Prohibition and the Role of Government

What does prohibition tell us about the balance between personal freedom and regulation?  Join Mary, Gary, and Eryn as they discuss how one of the Constitution's limited amendments led to prohibiting the “manufacture, sale, or transportation of intoxicating liquors." What was it about the culmination of the temperance movement that allowed prohibition to become an amendment to the Constitution? Why was turning to policy the approach to address the problem?

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Transcript

Intro/Outro (00:06)
From the Bill of Rights Institute, Fabric of history weaves together US history, founding principles, and what all of this means to us today. Join us as we pull back the curtains of the past to see what's inside.

Haley (00:20)
What does prohibition tell us about the balance between personal freedom and regulation? Join Mary, Gary, and Eryn as they discuss how one of the Constitution's limited amendments led to prohibiting the manufacture, sale, or transportation of intoxicating liquors. What was it about the culmination of the temperance movement that allowed Prohibition to become an amendment to the Constitution? Why was turning to policy the approach to address the problem?

Mary (00:50)
When we look at and study the past, it can be really difficult to leave your modern worldview sort of at the door. And Prohibition, I think, is a really good example of this. There are some people like me, Mary, who have the judgmental, knee-jerk reaction of, oh, my God, what a stupid idea. But then there are others, like my colleagues, thankfully, who keep me in check, who are quick to point out that this is a very complicated story with a lot of layers to it. So control your knee-jerk judgments, Mary. Basically, is what they're trying to say. As Gary, you had pointed out when we first approached this topic, that do you think it was a bad idea in and of itself or was it a bad idea because we know sitting here in the present day the consequences and the fact that it was repealed and you got me there because I think it's a little bit of both, but it's something that I think is worth talking through because it isn't an easy answer.

Gary (01:56)
No, that's great. And I love talking through it. And that's I think, the fun of podcasts. So just for clarification, for our listeners out there, it sounds like we're talking the long history of alcohol consumption. We're not talking about that. We're really focusing on what can I say, like the Prohibition period or like the center of the conversation being from 1919 to 33 or so, probably the things that lead up to it a little bit afterward. But am I correct? The kind of scope of this conversation is Prohibition-era air quotes, which again, you can't see on podcasts in US history.

Mary (02:35)
Right. Thank you for making that distinction. We're history people, so we love the backstory. So we'll go a little bit beyond or before the 18th Amendment, which starts the Prohibition era, 1919, and then it's repealed in 1933. So we'll go a little before and after that. But yes. So I'm talking about prohibition from roughly 1919 to 1933. What's the story there? Like, why was a federal amendment seen as the solution to what is ultimately it's a personal behavior to drink. So that's fascinating. Right? So that opens sort of Pandora's box. So was this the way to go? Why a federal amendment? Why did this happen? Why was it repealed? There's never been another amendment that's been repealed. So it's a very interesting story. So my initial reaction, a stupid idea, is not doing this story justice.

Gary (03:35)
And now you're specifying when you say is it a good idea, do you mean any kind of governmental addressing about I don't even know if we want to limit it to alcohol consumption, but let's say we do government sort of policy around that? Or do you mean specifically, was the amendment itself a good or bad thing? And I think you're exactly right saying got to back it up a little bit and say, well, how did you even get to an amendment I think is an excellent question to start with. The temperance movement long predated 1919, but somehow that led to this amendment happening. Right?

Mary (04:14)
Right, and I think that's I think what's so fun about the prohibition story is that the narrative of the story, the backstory of the temperance movement and then the amendments created the consequences it's repealed is interesting in and of itself. We're talking Al Capone. We're talking about Cari Nation, this my new idol, this woman who took this old lady with a hatchet that smashed up barrels of alcohol. There's all these interesting stories within it. But it also raises these bigger questions about what is the role of what should a government be regulating and what is the nature of the law and how do you enforce the law. So there's all these bigger questions that come out of this whole story.

Gary (04:57)
So do we want to back it up then and see what led to the law?

