; and Finn, Peopling the Constitution, esp. 5–­8. Alan Tarr (“Popular Constitutionalism in State and Nation”) argues that more flexible state constitutions, with easier processes for amendments and referenda—­not unlike

306

notes to pages 235–240

those the AAPA used—­serve to salvage popular constitutionalism by situating it within clear, institutional forms. 27. Tocqueville, Democracy in America, 156. 28. Post, “Prohibition in the Taft Court Era,” 6. Post marshals similar sentiments from others. 29. Post, “Prohibition in the Taft Court Era,” 51. 30. Post, “Prohibition in the Taft Court Era,” 25–­26. 31. McGirr, War on Alcohol, 101, 172. 32. Okrent, Last Call, 291; Kyvig, Repealing National Prohibition, 66. 33. Walsh, “Maryland and the Policy of National Prohibition,” 282. 34. How deeply federalist ideas permeated among voters in the 1930s is the subject of an academic debate that I will not adjudicate here beyond noting the commonplace observation that these ideas were clearly not as potent a singularly organizing issue as the AAPA turned Liberty League had hoped. See chapter 10, n. 58. 35. Christopher H. Achen and Larry M. Bartels, Democracy for Realists: Why Elections Do Not Produce Representative Government (Princeton, NJ: Princeton University Press, 2016). 36. Jack S. Blocker, “Did Prohibition Really Work? Alcohol Prohibition as a Public Health Innovation,” American Journal of Public Health 96 (2006): 233–­43. 37. J. C. Burnham, “New Perspectives on the Prohibition ‘Experiment’ of the 1920s,” Journal of Social History 2 (1968): 51–­68. 38. On the hostility to class legislation in American politics, see Gillman, Constitution Besieged; and David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (Chicago: University of Chicago Press, 2011). 39. Jessica Bulman-­Pozen and Heather Gerken, “Uncooperative Federalism,” Yale Law Journal 118 (2009): 1256–­1310. 40. Printz v. United States, 521 U.S. 898 (1997); Murphy v. NCAA, 584 U.S. —­—­ (2018). 41. Randy E. Barnett, “The Original Meaning of the Necessary and Proper Clause,” University of Pennsylvania Journal of Constitutional Law 6 (2003): 183–­ 221; Gary Lawson, Geoffrey P. Miller, Robert Natelson, and Guy Seidman, The Origins of the Necessary and Proper Clause (New York: Cambridge University Press, 2013). 42. Read and Allen, “Living, Dead, and Undead”; Sanford Levinson, “The 21st Century Rediscovery of Nullification and Secession in American Political Rhetoric,” in Levinson, ed., Nullification and Secession, 10–­52; Sean Beienburg, “Contesting the U.S. Constitution through State Amendments,” Political Science Quarterly 128 (2014): 55–­85; John Dinan, “Contemporary Assertions of State Sovereignty and the Safeguards of American Federalism,” Albany Law Review 74 (2011): 1635–­67; Sean Wilentz, “States of Anarchy: America’s Long, Sordid Affair with Nullification,” New Republic, 4/29/2010, 5.

notes to pages 241–244

307

Coda 1. “GOP Candidates Divided on Marijuana,” CNBC, 10/23/2015, http://www​ .cnbc.com/2015/10/23/gop-candidates-divided-on-marijuana.html. 2. Abraham, Justices and Presidents, 359. 3. Young, “Marijuana, Nullification, and the Checks and Balances Model of Federalism.” Like Young, I take no position on the merits of drug regulation as a policy good. 4. As Young (“Marijuana, Nullification, and the Checks and Balances Model of Federalism,” 126–­30) observes, in an age of cooperative rather than dual federalism, this has the effect of crippling federal policy. 5. Young, “Marijuana, Nullification, and the Checks and Balances Model of Federalism.” 6. Whittington, Political Foundations of Judicial Supremacy, 28–­81; Saikrishna Prakash, “The Executive’s Duty to Disregard Unconstitutional Laws,” Georgetown Law Journal 96 (2008): 1613–­83. 7. Rachel Weiner, “Obama: I’ve Got ‘Bigger Fish to Fry’ Than Pot Smokers,” WP, 12/14/2012. 8. “Guidance Regarding Marijuana Enforcement,” 8/29/2013, https://www.jus​ tice.gov/iso/opa/resources/3052013829132756857467.pdf; “Obama Administration Will Not Block State Marijuana Laws If Distribution Is Regulated,” WP, 8/29/2013; “US Won’t Sue to Reverse States’ Legalization of Marijuana,” NYT, 8/29/2013. 9. “Holder: Feds to Set Rules for Banks and Pot Money,” Politico, 1/23/2014, https://www.politico.com / blogs /under-the-radar/2014 /01/holder-feds-to-set​ -rules-for-banks-and-pot-money-181777. 10. “Grassley Blasts Obama Weed Memo,” The Hill, 2/15/2014, http://thehill​ .com/policy/finance/198497-grassley-obama-cant-change-law-with-weed. 11. While in 1920 the Court splintered on questions such as the states’ obligations, even the dissenting justices agreed that the amendment authorized the federal government to act. 12. The case was 6–­3, but among the six was Scalia, for whom Raich was an outlier and depended on Wickard, which he later rejected. See chapter 1, n. 9. 13. May 1920–­May 1929: (prohibition or beer) and (“states’ rights” or “state’s rights”); May 2005–­May 2014: marijuana and (“states’ rights” or “state’s rights”); using BG, CT, LAT, NYT, WSJ, WP. Note that this vastly undercounts the disparity as other formulations such as “the sovereign rights of states,” common in the 1920s, would not appear. I have waded through thousands of ProQuest articles mentioning states’ rights in the context of prohibition in the 1920s. 14. For example, even Heather Gerken, the most prominent modern defender of progressive federalism, offers a vision quite unlike states’ rights dual federalism. See Heather Gerken, “A New Progressive Federalism,” Democracy: A Journal of Ideas 24 (Spring 2012), http://www.democracyjournal.org/24/a-new-progressive​ -federalism.php?page=all.

