Reexamining the Prohibition Amendment

Yale Journal of Law & the Humanities Volume 8 | Issue 1 Article 11 January 1996 Reexamining the Prohibition Amendment W. J. Rorabaugh Follow this and additional works at: https://digitalcommons.law.yale.edu/yjlh Part of the History Commons, and the Law Commons Recommended Citation W. J. Rorabaugh, Reexamining the Prohibition Amendment, 8 Yale J.L. & Human. (1996). Available at: https://digitalcommons.law.yale.edu/yjlh/vol8/iss1/11 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Law & the Humanities by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact . Rorabaugh: Reexamining the Prohibition Amendment Reexamining the Prohibition Amendment Richard E Hamm, Shaping the Eighteenth Amendment: Temperance Reform, Legal Culture, and the Polity, 1880-1920. Chapel Hill: University of North Carolina Press, 1995. Pp. x, 341. $49.95. W. J. Rorabaugh Richard Hamm's book, Shaping the Eighteenth Amendment,' is a welcome addition to the literature on prohibition and the history of drinking in America. The author's most important contribution is to demonstrate the significance of law and the courts, both for prohibition in particular and for progressive politics more generally. He shows how the internal dynamics of legal processes, including the give and take of legislative and judicial bodies, provide the structure within which politics takes place. For reformers, both in the progressive era and more generally, this is a crucial insight: The reform impulse, usually nebulous and general, can only be realized in the political realm through policies that operate within the governmental structure. In a sense, all politics must relate to existing statutes and court decisions, but advocates of the status quo are likely to find inertia congenial, while reformers bear the special burden of seeking to use law and the courts to overturn powerful forces that are legally entrenched. The particular way that reformers choose to move is, to a surprising extent, dictated by the legal frame of reference. As Hamm demonstrates, the popularity of federalism long hampered prohibition and led to the adoption of national prohibition with an unworkable policy of concurrent federal and state enforcement. Although prohibition failed for many reasons, Hamm shows that the legal framework predetermined failure even if other conditions had been favorable. 1. Richard F. Hamm, Shaping the Eighteenth Amendment Temperance, Reform, Legal Culture, and the Polity, 1880-1920 (Chapel Hill: University of North Carolina Press, 1995). Published by Yale Law School Legal Scholarship Repository, 1996 1 Yale Journal of Law & the Humanities, Vol. 8, Iss. 1 [1996], Art. 11 Yale Journal of Law & the Humanities [Vol 8: 285 Shaping the EighteenthAmendment contains two parts. In the first, Hamm reviews the late nineteenth century, when the moral unctuousness of the radical drys limited their political effectiveness, while the shrewdly practical liquor industry, led by the brewers, exerted considerable influence. Largely dependent upon statutes, public officials had to construct alcohol policy within that era's prevailing laissez-faire values. In the second part, Hamm shows how matters changed after 1900. Borrowing lessons from the liquor lobby, pragmatic prohibitionists made incremental political demands that could be met through bureaucratic action or court rulings, as well as through new statutes. Wets found it increasingly difficult to oppose prohibition, because drys generally embraced other popular reforms. This progressive belief in using government to remake American society, along with the era's experimentalist mood, enabled drys to win. Hanem's book has many pluses. It is impeccably researched, and the notes form an elegant guide to both primary sources and secondary literature; reading them is a pleasure. Manuscript collections are handled skillfully, and Hamm's use of newspapers is especially noteworthy for providing a sense of the national scale and variety of opinions about prohibition. Twists and turns of Congress and the courts are diligently traced and analyzed. One only wishes that the book were less repetitious, better organized, and more concrete about issues other than prohibition. Before discussing Hamm's study in detail, it is helpful to review the period's historical context. In the nineteenth century, American society underwent rapid upheaval: immigration, urbanization, industrialization, western settlement, resource exploitation, and technological innovation. The Civil War saved the Union, ended slavery, and made federal power supreme, but the United States remained heterogeneous, a vast country with strong traditions of localism, with a devotion to individual liberty, and with an attachment to nineteenthcentury laissez-faire ideas. Americans found it difficult to centralize government power; instead, the nation's huge new industrial became the most powerful forces of the late nineteenth enterprises 2 century. Reformers, such as Henry Adams, noticed rising economic inequality, watched the wealthy grow more powerful, and saw the 2. In general, see T.J. Jackson Lears, No Place of Grace (New York: Pantheon, 1981); Robert H. Wiebe, The Search for Order,1877-1920 (New York: Hill and Wang, 1967), and The Opening of American Society (New.York: Knopf, 1984). On business, see Alfred D. Chandler, Jr., The Visible Hand (Cambridge, Mass.: Belknap Press, 1977); Alan Trachtenberg, The Incorporationof America (New York: Hill and Wang, 1982); and Olivier Zunz, Making America Corporate,1870-1920 (Chicago: University of Chicago Press, 1990). https://digitalcommons.law.yale.edu/yjlh/vol8/iss1/11 2 Rorabaugh: Reexamining the Prohibition Amendment 1996] Rorabaugh political system become a cesspool of corruption. One of the worst episodes occurred in 1875, when distillers in the "Whiskey Ring" were caught bribing federal tax officials. Paralyzed by pre-industrial traditions, laissez-faire ideology, and the stupefying pace of socioeconomic change, reformers proved unable to organize effectively until around 1900. Then, a new generation of remarkable leaders emerged. Presidents Theodore Roosevelt and Woodrow Wilson, as well as Wisconsin Governor Robert La Follette and California Governor Hiram Johnson, not only defied tradition by refusing to wear beards but rallied long-alienated rural Americans into a politically powerful coalition with the more recently discontented urban middle class. They dared to attack both the unbridled power of capital and the nation's social ills, including workplace accidents, child labor, prostitution, impure food and drugs, and drunk3 enness. The progressives, as they called themselves, both reinvigorated and reinvented government. Seeking vastly increased power for government, they redefined government's proper funct (...truncated)