What should we learn from the Twenty-First Amendment’s repeal of the Eighteenth Amendment? There is a narrow and broader such reading.
The narrow reading regards the Eighteenth Amendment as a success on the ground that “alcohol consumption declined during Prohibition,” “[a]rrests for public drunkenness and disorderly conduct declined 50 percent between 1916 and 1922,” “violent crime did not increase dramatically during Prohibition,” and “following the repeal of Prohibition, alcohol consumption increased,” as Professor Mark H. Moore explained in the New York Times. The narrow reading acknowledges:
This is not to say that society was wrong to repeal Prohibition. A democratic society may decide that recreational drinking is worth the price in tragic fatalities and other consequences. But the common claim that laws backed by morally motivated political movements cannot reduce drug use is wrong.
In particular, current federal and state laws that prohibit drug sale and use should be maintained:
There is a price to be paid for such restrictions, of course. But for drugs such as heroin and cocaine, which are dangerous but currently largely unpopular, that price is small relative to the benefits.
I have long defended a broader reading of what we should have learned from the Twenty-First Amendment, but have not. My argument was that drug use touched on issues of the control of consciousness that are at the heart of the values of freedom of thought and experience of the First Amendment (both the Free Exercise and Free Speech Clauses), and that any prohibition of such drugs must be justified by a compelling secular purpose. Neither the prohibition of alcohol nor of many other drugs could be thus justified, and indeed worsened harms sometimes incident to drug use that could better be mitigated by forms of regulation, including the availability of non-punitive medical and therapeutic services. The Prohibition Amendment for this reason violated human rights, and should further be condemned because its political motives were, on examination, racist, condemning the ways of life not only of people of color but of racialized recent immigrants. Such unjust criminalization—by making sale and manufacture of alcohol illegal—also made now illegal such businesses lucrative, including willingness to use forms of violence to support such businesses. The violent criminality associated with alcohol use was, in fact, largely the product of its unjust criminalization (its criminogenesis).
This essay is part of a discussion about the Twenty-First Amendment with Robert P. George, McCormick Professor of Jurisprudence, Professor of Politics and Parliamentarian, Princeton University. Read the full discussion here.
We have now had enough experience with prohibition of drugs (including alcohol, which is, of course, itself a drug) that the lessons we should have learned from Prohibition are now, I believe, conspicuously a matter of our experience today, including the ferocity of Nixon’s War on Crime in general and War on Drugs in particular that continued through the administrations of Presidents Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush, and, apparently, Donald Trump. This, in turn, has played a prominent role in racialized mass incarceration in the United States that has now become a national and international scandal to many on both the left and right. What was true of the Prohibition Amendment was true as well of the shabby political motives (and racial and social prejudices) of the largely Republican sponsored War on Drugs, as Nixon advisor John Ehrlichman acknowledged. The violent criminality allegedly associated with drug use remains largely the product of its unjust criminalization, including the criminality that flourishes abroad in the nations that feed our drug habit. And drug prohibition and enforcement are highly racialized, as if the harms of drug use only trigger intervention when they are the drug habits of lower-class people of color.
What we should have learned from the Prohibition Amendment, we have not learned—caught in a repetition compulsion motored by some of our worst, most ignoble political impulses. It is time for a change.
Mark H. Moore, “Actually, Prohibition Was a Success,” New York Times (Oct. 16, 1989).
David A.J. Richards, Sex, Drugs, Death, and the Law: An Essay on Human Rights and Overcriminalization (Totowa, N.J.: Rowman and Littlefield, 1982).
David A.J. Richards, “Drug Use and the Rights of the Person: A Moral Argument for Decriminalization of Certain Forms of Drug Use,” 33 Rutgers L. Rev. 607 (1981).
Douglas N. Husak, Drugs and Rights (Cambridge: Cambridge University Press, 1992).
Douglas Husak, Legalize This! The case for decriminalizing drugs (London: Verso, 2002).
Douglas Husak, Overcriminalization: The Limits of the Criminal Law (New York: Oxford University Press, 2008).
Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2010).
John F. Pfaff, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform (New York: Basic Books, 2017).
David Dagan and Steven M. Teles, Prison Break: Why Conservatives Turned Against Mass Incarceration (New York: Oxford University Press, 2016).
Jason Smiley, How Propaganda Works (Princeton: Princeton University Press, 2015).
David A. J. Richards Edwin D. Webb Professor of Law, New York University School of Law.