Mary (05:00)
Yeah, I think let's take a quick break and set the scene

Mary (05:12)
Before the break, we set up that the main event of our conversation is this Prohibition era between the passage of the 18th Amendment, which goes into effect in 1919, which prohibits the manufacturer, sale, or transportation of intoxicating liquors. And it's repeal is important to keep in mind that this didn't come out of nowhere. There was a longstanding temperance movement within the United States that starts in the 19th century and was actually one of the most popular reform movements of the 19th century. I have a lot of US history textbooks in my I was going to say my office, but it's not an office. It's my basement. And there's a play kitchen behind me and a rocking horse to my left. But anyway, we all know.

Gary (06:00)
And also books. Yeah.

Mary (06:01)
And also books. Those aren't mine, by the way. I have a child, and in one of these textbooks, it said that the temperance movement was sort of born out of these really high rates of alcohol consumption in the early 19th century. And one said that it was five gallons per person in 1820. That is insane because it's hard liquor, too. We're not talking about like very watered-down beer that you would drink because or cider because the water is not good. It starts from there. And there's actually Protestant ministers in particular play a big role in starting this temperance movement. And it's not a prohibition movement, it's a temperance movement. So it's just saying moderate. It's too much, just less.

Gary (06:48)
There's a difference between drinking and drunkenness. Is that what we're saying?

Mary (06:52)
Yeah, I think that's fair.

Eryn (06:53)
And I think the temperance movement, they were really looking at what was happening with this level of five-gallon drinking. Right. And so there was increased crime. Courts couldn't keep up with it. Poverty, low work productivity. And so they really thought that some sort of temperance, whether it be at the state level or the national level, could really help change these private behaviors and mitigate the ill effects of drinking.

Gary (07:32)
Which raises a fairly classic question in the study of history and policy and US history very specifically, which is about dealing with policies that deal with behavior and human choices and individual choices. I would even say for this time period, morality plays a part in it as well. And so that's a tough question that is very real at that time. I don't think goes away. I think it's a timeless question in history, which is what does a society do to deal with what is seen as very negative personal choices happening, and by very negative in terms of it, it's physically harming people.

Mary (08:15)
Right. So it's a private behavior, your choice to drink and how much to drink, but it's leading to public problems. So there's the moral aspect of it. There's also the economic productivity like Eryn said. So factory owner. So it sort of begins with more of a moral flavor to the reform movement. But then when it's affecting your work and your productivity, so factory owners sort of join in and it sort of gains steam. And then the Civil War sort of has an interlude to the temperance. Everything kind of shuts down, but it comes back with a vengeance, I would say after the Civil War. And if you think about it, the United States, this is our Gilded Age. We're industrializing. So there's a whole host of other problems that are forming and sort of drunkenness and poverty and crime. It's almost like they're getting more concentrated. I don't know if that's the right way to say it, but it's coming to the forefront. Yeah, it's coming to the forefront of people's minds again.

Gary (09:20)
So that's interesting. It sounds like industrialization might have a major impact. So what it took to make alcohol prior to industrialization probably is very different when you can have quicker and cheaper manufacturing, would we say?

Eryn (09:39)
Well, I think about it even on the other side, if you have also workers working in these factories, I feel like if they show up to work hungover, drunk, whatever, that also really increases the risks, the dangers. I'm sure that's the first thing, I guess, that comes to my mind. But I think there was an impact from both of those sides?

Mary (10:06)
Well, I think it's almost like a feedback loop, I guess. So it's easier. And you have this large-scale production or more production of liquor. But then you also have a lot of people that are working through these mindless, horrifically, monotonous and dangerous jobs without a lot of the protections that we have today. Like, oh, you lost your arm. Sorry, you're out of luck. They'll just hire someone else. They sort of feed into each other, I think. And then you see so in this era, after the Civil War, you see two groups. You have the Women's Christian Temperance Union is formed, and they are advocating for a total ban on alcohol. So it's no longer temperance, it's just no more. And then you have in 1893, the Anti Saloon League, and they're really working towards, again, addressing these are public problems. But again, it goes back to an individual's behavior.