308

notes to pages 244–248

15. “2016 Democratic Party Platform,” http://www.presidency.ucsb.edu /ws /index.php?pid=117717. 16. “Repeal Prohibition, Again,” NYT, 7/27/2014. 17. For example, “The Prohibition Amendment,” NYT, 1/21/1920, 6; and “From Root to Coolidge,” NYT, 5/17/1926, 20. 18. “Right on Marijuana,” National Review, 6/27/2011, http://www.nationalre​ view.com/articles/270520/right-marijuana-editors. The 1996 National Review editorial coming out against the war on drugs did not similarly invoke a states’ rights claim. See “The War on Drugs Is Lost,” National Review, 2/12/1996, http://www​ .nationalreview.com/article/383913/war-drugs-lost-nro-staff. 19. Washington Initiative 502, 2012, http://sos.wa.gov/_assets/elections/initia​ tives/i502.pdf. 20. Preface, Colorado Amendment 64, Colorado Constitution Article XVIII, 2012. 21. 2012 State Ballot Information Booklet (Denver: Legislative Council of the Colorado General Assembly, 2012), https://leg.colorado.gov/sites/default /files/2012_english_blue_book_internet_version.pdf. 22. For discussion of the messaging in the 2012 votes, see Beienburg, “Contesting the U.S. Constitution,” 77–­80. 23. Amicus Curiae Brief in Support Respondents in Gonzales v. Raich, on behalf of NORML, 10/13/2004, 10–­14; Amicus Curiae Brief in Support Respondents in Gonzales v. Raich, from the States of Alabama, Louisiana, and Mississippi, 10/13/2004. 24. See Kyvig, Repealing National Prohibition. 25. “George Soros’s Real Crusade: Legalizing Marijuana in the U.S.,” Washington Times, 4/12/2014; “Billionaire Activists Like Sean Parker and George Soros Are Fueling the Campaign to Legalize Pot,” LAT, 11/2/2016; “In Washington, Marijuana Proponents Outspent Opponents 400 to 1,” New Republic, 11/16/2012, https://newrepublic.com /article /110233/marijuana-ballot-initiatives-colorado​ -washington-won-because-other-side-was-broke. 26. Anthony Downs, An Economic Theory of Democracy (New York: Harper & Bros., 1957), 118–­20. 27. Naomi Murakawa, The First Civil Right: How Liberals Built Prison America (New York: Oxford University Press, 2014). 28. “Sen. Dianne Feinstein Resolute in Opposition to Legalizing Pot,” LAT 1/14/2015. 29. “GOP Candidates Divided on Marijuana,” CNBC, 10/23/2015, http://www​ .cnbc.com/2015/10/23/gop-candidates-divided-on-marijuana.html. 30. “Ted Cruz Reiterates His Support for Marijuana Federalism,” Reason, 4/11/2016, http://reason.com/blog/2016/04/11/ted-cruz-reiterates-his-support-for-mari. 31. Rick Perry, Fed Up! Our Fight to Save America from Washington (New York: Little, Brown, 2010); “Ted Cruz Picks Chief of Staff: Chip Roy, Chief Ghostwriter on Rick Perry’s Anti-­Washington Tome Fed Up!” Dallas Morning News, 11/28/2012.

notes to pages 248–249

309

32. Mike Lee, Our Lost Constitution: The Willful Subversion of America’s Founding Document (New York: Sentinel, 2015), 131–­53, 204–­5. 33. “Jeb Bush Says Lets States Legalize Marijuana,” C-­SPAN, 2/27/2015, https:// www.c-span.org/video/?c4529611/jeb-bush-says-let-states-legalize-marijuana. 34. “GOPers Open the Door to Legal Marijuana,” MSNBC, 9/17/2015, http:// www.msnbc.com/msnbc/gop-just-legalized-marijuana. 35. “Rolling Stone and Mitch Daniels Concur: Obama Is a Narc,” National Review, 12/10/2012, http://www.nationalreview.com/corner/335240/rolling-stone​ -and-mitch-daniels-concur​-obama-narc-betsy-woodruff. 36. See the collection of polls in “Marijuana Legalization and States Rights,” NYT, 12/8/2012; and “Poll: South Carolina Voters Oppose Federal Interference in State Marijuana Laws,” http://blog.norml.org/2015/09/10/poll-south-carolina​ -voters-oppose-federal-interference-in-state-marijuana-laws. 37. Morone, Hellfire Nation, 311.

Index AAPA. See Association against the Prohibition Amendment Abbott, Everett V., 268n136 Ableman v. Booth, 22 abolitionism, 9, 22, 82. See also race; slavery; women’s rights Adams, Henry, 7, 76 Adams, John, 76 Adams, John Quincy, 76 Adlow, Elijah, 118 Afro-­American, 258n23 Alabama, 2, 31, 101, 162, 173, 197, 245 Alger, Horatio, 169 Alien and Sedition Acts, 19, 177 Alito, Samuel, 3 Allen, Frank, 186, 188 Allen, J. Weston, 44, 85–­86, 115–­18, 124 Amendment 64 (Colorado), 245, 253n4 American Federation of Labor, 85 American Medical Association, 13 Amsterdam News, 13 Anderson, Henry, 195 Anderson, William, 27, 62, 93–­96, 154, 175, 229 Andrews, Lincoln, 156–­58 Anslinger, Harry, 232 Anti-­Saloon League (ASL): influence of, 5–­6, 133–­34, 140–­47, 188–­91, 255n24; marijuana legalization and comparisons to, 245–­49; nationalization of prohibition and, 15, 27–­28, 33–­41, 49, 266n100; in postprohibition years, 230–­32; racism and, 11–­12, 36–­37, 266n106; ratification and implementation of prohibition and, 52, 61–­62, 69–­75, 80–­89, 93–­105, 109–­12;

repeal of prohibition and, 217–­18, 225, 233; state level resistance to prohibition and, 150–­63, 168–­77, 180–­84; weakening of support for prohibition and, 115–­30, 194, 198–­200, 210–­11, 279n109 Arizona, 161, 166–­67, 199, 224–­25, 228 Arnold, Craig, 131–­33 Articles of Confederation, 45 ASL. See Anti-­Saloon League Association against the Prohibition Amendment (AAPA): campaigns of, 107, 128–­31, 137–­38, 143, 184–­91, 195–­97; federalism and, 26, 37–­38, 64, 75, 134, 306n34; marijuana legalization and comparisons to, 245–­47; in postprohibition years, 231–­32; repeal of prohibition and, 210–­14, 217, 223–­27; state level resistance to prohibition and, 150, 154, 158–­61, 205 Atlanta Constitution, 132–­33 Austin, William, 74 Bacon, Selden, 191, 268n136, 297n70 Baker, John, 163 Baker, Newton, 194, 218 Baltimore Sun, 9, 58, 63, 131, 143, 244 Barchfield, Andrew, 32 Barker, James, 152 Barkley, Alben, 31 Barnett, Randy, 3 Barrett, Hugh, 89 Barrett, Jesse, 72 Bartlett, John, 49 Bascom, John, 73 Baxter, Percival, 114, 130, 139

