Prohibition Was a Failed Experiment in Moral Governance

A repealed amendment and generations of Supreme Court rulings have left the constitutional regulation of private behavior in the past. Will it stay there?

Associated Press

A century ago, Prohibition went into effect around the United States, and the evangelical Protestants who had fought for 80 years to make it a reality celebrated. With the ratification of the Eighteenth Amendment, which proscribed “the manufacture, sale, or transportation of intoxicating liquors” across the United States, they had achieved something unparalleled by any movement before or since: They had introduced a new moral decree into the Constitution. In doing so, they believed that they had enshrined Protestant virtue in American life and saved the country from decay—forever.

But the Eighteenth Amendment holds another distinction: It’s the only amendment that’s ever been repealed. The Prohibition era lasted just 13 years, and is now regarded as a cautionary tale for the regulatory state. The restriction of private behavior has outlived the alcohol ban, persisting in state and local governments and finding new life in modern conservative administrations. But the idea of using a constitutional amendment for that restriction, once held up by temperance advocates as a holy grail, has been tarnished and, mostly, left to the past.

The Eighteenth Amendment “was a failed experiment,” says Samuel Freeman, a professor of philosophy and law at the University of Pennsylvania. “They did make an amendment that had to do with a matter of private morality, and it didn’t work.”

Historically, he explains, such matters—including actions that don’t directly harm others, like consensual sexual activity and obscenity—were the province of colonial and local governments. When the union formed, states retained that authority; the Constitution established no overarching national system of criminal or civil law and laid out no moral prescriptions for citizens to follow. “The powers delegated to the proposed Constitution are few and defined,” James Madison emphasized in The Federalist Papers. “[They] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce … The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people.” With the introduction of the Bill of Rights, the Framers moved still farther away from moralistic legislation by limiting the areas in which the federal government could restrict the actions of the people it governed.

In the next century, prohibitionists began making the case that alcohol-related offenses were deserving of special attention by linking them to a litany of societal issues. Leaflets and illustrations distributed by various temperance organizations depicted intoxicated men beating their wives and children, confessing to liquor-fueled murders and other uncharacteristic acts of violence, and spending money at the saloon that was needed by their impoverished families.

Temperance advocates also played on the anti-immigrant sentiments that spread through Middle American Baptist and Methodist communities that feared they were “losing their country,” explains Daniel Okrent, the author of Last Call: The Rise and Fall of Prohibition. Organizations like the Anti-Saloon League decried the proliferation of drinking establishments operated and patronized by first-generation immigrants and, as World War I set in, demonized German brewers in particular as an anti-American force.

By banning alcohol, prohibitionists argued, the country could combat domestic problems, crime, and the influence of immigrants, and assert the primacy of Protestant morality in American law. “Never again,” Wayne Wheeler, the longtime leader of the Anti-Saloon League, said, “will any political party ignore the protests of the church and the moral forces of the state.”

Writing critically of the new amendment for The Atlantic, the journalist Louis Graves had a more cautionary prediction. “If it comes to be recognized, as many believe it will be, that this Federal enterprise was a mistake,” he wrote in 1921, “the lesson may be useful when it is proposed to prohibit by Constitutional amendment any other reprehensible habit.” This warning turned out to be prescient.

The Eighteenth Amendment did deliver on some of the movement’s promises. Researchers have found that in the early days of Prohibition, alcohol consumption fell to as little as 30 percent of its previous levels, before rebounding to around 60 to 70 percent in the following years. Hospitalizations, arrests, and deaths directly related to alcohol abuse similarly decreased.

But at the same time, the amendment gave rise to new sorts of illegal, and immoral, behavior. Black markets sprang up to supply illicit establishments. The manufacture and transportation of liquor went underground. Organized-crime syndicates gleaned new power and connections from the bootlegging business. Prohibition drove ordinary Americans outside the law, too; as one college professor told Graves in 1921, “Now you find law-abiding citizens … making wines and beer in their homes.” While they advocated for temperance in public, many members of Congress continued to partake behind closed doors.

