L. Neil Smith and Prohibition - Part 1

In last week's post, I quoted from L. Neil Smith's essay, "Empire of Lies", his argument regarding how FDR provoked the Japanese into attacking Pearl Harbor because he wanted a war with Japan. (For some reason Smith could not, or would not name.) As I said at the time, the entire section was long and rambling, and I cut out much of his verbiage that did not apply to the argument at hand. (I also had to leave a lot in to properly convey his argument, and to keep the quote from looking like swiss cheese what with all the ellipses.) That included two extraneous comments that had nothing to do with Pearl Harbor. One was about a secret British intelligence operation called "Intrepid", which I will deal with in another post.

The other was about Prohibition. Smith, naturally, doesn't like Prohibition; he sees it as an assault on personal rights and freedoms. Never mind that the majority of the people in this country actually voted for it; he implies that the government forced it on us against our will, to take away some of our freedom and thus curtail some of our rights. The story of Prohibition is a complex social drama with many causes, and many influences that shaped its development and implementation. Smith ignores all of that, and simplifies it into a tale of intrigue by a group of politicians and bureaucrats seeking to grab power away from the American people.

In the "Empire of Lies", he writes:

Prohibition had laid an egg, you were expected to believe, not because it was one of the butt-stupidest political ideas in the history of mankind, but because people had stubbornly and upatriotically [sic] refused to give up their individuality and the choices that naturally come with it.

He provides more details in another essay:

The classic case [of wishing will make it so] is the Volstead Act. For a century before its passage, its advocates, who believed that drinking is a Bad Thing (which indeed it may be) and demanded a law to keep people from doing it, ignored complaints that they were making a mockery of individual rights. For a decade afterward, they ignored its secondary effects, which proved more damaging to society than the use of alcohol.

Prohibition is to blame for a lot that's wrong with America today. It was the beginning of a popular disregard for the law. Millions of ordinary people who became criminals by fiat overnight, responded by drinking more than ever, many of them for the first time, simply to assert their rights. With the stroke of a pen, previously acceptable behavior was lumped together with acts that everyone agreed were wrong -- like murder and kidnapping. Moral lines became hopelessly blurred and have tended to stay that way ever since.

Prohibition put many unsavory types in business -- big business, as it turned out -- who are still with us. In a way that could never have happened if the do-gooders hadn't meddled in their private affairs, decent people were suddenly exposed to criminal (and legal) violence, just as if they were criminals themselves. And, although it wound up being partly repealed, Prohibition also set precedents for government meddling in every other aspect of individual life.

"When You Wish Upon a Star ..." The Libertarian Enterprise No. 76, June 12, 2000

Smith has some serious misconceptions about Prohibition, but in this he isn't alone. A number of myths have grown up around that period in American history. The most important include:

Myth 1: The 18th Amendment made alcohol illegal. Not really. The amendment prohibited the "manufacture, sale, or transportation of intoxicating liquors", not alcohol in general. In fact, throughout Prohibition, various people were allowed to continue to make alcohol, for medical purposes, scientific research, the manufacturing of fuel, dyes, and other lawful industries, and for sacramental wines. Also, a loophole in the subsequent law (see Myth #2) allowed farmers to ferment wine and cider, as much as 200 gallons a year, as long as it was meant to be a "fruit juice" for home consumption. This led to the sale of "wine blocks", bricks of concentrated juice which, if left in a closed container for 20 days, would ferment naturally into wine. These bricks even came with labels warning people not to do this.

In any event, even with "intoxicating liquors" the amendment itself made nothing illegal. Despite the Constitution being the supreme law of the land, it acts as a framework for government, dictating what the Federal Government can and cannot do. No one has ever been arrested for violating a clause or amendment of the Constitution, because they are not laws in the judicial sense. The 18th Amendment simply said that no one could make, sell, or transport intoxicating liquors, and it gave the Federal and State governments the authority to enforce this prohibition. Congress responded by passing the National Prohibition Act, otherwise known as the Volstead Act. Interestingly enough, Pres. Wilson vetoed the bill, but Congress overrode him.

Myth 2: The Volstead Act turned ordinary law-abiding citizens into criminals. Again, not really. This is based on the mistaken assumption that both the Amendment and the Act prohibited the possession and consumption of intoxicating liquors. In fact, neither did. (By the way, because the Amendment failed to define what an intoxicating liquor was, the Act defined it as any beverage with an alcohol content greater than 0.5%.) If you had a basement cellar filled with beer, wine, and spirits before Prohibition started, you could keep your stock, and you could drink as much of it as you wished in the privacy of your home; you just couldn't replenish your depleted stock. It's even questionable whether buying intoxicating liquors was illegal, since neither the Amendment nor the Act prohibited purchasing intoxicating liquors. You couldn't make them, sell them, barter them, transport them, import or export them, deliver them, or furnish them, but you might have been able to buy them, and you could own them and drink them.

