Having discussed the character of the various amendments to the Constitution that were approved by Congress and ratified prior to that which mandated the popular election of United States Senators, it now remains to explore the nature of all those amendments which have been made to the Constitution since that time. The purpose of such an examination, of course, is to establish whether the ratification of the 17th Amendment – which, as aforementioned, shifted the power of electing Senators from the state legislatures to the general population – has had any significant effect on the character of those that followed. If any such effect can be detected, it would seem reasonable to conclude that the ratification of the 17th Amendment has meaningfully altered how the United States Senate functions. And if no such effect is in evidence, it would seem equally sensible to infer that the provisions of the cited amendment have left the Senate largely unchanged. So far, based on a study of the first sixteen amendments, it would appear as though most of the initiatives which gave rise to the same were either of a largely institutional nature – in that they were proposed at the behest of elected officials in response to some development within the political or legal institutions of the United States of America – or contained some admixture of both institutional and popular priorities – in that they were the product of popular agitation as translated through the actions of state legislators and U.S. Senators. So far – near as this writer can determine – all of the aforementioned sixteen amendments would seem to fall into one or the other of these categories, with the 17th itself sitting quite firmly in the latter. So what, then, of the nine that have followed? Has the ratification of the 17th Amendment wrought a significant alteration to the kinds of amendments that have followed in its footsteps?
These questions lead us, of course, to the
provisions and the story of the 18th Amendment, which was declared
ratified by the appropriate number of states on January 16th, 1919.
Not only is this addition to the text of the Constitution noteworthy in being
the first to follow the aforementioned 17th – making it the first
amendment produced in part by a Senate whose members were all the product of
popular election – but it is also, so far, the only amendment to have
subsequently been repealed. The reason for this, of course, has to do with the
terms and provisions thereof. The text of the amendment, which is divided into
three parts, declares the following:
Section 1. After one year from
the ratification of this article the manufacture, sale, or transportation of
intoxicating liquors within, the importation thereof into, or the exportation
thereof from the United States and all the territory subject to the
jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2. The Congress and the
several States shall have concurrent power to enforce this article by
appropriate legislation.
Section 3. This article shall
be inoperative unless it shall have been ratified as an amendment to the
Constitution by the legislatures of the several States, as provided in the
Constitution, within seven years from the date of the submission hereof to the
States by the Congress.
The third section,
from a legal standpoint, would seem to be interesting enough. Never before had
an amendment included qualifying text specifying a date beyond which, if the
required number of states had not voted to ratify the same, further ratifications
would be of no effect. But it was obviously the first section which marked the real
significance of the measure at hand. With the ratification of the 18th
Amendment – which, as noted above, occurred in January of 1919 – it thereafter
became not just illegal but unconstitutional to manufacture, sell, or
transport alcohol “for beverage purposes” within,
into, or out of the United States.
In order to understand
how and why the United States Congress would grant their approval to such a
drastic proposal – as well as how and why the various state legislatures would
subsequently provide their support – one naturally needs to enter into a discussion
of the activities of the American Temperance movement in the 19th
and 20th centuries and the degree to which the legal probation of
alcoholic beverages had become an object of popular agitation in the late
1910s. In its earliest incarnation, as of the late 18th century,
Temperance in the United States mainly constituted a kind of social advocacy
campaign whereby concerned individuals – doctors and clergymen, in the main –
attempted to persuade their fellow Americans of the physically and spiritually
deleterious effects of alcohol consumption. The movement started small, mostly
taking the form of local or state-level organizations whose aim was to
influence both the habits and laws of their local communities, but by the
middle of the 1820s the effort had started to pick up steam. In 1826, the
American Temperance Society was formed in Boston, Massachusetts, the stated
purpose of which was to become the primary national organization advocating for
voluntary abstinence from alcoholic beverages. Within five years, the ATS
encompassed over two thousand local chapters and over one hundred and fifty
thousand members; within ten years, these figures rose to eight thousand and
over one and a quarter million, respectively. At first, the Society’s aim was
to promote moderation on an individual level, with each of its members pledging
to refrain from consuming alcohol other than beer or wine. In time, however,
the more hardline element within the various local chapter came to dominate the
national discussion, with wholesale prohibition becoming the ultimate goal of
the ATS by the end of the 1830s.
