May 25, 2012 – Essay #70 – Amendment XXI, Section 1 – 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The eighteenth article of amendment to the Constitution of the United States is hereby repealed.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In this essay, my intention is not to focus on the fact that the 21st Amendment repealed Prohibition, but to explore briefly what lessons we can learn from the experience.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 As a result, Prohibition was repealed in 1933 by the 21st Amendment.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.