Constitution Daily

Smart conversation from the National Constitution Center

Today's war on drugs: Prohibition then and now

November 16, 2012 by NCC Staff


As the debate over the legalization of marijuana came to the forefront of this year's election, three experts joined the National Constitution Center to discuss lessons we can learn from the Prohibition era.

Daniel Okrent, best-selling author and curator of the Center’s world-premiere exhibition American Spirits: The Rise and Fall of Prohibition, joined Christopher Bracey, senior associate dean for academic affairs at George Washington University Law School, and David Fontana, associate professor of law at George Washington University, to discuss the legacy of Prohibition in relation to the nation’s evolving drug policies.

Check out the panelists' insights and listen to audio clips of the program below.

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"It's an exciting time to talk about Prohibition for the reason that the election has put the question of 'anti-Prohibition' before us all over again," Bracey said. "The question of the day, I think, is ... what lessons can we draw from Prohibition for today's issues?"

"Well, I think there are two primary lessons,"Okrent said. "The first one, we know, I think we all know, that Prohibition was a terrible failure. Despite the best of intentions, and we have to remember that there were good reasons for Prohibition ... but the effort to legislate it out of existence didn't succeed. ...

"If there is a part of the world that wants something and another part that is willing to supply it, it will be provided, and that was certainly the case with Prohibition. I think we've seen that as being the same thing with marijuana, and the changes in the laws, particularly by popular vote now, are a reflection of the knowledge this is so.

"I said there was a second reason, and one of the very clear parallels between the U.S. today and the early 30s leading up to the repeal of Prohibition was the desperate need for tax revenue. It was really the Depression that ended Prohibition as much as anything else, because suddenly with 25 percent unemployment, income tax collections had plummeted, capital gains taxes didn't exist any longer--there were no capital gains between 1919 and 1933--so the government is broke, it's running on fumes, where can we get some revenue again? People recalled that back before Prohibition and before the income tax amendment in 1913 that as much as 40 percent of federal revenue came from the tax on alcoholic beverages.

"Today, no one seems to want to pay taxes, no one wants to legislate taxes, so instead: user taxes--if people want something, they can purchase it, and the state or the federal government or both will get richer as a result of it. So I think we're in this case of double parallels."

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"There's one point of departure here," Bracey said. "There's a key difference between alcohol and marijuana--one has a certain cultural tradition, that's sort of across or transcends generations; psychotropic drugs, marijuana, perhaps not the same tradition."

Another difference the panelists discussed is that Prohibition was a sweeping bipartisan measure, whereas today, neither major party supports the legalization of marijuana. For example, in 2010, when a ballot measure in California to legalize marijuana was proposed, not a single elected official supported it.


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Fontana pointed out that both Prohibition and today's war on drugs reflect a unique dynamic between the federal and state governments.

"This for me highlights what's so different about his debate in the United States versus elsewhere," he said. "In the U.S., these debates are bottom-up instead of top-down debates. Prohibition is a great example of this. Before it got to the point where we did one of the grandest of things in American law and had a constitutional amendment, there were dozens of states experimenting ... as our laboratories of democracy with different laws.

"In another country, when there are changes in drug laws or when there are changes in any laws, they're much more top-down. ...In the United States these debates and all of our other controversial debates tend to be more bottom-up."


Fontana also pointed out that because enforcement was such a demanding task, "one of the legacies of Prohibition is that even after the 21st Amendment was passed and is gone from being in our Constitution, the modern administrative state is partly created through Prohibition. ... One of the themes that drug laws implicate is the capacity of the federal government."


With current conflicts between federal policy and certain states, what might the federal government do?

It's not unheard of for the federal government to sue a state--in fact, that was the case with Arizona v. U.S., Bracey explained, in which the court weighed in on whether Arizona's immigration law interfered with federal policy and enforcement efforts.

It's possible that the federal government could sue--but "it doesn't strike me as likely," Okrent said.

It is likely that the federal government won't interfere too much in enforcing federal law over conflicting states. "There's just not the interest, the experience, and the resources to do all that much at the federal level," Fontana said.

What about a legislative approach? Would Congress ever pass a law legalizing (and taxing and regulating) marijuana?


"Congress is more likely to have a unicorn appear in its hall," Fontana said. "It's hard to imagine it passing any significant drug reform."


Would legalizing marijuana reduce related criminal activity?

"What we know is the crime syndicate today, and what we've had as a national crime syndicate for much of the last century, was created by and for Prohibition," Okrent said.

"Crime as we came to know it on a national scale was directly a result of Prohibition. The obvious parallel of the mobsters who made huge amounts of money--untaxed--and perpetrated a great deal of violent crime to protect their interests, we have the same thing going on now. It's mostly in Mexico, not entirely in Mexico, but it's driving the same sort of craven behavior and violent behavior because of this underground market."



Of the constitutional perspective on Prohibition, Okrent said:

"For me... it's the anomaly of Prohibition in the Constitution. The Constitution exists to limit the powers of government in the lives of individuals or relative to the states, and only in two places in the history of the Constitution, I believe, are the rights of individuals ever limited in the Constitution: the 18th Amendment said you couldn't get a glass of legal beer, and the 13th Amendment said you couldn't own slaves. The notion that these two things are equivalents in the Constitution is really kind of horrifying."

Fontana said:

"Perhaps the most significant constitutional lesson to come from Prohibition is that anything can be done under the Constitution. So we can pass something under the Constitution, and then 13 years later we can repeal it. ... It's very up in the air up until Prohibition what you can do as a constitutional amendment. And after Prohibition, there's a Supreme Court challenge to whether or not it changed the Constitution too much. And the Supreme Court says in the case that you can do anything under the Constitution as long as you get the votes. ... From a constitutional perspective, Prohibition opens the doors for all different types of things potentially being in the Constitution."



Of the intentions behind Prohibition of alcohol and drugs, Okrent said:

"It has to do with self-definition--who are we as a people, who are we as a society. The war on drugs has been going on for 42 years. I don't know of any other war that we would tolerate going on for so long that we were losing and spending so much money on. ... It is this matter that what you believe is more important than what you can accomplish.

"None of these are efforts to legislate morality. They're efforts to legislate against human desire. That can't work."


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