Eryn (11:06)
You can tell with this. We're talking, of course, and you mentioned at the beginning, Mary, of a lot of people, even myself, are very quick to judge and say like, oh, what a stupid idea, why would they outlaw alcohol? But in our discussion and talking about these problems, you see that this was really big for a lot of these people and a lot of these States, and they had very strong backing for these temperance movements or complete prohibition on alcohol because the problems were so prolific. In 1916, already, 23 out of 48 States had some sort of anti-saloon legislation and that's almost half of the States on their own had created these laws. And so I think it's interesting to realize that the impact was huge and so huge that all these States were already passing laws.

Gary (12:06)
And starting with the individual rights question is a really interesting one because there are decisions for oneself. But then very quickly, you're saying, yes, but these personal decisions are actually directly affecting other people in very real ways. Right. So there's like personal health, but there's also the effect on family, on spouses, those very real, coworkers bosses. Society writ large. And it sounds like prior to it becoming an amendment that the drive at first was actually very individual-based. Right. Here's something you should consider for yourself, what's going on. And then eventually whether or not that's working, a new tactic becomes, well, what about the supplies? Like, where do you even get this stuff? Everybody's not making their own, so you must be getting from somewhere. Well, factors are producing it, but it sounds like a saloon. So that approach. All right. Well, saloons really shouldn't be doing it. And then it becomes a little bigger. All right. States, you need to do something about your saloons, and thus the individuals are making these choices. So it sounds like the circle of decisions and impact is getting wider and wider nationally.

Eryn (13:13)
Yeah, right. Even whatever year they had congressional elections dry, members of Congress had a two-thirds majority in Congress. And so at that point. Right. The scope has gotten to the national level because they have that majority in Congress. And I think that really helps them gain some steam.

Gary (13:35)
So it's unlikely it becomes a big part of the national conversation. And by dry, that means that the way we know that is that they were fairly public about their opinion about this thing. And so they favored one approach versus other approaches. And we know that in the very quick lead up to where this amendment is going, then that this is the national conversation. So how then, I think that then raises the question, how then does all of that lead to an amendment being the next step or the eventual step in this? Because it sounds like there's lots of different ways to get there. Why choose that policy approach up an amendment?

Mary (14:24)
I think that's an excellent question because if you think about ways to implement change, there are lots of ways to drive change. So an amendment is a big deal. It's very complicated. In the history of our country, we don't really have that many amendments. So what happened or what were the circumstances that those working for this change felt this was the way to go. Again, there's this long tradition of a variety of groups. So you had this religious angle, you had an economic angle arguing for temperance, for more of a moderation on alcohol. And then you really have I think things changed a little bit after the Civil War, so that we mentioned before the Women's Christian Temperance Union, we're advocating for total abstinence from alcohol. So not just cutting back on your five gallons of hard liquor a day, but just nothing.

Gary (15:25)
Yeah. The only way to deal with it is just don't do it at all.

Mary (15:28)
And then you also have the Anti-Saloon League, and they were very successful. Eryn was talking about how they had persuaded some states to close down bars and saloons. So there was an attempt at the private level, especially early in the temperance movement, saying, this is bad for you, and this is why it's hurting you. It can hurt the family. It's immoral. It's affecting your work. Then you have it sort of going up the chain, or at least this is what I see, sort of looking back over it. So there's local and there's state regulations on it, and it's still a problem. So is the next answer then to turn to the federal government? I don't know. I'm asking that as a question. I'm not saying that that is the answer. What I think per se.

Gary (16:14)
I think that's an excellent question, Mary because it brings us back to how you started the conversation, which does one answer that from the point of view of where we are in terms of is it generally the best idea, or is it at that time and in that specific period in US history, thought of as being the best way to do it. Is there something about the time period that says going about it at this federal national level seems to work really well for major change that we want to do, right?