312 Bayard, Thomas, 190 Beck, James, 102, 216–­17, 225, 231 beer bills, 74–­75, 82–­90, 95–­97, 114–­15, 137, 168, 207, 215 Bingham, Hiram, 151, 204, 218, 224, 237 Birth of a Nation (film), 11 Black, Hugo, 64–­65, 162 Blaine, James, 38 Blaine, John J., 74–­75, 128–­31, 134, 139, 161–­64, 181–­83, 224–­25, 274n100 Blease, Cole, 12 Boardwalk Empire (film), 3 Borah, William, 24, 101–­2, 147, 156, 173–­74, 199, 218, 233 Boston Globe, 117, 186 Brandeis, Louis, 144, 230 Brandon, Mark, 261n25 Brennan, George, 162 Brogdon, Matthew, 24 Brown, Thomas, 89 Browne, Edward, 32 Bruce, William Cabell, 64, 138 Brucker, Wilber, 207 Bryan, Charles, 146, 179 Bryan, William Jennings, 39, 59–­65, 90–­91, 101, 120, 145–­46, 166, 179, 211, 271n36 Buchanan, James P., 23 Buckner, Emory, 154 Buford, Rivers, 178 Bugbee, Newton, 87 Bureau of Prohibition, 211, 232 Burgess, John, 236 Burke, Edmund, 18 Burke, Timothy, 181–­82 Bush, Jeb, 248–­49 Butler, Nicholas Murray, 46, 154, 163, 171–­ 73, 217, 229 Butler, Pierce, 50 Butler, William, 188–­89 Buttrick, Allan, 80, 85, 116 Calhoun, John C., 21–­25, 54, 63, 68, 88, 100, 121, 165, 240, 260n8 California: enforcement of prohibition in, 12, 103, 124; marijuana legalization and, 2, 241; ratification of prohibition and, 66–­69, 72, 75; resistance to prohibition in, 115–­21, 150–­52, 158–­61, 198–­99, 224 California Commonwealth Club, 67 Canada, 123, 199–­201, 206, 230

index Canfield, Palmer, 140 cannabis. See marijuana legalization Cannon, James, 39, 173–­77 Cannon, Joseph, 36, 39 Cantrill, Campbell, 31, 38 Capone, Al, 70 Case, Norman, 184, 215 Catholicism, 10, 77–­80, 145, 154, 166, 170–­ 73, 275n4. See also Protestantism Cato Institute, 245 Celler, Emanuel, 156 Cermak, Anton, 180, 184, 304n10 Chafin, Eugene, 50, 228, 233, 266n106 Champion v. Ames, 29 Chase, Salmon P., 71, 187 Chicago Defender, 13, 218, 258n24 Chicago Tribune, 13, 51, 111, 114, 136, 179–­80 Christian Science Monitor, 116, 141, 189, 212, 277n50 Christiansen, Theodore, 208 Civil War, 7, 23, 32, 35, 71, 164–­65 Clark, Champ, 33 Clark, William, 191 Clarke, John, 47–­48 classism, 9–­12, 236–­38. See also gender; race Clement, Percival, 46, 77 Cleveland, Grover, 32, 38 Colorado, 1–­3, 158–­59, 224, 242–­45, 253n4 commerce clause, 2, 27–­30, 52, 202, 232, 242, 248. See also interstate commerce compact theory, 19–­24, 91, 96, 262n27. See also federalism; nullification Comstock, Ada, 193 concurrent enforcement: constitutionalism and, 238–­40, 243; federalism and, 42–­49, 139–­43, 268n151; implementation of Eighteenth Amendment and, 17, 52–­58, 62, 67–­80, 85–­99; repeal of prohibition and, 214–­16, 222–­27, 233; state level resistance to prohibition and, 149–­64, 168, 174, 177–­92, 196–­210, 300n147; weakening of support for prohibition and, 100–­ 101, 105–­7, 113–­14, 118, 123–­26, 283n77. See also police power; states’ rights Congressional Record, 35 Conley, William, 198, 221 Connecticut: federalism and, 19, 45; prohibition legalism and, 92, 99, 114–­16, 133, 151, 202–­5; ratification of prohibition

index and, 42, 52–­54, 78–­79, 86; repeal of prohibition and, 188, 196, 202–­5, 215, 218, 224, 227 Constitution, US. See constitutionalism; and specific amendments and clauses Constitutional Convention, 35, 45, 78 constitutionalism, 3–­6, 53, 60, 81–­87, 114–­ 19, 135–­48, 229–­40, 254n23. See also federalism; prohibition legalism constitutionalism, popular, 4, 26, 87, 121, 142, 168, 233–­49, 305n26 Constitutional Liberty League, 82, 116, 142, 168, 185, 283n77 Continental Op(erative), 3, 176 Controlled Substances Act, 2, 241–­42, 249, 253n4 Coolidge, Calvin: federalism and, 25–­26, 83–­ 87, 156–­57, 213, 287n9; presidential election of 1928 and, 169–­70, 190, 293n99, 293n103; prohibition enforcement and, 126, 130, 174–­76; prohibition legalism and, 76–­77, 95–­102, 115–­19, 135–­39, 144–­ 47, 151, 185–­86, 208–­10, 234 Coolidge, Louis, 82, 115–­16 Coolidge, Marcus, 189 Corwin, Edward, 191 Cox, Channing, 115–­19, 141 Cox, James, 135, 145–­46 Cross, Wilbur, 196, 204, 227 Crump, E. H., 197 Cruz, Ted, 248–­49 Cullen-­Harrison Act, 227 Cummings, Homer, 90–­91, 141 Curran, Henry H., 150, 196, 229 Cuvillier, Louis, 105, 214 Daniels, Mitch, 248 Darrow, Clarence, 174 Davenport, Frederick, 14, 98, 147 Davis, Jefferson, 22–­23, 54, 60 Davis, John W., 28, 146–­47, 231 Delaware, 188, 197 Democratic National Committee, 90–­92, 172 Democratic Party: elections of 1924 and, 144–­47, 169; elections of 1928 and, 170–­ 74; elections of 1932 and, 201, 223–­24, 304n10; elections of 1936 and, 231–­32; federalism and, 23–­25, 28–­32, 265n88, 299n127; legalization of marijuana and, 243–­44, 247–­49; pushback against

313 prohibition and, 104–­12, 115–­28, 133, 142; ratification and implementation of prohibition and, 38–­39, 54–­56, 60–­66, 71, 87–­97, 141; reactions to prohibition and, 5–­7; repeal of prohibition and, 215–­27; state level resistance to prohibition and, 155–­63, 168, 180–­90, 198–­99, 207–­12. See also Republican Party; and specific politicians Democratic-­Republican Party, 19–­21 Department of Justice, 211, 243 Department of Prohibition (West Virginia), 198 Department of the Treasury, 93, 211 Diskin, M. A., 125 Doran, James, 183 Dow, Neal, 15 Downs, Anthony, 247 Dred Scott v. Sandford, 22 dual sovereignty, 18, 34, 47–­49, 63, 237, 307n14. See also federalism Du Bois, W. E. B., 13 Duncan, Thomas, 164–­65, 181 Duncan Bill, 164 Du Pont, Pierre, 197, 246 Du Pont Family, 37, 197, 231 Edge, Walter, 136, 156, 172–­73 Edge Near Beer Bill, 197 Edwards, Edward, 54, 76–­77, 87–­94, 111–­12, 144, 156–­58, 162, 173–­74, 230, 277n50 Eighteenth Amendment: constitutionalism and, 4–­7, 135–­48, 229–­40; federalism and, 3–­7, 17–­50, 265n81, 266n100, 268n151; liberalism and, 8–­16; marijuana legalization and, 241–­49; noble experiment era and, 176–­212, 297n89; race and, 4, 7–­13, 258nn24–­25, 265n88, 266n106; ratification and implementation of, 51–­102, 270n6, 275n4, 282n37; repeal of, 4–­6, 213–­28, 295n27, 299n123, 300n147, 304n70; state level resistance to, 149–­75; weakening of support for prohibition and, 99–­134 Elliot, Charles, 115 Ellis, William, 178 Ely, Joseph, 189, 196, 200–­201 Emmerson, Louis, 208–­11 Evejue, William, 73 Executive Order 4439, 156–­57

