Tahlequah Daily Press

Features

June 30, 2014

18th Amendment canceled by 21st

TAHLEQUAH — President Herbert Hoover called it the “noble experiment.”

When the 18th Amendment was added to the U.S. Constitution, many figured the long-debated issue of alcohol prohibition was put to rest. The sale, transport and manufacture of alcoholic beverages was forever illegal.

The amendment read:

“Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all the territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

“Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

“Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.”

Though alcohol consumption plummeted by half in the U.S. after passage, the 18th Amendment had unintended consequences, and it remains the only amendment repealed by another, the 21st, which reads:

“Section 1. The Eighteenth Article of Amendment to the Constitution of the United States is hereby repealed.

“Section 2. 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.

“Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.”

Modern Americans may find it ridiculous to try eliminating something as pervasive as alcohol from the nation’s collective landscape, but the 18th Amendment had popular support, and it was the ultimate goal of a 100-year-old social movement that would not go away.

“Supporters of the amendment believed that removing alcohol from society would eliminate poverty and social vices,” said Rep. Mike Brown, D-Tahlequah. “Probably the most famous of these advocates was Carrie Nation. She became known for her violent tactics against what she referred to as ‘evil spirits.’ She was known to break saloon windows and mirrors and destroy kegs with a hatchet.”

The amendment had opponents, many of whom believed the temperance movement’s real aim was to impose a rural Protestant ethic on people it held in low regard: Catholics, immigrants and urbanites. Others considered Prohibition progressive and conducive to good health.

The Senate passed the 18th Amendment, 65-20, and the House of Representatives approved, 282-128. It was sent to the states on Dec. 18, 1917, and by Feb. 25, 1919, 45 of the 48 states had ratified. New Jersey gave its approval in 1922. Rhode Island and Connecticut were the only states to reject ratification.

Dr. Daniel Savage, chair of the Department of Geography, Political Science and Sociology at Northeastern State University, said Prohibition was unenforceable, and it fostered and glamorized crime.

“Many of the ‘outlaws’ created by the 18th Amendment were the leading citizens of their towns and cities, and thus many local law enforcement agencies did not seriously enforce the law,” Savage said. “In rural areas, moonshiners proliferated, and many of them became folk heroes. In urban areas, bootlegging became heavily connected to organized crime and was a great source of revenue for gangsters like Al Capone.”

It is believed Capone earned more than $60 million a year during the height of his speakeasy and bootlegging operations during Prohibition. Many who broke the law dealt with police who did not want to enforce it. When Prohibition was upheld, it created a legal logjam.

“Enforcing the ban on alcohol resulted in the police, courts, and prisons being overwhelmed with new cases,” Brown said. “The criminal justice system was swamped. Prisons were jam-packed and court dockets were behind trying to deal with the rapid surge in crime.

By the late 1920s, public sentiment had turned against Prohibition. In 1932, while campaigning for president, Franklin D. Roosevelt called for repeal. When he was elected, repeal was almost a certainty. Some who initially supported the 18th Amendment, including John D. Rockefeller, reversed their positions. As popular as the 18th Amendment was at its passage, the 21st was equally popular. It passed comfortably in the Senate, 63-21, and in the House, 289-121, and was offered to the states on Feb. 20, 1933.

The 21st Amendment holds a unique distinction. In the early 1930s, it was believed the temperance movement still held tremendous sway over state legislators, so Congress instructed the states to decide ratification through conventions. Article V of the Constitution gives Congress the option of requesting state ratification by convention rather than legislative vote.

The option was included to give Congress a route by which to skip state legislatures in the amendment process. Conventions use delegates from the general populace, and the Framers anticipated such input would be indispensable on some issues. It was also expected to be used sparingly, and the 21st is the only amendment ever ratified by state conventions.

Utah’s convention provided the required approval by three-quarters of the states on Dec. 5, 1933. Only South Carolina’s convention rejected the 21st Amendment. North Carolina rejected consideration of the amendment by convention. Oklahoma is among eight states that have never acted on it.

In Oklahoma, a Prohibition residual remains. When the 18th Amendment was in force, Oklahoma permitted the sale of beer if the alcohol content was less than 3.2 percent, labeling it a “non-intoxicating beverage.” It could be bought in grocery stores, though there are plenty of accounts that Oklahomans could have any beer, wine or liquor delivered to their doors by picking up the phone. The state did not permit the sale of stronger alcoholic beverages until decades after repeal.

Prohibition also demonstrated the need for state cooperation to uphold some federal laws. The lax attitude toward the 18th Amendment by many in law enforcement was as much a factor in its failure as lawbreakers and public sentiment. A more recent example is the defunct national 55 mph speed limit, which states simply refused to enforce.

Savage said correlations with Prohibition are drawn today with marijuana laws and enforcement.  

“As with alcohol in the 1920s and ‘30s, marijuana is still widely consumed, despite its prohibition,” he said. “Many of the ‘outlaws’ created by the marijuana prohibition, like those created by the prohibition of alcohol, include members of society not normally drawn to criminal activity. That is why some states, like Colorado, have decided to end the prohibition on the recreational use of marijuana.”

Federal law prohibits recreational cannabis use, but the Obama administration is taking a “21st Amendment” attitude toward enforcement.

“It should also be remembered that the 21st Amendment, besides repealing the 18th Amendment, delegated the responsibility for regulating alcohol to the states,” Savage said. “Some states became wet and some remained dry. Others delegated the decision to their counties, and thus a wet county could exist next door to a dry county. Because the current administration has decided not to enforce the federal law against marijuana in states like Colorado, which have made it legal, we have a similar situation, with the decision of whether to prohibit marijuana left up to the states. That could change, of course, with a new administration.”

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