What Prohibition Can Teach Us About Marijuana Legalization — and Other Tales From Last Call Author Daniel Okrent

Last week, we solicited your questions for Daniel Okrent, the author of Last Call: The Rise and Fall of Prohibition. He has answered your questions with gusto. Big thanks to Okrent and all of you for turning in another great Q&A.

Q.

As an ardent believer in the legalization of marijuana, as well as most other currently illegal drugs, I’d be curious to know if you find any corollaries between the current ‘War on Drugs’ (which we’re losing and will continue to waste time and money on) and prohibition? – Mark Clark

A.

The obvious parallel between Prohibition and the war on drugs is their shared futility, establishing that you just can’t legislate against human appetites. There’s also the consequent enrichment of those who would try to satisfy those appetites outside the law: the bootleggers of the 1920’s and the drug syndicates of today.

But the common aspect that suggests, to me, that our drug laws will be changing radically over the next few years is the government’s inability to derive revenue from the sale of liquor then, drugs today. No factor played a larger role in the repeal of Prohibition than the government’s desperate need for revenue as the country fell into the grip of the Depression. Before Prohibition’s advent, a substantial amount of federal revenue came from the excise tax on alcohol. As the collection of income taxes and capital gains taxes plummeted between 1930 and 1933, politicians realized that the return of liquor and beer could help shore up federal finances. In fact, in the first post-repeal year, 1934, fully nine percent of federal revenue came from the revived alcohol tax.

In today’s political climate, where no one seems to be willing to raise income-tax rates, both state and federal governments are turning increasingly to excise taxes, use taxes and other levies that could easily be applied to marijuana. Californians will be voting on such a measure — it’s actually called the “Regulate, Control and Tax Cannabis Act” – this November.

Q.

Why did it require a constitutional amendment to prohibit the sale of alcohol but prohibitions against other drugs — marijuana, e.g. — require no special amendments? – Jim S

A.

In the era before the Constitution’s commerce clause had established itself as the lever enabling Congress to enact laws that might have appeared to infringe on state prerogatives, a Constitutional amendment was the one sure-fire way to impose national standards on the citizens of every state.

But even more than that, a Constitutional amendment was seen as an impregnable fortress. Laws were changed all the time, but no Constitutional amendment had ever been repealed: simple majorities in both houses of Congress could change or revoke a law, but a Constitutional amendment required two-thirds majorities in each house, plus the concurrence of three-quarters of the state legislatures. Prohibition advocates (and opponents, too) believed that a Constitutional amendment would last forever. In the words of the Prohibition amendment’s primary sponsor, Sen. Morris Sheppard, “There is as much chance of repealing the Eighteenth Amendment as there is for a hummingbird to fly to the planet Mars with the Washington Monument tied to its tail.”

Sheppard said that in 1930. It’s a measure of how badly Prohibition had failed that the Twenty-First Amendment – the repeal amendment – was ratified just three years later.

Q.

I’ve heard that Prohibition actually increased American drinking. Do you have any statistics on average alcohol consumption before, during and after Prohibition? – Luke

A.

You’ve heard wrong, Luke: one of the very few positive consequences of Prohibition was the reduction in drinking. There was a very steep reduction immediately after it went into effect, but even the ensuing years of speakeasies, bathtub gin, cross-border smuggling, and every other manner of law-breaking did not bring drinking back to pre-Prohibition levels. At the end of Prohibition, Americans were consuming approximately 70 percent as much alcohol as they had in 1914. (Demographic historians use that as a base year, as many states began to pass sharply restrictive liquor laws around that time.)

In fact, it wasn’t until 1973 that we returned to pre-Prohibition levels of alcohol consumption, and only a few years later the per capita consumption figure began to decline again. Even now, we’re only inching our way back to the 1914 high-water mark. (Or maybe I should call it the “high-alcohol mark”!)

One figure we’ll never reach again: the 7.5 gallons of absolute alcohol the average American drank in 1830 – the equivalent of 90 fifths of 80-proof liquor, or nearly three times as much as we consume today.

Q.