314 Farewell Address (Washington), 84 Farley, James, 219 federalism: constitutionalism and, 139, 147–­ 48, 202, 217, 230–­40, 261n25, 262n27; dual, 18, 34, 47–­49, 63, 237, 307n14; legalization of marijuana and, 2–­3, 7, 241, 244–­49, 253n9; nationalization of prohibition and, 3–­7, 27–­50, 260n9, 265n88, 268n151; noble experiment era and, 176–­77, 191, 204–­6; racism and, 10–­13; ratification and implementation of prohibition and, 52–­67, 74, 79–­92, 98; Sheppard-­Towner Act and, 82, 107, 114, 213, 280n115, 287n9; state level resistance to prohibition and, 142–­44, 154, 160–­63, 166, 173, 179; weakening of support for prohibition and, 104–­16, 132–­34. See also states’ rights Federalist (Hamilton, Jay, and Madison), 84, 234, 276n34 Federal Relations Committee (Maryland), 59 Fed Up! (Perry), 248 Feinstein, Dianne, 247 Ferrell, Robert, 192 Fess, Simeon, 109, 282n37 Fifteenth Amendment, 13, 26, 57, 81, 136, 143, 172, 180 Fifth Amendment, 49, 136 Fiorina, Carly, 248 Fitts, Burton, 198 Five-­and-­Ten Act, 177 Florida, 173, 178, 227 Food and Fuel Control Act, 265n82. See also Lever Act Force Bill, 81, 88 Forgrave, William, 141–­42 Forrester, James, 236 Fourteenth Amendment, 11–­13, 26, 65, 136, 143, 180–­82 Fourth Amendment, 41, 111, 129, 136 Frankfurter, Felix, 154 Franklin, Fabian, 10–­11 Frick, George, 61, 271n41 Fugitive Slave Act, 22, 155 GAA, 36–­37, 40 Garner, John Nance, 218, 225 Garrett, Daniel, 30 gender, 9–­10, 32, 81, 102, 281n12. See also classism; race

index general welfare clause of the tax power, 30–­31, 218 George, David Lloyd, 34 Georgia, 16, 131–­33 Gerken, Heather, 307n14 German American Alliance (GAA), 36–­37, 40 German immigrants, 70–­73, 166, 269n5. See also immigrants Gerry, Peter, 185 Gettleman, Bernhard, 152–­53, 183 Gillett, Ransom, 95–­96, 107, 147, 185 Ginsburg, Douglas, 241 Glass, Carter, 139 Gonzales v. Raich, 2–­3, 242–­46, 253n9 Goodland, W. S., 164 Graber, Mark, 234 Grape Growers Association, 68–­69, 120, 160 Great Depression, 188, 207, 224 Greene, Frank, 149, 230 Grubb, William, 194 Guthrie, William, 45–­47, 50, 95 Hadley, Arthur, 236 Hall, John C., 165 Hamilton, Alexander, 35 Hamilton, John D., 231 Hamm, Richard, 41 Hammett, Dashiell, 3. See also Continental Op(erative) Harding, Warren G.: prohibition and, 40–­ 41, 50, 93, 99, 108–­11, 132–­37, 170, 192; racial politics of, 56, 137, 157 Hardwick, Thomas, 35 Harlan, John Marshall, 32 Harris, M. B., 67–­69 Harris Act, 66–­69, 120 Harrison, Orlando, 271n41 Harrison Act, 232 Hartford Convention, 19–­20 Hartley, Roland, 199 Hartz, Louis, 259n39 Haskell, Reuben, 65 Haslup, Mary, 100 Hayne, Robert, 21–­22 Hearst, William Randolph, 177 Hill, John Phillip, 26–­28, 64, 143, 156, 230 Hobart Act, 152, 215–­16 Hobson, Richmond, 15, 28, 31–­37, 54–­57, 145, 266n100

index Hobson-­Sheppard proposal, 28–­33, 42, 55, 149 Hofstadter, Richard, 9–­10, 134 Holder, Eric, 243 Holmes, Oliver Wendell, 29, 147 Hood Act, 57–­58, 220, 225 Hoover, Herbert: election campaigns of, 91, 97, 167–­75, 293n103; federalism and, 41, 176, 231, 259n39, 293n99; noble experiment and, 3, 137, 176–­83, 187–­96, 200, 203, 209–­11, 242; progressivism of, 259n39, 274n100, 293n99; repeal of prohibition and, 214, 218–­20, 223–­27 Horner, Henry, 209 House Temperance Committee, 133 Hughes, Charles Evans, 44, 236, 293n99 Hunt, George, 49 Hyde, Arthur Mastick, 127 Idaho, 102, 199 Illinois: prohibition legalism and, 70, 126–­ 27, 131–­33, 150, 163, 208–­11; resistance to prohibition in, 158, 162–­63, 179–­81, 184, 188–­90, 196, 208–­11 Illinois Prohibition Act, 208 immigrants: class politics and, 232, 275n4; German, 70–­73, 166, 269n5; policies on, 243, 247; push for prohibition and, 9–­10, 15, 37; resistance to prohibition and, 56, 70–­72, 77, 86, 127, 147, 166, 225 Inaugural Address (Hoover), 176 Inaugural Address, First (Lincoln), 262 Indiana, 207, 222, 300n153 individualism, 8–­9, 17, 24, 259n39. See also liberalism interstate commerce, 2, 27–­29, 44–­48, 173, 232, 242, 245, 263n56. See also commerce clause intrastate commerce, 2, 45–­48, 88 Iowa, 207, 249 Jackson, Andrew, 21–­24, 30–­32, 46, 242 Jackson, Edward, 207 Jackson, Howard, 64 Jefferson, Thomas, 9, 19–­21, 32, 56, 230, 242 Jenks, Edmund, 200 Jenks Bills, 140, 155 Johnson, Gary, 248 Johnson, Hiram, 66, 69, 119 Jones, Dow, 92