As far as this
overriding objective was concerned, the American Temperance Society and its
supporters did enjoy their share of success. The state of Maine in particular
proved to be fertile ground for prohibitionist sentiment, evidenced by the
passage of the so-called “Fifteen Gallon Law” in 1838 – the terms of which
prohibited the sale of spiritous beverages in quantities less than that amount,
thereby outlawing small-scale commercial transactions – and then a statewide
ban on all alcohol sales in 1851. These victories were quickly replicated in
the various other states wherein the ATS held significant sway over the local
political culture. Rhode Island passed its own “Maine Law” in 1852, followed by
Vermont in 1853, Connecticut in 1854, and Delaware, Massachusetts, Indiana,
Michigan, Ohio, New York, Pennsylvania, and New Hampshire, all in 1855. In many
cases, these prohibitory laws met with significant challenges on their way to
implementation. In Massachusetts, Indiana, Michigan, and Ohio, for example,
state courts responded to lawmakers’ initial efforts by declaring the relevant
laws to be unconstitutional, forcing the various texts to be rewritten and
re-submitted for legislative approval. And in Connecticut and New York,
uncooperative governors forced prohibition to become an election issue, though
in both cases the result was the elevation of a pro-temperance replacement.
Enforcement also turned into something of a perpetual headache, and the ATS
still had virtually zero penetration into the socio-political sphere of the
American South. But victory, all the same, was victory. By the end of the
1850s, prohibition had established itself as one of the premier domestic policy
issues on the contemporary American political stage.
The Civil War,
unsurprisingly, threw this situation into almost complete disarray. Not only
did the abolition of slavery – which had alternately competed with and made
cause with prohibition for the attention and support of the Northern middle
class – come to monopolize the domestic policy agendas of Northern governments
and Northern statesmen, but the need to fund the war effort led to the
simultaneous repeal of prohibition laws and the imposition of excise taxes on
liquor sales at both the state and federal levels. By the conflict’s end in
1865, virtually every prewar prohibition law had since been rendered defunct
while the attention and energy of social reformers had shifted focus to issues
like woman’s suffrage and Mormon polygamy. In time, however, the prohibition
movement did recover, thanks in large part to the efforts of female organizers
and activists. The creation of the Women’s Christian Temperance Union in 1874 in
particular would seem to mark the starting point in the second phase of
prohibitionist activism in the history of the United States. Seeking to appeal
to the moral sentiments of the American public through what was intended to be
a specifically female and domestic perspective, the WCTU promoted abstinence
from alcohol as being paramount to the cohesion and the happiness of the
American family. The organization’s second president, teacher Frances Willard
(1839-1898), explained its goals thusly in 1883. The purpose of the WCTU, she wrote,
was, “Educating the young, forming a better public
sentiment, reforming the drinking classes, transforming by the power of Divine
grace those who are enslaved by alcohol, and removing
the dram-shop from our streets by law.”
Thanks
to the tireless advocacy of temperance campaigners like Frances Willard, a
number of states began enacting new prohibitory laws over the course of the
1880s. Kansas went further than most, going so far as to ban the sale of
alcohol by way of constitutional amendment in November of 1880. This was
followed by a legal ban in Iowa in 1882 and the entrance of North Dakota and
South Dakota into the union as officially dry states in 1889. In 1887, the
Supreme Court also ruled in Mugler v. Kansas – in which the defendant,
Peter Mugler, claimed relief for having been convicted of a crime for operating
a brewery in central Kansas – that the Sunflower State’s constitutional ban on
the sale of alcohol was entirely consistent with the various liberties
guaranteed by the Bill of Rights and the due process protections of the 14th
Amendment. Writing for the majority, Associate Justice John Marshall Harlan
(1833-1911) tellingly commented – in a seeming admission of the effectiveness
of the WCTU’s efforts – that,
We cannot shut out of view the fact,
within the knowledge of all, that the public health, the public morals, and the
public safety, may be endangered by the general use of intoxicating drinks; nor
the fact established by statistics accessible to every one, that the idleness,
disorder, pauperism and crime existing in the country, are, in some degree […]
traceable to this evil.