Mary (16:50)
I think absolutely, because we have to look at the era, we have to look at the context. So this is the 19 teams we're in the progressive era. So we're advocating for change through legislation to clean up food, to clean up working conditions. So it's seen as turning to the national government seems like an effective and somewhat reasonable thing to do because that's what had been done. You also had two amendments passed pretty closely before the 18th amendments passed, which lead to the direct election of senators in an income tax. So you have federal amendments being added to the Constitution in recent memory. You have legislation working to reform at the national level. So it doesn't seem if we put ourselves back there and try not to judge, which is really hard for me personally as an extremely judgmental person. But if you put yourself back there, it's like, okay, it's starting to seem like you can see through that lens versus sitting in the present day and thinking, oh, well, that just seems crazy. Which is the goal, right. Of a student, of a teacher, of an informed adult citizen to think about, to try not to pass judgment, but to be more analytical.

Mary (18:06)
So I think if we could try to be more analytical and sit in that pretend we're sitting in that, I don't know if I'm even saying that word right, of what's going on in that era, it starts to make a little bit more sense, to look at an amendment as the way to solve the problem.

Eryn (18:25)
I think I also see and I'm making kind of an assumption here, but I think there may have been a connection where if so many States already had anti-saloon legislation or even prohibited, like the manufacturing of alcohol, I think there was this idea that getting them and then ratified would be easy. And so while there may have been other ways to go about perhaps prohibition, maybe there was this idea that if we have an amendment, we need it ratified. There are all these States that have already passed this type of legislation. And so getting it ratified and codifying it at the national level might actually work.

Mary (19:19)
You have a lot of reasons now to think about why an amendment seems like the way to go. Right? There's a sense of urgency. Different States are saying different things. There's concerns about safety. So we just need one national policy. So we have the 18th Amendment. And now the fun begins, because now everybody starts breaking the law.

Gary (19:40)
Now the fun begins is an interesting one in history. Like, now is the rich stuff really to look at because you've got this lead-up. And then in making it a law, something is established, which is a law that is going to be broken by many people. Not universally, of course, many follow it, but it creates almost this interesting division of those who follow the law and those who do not. Right. Those who still pursue alcohol, that alcohol is actually kind of more dangerous. And if you can't transport it, then transporting it becomes breaking the law and becomes kind of dangerous. And you have the rise of organized criminal enterprises to do so. If making it is against the law, because you mentioned that in the amendment as well, then you've got people who are creating alcohol that wouldn't have been doing it before. Right. Or it wasn't being made in the same way. So now you do have just historically speaking, we can question the why, but just historically speaking, there's a rise in real repercussions from this, right. If there is a law and if people are breaking it, that means they have to go to trial or jail, in which case courts are now dealing with it.

Gary (21:00)
Jails are now dealing with it. You need to enforce it. Right. So there's having a law and then there's having to have that law enforced, which means that your law enforcement needs to be enforcing that law. Question mark? In this period of time, there are sometimes corruption that happens. There are sometimes bribery and other things. I mean, listen to some of our other podcasts about stuff that's happening in this time period. And in terms of corruption that's happening, I think that's a really great point to say. Like to look at the law as there's lots of excellent reasons and amendments work in many cases. This one gets repealed, though, right? So there's something that occurs in this period that is going to lead to the, we know, as historians, ultimate demise of that particular amendment.

Eryn (21:57)
Just thinking of everything that Gary was saying and talking about all these laws and laws that have to be enforced and people who are now breaking the laws and from even working at BRI and having all our core values at the forefront of my mind, I think it's really interesting that when a law like this that regulates a private behavior is done on such a national scale, that makes regulation really hard. And so people are either choosing to obey it or not, because universal enforcement, regulation of it is almost impossible. And if they're choosing to not obey the law, that just undermines the respect for law. And to borrow from what Mary was saying earlier, it seems like kind of a feedback loop. Right, like we have this law, but we're not going to listen to it. So we're undermining the law.