315 Jones, E. F., 121, 124–­25 Jones, Guy L., 166–­67 Jones, Wesley, 177, 224 Jones, Willis, 62 Jones Act, 62, 177–­78, 183, 210, 224, 232 Jordan, David Starr, 160 Kansas, 16, 70, 168, 192, 214, 230 Karle, John, 155 Kean, Hamilton, 162 Kelly, Clyde, 36 Kennedy, John F., 56 Kentucky Resolution, 19–­20, 54, 87. See also states’ rights Kenyon, William, 194 Kersch, Ken, 191 Key, V. O., 134 Kiernan, James H., 142, 184 Kohler, Walter, 182–­83 Ku Klux Klan, 11–­12, 39, 56, 101, 145, 154, 162, 207, 300n153. See also white supremacy Kyvig, David, 3, 138, 211 La Follette, Robert, 31, 72–­74, 146–­47, 166–­ 68, 293n99 La Follette, William, 30–­31 La Guardia, Fiorello, 64 Lake, Everett, 79 Landon, Alf, 231 Larson, Morgan, 203 Law and Order League, 73 League of Women Voters, 116, 281n12 Lee, Mike, 248 Lee, Robert E., 54 legalization of marijuana, 1–­4, 232, 241–­49, 253n4 Lehman, Herbert, 229 Lemann, Monte, 194, 220 Lenroot, Irvine, 32, 74, 161–­62, 181 Leuchtenberg, William, 171 Lever, Frank, 265n82 Lever Act, 34, 40–­41, 170, 265n82 Lewis, J. Hamilton, 181, 188, 199, 208 liberalism, 8–­16, 259n39. See also individualism Liberal Tradition in America, The (Hartz), 259n39 libertarianism: antiprohibitionism and, 7–­9, 15, 137, 149; federalism and, 41, 45, 74,

316 libertarianism (cont.) 231–­32; legalization of marijuana and, 232, 245–­48; weakening of support for prohibition and, 105, 111–­12, 128–­29, 144–­45 Liberty League, 7, 106–­7, 147, 189, 231–­32, 246, 306n34 Lincoln, Abraham: constitutionalism and, 210, 242, 296n54; federalism and, 23–­24, 32, 173, 217, 261n25, 262n27; support for temperance of, 9, 14 Lincoln, Alexander, 168, 171 Lindbergh, Charles, 190 Linthicum, John, 216 Lippman, Walter, 138, 171 Literary Digest, 187, 213, 223–­25 Livingston, Edward, 21–­24, 46 Locke, John, 83 Lodge, Henry Cabot, 34, 81–­82, 115–­16, 132, 139, 142, 181, 189, 192, 236 Long, Huey, 172, 197, 220 Longworth, Nicholas, 43 Los Angeles Times, 68 Louisiana, 2, 19, 57–­58, 178, 220–­22, 225, 245 Lunn, George, 105 Lyceum Address (Lincoln), 210 MacGrath, John F., 114 Machold, Edmund, 105, 140 Mackintosh, Kenneth, 193 Madison, James, 19–­21, 45, 78, 254n23, 260n12, 260nn8–­9 Maine, 15–­16, 77, 114, 168, 205 Maine Laws, 16 Mann, James, 32 Marbury, William, 59–­60 marijuana legalization, 1–­4, 232, 241–­49, 253n4 Marijuana Policy Project (MPP), 245–­46 Marijuana Tax Act, 232 Marks, Adolph, 127 Marshall, John, 20, 24, 46, 79 Maryland: ratification and implementation of prohibition and, 53, 57–­65, 75–­76, 86; repeal of prohibition and, 188, 196, 213, 230, 237; resistance to prohibition and, 100–­103, 114–­17, 131, 139–­47, 156, 165–­ 66, 185, 258n23 “Maryland Free State, The” (Owens), 58

index Massachusetts: constitutionalism and, 19, 114–­19; ratification and implementation of prohibition and, 76, 80–­86, 95, 99, 103, 126, 139–­42, 150; repeal of prohibition and, 165–­68, 173, 184–­89, 200–­201, 205, 213–­15 Matheson Bill, 74–­75 Maysville Road extension, 22, 30 McAdoo, William, 24, 101, 120–­21, 144–­47, 169–­70, 211, 218 McBride, Edgar, 62 McBride, Scott, 127, 172, 175–­77 McCormick, Joseph, 180 McCormick, Paul, 194 McCormick, Ruth Hanna, 180–­81, 188 McCran, Thomas, 45, 89 McCulloch v. Maryland, 79 McGirr, Lisa, 3, 53, 236, 293n99 McHenry, A. C., 128 McKenna, Joseph, 46–­47 McLean, John, 22 McReynolds, James Clark, 47, 50 medicinal liquor, 34, 74–­75, 123–­25, 202, 214, 222 medicinal marijuana, 2, 244. See also marijuana legalization Mellon, Andrew, 93, 163, 211 Mencken, H. L., 9, 26, 63–­65, 71, 134, 170, 176, 217, 223 Merz, Charles, 138 Michigan, 22, 179, 207, 224, 300n147 Mill, John Stuart, 15–­16 Miller, John H., 124 Miller, Nathan: federalism and, 110–­11, 133, 280n115, 287n9; loss of popularity and, 141, 237–­39, 281n12; prohibition legalism and constitutionalism and, 26, 137, 231, 234, 237–­39; prohibition legalism and implementation of prohibition and, 77, 97–­98, 104–­6, 140, 147; Sheppard-­ Towner Maternity Act and, 97, 114, 280n115, 281n12, 287n9 Miller, Samuel, 23, 32 Milliken, Carl, 45, 141 Minnesota, 70, 165, 207–­8, 300n156 Mississippi, 2, 16, 22, 60, 92, 214, 230, 245 Missouri, 70–­72, 127, 131, 158–­59, 179, 193, 269n5 Mondell, Franklin, 30 Montana, 158–­60, 168, 174, 181, 199, 213