Here in California we have a proposition on the fall ballot to legalize marijuana. A lot of people are hoping that if marijuana is legalized, the gangs that currently profit from it will become less powerful. Is that a reasonable expectation based on what you know about what happened when Prohibition was repealed? – PaulD

Whenever I hear “legalize everything” arguments about today’s prohibited drugs, I always start wondering what the traffickers would do next. After all, criminals generally don’t have pension plans and can’t afford to retire early. Can the Prohibition era teach us anything here? As you mention, it helped get organized crime established in the U.S., but after it was repealed, how many of the smaller crooks decided to go straight? How many moved on to other criminal endeavors? – Ian Kemmish

A.

Today, there is no more visible consequence of Prohibition than the empires built by the mobsters who dominated the bootlegging business. No wonder — not only did they sell their goods at handsome prices, but none of their income was subject to income tax (at least not until Al Capone was convicted of tax evasion in 1931). Money like that must find an outlet.

Some went straight: the Bronfmans, who controlled Seagram’s, used the production facilities, distribution relationships and brand recognition they had built during Prohibition to become one of North America’s wealthiest families, dominating the distilling industry. Others stayed crooked: the national crime syndicate that reigned for decades after repeal was the product of inter-city peace pacts and cooperation agreements forged at two conferences – one in Atlantic City, the other in Chicago – during Prohibition.

And some took a middle path. In the years after Prohibition, culminating in a major effort after World War II, one-time bootleggers from eight different states east of the Mississippi decided to look west in an effort to find a way not just to preserve their fortunes, but also to enhance them. Their solution: they invented Las Vegas.

Q.

What do you think of the theory that prohibition was engineered by Standard Oil in order to get Henry Ford to abandon ethanol as the chief fuel of his Model-T? – L. F. File

A.

Not to be too harsh about it, but there is absolutely no evidence to support this theory. In fact, if there was a single industrialist more committed to Prohibition than John D. Rockefeller, it was Henry Ford himself, who supported it vocally, determinedly and unflinchingly right to the end.

Q.

How much of our “aghastness” at Prohibition is based on fact? To hear most people talk, not a single good thing came of it. Yet I have heard anecdotal evidence that things such as domestic violence and other, often alcohol-related, issues fell off significantly.

Very simply, what is the good news from Prohibition? Was there really any good that came of it, or was it all a misshapen mess to from beginning to end? – AaronS

A.

In addition to the reduction in drinking (see my answer to Luke’s question, above), there were a few other ancillary benefits, depending on your point of view. If you’re a believer in federal law enforcement, you can trace many of our post-repeal national criminal laws back to examples established during Prohibition. If you think Roe v. Wade was a wise decision, you can be grateful for Justice Brandeis‘s dissent in a famous Prohibition case, Olmstead v. United States, where he wrote about the citizen’s “right to be let alone” – words cited by Justice Stewart in Roe.

My own favorite legacy of Prohibition is co-ed drinking. In the pre-Prohibition era, the saloon was a male-only institution. Speakeasies ushered in a change in social mores that had men and women drinking together in public for the first time, which in turn brought about music in bars – the birth of the nightclub.

In the largest sense, though, I’d say that Prohibition’s most positive legacy is how it tells us that prohibitions on individual behavior generally don’t work.

Q.

“Progressive” is a concept that’s been attacked by some, notably Mr. Glenn Beck. Do you consider Prohibition to have been a Progressive initiative? – Bill Harshaw

A.

It wasn’t initiated by progressives, but Prohibition was certainly supported by them, in large numbers; 16 of the Progressive Party’s 17 members of Congress who voted on the Eighteenth Amendment voted in favor of it. The progressive view of the responsibility of government to improve the lives of citizens motivated the support for Prohibition expressed by such figures as social worker Jane Addams and journalist William Allen White. Modern conservatives would call this an expression of the nanny state; liberals would call it an expression of social conscience (even if a misguided one).

Q.

It has been said that Prohibition in the U.S. would not have come about but for the efforts of the women’s movement, but how critical were women to the repeal of prohibition? – Seano

A.

Absolutely essential. When the prominent socialite and Republican Party figure Pauline Morton Sabin came out against Prohibition in 1929, the repeal movement began to pick up support. Traveling to various cities with other socially prominent, wealthy women with whom she had formed the Women’s Organization for National Prohibition Reform, Sabin drew huge female crowds. Her example established that it was respectable for women to oppose Prohibition.

Sabin was an extraordinary woman and probably my favorite character among all the people I write about in Last Call. She was honest, forthright, fearless and willing to change her mind – qualities all too absent in our public life today.