Problems with the Eighteenth Amendment and Prohibition

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The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

From their inception, the Eighteenth Amendment and its implementing law, the Volstead Act, were controversial in part because they empowered the federal government to police activities that implicated individual social habits and morality—a role traditionally led by state and local governments.1 By the end of the “dry decade” of the 1920s, the Eighteenth Amendment had failed to eliminate the illegal manufacture and sale of alcoholic beverages within the United States.2 Shortly after entering office in 1929, President Herbert Hoover established an investigatory committee to identify obstacles to Prohibition’s enforcement.3 Two years later, the “Wickersham Commission” —named for its chair, former Attorney General George W. Wickersham—released a report identifying a number of these obstacles.4

Observing that “[s]ettled habits and social customs do not yield readily to legislative fiats,” the Wickersham Report detailed the American public’s widespread defiance of Prohibition.5 Americans patronized clandestine retail liquor establishments, such as “speakeasies” ; exploited loopholes in the Volstead Act to obtain medicinal liquor and sacramental wine for recreational purposes; and brewed alcoholic beverages at home, often without significant legal consequences.6

The Wickersham Report also noted significant problems with the federal and state governments’ efforts to enforce Prohibition. Federal agencies responsible for investigating Volstead Act violations lacked the funds necessary for a serious enforcement effort.7 Many federal Prohibition agents received low salaries and had little formal training.8 This contributed to widespread corruption as some agents ignored violations of the law in exchange for bribes from criminal organizations.9

Moreover, although the Eighteenth Amendment granted the states “concurrent power” to enforce Prohibition, fewer than half of the states funded their own enforcement efforts.10 Instead, many states sought to preserve their limited fiscal resources for other priorities by relying on the federal government to enforce laws that were unpopular with a large number of state residents.11 During the 1920s, public support for Prohibition enforcement declined further as federal and state authorities employed harsh enforcement techniques, such as conducting violent police raids and wiretapping suspects’ telephone lines, when investigating some alleged Volstead Act violations.12

Public defiance of Prohibition and ineffective law enforcement fostered an illicit liquor traffic known as “bootlegging.” 13 Bootleggers smuggled alcoholic beverages into the United States through its expansive international borders, shore lines, and inland waterways.14 Bootleggers also produced and distributed alcoholic beverages within the United States.15 Organized criminal gangs, attracted by the illegal liquor trade’s profitability, fought violent turf battles in Chicago, Detroit, and other major American cities.16

Although the Wickersham Commission identified significant problems with Prohibition, it opposed the Eighteenth Amendment’s repeal.17 However, a few individual commissioners wrote separately to advocate for the Eighteenth Amendment’s revision or elimination.18

