Section 1.

The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2.
The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 3.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Passed by Congress February 20, 1933. Ratified December 5, 1933.

Guest Essayist: Lawrence J. Spiwak, President of the Phoenix Center for Advanced Legal and Economic Public Policy Studies

Amendment XXI, Section 1:

The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Ending Prohibition:  Are there Lessons to be Learned?

In this essay, my intention is not to focus on the fact that the 21st Amendment repealed Prohibition, but to explore briefly what lessons we can learn from the experience.

To quickly summarize the facts, the 18th Amendment was enacted in 1919, which prohibited the “manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States.”  However, as detailed in the excellent Ken Burns documentary, Mark Thornton’s seminal book entitled The Economics of Prohibition, and elsewhere, despite its altruistic intentions, Prohibition didn’t decrease alcohol abuse but increased it; Prohibition didn’t eliminate crime but created it; and Prohibition certainly didn’t increase prosperity but robbed the treasury of taxes.  As a result, Prohibition was repealed in 1933 by the 21st Amendment.  (Significantly, because of fear of grassroots political pressure from the temperance movement, the 21st Amendment is, thus far in American history, the only constitutional amendment ratified by state conventions rather than by the state legislatures.)

Given this debacle, I think there are at least a few lessons I think we can learn:

To begin, Prohibition provides an excellent example—albeit a bit dysfunctional one—of the amendment process spelled out by Article 5 at work, in that we as a society were able to self-correct a policy gone horribly wrong.  Indeed, although I’m sure Prohibition was enacted with the best of intentions, the Prohibition experience nonetheless epitomizes the “law of unintended consequences.”

That said, here is an interesting question to ponder:  let us assume that rather than elevate Prohibition to the full fledged level of a Constitutional Amendment, we only went so far as to pass a law that prohibited the “manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States.”  Would it have been easier for us to self-correct Prohibition via either a new law through the legislative process or a Constitutional challenge in the courts?  Probably.  As a result, Prohibition also teaches us to exercise some degree of caution and careful thought before we seek to undertake another effort to amend the Constitution.

Yet, but perhaps most importantly, Prohibition forces us to recognize the old maxim that if we are to be a society of laws, then the public must believe in the legitimacy of the law.  Indeed, in undertaking research for this essay, I came across a telling quote by wealthy industrialist John D. Rockefeller, Jr. from 1932, whereby he wrote:

“When Prohibition was introduced, I hoped that it would be widely supported by public opinion and the day would soon come when the evil effects of alcohol would be recognized. I have slowly and reluctantly come to believe that this has not been the result. Instead, drinking has generally increased; the speakeasy has replaced the saloon; a vast army of lawbreakers has appeared; many of our best citizens have openly ignored Prohibition; respect for the law has been greatly lessened; and crime has increased to a level never seen before.”

So what is it about Prohibition that caused many Americans literally to lose faith with their own Constitution?  Certainly, we have a lot of laws that constrain personal behavior (e.g., prohibitions against murder; prohibitions against fraud and theft; prohibitions against treason), but everybody generally accepts these constraints as necessary to ensure a functioning society.  What was it about Prohibition that, to use Mr. Rockefeller’s words, “created a vast army of lawbreakers…”?

Although I’m sure different people can provide different answers to this question, I come out with the view that Prohibition failed because Americans simply came to realize that the government had no business sticking its nose into their personal lives and interfering with their proverbial “pursuit of happiness.”  Thus, because many Americans viewed the law as violating their basic civil liberties, they saw no reason to comply with the law.

To illustrate my point, let’s take the following extreme hypothetical example.  As many readers of Constituting America are well aware, American’s cherish their Second Amendment right to bear arms.  Now, let’s assume that a huge “firearms temperance” movement sweeps the nation and, as a result, a new Constitutional amendment is enacted that repeals the Second Amendment and prohibits the “manufacture, sale, or transportation of firearms within, the importation thereof into, or the exportation thereof from the United States.”  In such a hypothetical case, while law abiding citizens could no longer own guns to hunt or to protect their families, do we honestly think that gun-related crimes would disappear or that a vibrant black market for firearms would not instantly blossom?  Of course not.  In such a case, I have no doubt that after a few years of many unintended consequences, there would be a forceful movement to repeal my hypothetical amendment too.