When the Mugler
verdict still didn’t put an end to the existence of breweries and saloons in
the supposedly dry state of Kansas, another female activist emerged on the
scene whose persistence and clarity of vision was every bit the equal of the
likes of Frances Willard, though her preferred method of spreading the message
of prohibition could not have been more different.
Once describing herself as, “A
bulldog running along at the feet of Jesus [and] barking at what He doesn't
like [,]” Caroline Amelia Moore (1846-1911), known after her second marriage in
1874 as Carry Nation, was an early member of the WCTU in northern Kansas whose
brazenness in advocating for the prohibition of alcohol made her a figure of
national notoriety and celebration within the span of her own lifetime.
Initially content to “serenade” local saloon patrons with a barrage of hymns as
they attempted to drink, Nation claimed to have arrived at a place of distinct
dissatisfaction with her own lack of effectiveness and received a supposed
message from God in the summer of 1900. “Go to Kiowa,” is what she claimed to
have been told, with the accompanying encouragement, “I’ll stand by you.” Two days
later, having traveled to Dobson’s Saloon in the town of Kiowa, Kansas, Nation
proceeded to smash ever liquor bottle she could find with the armful of rocks
that she had collected along the way. Thus began a one-woman campaign of
vandalism and property destruction that would soon make Carrie Nation a
household name. Arrested some thirty times between 1900 and 1910 for what she referred
to as her “hatchetations” – so called because a hatchet soon became her
implement of choice – Nation paid her own legal fees by giving lectures and
selling merchandise. She also took to expressing her views in the form of two
separate publications: The Smasher’s Mail, a biweekly newsletter, and The
Hatchet, a regular newspaper. Near the end of her life, as the first decade
of the 20th century was drawing to a close, she even began to appear
on vaudeville stages in the United States and music hall stages across the
Atlantic in the United Kingdom, though more in the guise of a preacher than an
entertainer. By the time of her passing in 1911, she had well and truly become
a genuine national phenomenon, applauded as much by temperance activists as she
was actively loathed by bartenders.
Without necessarily attributing all
of the temperance movement’s success during the era in question to the singular
actions of Carrie Nation, it is nonetheless worth noting that the number of
states which embraced prohibition increased markedly during the height of her
one-woman anti-liquor crusade over the course of the 1900s. Oklahoma, for
example, became a dry state in 1907, followed by Georgia and Mississippi in
1908 and North Carolina and Tennessee in 1909. Nation’s aggressive behavior
undeniably caught the attention of the contemporary American public and helped
drive temperance back to the forefront of the nation’s political and social
discourse. But where Carrie Nation left off – being but one woman with limited
energy and resources – the Anti-Saloon League arguably picked up. Formed in
Ohio in 1893 by a former lawyer named Howard Hyde Russell (1855-1946), the
League was far more bureaucratic than the WCTU or the ATS had ever been, with a
hierarchical structure and an emphasis on organizational methods native to the
world of business. It was also exceptionally pietistic in its tone, thanks in
large part to the influence of the League’s most famous leader, Wayne Wheeler
(1869-1927). Possessed of both a deep-seated hatred of alcohol and a natural
talent for lobbying, Wheeler made exceptionally skillful use of contemporary
publicity methods to convince state and federal politicians that prohibition
enjoyed far greater popular support than an actual survey of the voters might
have shown. In particular, the League established a long and fruitful
relationship with a private agency called the Southern Publicity Association,
one of whose largest and most lucrative clients was the resurrected Ku Klux
Klan. The resulting three-way dynamic, between the League, the SPA, and the
Klan, proved exceptionally influential, particularly in Southern states and in
parts of the rural North. As the Klan came to publicly endorse the efforts of
the League and its leadership, so the League become a vocal defender of the
Klan and its activities. Within the context of the pre-WWI American South, this
made for a very potent combination.
