Prohibition’s Unraveling and the 21st Amendment

Prohibition didn’t just give America speakeasies and gangsters it gave us one of the clearest stress tests of the U.S. Constitution. We dig into a paradox that surprises a lot of people: national alcohol consumption drops sharply under the 18th Amendment, yet the country still turns against the policy because enforcement breeds a culture of lawlessness and resentment that politics can’t ignore. 

The real drama sits in federalism. Our conversation follows the repeal movement’s most consistent argument: alcohol rules don’t fit a single national template, and the 18th Amendment’s odd “concurrent authority” language leaves a basic question unanswered. Are states required to enforce prohibition, allowed to enforce it, or free to step back entirely? That ambiguity sparks resistance, uneven compliance, and a constitutional debate that sounds strikingly modern, especially when you connect it to the anti-commandeering principle and the limits of federal power. 

We also track how the Great Depression changes the incentives. Liquor taxes once provided major government revenue, and prohibition replaces that income with enforcement costs. Add the 1932 political battlefield, Hoover’s commitment to enforcement, and FDR’s tactical move to treat beer as non-intoxicating, and repeal starts to look inevitable. We close with the 21st Amendment’s unique ratification by state conventions and why Section Two still protects dry states and dry counties long after repeal. 

If you like American history, constitutional law, and the real mechanics of policy failure, subscribe for more, share this with a friend, and leave a review with your biggest takeaway.

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Transcript

SPEAKER_01 0:46

Welcome back to Civics in the Year. If you have not listened to the episode before this, we talked about the rise of prohibition and Dr. Weinberg is back with us. And Dr. Weinberg, it is no surprise to anybody that prohibition fails, I think, miserably, but maybe you have a different thought. So, what leads to the fall of prohibition and the passing of the 21st Amendment?

Federalism And The Case Against Prohibition

Who Must Enforce The 18th?

