Guest Essayist: Frank M. Reilly, partner at the law firm of Potts & Reilly, L.L.P., Horseshoe Bay, Texas

In 1820, the U.S. Congress passed the Missouri Compromise in an effort to settle disagreements between pro and anti-slavery factions regarding the admission of new states to the union.  The Missouri Compromise prohibited slavery in new states north of the 36°30ˈ north parallel, with the exception of Missouri.  In 1854, Senator Stephen A. Douglas of Illinois proposed, and succeeded in passing, the Kansas-Nebraska Act, which unraveled the Missouri Compromise.  The Kansas-Nebraska Act, signed into law by President Franklin Pierce on May 30, 1854, allowed citizens within the Kansas and Nebraska territories to decide by what they called “Popular Sovereignty” (a popular vote) as to whether they would allow slavery. Read more

Guest Essayist: Frank M. Reilly, Esq., a partner at Potts & Reilly, L.L.P

Amendment XXI, Section 2:

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.


The 21st Amendment is the only amendment to the Constitution which repeals another amendment.  The amendment which it repealed, the 18th, became effective in 1920 and it prohibited


“the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States”


and its territories.  The passage of the 18th Amendment, and the subsequent enactment by Congress of its enabling legislation, named the Volstead Act, began a period known as the Prohibition.  The Prohibition era lasted a little over 13 years until the states ratified the 21st Amendment in 1933.

The framers of the 18th Amendment, encouraged by the strong temperance movement and the Anti-Saloon League, hoped that a national prohibition on the use of alcoholic beverages would make the nation a better, and more moral place.  President Calvin Coolidge, who served from 1923 to 1929 as our nation’s 30th president, called Prohibition the “greatest social experiment of modern times.”    Others, such as former President William Howard Taft, who had served as president from 1909 to 1913 and who served as Chief Justice of the U.S. Supreme Court during much of the Prohibition period, predicted that


“the business of manufacturing alcohol, liquor and beer will go out of the hands of law-abiding citizens and will be transferred to the quasi-criminal classes.”


Taft’s prediction ultimately came true, and many entities that previously made alcoholic beverages, as well as new operations, clandestinely (and sometimes openly) violated the law.  The fulfillment of Taft’s prediction, and the other unintended consequences of the Prohibition, was a cruel irony for those who wanted Prohibition to foster a more chaste nation.

Instead of reducing crime and improving the national morality, crime and immorality significantly increased during Prohibition.  “Speakeasies,” bars quietly operating in violation of the law, sprang up in larger cities, and in contrast with the swinging-door saloons they replaced, they welcomed the women that began to frequent the new bars.  It is said that it became popular within the national culture to violate the law, and a whole class of ordinary citizens became criminals.  Private stills produced barrels and barrels of moonshine, some operations were small and served a family or a small group of people; others were larger operations operated by the underworld.  Bootlegging gangsters, such as Al Capone, had their heyday.  Similar to the illicit drug imports today, international criminals worked hard to bring whiskey, rum and other spirits into the country, more often succeeding than failing at their tasks.

Others found clever ways around the Prohibition.  For example, the Napa Valley vineyards of the Beringer family made and sold legal “raisin cakes” from dried grapes, and packaged them with warning labels that said “Caution: will ferment and turn into wine.”  Sales of sacramental wine, used in church services to celebrate communion and which was exempt from the Prohibition laws, skyrocketed, and many assumed that some priests and rabbis of the time were bootlegging on the side.  People with doctor’s prescriptions were able to purchase 1 pint of spirits per week for “medicinal purposes.”  While these exemptions in the law were used for legitimate purposes, organized crime syndicates frequently took advantage of these exemptions and cooked their books to use the legitimate services as front operations to bootlegging.

The Prohibition ushered in at least two additions to popular culture:  NASCAR races and the cocktail.  In the southern United States, some bootleggers retrofitted cars to run loads of whiskey on a fixed fee, per case basis.  These stock cars were built with a heavy duty chassis so that revenue agents would not see an overloaded car, and a souped up engine so the agents could not catch it.  These modified stock cars led to the genesis of the National Association for Stock Car Auto Racing after races by moonshine runners became popular in the south.  Finally, the cocktail – an alcoholic spirit mixed with a sweet or strongly flavored mixer – was invented to cover up the bad taste of homemade gin or whiskey.

Support for Prohibition began to wither with increased public recognition of:  Prohibition’s failures; costly, corrupt and inefficient enforcement efforts; a recognition by some Prohibitionist business leaders that taxing liquor could reduce the impact of rising income taxes; the prospect of new jobs that could be created with a newly legal liquor industry; and finally, the political and economic distractions of the Great Depression.  In 1932, Congress passed a resolution to send the 21st Amendment to the states for ratification, and within a year two-thirds of the states ratified the amendment.  The law began to fracture even before the amendment became effective.  In the spring of 1933, prior to the ratification, newly elected President Franklin D. Roosevelt asked Congress to repeal portions of the Volstead Act to allow the brewing of real beer (“near beer” had been allowed under Prohibition; it tasted like real beer but had an extremely low alcohol content).  After the 21st Amendment became effective, the remainder of the federal Prohibition laws were repealed, and significant taxes were added to the sale of liquor.