The other major socio-political force which
fed into and buttressed the efforts of prohibition activists in the leadup to
the passage of the 18th Amendment in 1917 was, unsurprisingly, the
same wave of progressivism that had made the 17th Amendment
possible. The reasons for this alliance were at once complex and eminently
foreseeable. For one thing, advocates of progressive policies tended to be
fixated on the concepts of social uplift and purification; they believed that
sensible, scientific measures could be put in place that would purge American
society of its spiritually, economically, and politically deleterious aspects. The
prohibition of alcoholic beverages fitted very neatly into this worldview by
purporting to encourage moral behavior, responsible citizenship, and individual
accountability. Progressive economists argued that banning the sale of alcohol
would reduce binge drinking among industrial workers and result in less lost
productivity due to Monday morning hangovers. Progressive eugenicists asserted
that the consumption of alcohol damaged the so-called “germ-plasm,” the result
of which would be the eventual degeneration of the Anglo-Saxon race. And
progressive political crusaders avowed that the saloon and the whiskey bottle
formed the central recruiting devices of the corrupt political machines that
effectively controlled many of the country’s largest urban areas. Indeed, the
banning of alcohol sales, from the contemporary progressive point of view,
seemed poised to solve most of the socio-economic issues which the most
influential voices of the era had purported to identify. That the notion also
fitted well with the self-conscious religiosity of the increasingly powerful
American middle classes certainly helped matters along as well.
By the time the United States Congress
approved the final text of what would become the 18th Amendment on
August 1st, 1917, the number of states possessed of prohibition laws
of their own had increased yet again since the last spate witnessed at the end
of the previous decade. West Virginia joined the fold in 1914, followed by Alabama
and South Carolina in 1915, Idaho, Colorado, Arkansas, Texas, and Virginia in
1916, and Nebraska on the first day of May in 1917. In some cases, these
jurisdictions totally banned the sale of alcohol, either by legislation or an
amendment to the state constitution. In others, they merely allowed for the
sale and manufacture of alcohol to be banned on a county or municipal basis. But
combined, along with all of the other prohibitory measures that had been
implemented in the states since the end of the Civil War, they ensured that
more than half of American lived in a “dry” precinct of some description by the
middle of the 1910s. Granted, prohibition never seemed to rise to the position
of being a major campaign issue during any of the federal electoral contests
held throughout this era. During the Election of 1916, for example – the last
one to be held before the passage of the 18th Amendment – neither
the Democratic incumbent, Woodrow Wilson (1856-1924), nor his Republican
challenger, Charles Evans Hughes (1862-1948), took a strong position on the
matter, no doubt in large part because both parties contained prominent “wet”
and “dry” factions. By the time that the 65th Congress finally met
in the early spring of 1917, however, the deck had definitely been stacked in
favor of the national contingent of “dries.” In all, one hundred and forty of
the one hundred and eighty-four Democrats then serving in Congress were avowedly
in favor of prohibition, as were one hundred and thirty-eight of the two
hundred Republicans. All that was needed, it seemed, was for someone to make
the proposal.