Of course, if you weren't rich enough to have your own cellar and stock, and you wanted to drink, you had to get it from somewhere, and with the closing of legal taverns and saloons, the speakeasies replaced them. Popular culture, especially movies and TV, like to show gangs of police or Federal "G-men" raiding a speakeasy and hauling everyone off to jail, including the patrons. This is probably how people came to assume consumption of intoxicating liquors was illegal. In point of fact, however, no patron was ever arrested for drinking intoxicating liquors. There were plenty of other crimes they could be charged with, including conspiracy and drunkenness, but drinking or even buying a drink wasn't among them. In any event, most patrons were simply let go with warnings or at most fines.

Of course, if you had access to grapes or apples, under the Act you could make your own intoxicating liquors for home consumption, as long as you didn't sell, barter, transport, export, deliver, or furnish them to anyone outside your home. However, the same could not be said for beer or spirits. If you made these you could be in serious trouble, but you weren't likely to get caught as long as you consumed your home brew yourself. Nonetheless, the lure of making more than you needed and selling the access for profit could be too enticing. Bootlegging began when private citizens did just that; it only became an enterprise of organized crime when gangsters realized how much profit could be gained from it.

Myth 3: Organized crime flourished and grew more powerful thanks to Prohibition. This is controversial. There is no doubt that gangsters saw the potential profit in bootlegging, that they made millions from the sale of bootleg spirits, that crime increased as a result, and that intergang violence increased as different crime organizations fought each other for dominance. But, the violence was not nearly as bad as depicted in movies and on TV, most gangs tried to avoid civilian deaths so as not to turn the public against them, and the habit of creating legitimate front businesses had not yet taken root, so, again despite depictions in popular media, few gangsters openly, or even secretly, owned speakeasies. They just supplied the intoxicating liquors otherwise ordinary business owners sold to the public. Even the idea that Prohibition made organized crime more powerful and increased the number of gangs has been disputed. In his book I Love Paul Revere Whether He Rode or Not, Richard Shenkman argues that organized crime was no better off by the end of Prohibition than at the beginning; that at best it experienced a financial bubble that created a short-term boom, but led to a crash once Prohibition ended.

Myth 4: Prohibition was an utter failure. That depends upon how you define failure. One goal of Prohibition was to reduce the consumption of intoxicating liquors. Hard number are difficult to come by, but what we have indicates that by 1925 consumption had fallen to 60% of pre-Prohibition levels. It went up after that, but had only risen to 80% by the time Prohibition was repealed. So it did succeed in that respect. However, it did cause problems. Another goal was to reduce drunkenness, while another was to reduce crime, and in those respects it failed, though the crime it meant to reduce was the kind of petty theft and property destruction associated with alcoholism and drunkenness. It might have succeeded at that; we just don't know. But any reduction there was offset in the increase due to the activities of organized crime. Corruption also increased as police and local government officials accepted bribes to look the other way, and even protect one gang against its rivals. Other problems included the severe economic depression of the brewing, winemaking, and alcoholic beverage industries, including unemployment; the increase in cost to the consumer to continue drinking; the perceived bias against working class people, who unlike the rich had no private stocks to dip into when they wanted a drink; the increase in poisoning injuries and deaths as people drank denatured alcohol and alcohol substitutes; the disappearance of support groups to help people quit drinking (they had flourished before Prohibition, but decided they were no longer needed when people could no longer drink); the perception that politicians and other powerful people bought intoxicating liquors from bootleggers; the perception that young people could be led into vice by drinking illegal intoxicating liquors and engaging in other unlawful practices associated with it, such as gambling, drug use, and fornication; and the creation of a black market that competed with the US economy, which was already under pressure.

However, the primary reason that Prohibition did not succeed was because governments hadn't anticipated how great the problem of enforcement would be and were simply under-prepared. Neither could they get prepared, as the problem grew faster than they could adapt. The lack of a central authority made coordination almost impossible, and the ever-increasing costs at the local, state, and Federal levels, coupled with the loss of tax revenue from the sale of intoxicating liquors, along with the very size of the United States and its borders, severely hampered any attempts at enforcement. Opposition to Prohibition steadily grew, but it wasn't until 1930, when it was revealed that members of Congress themselves bought bootleg intoxicating liquors even as they tried to keep ordinary citizens from drinking, that repeal became feasible. The elections that year saw the dry Republican majority replaced by a wet Democratic majority which called for repeal. The modification of the Volstead Act in 1933 to allow the manufacture and sale of 3.2% beer did little to alleviate demand, and that same year the 21st Amendment repealed the 18th, making the Volstead Act unconstitutional.

Not that all of the effects of Prohibition were bad. For one thing, it encouraged the spread and subsequent development of jazz, once speakeasies started offering entertainment. It also boosted integration. Jazz entertainment introduced black entertainers to white customers, and in lower class neighborhoods speakeasies catered to "tans and blacks" as well as whites. This encouraged interaction in an easygoing, nonthreatening social situation that helped to get different races used to one another. Finally, transport of bootleg moonshine overland was sometimes done with specially designed cars that were faster than normal, and this led to muscle and stock car racing after Prohibition.

Continued in Part 2.