Frank M. Reilly, Esq., is a partner at Potts & Reilly, L.L.P., Attorneys & Counselors in Austin and Horseshoe Bay, Texas

May 28, 2012

Essay #71


Guest Essayist: Frank M. Reilly, Esq., a partner at Potts & Reilly, L.L.P.

Amendment XX, Section 1:

The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Terms of the President and Congress

Prior to the 20th Amendment, the Constitution did not specify the beginning and ending dates of the terms of the President, Vice President, and Congress.  The Constitution defined the length of the terms of the various offices, and Congress ultimately enacted laws to set March 4 as the term starting date of all elected federal officeholders.   Our nation’s earliest federal elections were held prior to December of each even numbered year, and in 1845, Congress set the first Tuesday following the first Monday of November of each even numbered year as a uniform federal election date.  As a result, officeholders remained in office after the November elections for about four months until the 4th of March of the following year.  During the 18th century, such officeholders began to be called ̎lame ducks ̎.

From the late 18th century and into the 20th century, the lack of efficient and speedy transportation made the election process necessarily slow.  Today’s ability to almost instantaneously report election returns did not exist in the days without electricity, telephones, electronic voting devices and the Internet.  It could take days or weeks of horseback travel by electors from remote areas of the country to assemble to cast that state’s electoral votes for President and Vice President.  It could take as long for members of Congress and the elected executives to then travel to Washington to take office.  Thus, the four month ̎lame duck ̎ period between election day and the start of new terms of newly elected (or re-elected) officeholders was a practical necessity.

Sometimes either Congress or the President took actions during those ̎lame duck ̎ periods that the public, or incoming officeholders, felt were unfair and that should have waited until the newly elected representatives could take office.  For example, the famous case of Marbury vs. Madison, in which the U.S. Supreme Court claimed its authority to interpret the Constitution, was a dispute over a staff appointment made by President John Adams after President Thomas Jefferson was elected, but before Jefferson took office.

Transportation and technology advances ultimately reduced the need for a long transition period after an election.  Further, public concern about legislation enacted during ̎lame duck ̎ sessions of Congress, motivated Nebraska Senator George W. Norris to propose the 20th Amendment.  After over a decade of debate, and immediately preceding Franklin D. Roosevelt’s first election as the 32nd president, Congress passed the resolution proposing the amendment on March 2, 1932.  The states ratified the amendment by January 23, 1933, the shortest period of time between a congressional proposal of an amendment and its ratification by three-fourths of the states.

The amendment, rather than a change in the law by Congress, was necessary because it shortened the terms of incumbent officeholders, the length of whose terms the Constitution had been specifically set.  The amendment shortened the ̎lame duck ̎ period by half to about 2 months, with Congress taking office on January 3 and the President taking office on January 20 after each of their elections.  The first president affected by this change was Franklin D. Roosevelt following his second election in 1936.

Legislative history shows that the purpose of the 20th Amendment was to not only shorten the 4 month ̎lame duck ̎ period, but also to prevent  ̎lame duck ̎ sessions of Congress.  However, the 20th Amendment contains no specific language to prohibit ̎lame duck ̎ sessions, and Congress has met in many such sessions since after the states adopted the amendment.  Political debate about lame duck ̎ sessions, however, has been raised on several recent occasions.

On November 13, 1980, a ̎lame duck ̎ President Jimmy Carter nominated future Supreme Court Justice Stephen G. Breyer as a justice of the United States Court of Appeals for the 1st Circuit, and the ̎lame duck ̎ Senate confirmed the appointment in December, 1980.  In December 1998, the House of Representatives voted to impeach President William J. Clinton during a ̎lame duck ̎ session.  Some argued that these actions violated the spirit, if not the letter, of the 20th Amendment, but no one challenged the actions in court.

In 2000, some discussed the potential interplay between the 20th Amendment, and the 12th Amendment, which requires that the House of Representatives select the president if no candidate receives a majority of the electoral votes cast for president.  During the time in which the presidential election results between George W. Bush and Albert Gore, Jr. were still undetermined, some scholars questioned whether a ̎lame duck ̎ House of Representatives could select the president if neither Bush nor Gore received a majority of the electoral votes, or whether the issue would have to wait until the newly elected House of Representatives convened.

While the 20th Amendment’s original intent has been publicly debated, there are no reported court cases involving the amendment.

Frank M. Reilly, Esq., is a partner at Potts & Reilly, L.L.P., Attorneys & Counselors in Austin and Horseshoe Bay, Texas

May 21, 2012

Essay #66