In sum, Prohibition teaches us that while it is possible to correct bad policy decisions, any time we seek to elevate an issue to the level of a Constitutional Amendment we should do so with both great discipline and respect for individual liberty.  If we do not learn the lessons from Prohibition, however, then we are doomed to repeat them in the future.

Lawrence J. Spiwak is president of the Phoenix Center for Advanced Legal and Economic Public Policy Studies (www.phoenix‑center.org), a non‑profit research organization based in Washington, DC.  He is a member in good standing in the bars of New York, Massachusetts and the District of Columbia.  The views expressed in this article do not represent the views of the Phoenix Center or its staff.

May 25, 2012

Essay #70

Guest Essayist: Andrew Langer, President of the Institute for Liberty

Amendment XXI

1:  The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

2:  The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

3:  This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

If nothing else, the 21st Amendment to the Constitution underscores the slippery slope that comes from both the adaptation of Constitutional prohibitions to the mores of the day, and the legal gymnastics that invariably ensue.

If you’ve already read Professor Joerg Knipprath’s excellent essay on the 18th Amendment here at Constituting America, you understand what led to the Prohibition era in the United States.  It became clear within the matter of a decade that America’s statist experimentation with a wholesale ban on alcohol was an abject failure—but because the nation had taken the extraordinary step of banning the manufacture, sale and use of a something within the Constitution, it would take another constitutional amendment to repeal that ban.

But while this act of “liberal fascism” (as Jonah Goldberg so aptly put it) took many years to come to fruition and ratification, it was undone in a matter of mere months.  This is because the architects of the 21st recognized something that should remain foremost in the minds of citizen activists when they are trying to figure out if politicians will do the “right thing” on issues.  They recognized that when push comes to shove, politicians will invariably be beholden to a narrow range of vocal special interests, and are thus apt to do something profoundly stupid for the rest of us.

When it comes to ratification of constitutional amendments, we are provided with two methods—the state legislature method, which had been the primary method of ratification of most of the Amendments to that point; or the state convention method.  In the case of the 21st, the architects chose the latter.  The reason for this is simple:  the proponents of the 21st wanted to avoid the political pressures that had, in fact, led to the adoption of the 18th amendment in the first place.  State legislators continued to be beholden to the temperance movement, a loud group whom it was perceived held great political power.

Using a method of state conventions, the 21st Amendment was ratified just months after it was passed by Congress.

The 2nd section of the amendment makes manifest the axiom of the road to hell being paved with good (legal and political) intentions.  While the architects clearly wanted to do the right thing and preserve those essential elements of state sovereignty guaranteed in the 10th Amendment, the broad, sweeping language has puzzled legal scholars and presented case after case to the courts.

Fundamentally, the questions arise as to whether or not the powers reserved to the states in section 2—to essentially decide for themselves if the state will remain “dry”, trump other rights guaranteed or powers created or reserved elsewhere in the Constitution.  Can a state ban the total use of alcohol, for instance, even in religious situations, thereby trumping both the 1st and 14th Amendments?  The answer is no, it can’t but it took a ruling by the Supreme Court to make that certain.

Clearly, the states have the power to exercise tremendous control over the alcohol that is manufactured and purchased within their borders.  But like all other powers in our republic, those too are limited.

America’s foray into constitutionally prohibiting the sale of a good in the marketplace offers us a helpful object lesson for those attempting just the flip-side today.  Today we’re not talking about the federal government trying to enact a sweeping ban on the sale of a good—we’re talking about attempts to enact a federal mandate on the purchase of a good:  health insurance.

Citizens implicitly understand the Constitution’s limitations in the imposition of the individual mandate:  Congress simply has no power to compel individual Americans to purchase a good.  We will most likely see the Supreme Court striking down those provisions of the recent comprehensive health care reform legislation on those very grounds.

But with almost similar certainty, when that happens, we will see a movement, similar in many respects to the Temperance movement, attempting to pass and ratify an amendment to make the compelled purchase of such a good constitutionally legal.

We know from careful study of the constitution and an implicit understanding of the concepts of limited, enumerated, and separated powers just how terrible such an amendment would be.  We need only look at the tortured history of the 18th and 21st amendments, and their impacts on American society and legal frameworks, to see directly what would happen if such a mandate were to come to constitutionally pass.

If there’s anything that we’ve learned from our foray into using the Constitution to tinker with both the marketplace and societal norms, it’s that it not only doesn’t work well, it has horrendous unintended consequences.

Andrew Langer is President of the Institute for Liberty http://www.instituteforliberty.org/