1: Nat’l Comm’n on Law Observance and Enf’t, Enforcement of the Prohibition Laws of the United States, H.R. Doc. No. 71-722, at 20 (1931) ( “The Eighteenth Amendment represents the first effort in our history to [extend] directly by Constitutional provision the police control of the federal government to the personal habits and conduct of the individual.” ); Robert Post, Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era, 48 Wm. & Mary L. Rev. 1, 2–4, 6–7 & n.8, 11–12 (2006) (noting that the Eighteenth Amendment “caused a major crisis in the theory and practice of American federalism, as the national government, which lacked the courts or police necessary for implementing the [Amendment], sought to conscript state judicial and law enforcement resources.” ).
2: Nat’l Comm’n on Law Observance and Enf’t, supra note 1, at 50–52.
3: In March 1929, Congress appropriated funds for a “thorough investigation” into Prohibition enforcement. See id. at iii. See also President Herbert Hoover, Inaugural Address (March 4, 1929), https://avalon.law.yale.edu/20th_century/hoover.asp.
4: Nat’l Comm’n on Law Observance and Enf’t, supra note 1, at vi, 50–52. The committee’s members included law enforcement officers, judges, and law professors. Id. at iii. Although most of the report focused on Prohibition’s failures, the committee noted that drinking and deaths from alcoholism initially declined. Id. at 22. However, “after a brief period in the first years of the amendment,” drinking increased. Id.
5: Id. at 43, 49, 53–54. Opposition to Prohibition was particularly prevalent in large cities. Id. at 43.
6: Id. at 22, 32, 37, 58–59; Daniel Okrent, Last Call: The Rise and Fall of Prohibition 184–85, 193 (2010). The federal Bureau of Prohibition and some lower federal courts interpreted Section 29 of the Volstead Act to allow home brewing of hard cider. Nat’l Comm’n on Law Observance and Enf’t, supra note 1, at 32–33; Okrent, supra, at 112. Some officials serving at the highest levels of the federal government drank alcoholic beverages during Prohibition. Warren G. Harding, who served as President during Prohibition’s early years, transferred liquor that he had legally acquired before Prohibition to the White House from his home to drink during his tenure. Id. at 129. George Cassiday, also known as “The Man in the Green Hat,” was “Congress’s primary bootlegger” during Prohibition until his 1930 arrest and conviction. The Man in the Green Hat, U.S. Senate, https://www.senate.gov/artandhistory/history/minute/The_Man_in_the_Green_Hat.htm.
7: Nat’l Comm’n on Law Observance and Enf’t, supra note 1, at 44–48; Okrent, supra note 6, at 112 (noting that the “total initial appropriation for federal enforcement” of the Volstead Act “amounted to $2.1 million,” which was “slightly less than the amount paid in one day . . .for muskrat pelts at the St. Louis fur auction.” ). The Bureau of Internal Revenue initially exercised primary responsibility for the Volstead Act’s enforcement. Volstead Act, ch. 85, tit. II, §§ 2, 28, 41 Stat. 305, 308, 316 (1919) (effective Jan. 17, 1920), repealed by Liquor Law Repeal and Enforcement Act, ch. 740, tit. I, § 1, 49 Stat. 872, 872 (1935). In 1927, Congress reorganized the Treasury Department and created a separate component, the Bureau of Prohibition, to enforce the Act. See Treasury Department Reorganization Plan of 1927, Pub. L. No. 69-751, ch. 348, 44 Stat. 1381. Three years later, Congress moved the Bureau into the Department of Justice. See Prohibition Reorganization Act of 1930, Pub. L. No. 71-273, ch. 342, § 2(a), 46 Stat. 427.
8: Nat’l Comm’n on Law Observance and Enf’t, supra note 1, at 12–13, 17; Okrent, supra note 6, at 134–37.
9: Id. See also Nat’l Comm’n on Law Observance and Enf’t, supra note 1, at 12–13.
10: Nat’l Comm’n on Law Observance and Enf’t, supra note 1, at 39, 53; Okrent, supra note 6, at 141.
11: Nat’l Comm’n on Law Observance and Enf’t, supra note 1, at 39, 53; Okrent, supra note 6, at 141.
12: Nat’l Comm’n on Law Observance and Enf’t, supra note 1, at 46; Okrent, supra note 6, at 283–86, 318–19. See also Olmstead v. United States, 277 U.S. 438, 455 (1928) (holding that the Fourth Amendment did not protect conversations transmitted via telephone wires beyond a person’s house), overruled by Katz v. United States, 389 U.S. 347 (1967). For more on the Supreme Court’s Prohibition Era Fourth Amendment jurisprudence, see Amdt4.3.2 Early Doctrine on Fourth Amendment.
13: Nat’l Comm’n on Law Observance and Enf’t, supra note 1, at 14, 22, 52, 60 (summarizing the testimony of a Treasury Department official who discussed “smuggling, the diversion of medicinal spirits, the diversion of industrial alcohol, (which was the principal source or the backbone of bootleg liquor that was then sold), and in the south and middle west moonshine liquor” ); President Herbert Hoover, Inaugural Address (March 4, 1929), https://avalon.law.yale.edu/20th_century/hoover.asp (stating that the failure of state enforcement efforts had resulted in “a dangerous expansion in the criminal elements who have found enlarged opportunities in dealing in illegal liquor” ).
14: Nat’l Comm’n on Law Observance and Enf’t, supra note 1, at 14, 22, 52.
15: Okrent, supra note 6, at 128, 180, 201. Some bootleggers repurposed and sold industrial alcohol. Adulterated alcohol could be dangerous or even lethal. Id. at 209, 286–87.
16: Nat’l Comm’n on Law Observance and Enf’t, supra note 1, at 36–37, 51–52; Okrent, supra note 6, at 272–75, 284, 320–22.
17: Nat’l Comm’n on Law Observance and Enf’t, supra note 1, at 83–84. It also opposed relaxation of the Volstead Act’s stringent requirements. Id.
18: E.g., id. at 113 (separate statement of Ada L. Comstock, advocating for the Eighteenth Amendment’s revision); id. at 111 (separate statement of Newton D. Baker, advocating for the Eighteenth Amendment’s repeal).