So it came to pass, on August 1st,
1917, that the United States Senate voted in favor of a resolution proposing an
amendment to the Constitution banning the sale, manufacture, and transportation
of alcoholic beverages for the subsequent approval of the various state
assemblies. The final tally, in this instance, was 65 to 20, with each party providing
ample majority support. The House of Representatives then proceeded to take up
the measure, passing a revised resolution on December 17th by a vote
of 282 to 128. The Senate voted to approve this revision the very next day,
with the result being that an amendment enforcing national prohibition was
officially handed over to the states for ratification on December 18th,
1917. Despite this relatively frictionless opening act, however, it does bear
noting that the concept of national prohibition was not wholeheartedly or
universally embraced by every sitting member of Congress. Notwithstanding the
members of the House and the Senate who registered their disapproval by voting
against the relevant resolutions, the proposal that passed regardless of these objections
contained within it two “carve-outs” on behalf of those who remained somewhat
wary of prohibition as a concept. First, unlike with any of the seventeen
amendment that had been approved by Congress up to that point, the prohibition
amendment contained language which would ensure that if the requisite number of
states – circa 1917, thirty-six out of forty-eight – had not ratified the
proposal by seven years to the day of its passage through Congress, the measure
would be declared a failure. And second, in another novel move, the text of
this same proposal declared that the terms thereof would become operative one
year to the day after its successful ratification by the states.
The purpose of the first of these caveats
would not seem to be all that obvious. Why, for the first time in the history
of the Constitution, did this particular group of lawmakers decide that this
particular amendment proposal should include, in its text, an expiry date? What
was it that this group of lawmakers was hoping to achieve? The answer, quite
simply, is that they were hoping the proposal would fail. Not all of them felt
this way, of course. As aforementioned, by the time the 65th
Congress convened in March of 1917, the majority of both parties’ congressional
representation were avowed supporters of legal prohibition. But there remained
significant factions in both party caucuses – over one hundred and twenty
lawmakers in all, split more or less evenly between the Democrats and the
Republicans – who were avowedly against any such measures and who would have
preferred that the whole enterprise simply go up in smoke. Given that they were
steeply outnumbered in both houses of Congress, of course, this was not a
particularly likely outcome. And given the aforementioned degree of influence
wielded by organizations like the Anti-Saloon League in certain parts of the
country, many other lawmakers who might perhaps have voted against the proposal
feared for their political lives if it became known that they had “wet”
leanings. But if they could not defeat the proposal directly, these outnumbered
Senators and Congressmen could always attempt to ensure that the ratification
process took place according to a timeline of their own design. They might not
have been able to thwart the forces of prohibition in Congress, but perhaps
such resistance could be successfully mounted in the states. According to this
kind of strategy, the “wets” wouldn’t even have to defeat the amendment by way
of a sufficient number of negative votes. All they would have to do is draw the
process out beyond seven years. So long as no more than thirty-five states
voted to ratify by December 18th, 1924, the prohibition amendment
would be declared void and of no effect.
The significance of the second cited caveat
is comparatively quite clear. Why would the framers of the 18th
Amendment have included a stipulation ensuring that the provisions of the same
did not come into force until one year had passed following its successful
ratification? Enthusiastic as some of the nation’s prohibition campaigners were
for alcohol to completely disappear from American public and private life, it
would have been difficult for all but the most diehard enemies of drink to deny
that such a drastic alteration to domestic buying patterns might carry with it
certain negative consequences. The sudden cessation of the manufacture,
transportation, and sale of any and all alcoholic beverages, in short, was
bound to exert a powerfully negative effect on the American economy. Breweries
and distilleries employing countless thousands of people would be forced to
shut down, saloons, taverns, and bar would have to either close or change their
business model, and any number of longshoremen and teamsters would be forced to
cope with a significant loss of work. For better or worse, alcohol was the
lynchpin of several very productive industries, and the shock caused by its
disappearance would not be lightly felt. That is, unless the financial
interests concerned were giving sufficient time to make the necessary
preparations. If the nation’s distillers had a full year to transition to
producing alcohol for medical or industrial purposes – both of which the
relevant amendment did not stand to prevent – perhaps they might be able to
keep most of their workforces employed. The same might be said of the nation’s
tavern-keepers, who would certainly benefit from a little time to sort out what
kind of future they might pursue in a world without alcohol. And so too would
those who earned their daily bread by loading, transporting, and unloading the
stuff. It may indeed have been the case that national prohibition was a done
deal, but at least the resulting blow to the economy could be softened somewhat
by building in a kind of grace period.