Gary (22:58)
For some people, absolutely. But yeah, prior to their existence you can't break a law that doesn't exist yet. So now that one does, there are people who do, and that is are some repercussions that occur. Now, you could say that about any law, but in the Prohibition era, it's a very stark illustration of a division of rule followers and rule-breakers.

Mary (23:22)
There's always going to be corruption. There's always going to be people that break the rules because we're human beings. But it's essential to have a critical mass of people who do have faith in the rule of law. We are a nation of laws, not of men, and who have faith in the system. And if that's going to break down, then that's going to be bad news. I mean, there's that sort of philosophical argument about law and the nature of law. And then there's also the money aspect of it, right. The amendment is repealed in 1933. This is Great Depression time, and we need the money on the excise tax on alcohol. So there's also that argument as well. So I think it's not just like the movement itself was not just one sort of cause, but the reasons for taking it away. I think were layered as well.

Gary (24:14)
I think it's great to raise and remind us of that time period. Right. You have just at the end of World War One, up to right before World War II was happening, and within that whole time, you've got, well, you've got the 20s, and then you're right. The Depression and everything like that. So I think that's part of the fun of studying history is also placing in time what other things are happening and seeing how those interact. But then there are some universal things. I mean, you mentioned about just human beings shout out to those who work in the fields of sociology psychology. Right. About breaking laws. There are interesting choices that people face when something like a law like this occurs. Right there's the what do you get from both following rules and from breaking rules emotionally? Having to deal with this rule psychologically has an effect that didn't exist when the rule wasn't there.

Mary (25:16)
I think Prohibition itself is such a good example of, well, it's a great example of sort of unintended consequences because it was meant to make things safer and to address public problems, but it just sort of created some new public problems. You have the growth of organized crime, which, of course, was nothing new, but prohibition sort of allowed these people to go to the next level in terms of their violence and their wealth and their power. And you have their unintended consequences. But it's also this really good example of this tension between regulating yourself and what's needed to regulate society. And that, I think, is something that we're really interested in at BRI, because we're about education for self-governance, like how do you behave so that civil society functions well? And this is such an interesting example of towing that line and where does it work and where does it break down, and what's the right answer and I don't have the answer. I don't know that anybody does, but that's part of the meatiness of where government of people's, individuals in a society. So there are these questions that we're always going to be grappling with and we're going to make mistakes along the way.

Mary (26:34)
But it's this sort of ever-evolving discussion and sort of trial and error, I think. And I think that's the prohibition that sort of encapsulates that trial and error in such an interesting way with jazz in the background. I think that's one of the reasons why it's something that I don't know. It's like you say the words and I think people are kind of immediately intrigued because we have these images of like Al Capone and bootlegging and all this sort of craziness going on. But it wasn't just Al Capone. He's sort of like a side note to the story of Prohibition and the bigger questions that it brings up.

Gary (27:20)
So can we just circle back for 1 second, because we are talking about this time period, and it is in American history, a very distinct time period, this Prohibition era? We're familiar in modern times with looking back at the music and the clothing and just the imagery of I'm going to use the word gangsters and cars and tommy guns, and I'm even going to say the untouchables and all these other things. But it's important to see that there are kind of multiple sides to this, right? To say it's a glamorized time. There's also a terribleness to it, right in the same way we talk about like Pirates are cool, but also kind of terrible in a lot of ways. I think that it's important to say in this time period that the illustration of this time period carries with it some interesting but truly negative things, some impacts on livelihood, the change in economics, the change in crime that in order to enforce it, some terrible things happen to people for confessions. Terrible things happen to immigrants who were being terrorized as part of the excuse of enforcement. But I think almost most of all like our image of organized crime to go back to your original point of how we look back on things at the time, there's a lot of really negative terrible things going on.

