More prohibitory fun and games

Last time I wrote about the truly odd lawsuit brought in 1920 by the distinguished attorney and statesman Elihu Root challenging Prohibition, which had just been ratified as the Eighteenth Amendment to the U.S. Constitution. Hired by some of the nation's brewers, whose livelihoods was about to disappear, Root's lawsuit made the truly quixotic claim that this new amendment to the Constitution was, somehow . . . unconstitutional. The Supreme Court's decision that his argument was absurd lacks the kind of detailed reasoning and citations normally found in a Supreme Court decision, but it reached the right conclusion, regardless of how one feels about Prohibition.

What many people may not be aware of, however, is how other legal landmarks we still live with as a legacy of that heady experiment with the Constitution. A sampling:

• As I also noted last time, the Twenty-fifth Amendment, which repealed the Eighteenth, nevertheless had a bit of its predecessor embedded within. Much as the Supreme Court itself hastened to point out in the Dobbs decision last year when it overturned Roe v. Wade — that it was “only returning the issue to the States” — that's essentially what the Twenty-first Amendment did. It provides that “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.” That was almost wordfor-word what the Eighteenth Amendment had said, except for that little qualifying clause, “in violation of the laws thereof.”

Of course, the States already had the authority, under what is known as the “police power,” to pass any laws they wanted regulating alcohol. But after the Twenty-first Amendment, the Supreme Court has often held that that language gives States special powers to regulate alcohol — a “police power plus” even when the regulation would otherwise violate, e.g., the First Amendment.

• During the 1920s, Congress was particularly tight-fisted (especially compared to today), and refused to appropriate sufficient funds for realistic Prohibition enforcement. (Then-congressman Fiorello La Guardia, a “wet,” once proposed a bill to appropriate $100 million for enforcement, when the Prohibition Bureau's entire budget was just $3 million, forcing “dry” Congressmen to vote against their own pet program.)

Nevertheless, the federal government tried, and this campaign left a legacy of several Supreme Court decisions. In one of these, Carroll v. United States (1925), the court upheld warrantless searches of automobiles stopped on the highway as long as a police officer has probable cause to conduct a search. With some tweaking, this is still the law today.

Another landmark case to come out of Prohibition was Olmstead v. United States (1928). Olmstead, a former police officer, ran a Seattle bootlegging operation as efficient as any business could be. He was convicted based on evidence obtained from wiretaps placed on his phone lines. The Supreme Court concluded that this was lawful because the wiretaps had been done without any physical intrusion into Olmstead's offices, so there had been “no search” and “no seizure.”

In 1967, in Katz v. United States, the court finally +concluded that Olmstead was wrongly decided, focusing instead on the privacy violation by a warrantless intrusion into a citizen's conversations. (Olmstead himself after serving a 4-year prison term, was later granted a full pardon by Pres. Franklin Roosevelt.)

• Finally, today the United States claims legal jurisdiction extending into a 12-mile zone around its shores. It did not always take that position, however. Since the eighteenth century, most nations, including the U.S., had only recognized a “3-mile limit” offshore (except on ships flying the U.S. flag). This became a problem during the 1920s, however, because socalled “rum runners” (ships that actually carried a lot more than just rum) would anchor just outside the 3-mile limit. Safe in international waters, they would peddle their wares to smaller boats coming alongside, which would then actually make the run back to shore, hoping to outrun the Coast Guard. Some rum runners even hung banners with their prices over their gunwales.

The U.S., lacking the funds for sufficient patrols to stop this trade, instead wanted to make life for the customers of the “rum runners” as unpleasant as possible, by quadrupling its territorial limit. It nagged Great Britain to enter into a treaty recognize a 12-mile territorial limits off the U.S. Britain, which of course controlled Canada in those days (where many rum runners originated, along with the Bahamas), eventually gave in. And today, while Prohibition has been gone almost 80 years, the U.S. continues to enforce that 12-mile limit today.

And so we beat on, boats against the current, borne ceaselessly into the past.