index Moore, Harry, 152, 157, 215 Morone, James, 4, 28 Morrison, Martin, 17, 28, 33, 264n75 Morrison Amendment, 28–­29, 32–­33, 54, 264n75 Morrow, Dwight, 190, 203, 219 MPP, 245–­46 Mugler v. Kansas, 18 Mulberger Act, 74–­75 Mullan-­Gage Act, 98, 104, 107–­11, 136, 140, 164, 171, 219. See also prohibition Murray, Robert K., 293n99 Narcotics Bureau, 232 Nation, 46 National Association of Colored Women, 13, 258n25 National Commission on Law Observance and Enforcement. See Wickersham Commission National Organization for the Reform of Marijuana Laws (NORML), 245–­46 National Prohibition Act. See Volstead Act National Prohibition Cases: legalization of marijuana and, 242–­43; role in pro­ hibition of, 46, 57, 69, 74, 78, 92–­94, 164; states’ rights advocates and, 100, 191 National Recovery Act, 107 National Review, 245 nativism, 36–­37. See also race; xenophobia Nebraska, 1–­2, 178–­79, 242, 270n6 Nebraska and Oklahoma v. Colorado, 1 necessary and proper clause, 239 Nevada: ratification and implementation of prohibition and, 54, 65, 270n6; repeal of prohibition and, 158, 161, 193, 199, 213, 222; resistance to prohibition and, 121–­ 26, 133, 139, 147–­52 Nevada State Journal, 122 New Deal, 4, 7, 30, 50–­52, 231, 242, 263n56, 293n99, 304n10 New Hampshire, 77, 188, 205 New Jersey: ratification and implementation of prohibition and, 42, 52–­53, 78, 86–­92, 99, 102, 270n6; repeal of prohibition and, 188–­90, 202–­5, 215–­18; resistance to prohibition and, 111–­12, 151–­52, 156–­57, 184 New Mexico, 54, 65, 166, 270n6

317 New York: constitutionalism and, 200–­202; early influence of prohibition in, 16, 38; ratification and implementation of prohibition in, 90–­101, 270n6; repeal of prohibition, 139–­41, 147–­48, 171, 188, 205, 213–­15, 219; resistance to prohibition and, 104–­11, 114, 126, 133, 136, 150–­58, 162–­64 New York Herald-­Tribune, 157, 190 New York Times, 46, 80, 84, 95, 108, 138, 152, 191, 227, 244, 265n81 New York Tribune, 96 Nineteenth Amendment, 13, 54 Ninth Amendment, 18 Ninth Circuit, 2 Nitti, Frank, 70 noncommandeering doctrine, 6, 185, 196, 205, 234, 237–­40. See also nullification; states’ rights Noonan, Herbert, 73 NORML, 245–­46 Norris, William, 61, 271n41 North American Review, 64 North Carolina, 16, 173, 214, 228, 304n70 North Dakota, 16, 70, 167–­68, 174, 188, 224 nullification: constitutionalism and accusations of, 142, 232–­33, 236–­40; federalism and discussions of, 6, 18–­26, 43, 46–­48, 260n9; implementation of prohibition and discussions of, 53, 63, 67–­68, 77, 82–­ 91, 96–­98, 273n77; legalization of mari­ juana and, 2, 241–­43; repeal of prohi­ bition and, 215, 218, 227; state level resistance to prohibition and, 149–­52, 156–­57, 161–­65, 168, 185–­86, 192–­96, 207–­8; weakening of support for prohibition and accusations of, 100–­103, 107–­11, 115–­18, 132–­36, 147, 179. See also secessionism; states’ rights oaths, constitutional, 5, 26, 83–­84, 87–­88, 95–­101, 110, 117, 119, 127, 131, 136–­37, 140, 150–­51, 165–­67, 172, 177, 183–­84, 209, 215, 225, 233–­34 Obama, Barack, 242–­43 O’Connor, Sandra Day, 2 O’Grady, Thomas, 126–­27 Ohio, 22, 70–­71, 207 Ohio State Monitor, 87 Oklahoma, 1–­2, 16, 197, 242

318 Okrent, Daniel, 12, 34 Olmstead, Gideon, 20 Olson, Floyd, 208 On Liberty (Mill), 15 Oregon, 199, 211, 224, 300n153 originalism, 6, 84, 191, 232, 239 Owens, Hamilton, 58 Pabst, Fred, 130 Parker, John, 57–­58 Parsons, Herbert, 87 Paul, Rand, 241, 248–­49 Pegram, Thomas, 12 Pennsylvania, 99, 102, 113–­14, 157, 162, 188, 205, 230, 270n6 Penrose, Bois, 99, 113 Pepper, George, 162 Perry, Rick, 248 Philipp, Emanuel, 73–­74, 166 Pinchot, Gifford, 99, 113–­14, 139, 162, 190, 205, 230 Polakowski, Walter, 153 police power: constitutional law and, 4, 18, 191–­95, 206; federalism and, 25–­26, 29–­ 32, 42–­48, 55; prohibition legalism and, 53, 79–­81, 98, 130; repeal of prohibition and, 208, 218, 232; states’ rights stance and, 59, 78, 85, 89, 93, 111, 140, 156, 186–­87, 268n136. See also concurrent enforcement popular constitutionalism, 4, 26, 87, 121, 142, 168, 233–­49, 305n26. See also constitutionalism “Popular Constitutionalism in State and Nation” (Tarr), 305n26 popular sovereignty. See originalism; states’ rights Post, Robert, 46 Pou, William, 31–­32 presidential election: of 1924, 144–­48; of 1928, 151, 167–­75; of 1932, 201–­2, 218–­ 19, 223–­27; of 2016, 241, 244, 248–­49 Printz v. United States, 239 Profiles in Courage (Kennedy), 56 Progressive Party, 14, 57, 66, 98, 119, 146–­47 Progressivism, relationship to liberalism. See liberalism prohibition: constitutionalism and, 4–­7, 135–­48, 229–­40; federalism and, 3–­7, 17–­50, 265n81, 266n100, 268n151;

index liberalism and, 8–­16; marijuana legalization and, 241–­49; noble experiment of, 99–­134, 176–­212, 297n89; race and, 4, 7–­13, 258nn24–­25, 265n88, 266n106; ratification and implementation of, 51– ­102, 270n6, 275n4, 282n37; repeal of, 4–­6, 213–­28, 295n27, 299n123, 300n147, 304n70; state level resistance to, 149–­75 prohibition legalism: constitutionalism and, 5, 26, 129–­30, 134–­39, 147–­48, 231–­39, 244, 254n23, 276n34; implementation of prohibition and, 53, 77–­80, 97–­100, 104–­19; legalization of marijuana and, 244–­46; noble experiment and, 177, 182–­ 84, 203–­5, 209–­11; state level resistance to prohibition and, 152–­54, 158, 161–­64, 172. See also constitutionalism Prohibition Party, 38, 50, 66–­68, 97, 266n106 Proskauer, Joseph, 105 Protestantism, 9–­10, 14–­15, 69–­70, 73, 174. See also Catholicism Publius, 234 race: civil rights and, 137, 143; federalism and, 25, 32, 257n11; prohibition and, 4, 7–­13, 258nn24–­25, 265n88, 266n106; ratification of Eighteenth Amendment and, 39, 54–­57, 172, 266n106; white supremacy and, 11–­13, 32, 39, 54–­57, 172, 257n11. See also classism; gender; immigrants; Ku Klux Klan; slavery racism. See Ku Klux Klan; race Raich, Angel, 3, 246 Raihle, Paul, 152 Raskob, John, 171–­72, 211, 231–­32 Reagan, Nancy, 241 Reagan, Ronald, 241 Reconstruction: constitutionalism and, 136–­37, 181–­82; federalism and, 23, 43, 47, 261n25; prohibition and, 10–­13, 163, 258n25; states’ rights and, 54, 57, 71, 157, 262n27 Reed, James: antiprohibitionism and, 34, 39, 70–­71, 75, 127; political position of, 144, 231, 274n100; state-­level resistance to prohibition and, 150, 156–­60, 173–­74, 179 Reed Bone-­Dry Amendment, 34–­35 Reeves, Crozer, 203 Rehnquist, William, 2