Mary (28:58)
Especially the image of the organized crime and the mob. I think that sort of the Dick Tracy stereotype of the gangsters in the 1920s. And I think a lot of that comes from Hollywood and how Hollywood portrayed it, and I think that we still have the vestiges of it today. But there's nothing like gangsters are not people you want aren't people you want to root for. I mean, these are people like the St. Valentine's Day Massacre in Chicago. Someone pulled up and shot all these guys with a machine gun. There's bleeding everywhere, and no one like it's still unknown like who did it or what happened, nobody got in trouble for it. That's just one example of something really awful that wasn't directly caused by prohibition. But these organized crime outfits benefited so much from being able to sell liquor. And like I said, they just went to the next level. They already had their gambling and prostitution and things like that. But if you can add in all that income from this liquor that people still want and are willing to break the law to get, then they just take on a power and an influence that they never had before.

Mary (30:13)
Like, Al Capone was a celebrity. Like, he's photographed at a baseball game in his cool suit. He's like, cool. He's got, like, this PR image. And that's something that wasn't happening before. It's becoming like we're getting into an icky territory here where it's like, what does the law even mean now if no one's going to listen to it and people who are openly breaking it are becoming rock stars? So it's definitely sort of this unintended, I would say. I'm sure the people who are smashing up barrels of liquor did not want crime to increase. But in a lot of cases, that's what was happening. Yeah.

Eryn (30:58)
I think just that whole era is very glamorized. I think of the most recent Great Gatsby that was made, and it still has a very depressing ending and dark tone.

Gary (31:13)
Spoiler. No spoilers. For those who have not read the Great Gatsby.

Eryn (31:17)
I'm just saying there are dark undertones just like there were during this period. Right. But the big picture and what sticks with me is the glamorization of it. That's how we really still view that period. Even the prohibition, the flappers, the speakeasies, the moonshine. And you put that all together. We have companies that still make moonshine. We have bars that pretend to be speakeasies. And that style is still very prevalent in our lives today. And I see kind of that connection to what you were saying earlier, Gary. There are just a lot of people who view rule-breaking as exhilarating, and thrilling, gives them more freedom. I think that's why we have this kind of automatic glamorization of the period as well because there was this rule-breaking going on. But it was kind of cool, right?

Gary (32:20)
Yeah. Change can happen in society by rule-breaking. Again, not that I'm advocating it as a pretty big rule follower myself, but at the same time, there are cultural impacts that occurred in this time period, many of which were associated with the rule-breaking. And it could be something an individual chose to do somewhat frequently or not, or if they made a lifestyle out of it or did it once and found it exhilarating and never tried it again. But it follows a time. It's just when studying the historical part of it, it follows the time of all the things we listed about what led up to this decision happening, very public decision occurring, and then what happened afterward is a really interesting one. And then something leads to its repeal. It is very unusual for an amendment to be repealed. And so somehow the story ends. The prohibition period that we've been talking about ends. And so what causes that I think is important as well.

Mary (33:29)
But does the story end, Gary? But does the temperance movement go away? Was it dry January? And there are still limits on the consumption of alcohol and purchasing alcohol in some states, not states, but some localities are still dry places. So it didn't really go away, just sort of change tactic. And I think the bigger questions about personal behavior and then public law are still with us and they are always going to be questions because they don't have an answer. And that's, I think, is precisely the point. We the people have to figure out what our answer for the time will be and keep trying and trying and trying and trying. And that is the story of us history. Period.

Gary (34:22)
Well, thanks for joining us.

Mary (34:25)
The passage of the 18th amendment in its eventual repeal raises such good questions about private behavior and public problems and the nature of law. And these are questions that we're still grappling with. I made my point about trial and error, so I would be curious to hear your thoughts, dear listeners. So what are your thoughts on these questions? These are questions that aren't going away. Please write to us. Let us know. You can hit us up at comments@fabricofhistory.org. We would also love if you like our podcast, leave us a review. Make sure you subscribe. Have your friends and family listen to us. We would love to have them join our conversation. So until next time, take care.

Intro/Outro (35:12)
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