Prohibition enforcement was also rife with corruption, on both the national and local levels. “It became a patronage job,” Okrent says, “because there was no easier way to make money in America than to be a bribable Prohibition agent.” In addition to bribery, a commission established by Herbert Hoover to study the effects of the ban reported that “the use of physical brutality, or other forms of cruelty, to obtain involuntary confessions and admissions … is widespread.” The report also documented numerous instances of entrapment, evidence fabrication, and other forms of corruption within the criminal-justice system. Members of the Ku Klux Klan, empowered by national and local authorities, added their own campaign of terror against immigrant communities under the guise of upholding the ban.

“The farce of prohibition made Federal law enforcement an object of scorn and ridicule,” Senator Robert Marion La Follette Jr. of Wisconsin reflected in a 1943 Atlantic article titled “Never Prohibition Again.” “Disregard for the prohibition law encouraged disregard for other laws … The public winked at political corruption connected with the lack of prohibition enforcement.”

In the face of rising corruption and crime, support for the ban eroded even among former prohibitionists, and the Twenty-First Amendment was ratified in 1933. With the repeal of the Eighteenth, the ultimate authority over alcohol regulations returned once again to state and local governments. Many of them kept strict restrictions in place; even now, nearly 80 years later, an estimated 18 million Americans are still prohibited from buying and selling alcohol in the towns or counties in which they live.

The federal government has gone on to enforce restrictions in other moral spheres, too, waging a decades-long War on Drugs, for example. But none of that legislation has ever again risen to the level of a constitutional amendment. Nor has any other restriction of private moral behavior.

Constitutional law has, in fact, moved still farther in the other direction. In a landmark 1965 Supreme Court case addressing access to contraception, the majority for the liberal Warren Court applied a constitutional “right to privacy” that protected decisions made about a “relationship lying within the zone of privacy” from government control. That right has since been asserted in Supreme Court cases striking down laws that barred Americans from owning and viewing pornography in their own homes, terminating pregnancies, and engaging in homosexual sex.

These decisions have effectively curtailed government efforts to regulate private morality not just on a national scale, as in the case of Prohibition, but also on the local and state levels, where such matters have traditionally been legislated.

In recent years, fears like those of the Prohibition era have returned to the political discourse (if they ever left). Changing demographics and social norms have left many Americans—particularly older, whiter, and more conservative Americans—feeling that the country is in moral decline, traditional values are under threat, violent crime is increasing, and an influx of immigrants is threatening the American way of life—the same feelings expressed by temperance advocates generations ago. In response to the Supreme Court rulings, some social conservatives have worked to reintroduce moral restrictions to the Constitution itself through amendments prohibiting abortion or same-sex marriage. But the popular coalitions and political will that propelled the Eighteenth Amendment have not manifested; the idea of a new constitutional amendment, of any kind, passing now arouses little more than skepticism from political analysts.

Voters and political organizations wishing to revive moral restrictions have instead focused most of their attention on local elections and judicial appointments. The strategy has already borne fruit in abortion law: In the last two years alone, 10 states have passed restrictive new legislation on the issue. And with a solid conservative majority leading the Supreme Court for the first time in decades, Roe v. Wade and the right to privacy appear more vulnerable than ever. Even if the constitutional heights achieved by the temperance movement are out of reach, the regulation of moral behavior could gain new momentum on lower levels of government moving forward.

But Prohibition itself will remain in the past. My colleague Olga Khazan observed this week that, despite evidence of alcohol’s continued impact on health and crime, the temperance movement has all but disappeared. Even as legislative battles over abortion and gay rights have intensified, drug penalties and lingering alcohol restrictions have loosened around the country—in conservative areas as well as liberal ones. A century on, Okrent says, “I think that alcohol, at least, has passed beyond the reach of those who would impose their own moral vision on the rest of us.”