Repeal Gave States Long-sought Control Over Alcohol


Alcohol consumption in 19th century America was far higher than today. Regulation was virtually nonexistent. Indeed, scholar W.J. Rorabaugh, in “The Alcohol Republic,” characterized the United States in that era as “a nation of drunkards.”

Not surprisingly, these higher consumption rates spawned waves of temperance movements by organizations such as the Woman’s Christian Temperance Union and the Anti-Saloon League, and debate over the “alcohol problem” dominated our political discourse.

Initially, prohibition advocates pursued local option laws to permit localities to ban liquor traffic and shut down tied-house saloons. Once communities went dry, they pressured the rest of the state to follow suit. By the end of 1916, 23 states were dry. The evolution of our national economy and the growth of interstate commerce ultimately gave rise to lawsuits challenging state statutes which limited the sale of alcohol.

In the late 19th century, the United States Supreme Court narrowly circumscribed the power of states to regulate the importation of intoxicating liquor under the Dormant Commerce Clause. The crippling of state regulation by the court provoked a congressional response in an effort to safeguard the state’s right to regulate alcohol, including the importation of alcohol into the state. Congress passed the Wilson Act, 27 U.S.C. ¬ß 121 (1890), declaring that, upon arrival in the state, the sale, distribution and transportation of intoxicating liquor was subject to state regulation.

The court narrowly construed the Wilson Act and concluded that the Dormant Commerce Clause prohibited state regulation of direct shipments to in-state consumers by out-of-state distributors.

As a result, railway express began to function as retail outlets. Congress responded with the passage of the Webb-Kenyon Act, 29 U.S.C. § 122 (1913), which gave the states power to prohibit the sale, distribution, transportation or importation of intoxicating liquor into the state in violation of its laws. The constitutionality of the Webb-Kenyon Act was upheld by the court in 1917.

Thereafter, the states pursued adoption of the 18th Amendment, a Herculean task because it required a two-thirds majority in both the House and Senate and then an affirmative vote by three-fourths of the states. Only two states, Connecticut and Rhode Island, refused to ratify the amendment. Prohibition took effect on Jan. 16, 1920.

Indeed, Prohibition engendered both organized crime and a nationwide disregard for the law. “Men can not be made good by force. In the end, intelligent lawmaking rests on the knowledge or estimate of what will be obeyed. Law does not enforce itself,” wrote John D. Rockefeller in the forward of Raymond Fosdick and Albert Scott’s “Toward Liquor Control.”

Prohibition proved to be “a noble but failed experiment” which had the unfortunate ancillary effect of engendering organized crime. There were two great lessons learned from Prohibition. First, noble motives alone were insufficient and ineffective in changing behavior without broad public support. Second, the nation was too large and diverse to accept a single standard of temperance or regulatory control.

Dave Raber is a partner with the Columbus law firm of Lumpe & Raber.