The Ukiah Daily Journal

One for the road

- By Frank Zotter Jr. Frank Zotter, Jr. is a Ukiah attorne

Daniel Okrent's excellent history of the United States' experiment with the prohibitio­n of alcohol during the 1920s, Last Call: The Rise and Fall of Prohibitio­n, is a fascinatin­g look at the United States' oddest constituti­onal amendment. Prohibitio­n, which lasted from 19201933, marked the 14 years that it was in force more than just about anything else that happened during those years, and left changes — including to the law — many of which persisted much longer than Prohibitio­n itself.

The Eighteenth Amendment was the culminatio­n of decades of a social movement to try to curb the deleteriou­s effects of alcohol in American life. If one goes back to the earliest years of the Republic, Americans drank enormous quantities of alcohol; imbibing was something done from sun-up to sunset. All of this drinking led to serious social problems that, in turn, spurred a temperance movement, as it was known, that started in the 1870s. This in turn led, in the early days of the 20th century, to a new organizati­on, the Anti-saloon League, or ASL. Despite its name, the ASL did not focus on saloons per se, but on getting rid of alcohol through legislatio­n.

Under its single-minded leader, Wayne B. Wheeler, the ASL became one of the most effective lobbying organizati­ons in American history. It set its sights on vulnerable members of Congress who had won their seats narrowly, and gave each an ultimatum: vote “Dry” or we will provide the votes to tip your next election to your opponent.

After several failed attempts, Prohibitio­n supporters got what would become the Eighteenth Amendment to the Constituti­on past the first of two difficult hurdles: a two-thirds vote of both houses of Congress. It then had to be ratified by three-fourths of the state legislatur­es, which is usually where most Amendments go to die. But astonishin­gly, just over a year later, on January 16, 1919, it was ratified by the 36th state, making it part of the Constituti­on.

Then came a dramatic pause: by its own terms, the Amendment didn't take effect for a year after ratificati­on. And it was during this time that one of the strangest lawsuits in American history came about. Actually, actually several cases were consolidat­ed before the U.S. Supreme Court, collective­ly referred to as the National Prohibitio­n Cases. But the principal one was brought by one of the most distinguis­hed lawyers and statesmen in the country at that time: former U.S. Senator and Secretary of State Elihu Root. Root's clients, unsurprisi­ngly, were brewers about to see their life's work and businesses become worthless on January 16, 1920.

Even today, Root's lawsuit seems bizarre: he was in effect arguing that the newly-ratified amendment to the constituti­on was . . . now, work with me on this . . . unconstitu­tional. On its face, this seems absurd: how can something part of the constituti­on be a violation of the very document of which it is a part? It's like wandering in a wilderness of mirrors.

To some degree, Root's argument had to step outside of the Constituti­on itself, and argue political philosophy: that the Eighteenth Amendment not a fit subject for an amendment under Article V of the Constituti­on. To put it another way, it was not merely an “amendment” — it was more of a constituti­onal “revision.” Because it struck at a social problem and not how the government itself operated, it was not a “fit subject” for the nation's fundamenta­l document.

Almost as strange as Root's argument, however, was the high court's ruling on June 7, 1920. Justice Willis Van Devanter's opinion was brief — made briefer still because he used up a lot of the opinion just quoting the Eighteenth Amendment in full. And it is woefully devoid of any legal reasoning: after making some initial rulings about whether the lower court rulings were upheld or overturned, his opinion cites almost no past precedent, and instead consists of merely a series of conclusion­s. The primary one: “, by lawful proposal and ratificati­on, has become a part of the Constituti­on, and must be respected and given effect the same as other provisions of that instrument.”

Two other justices wrote concurring opinions, and two more dissented, but all made basically the same point: You call that a court opinion, Willis? All it is are a series of conclusion! You're supposed to explain how you got to from Point A to Point Z!

And with that, National Prohibitio­n (the event, not the court decision) was off: 13 years of lawlessnes­s and hypocrisy, that mercifully ended in December, 1933 with the ratificati­on of the Twenty-first Amendment. But that Amendment, which mainly leaves alcohol regulation to the states, is with us today. So, in a sense, that is but one ongoing legacy of Prohibitio­n.

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