index Reinhardt, Stephen, 2 Reno Evening Gazette, 121–­26 Republican Party: constitutionalism and, 135–­47, 234; federalism and, 23–­26, 30–­32, 38–­39, 44, 231; implementation of prohibition and, 62–­66, 69, 72–­73, 77–­83, 86–­105; legalization of marijuana and, 241, 244–­49; noble experiment era and, 3, 177–­90, 193, 198–­212, 299n127; reactions to prohibition and, 38, 110–­20, 124, 127–­30; repeal of prohibition and, 215–­ 27; state level resistance to prohibition and, 151–­66, 171–­75. See also Democratic Party; and specific politicians Revolution, American, 18–­20, 35 Rhode Island: federalism and, 19, 42–­46; prohibition legalism and, 114–­16, 185, 202, 205; ratification of prohibition and, 52–­54, 78, 86, 92, 99, 102; repeal of prohibition and, 188–­89, 202, 205, 215; resistance to prohibition and, 142, 168, 173, 184–­85 Rice, Herbert, 45 Richards, Emerson, 203, 216 Richardson, Friend, 120, 161 Ritchie, Albert: constitutionalism and federalism and, 136, 139, 143–­46; elections of 1928 and, 170–­71; postprohibition and, 230–­31, 304n10; ratification and implementation of prohibition and, 58, 62–­64; repeal of prohibition and, 218–­ 19, 222, 239; state level resistance to prohibition and, 156, 185, 196; weakening of support for prohibition and, 100–­103, 107–­8, 111, 118, 130 Roberts, Adelbert, 163 Roberts, Owen, 191 Robinson, Joseph, 225 Rockefeller, John D., Jr., 217–­18 Rogers, Will, 131 Rolph, James, 198, 224 Roosevelt, Eleanor, 105 Roosevelt, Franklin D., 105–­9, 170–­71, 180, 189, 200–­202, 218–­19, 223–­32, 247, 293n99, 299n123, 304n10 Roosevelt, Theodore, 34, 37, 43–­44, 56–­57, 81, 113, 235–­36, 265n81 Roosevelt, Theodore, Jr., 96, 147, 279n109 Root, Elihu, 44–­52, 78–­81, 93, 107, 154, 163, 191, 229, 235, 268n136

319 Root, Elihu, Jr., 154 Roy, Chip, 248 Runyon, William, 88 Rush, Benjamin, 8 Sabin, Pauline, 210, 223, 229–­31, 247 Sachtjen, Herman, 129, 153 Sachtjen Bill, 129–­30 saloons as centers of political organizing, 10, 13, 37, 194–­95 Sanford, Edward Terry, 50 San Francisco Chronicle, 273n77 San Jose Mercury News, 68 San Souci, Emery, 78, 114–­15 Scalia, Antonin, 2, 239, 253n9, 307n12 Scarface (film), 3 Scott, Albert L., 121–­24 Scrugham, James, 123–­26 secessionism: accusations of, 63, 100, 105, 164; condemnations of, 71, 84; federalism and, 19–­23, 35, 261n25, 262n27; Southern states and, 97, 155–­56. See also nullification Second Bank of the United States, 22 Seelman, J. J., 75 Sentinels of the Republic, 82 Seventeenth Amendment, 102 Severson Bill, 75, 129–­30, 152–­53, 164–­65, 182 Shaw, George Bernard, 15 Sheppard, Morris, 12, 28, 31–­36, 41, 50, 54–­ 57, 197, 213, 225–­26, 265n82 Sheppard Amendment. See Eighteenth Amendment Sheppard-­Towner Maternity Act: federalism and opposition to, 44, 82–­85, 97, 102, 107, 114, 280n115, 287n9; origins and failure of, 213, 265n82, 281n12 Sherman, Roger, 45, 78 Sholtz, David, 227 Shouse, Jouett, 231 Silzer, George, 112–­13, 146, 151 Siracusa, Anthony, 203, 216, 237 Sixteenth Amendment, 36 Slaughterhouse Cases, 23, 48 slavery, 22, 30, 76, 173. See also abolitionism; race Slayden, Tom, 35 Sloan, Alfred, 217 Small, John, 35

320 Smith, Al: constitutionalism and federalism and, 136, 139–­41, 144–­47, 229–­31, 239, 282n37, 293n99; ratification and implementation of prohibition and, 90–­98; repeal of prohibition and, 202, 218–­19, 299n123; stance on prohibition of, 24–­26; state level resistance to prohibition and, 154–­56, 164, 167–­74, 185; weakening of support for prohibition and, 100–­111, 126, 131–­33 Smith, Frank, 162 Smith, Rogers, 9 Smith-­Lever Act, 265n82 Snyder, Charles, 113 Snyder, Simon, 20 Snyder Act, 113–­14 Soros, George, 246 South Carolina, 20–­24, 68, 76, 89, 92, 149, 228, 249, 304n70 South Dakota, 16, 70, 206 Southern Pacific Railroad, 66 Southern Politics in State and Nation (Key), 134 sovereignty. See dual sovereignty; states’ rights Spanish-­American War, 57 Spirit of 1798, 19–­21 “ ‘Sponge Squad’ Dries Up Joy of Bay State Men” (Chicago Tribune), 51 Sproul, William, 98–­99 Square Deal, 44 states’ rights: constitutionalism and, 3–­4, 135–­48, 230–­40, 260n8; federalism and, 3–­7, 17–­50, 261n25, 262n27, 265n86, 268n151, 287n9, 307n14; legalization of marijuana and, 2–­4, 244–­49; noble experiment era and, 178–­81, 185–­87, 191–­ 210, 299n127; race and, 10–­13, 257n11, 265n88; ratification and implementation of prohibition and, 53–­67, 71–­81, 87–­92, 98; repeal of prohibition and, 214–­27, 299n123; state level resistance to prohibition and, 4–­7, 149–­75; weakening of support for prohibition and, 100–­117, 130–­33. See also concurrent enforcement; federalism Stayton, William, 37, 64, 150, 159, 210, 230–­31, 236 Steele, Henry, 43 Stephens, William, 69