States Resist Enforcement And Repeal Laws

Presidents And The Possession Loophole

1932 Politics And FDR’s Beer Move

Depression Budgets And Lost Liquor Taxes

SPEAKER_00 1:10

So the question of did prohibition fail is actually a more complicated one. So if you look at the metrics of total alcohol consumption in the United States, it drops precipitously and it stays down. Right? It is this is one thing where like what in the last podcast, like, why are people for prohibition? People drank a lot. Like, if you go back and look at the consumption numbers, it's frightening. So prohibition succeeds to the extent that it reduces overall alcohol consumption at an aggregate level. What it does though, it gets sort of normal people not to drink, and it creates a subculture of people who are drinking a lot and they are willing to play around with criminal stuff to do it. So prohibition generates a really striking sort of culture of lawlessness that is concerning to people. The striking thing, though, is that the main argument that gets used against prohibition for a long time is actually still a federalism one. This isn't just me because I'm a federalism scholar. Like if you go back and look at the debates, the most common argument by the groups trying to repeal the 18th Amendment say we don't care what the states do. We just don't think that this is a federal thing. It's inconsistent. All the arguments you have about federalism, right? Like there's different cultural norms, there's different religious norms, there's different whatever, right? In in the throughout the United States, it doesn't make sense to have a one-size-fits-all policy. And that's largely what the grounds are about. And it also is thought about, and again, in the weird kind of constitutional sense. We've talked before about the so-called commandeering doctrine and the anti-commandeering doctrine, which says the feds can't make the states do their dirty work or imposing federal policy. But the 18th Amendment is weird because it creates a constitutional mandate. So the question is: are the states required to enforce the 18th Amendment? And at the time, this is unclear. George Wickersham, who had been the, I think he was Roosevelt's or Taft's attorney general, says, look, I don't care about prohibition as an issue, basically. But it's actually unclear from the amendment text who's supposed to enforce it. And that, or whether this does do the feds need the state's permission? Because the language is that the feds and the states shall have concurrent authority to enforce that. Does that mean that they just each have it? Does that mean they each have a mandate? Does that mean they have to agree? Do they have to concur on what kind of policy will be set in their state? Wickersham says, I have no idea. Implicitly, like, I was the attorney general of the United States. I can't read this and figure this out. What can any normal person do it? What can Congress do? And the members of Congress don't have a clear answer on this. And so what you start seeing is states saying, we don't have to help. Maryland never passes a prohibition law. It is the one state that never, this is where they get the nickname the free state. If you ever see that on any of their materials, it comes from the fact that they were regarded as the one state that didn't do prohibition. Can a state repeal a law that it has passed, or is that a violation of the supremacy clause, right? If the state, because now we have prohibition. Maryland gets to dodge that because they said we never had a prohibition law. You can't make us. But for the states that had one, can they go back? And there's a decent argument to be made that they can't. There's a decent argument to be made that they can, right? There's this weird federalism problem that's unique to the weird drafting of the 18th Amendment. But what you start seeing is states repealing or pairing back their own enforcement materials. Again, there are not that many. It's originally Treasury. Eventually they'll move to being their own prohibition agents because Treasury's because of the tax piece, right? They had this sort of law enforcement infrastructure. So, like if you watch old prohibition movies, like why are like why are they in the Treasury Department? It's because Treasury was originally assigned to enforce this. You know, you get Calvin Coolidge, who's frustrated because he doesn't like prohibition, but he's got to enforce it, but not that excited about it. So he's kind of halfway enforcing it. Warren Harding actually has a really interesting story on this. Harding had been notorious for being a real hardcore drinker and like the party boy of Washington. And so he has in the White House when he's first president a really awesome supply of liquor. But if you look at the Prohibition Amendment, it doesn't say possession is banned. It doesn't say possession is banned. Again, Wheeler is smart, but the state ones often say possession. But if you look, strictly speaking, at the text of the 18th Amendment, it says the manufacture, sale, or transportation of intoxicating liquors, importation, exportation. It doesn't say possession. So anybody, so anybody who has a legitimate cash privately, you can just basically, you know, you got at least a few years it's gonna happen. But Harding actually has this like real crisis of conscience when he says, I can't do this. So he gets rid of like basically this amazing liquor collection very publicly because he says, I can't endorse this, even though I'm within the letter of the law, at least as far as you know, Washington, D.C. goes. And most of the states will put a pro a possession ban, too. But for the feds, doesn't touch possession. Doesn't touch possession. Now they'll still nail people for possession with intent to sale, right? So like, but if you're just like drinking or just some random citizen that's got like you know, some beer stuffed in the refrigerator, they're not gonna hammer you for it. So they're going, they're going after you know, this uh so that's kind of an interesting little side. So again, harding it possibly living is like all sorts of fascinating uh things like would he go hardcore on prohibition? Because he has this like crisis of conscience, maybe related to his like affair kind of thing. I don't know. But so so prohibition had always been attacked as a violation of federalism. There is a pushback against people who just say, like, well, this is stupid. I don't believe in the rule of law. It creates obviously organized crime, is basically a product of prohibition. So, you know, building all the infrastructure for that. So the other, what what ultimately so it's it's getting attacked, it's sort of teetering. The Democrat, it's originally sort of a nonpartisan thing, but by virtue of incumbency, the Republicans have to endorse it. So prohibition basically hammers incumbent federal Republicans, but incumbents of basically any stripe, right? If you're a Democrat and an incumbent, you get hammered because you got to enforce it. You took an oath to the Constitution. But a defender, it sort of becomes a Republican thing because of Hoover. Hoover's very Hoover's very excited about prohibition. Hoover, as we'll talk about, is more of a kind of a progressive than a libertarian. So he's like, he's all for it. Eventually, in the Depression, A, the Republicans are getting hammered for it politically. And if you go back and look at the 1932 debates, and this will sort of foreshadow FDR and Hoover, they're not fighting about the depression nearly as much as they're fighting about prohibition. There's not this like, aha, if you vote for Hoover, you get laissez faire, if you vote for Roosevelt, you get the New Deal. They're kind of mixed on that. So we'll talk more about that. Prohibition is the main fault line. Because Hoover says, you he by this point, he says, all right, like if we want to redo prohibition, fine, but I will enforce it until then. Again, which is probably to his credit at that point, as a matter of the rule of law. FDR, as I've indicated before, is rather cynical with such things. And so he says, ah, well, we just won't count beer as intoxicating. So if I'm elected, we will work to get rid of the 18th Amendment, but we'll legalize beer in the interim. And that's actually what will happen. So Roosevelt maneuver, and Roosevelt maneuvers the prohibition debates in 32 in a way to push aside both Al Smith, who had been his mentor and the leading opponent of prohibition in the 1920s. I think it's fair to say. Roosevelt had been his advisor, and Roosevelt had been really cynical in basically convincing Smith how to play the game. And then Roosevelt, in ways that Smith thought was inconsistent with the rule of law. And Roosevelt does it again in 32. And so he gets the Democrats to endorse this really, really anti-prohibition platform so that then Roosevelt can say, well, look, the cool thing about Al Smith, and then Albert Ritchie, who's the Maryland governor, who's built a political career on like, I am the libertarian guy who hates the federal government and particularly prohibition. Roosevelt pushes them both aside. So the 32 election becomes the Democrats is the anti-prohibition party, the Republicans is the sort of still kind of prohibition party. So, but ultimately, then what also helps put it away, a little other thing is happening in the late 1920s and 1930s. What's going down in the world economy list?

SPEAKER_01 10:27

There's some depressions, there's some rise of fascism. I feel like there's lots of things going on in the 30s, but the 20s too.

