Law & the Courts

The Lessons in Federalism That Prohibition Taught Us

New York City Deputy Police Commissioner John A. Leach (at right) watches agents pour liquor into a sewer following a raid during Prohibition, c. 1921 (Library of Congress)
Leave policy-making to the states.

One hundred years ago America undertook its “Noble Experiment,” shifting alcohol policy from state capitols, where it traditionally belonged under the Tenth Amendment, to Washington, D.C, under national Prohibition. It didn’t turn out as hoped.

As we reach the centennial of America’s national war on alcohol and survey an increasingly divided and bitterly polarized country, one riven by issues such as marijuana and “sanctuary cities,” it is worth remembering the primary lesson of Prohibition: The decentralized federalism created by the Constitution is generally the best way to govern our diverse and fractious nation.

Perhaps surprisingly, most of the objections to Prohibition rested not on individual rights but on federalism — that is, the idea that power should be spread out to states, rather than consolidated in a single place. The Eighteenth Amendment, which ushered in Prohibition, had rejected that American tradition of local government and instead entrusted unprecedented power with Washington rather than Albany, Boston, Phoenix, and Austin.

The claim of anti-Prohibitionists was simple: States could recognize the morals and needs of their distinct communities and set their policies accordingly. What must not happen, they argued, was the wielding of national power to dictate those preferences to the rest of an increasingly diverse country. To be sure, state discretion still has to be within the basic limits of the Constitution, such as following the Bill of Rights and equal protection, but otherwise, the states should decide.

Among those making this localist, anti-Prohibition argument in the 1920s were most of New York’s libertarian political class, including the New York Times, the state’s celebrated progressive governor, Al Smith, and even, early on, Franklin Roosevelt, who had once been friendly to federalism. Strange as it sounds today, historically even most whose policy preferences leaned progressive still cherished the importance of constitutional federalism.

This difference between legal and policy preferences is also why, when the Supreme Court considered the modern-day prohibition of marijuana in 2005, the attorneys general of Alabama, Louisiana, and Mississippi supported progressive California. They insisted that while the Tenth Amendment preserved the right of their states to suppress marijuana, it also guaranteed California, not the feds, the right to control medical marijuana grown and used within its own borders.

In 2005, only three (dissenting) conservative justices — William Rehnquist, Sandra Day O’Connor, and Clarence Thomas — agreed that California had such a constitutional right, but most of the 2016 Republican presidential field shared that view. Nearly all the GOP candidates, from firebrands such as Ted Cruz, Rand Paul, and Rick Perry to moderates such as Jeb Bush and Carly Fiorina, argued that the federal government could not dictate marijuana policy to the states. President Trump has also indicated he favors state-decision-making, though Republican congressional leadership has yet to act.

Marijuana is not the only contemporary issue where Prohibition offers us an important, if nuanced, lesson about the Constitution. A key principle of American federalism is that the federal government cannot force the states to do the work assigned to Washington by the Constitution. The strongest historical precedent for California refusing to enforce federal immigration laws in 2019 comes from Prohibition, when many state governors refused to assist federal suppression of alcohol.

However, at the same time that state officials refused to deploy their police against “demon rum” in the 1920s, they also specifically refused to obstruct federal enforcement, decrying calls to do so as the same sort of lawless nullification that helped lead to the Civil War. This strongly suggests that the other half of California’s “sanctuary state” policies — impeding non-governmental actors from cooperating with federal immigration enforcement — deserves the same criticism.

Progressives long ago soured on federalism, and conservatives in power too easily betray their own stated commitments to it. But our era of fierce polarization counsels for a rediscovery of and recommitment to meaningful federalism as a partial solution.

By de-scaling our politics from winner-take-all slugfests for control of national institutions such as the presidency and Supreme Court, our resentment of coastal elites or flyover rubes would perhaps dissipate. The other side would cease to be one’s oppressor and instead become merely one’s amusingly backward or bohemian neighbor. As we near the centennial of America’s experiment with Prohibition, it is worth remembering its lessons about the importance of following the Constitution and its decentralized federalism — before our politics get any worse.

Sean Beienburg is an assistant professor in the School of Civic and Economic Thought and Leadership at Arizona State University and the author of Prohibition, the Constitution, and States’ Rights (University of Chicago Press, 2019).

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