index Stevens, Thaddeus, 23 Stimson, Henry, 93 suffrage, 32, 81, 102, 281n12. See also women’s rights Sullivan, Matthew, 159–­60 Sumner, Charles, 23 supremacy clause: legalization of marijuana and, 1, 242, 253n4; prohibition and, 18, 43, 48, 53, 79, 82, 101, 164, 220. See also federalism; states’ rights Supreme Court: challenges to prohibition in front of, 44–­46, 62–­63, 71, 78–­80, 191, 238–­39; legalization of marijuana and, 1–­2, 242–­43; nullification and, 20–­22; role of, in prohibition, 5, 27, 50–­51, 67, 89–­96, 100, 104–­5, 134. See also specific cases Sutherland, George, 48–­50, 268n151 Sweet, Thaddeus, 94–­96 Taft, William Howard: classism and, 236–­38; federalism and, 34–­36, 44, 48–­50; pro­ hibition legalism and, 26–­28, 50, 67, 102, 134, 151; repeal efforts and, 191–­92, 230 Tammany Hall, 93, 105, 170 Tariff Crisis of 1832, 21, 88 Tarr, Alan, 305n26 Taylor, John, 260n12 Tea Party, 245 Teapot Dome scandal, 169 Temperance League, 231 temperance movement, 8–­10, 13–­17, 37, 40, 50, 77, 105, 217. See also prohibition Templeton, Charles, 114, 204 Tennessee, 173, 197 Tenth Amendment: federalism and, 18, 52, 74, 102, 143, 167, 191, 237; invocations of, 2, 74, 79, 87; legalization of marijuana and, 241, 245, 248 Texas, 31, 173, 197, 223–­25 Texas v. White, 23, 71, 187, 261n25 Thirteenth Amendment, 3, 30, 173 Thomas, Clarence, 2–­3, 242 Thomas, George, 235 Timberlake, James, 36 Tinkham, George, 136 Titus, William, 164 Tocqueville, Alexis de, 18, 84, 235 Treasury Department, 70

index Tucker, Herman, 129 Tuttle, Charles, 200 Twenty-­First Amendment, 6, 131, 195, 226–­ 32, 239, 249 Tydings, Millard, 44, 64 Underwood, Oscar, 11, 26, 31–­33, 55–­57, 144–­46, 162, 174, 204, 230, 257n11 Untouchables, The (film), 3 Upshaw, William, 58, 64, 131, 143 US Constitution. See constitutionalism; and specific amendments and clauses U.S. v. Lanza, 49, 107, 142 U.S. v. Peters, 20 Utah, 193, 199 Van Buren, Martin, 144 Van Devanter, Willis, 29, 46–­48, 50 Van Ness Bill, 92, 111–­12, 216 Vare, William, 162 Vermont, 77–­80, 188, 205, 270n6 Virginia, 92, 173, 192 Virginia Resolution, 19–­21, 87, 260n8, 260n12. See also states’ rights Volstead, Andrew, 40, 57, 70, 165 Volstead Act: attempted modifications to, 203–­10, 214–­16, 222; constitutionalism and, 138–­39, 194, 222, 238–­42; federalism and, 39–­50; interpretation and implementation of prohibition and, 51, 57, 62–­69, 74–­75, 79–­95, 100; repeal of prohibition and, 227, 233; resistance to, 151–­67, 180–­83, 196–­97; weakening of support for prohibition and, 104–­33. See also prohibition Voluntary Committee of Lawyers, 227 Wade-­Davis Reconstruction Act, 261n25, 262n27. See also Reconstruction Wadsworth, James, 33, 93, 96, 140, 154–­55, 162–­63, 174, 181, 200, 204, 229–­31 Wagner, Robert, 154, 201 Wales-­Jenks Bill, 155 Walker, Jimmy, 95 Walsh, David, 147, 189 Walsh, Michael Thomas, 237 Walsh, Thomas, 146, 159, 190 Warner, Harry, 14–­15 War of 1812, 19 Washington, Booker T., 13

321 Washington, George, 83–­84, 113 Washington Post, 89–­91, 245 Washington State, 70, 188, 199, 224, 243–­45 WCTU. See Women’s Christian Temperance Union Weaver, Arthur J., 178–­79 Webb, Edwin, 29, 41–­43, 49 Webb-­Kenyon Act: comparisons of other policies to, 62, 154, 157, 243, 249; federalism and, 27–­29, 32–­38, 43–­44, 47, 52, 265n86; weakening of prohibition and, 173, 194–­95, 203, 217–­20. See also federalism; interstate commerce Webster, Daniel, 21–­24 Webster-­Hayne-­Livingston debates, 21 Weeks v. United States, 191 Weiss, Jacob, 222 Weiss Bill, 222 Weller, Ovington, 64 West Virginia, 197–­98, 221–­22 Wheeler, Burton, 147, 168 Wheeler, George, 79 Wheeler, Wayne: political influence of, 5, 255n24; ratification and implementation of prohibition and, 28, 80, 88–­95, 101–­2, 129; state level pushback against prohibition, 152–­56, 174–­75; tactics of, 12, 38–­43, 145–­46, 169, 266n100. See also Anti-­Saloon League White, Edward Douglas, 44, 46–­50, 69 White, M. Z., 198, 221 Whiteley, George, 123–­24 Whiteley Bill, 123–­26 white supremacy, 11–­13, 32, 39, 54–­57, 172, 257n11. See also Ku Klux Klan; race Wickard v. Filburn, 232, 242, 253n9 Wickersham, George, 27, 43, 93, 191, 194, 217, 223, 230, 297n89 Wickersham Commission, 101, 114, 179, 191–­96, 199–­200, 206, 211, 218–­20, 225. See also concurrent enforcement; prohibition Willebrandt, Mabel, 12, 174 Wilson, Samuel, 92 Wilson, Woodrow, 34, 39–­40, 56, 144–­46, 170, 194, 218 Wisconsin: federalism and, 22, 32; ratification of prohibition and, 70–­75, 270n6; repeal of prohibition and, 181–­83, 188,

index

322 Wisconsin (cont.) 205–­8, 213; resistance to prohibition and, 127–­33, 152–­53, 156–­58, 161–­66, 174 Wisconsin State Journal, 164 Women’s Christian Temperance Union, 15, 101, 114, 132–­33, 167, 196, 209–­12 Women’s Organization for National Prohibition Reform (WONPR), 210, 214, 223–­25 women’s rights, 9–­10, 32, 81, 102, 281n12. See also classism; race Woner Dry Act, 98–­99 WONPR, 210, 214, 223–­25

Woolwine, Thomas, 119–­20 World War I, 3, 27, 33–­34, 59, 265n81 Wright Act, 68–­69, 120, 159–­61, 224 Wynehamer v. New York, 16, 105 Wyoming, 65, 199, 224 xenophobia, 10, 166. See also immigrants; race Young, C. C., 67, 161, 198 Zimmerman, Fred, 26, 149, 162–­65, 181–­83, 207, 234, 237–­39