Ratifying The 21st By Conventions

Section Two And Dry States After Repeal

Prohibition As A Constitutional Case Study

SPEAKER_00 10:40

So late 20s. If you're a state government or the federal government, where did you make a lot of your money? Liquor taxes. So not only do you not make the liquor taxes, you got to spend money hunting liquor down. This is what flips the state legislators is basically cheap green eye shade accountants say, This is expensive, this was profitable. And so during the depression, you see many of the folks and it said, like, look, we just got to stick with this for the rule of law. By the end, they're saying, All right, like this was a mistake. And so prohibition gets proposed by Congress. They're pretty sure they can still get through the legislators, but they're not totally convinced the anti-Saloon League is like totally and utterly destroyed. So they send it to popularly elected conventions. This is the only constitutional amendment, the 21st Amendment, that uses this techniques, this technique. And you get some really fun stories. I think it's Elihu Root or some one of the other allies. Root's really old by this point. I think he's the one that comes literally dressed as a pallbearer to the New York convention. Like they're really theatrical about this. They're having fun, basically just trolling the end of prohibition. Okay. So, but before the 18th Amendment or 21st Amendment is ratified, Roosevelt and the Democrats do basically say, wink wink, beer isn't intoxicating liquor. So they legalize it as a sort of stopgap. But if you look at the 21st Amendment, what it actually does is it says section one, the 18th Amendment is hereby repealed, but section two is really interesting. The transportation or importation into any state, territory, or possession of intoxicating liquor in violation of the laws thereof is prohibited. So it writes in there a guarantee that the federal government will help a dry state suppress alcohol, which is what the deal had been before the 18th Amendment when they had that congressional statute. So you can imagine the guys that drafted that statute saying, We were here like 15 years ago. What do you do? Like you're late to the party. And this will this will be wild to the to folks, but several states do remain dry. I think through the late 50s. I think Kansas is dry pretty late. So you know, Utah's counties that are still dry. Counties are still dry, right? But the counties are still dry. But there are still a few states that are that are dry, and they could be again. So yeah, so the 21st Amendment is so is is kind of fun for a lot of reasons, but the political history behind prohibition is fun. But more generally, I actually do just like on a serious note, I think prohibition is one of the best sort of case studies for thinking about constitutionalism in American history. It's all about federalism issues. There's a little bit of civil liberties pieces to it, like the wiretapping cases, the search of a car will warrant give you a warrant for that. A lot of that comes from this. But I I just, as somebody who cares about the Constitution, not so much about prohibition. I actually also just find it a period when people take the Constitution seriously and they debate about it seriously. And they say, like, I don't like this thing it's doing, but I have an obligation to follow the law. And if we want to get rid of the law, we have to use the proper pro like there really is this sort of culture of, so again, there's this weird wing of, yeah, this creates the Capone mob, which is totally hostile to the rule of law. Yes. But for lots of other people, it's actually a really impressive case study of someone saying, I took an oath to the con to the God to enforce the constitution, and by God, I will. I don't like it. Let's get rid of it. But so, you know, book plug, I suppose, if you want, but prohibition really is more than just like Tommy guns and fedoras, as much fun as those things are. But it really is, and it's states and legislat and Congress members taking the Constitution generally, actually pretty seriously, in a way that I think would be admirable and not something that is quite so common this day and age. Like you would not have a universe, you would not have a universe where Warren Harding and Al Smith, the governor of New York, are actually having an incredibly sophisticated discussion about the anti-commandeering doctrine in the newspapers in a way where like me as a constitutional scholar can read through that and say, you're both kind of right, like in a very sophisticated way. Yeah. Pick your last few presidents and pick whatever governors. There are some governors that understand the rule of law, but like it's not something where I'm expecting deep constitutional conversations. And they did happen during prohibition.

SPEAKER_01 15:26

So I do have one question for you because the ratification of the 21st amendments used state conventions and not, and that's is I think it's the only one. That's right. So can you tell what is the difference between a state convention and a state legislature?

SPEAKER_00 15:46

So the state legislature is your normal House and Senate, or if you're in Nebraska, just what they call it, the unicam, the unicameral or whatever. Yes, they've got one. Yeah. So the state conventions are closer to what like the ratifying conventions were for the US Constitution, where people say, all right, like in my county or in my whatever, if you vote for me, you go to this convention and then the convention itself will thumbs up or thumbs down uh the proposal. So the state legislators, rather than again, norm, it's not just the normal sort of state government. It's basically a separate convention of the people of that state that are assembled for that purpose and that purpose alone. So it's again, it's closer to like how the U.S. Constitution was initially ratified or how the Massachusetts Constitution was ratified back in the day.

SPEAKER_01 16:36

Well, thank you, Dr. Beinberg. I mean, we talked about the fall. If you listen to the one before, we talked about the rise of prohibition. And this is just a great example of you know, amendments don't fix everything. And sometimes they need another amendment to repeal them. So thank you.