As it actually played out, of course, this
grace period was very much needed. The seven-year deadline turned out to have
no measurable effect, with the 36th state –i.e., Nebraska –
ratifying the amendment just over a year after its passage through Congress. As
certified by Secretary of State Frank L. Polk (1871-1943), January 16th,
1919 thus marked the date that the 18th Amendment became part of the
Constitution. By the end of the year – after an apparently more vigorous debate
than that which accompanied the amendment itself – Congress passed the Volstead
Act (1919), the purpose of which was to legally define the term “intoxicating
liquors,” to provide the federal government with the necessary tools to enforce
the probation of the same, and to ensure that the manufacture of alcohol for
medical and industrial purposes was properly regulated and protected. And then,
at last, on January 17th, 1920, the provisions of the 18th
Amendment were finally enforced. For the better part of the next fifteen years,
beverages containing more than 0.5% alcohol by volume would be illegal in the
whole of the United States of America. People could still drink the stuff, of
course. Neither the amendment nor its enforcing legislation made personal
consumption a crime. And over the course of the next decade, many people would
still drink it. But whenever they bought it, or sold it, or transported it, or gave
it away, they would be guilty of a federal crime. The result? Well, that’s
another story entirely…
For the purpose of the present discussion,
what matters is the degree to which the 18th Amendment was clearly
the product of popular agitation rather than institutional machination. Banning
the manufacture, sale, and transportation of spiritous beverages did not stand
to have any direct effect upon the character or function of either the American
federal government or the various state governments. Congress, in drafting and
approving it, was not attempting to address a vital deficiency in the basic
framework of American republicanism, and nor were its members seeking after
more advantageous political outcomes by way of the same. There was no
institutional advantage to be gained, in short, by ensuring that the United
States became a dry country at the dawn of the 1920s. On the contrary, the only
reason to pursue such an objective was to secure the continued support of the
tremendous number of voters who loudly favored it. Prohibition – as explained
at length above – was the long-term goal of a several waves of social activism
that flourished, floundered, and flourished again over the course of the 19th
century. Its principal supporters, at first, were mostly doctors and clergymen
whose interest, as stated at the time, was in saving lives and saving souls.
But over time, by way of organization, and in the midst of victories and
setbacks alike, the movement to ban drink became a hugely powerful political
force.
Women in particular came to play a important
role in the mainstreaming of the campaign to close down the nation’s dram shops
and breweries. By combining a species of middle-class Protestant piety with
appeals to domestic tranquility – and throwing in, on occasion, a little
militant sermonizing – organizations like the Women’s Christian Temperance
Union were able to resurrect the anti-liquor crusade after its ignoble death
during the chaos of the Civil War and sustain it until the likes of the
politically canny Anti-Saloon League could take over the struggle at the
beginning of the 20th century. Thereafter, by way of an extremely
effective campaign of public relations, sufficient support for prohibition was
gathered as to make a constitutional amendment more or less inevitable. Was it
to the benefit of the federal government, the state governments, or any of the
officers of the same to support such an outcome at any point during this
process? Not particularly. Individual statesmen, to be sure, had cause to be in
favor of banning drink. As their constituents came to favor it, it made
political sense for them to follow suit. But prohibiting the production and
sale of alcohol was not the answer to any particular institutional problem. It
would not have adjusted some aspect of the Constitution which time and practice
had exposed as faulty. It would not have facilitated the growth of an expanded vision
of American republicanism. And it certainly wouldn’t have helped to redefine
the nature of citizenship in such a way as to essentially transform the basic
premise of the American experiment. All that it would do was satisfy the moral
and spiritual prejudices of a certain portion of the American population. It
was what the people wanted, in short, and so it was that their representatives
gave it to them.
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