Bad Language: Why the Prohibition Act Was Doomed From the Start

The seeds of Prohibition’s demise were written into its originating documents, the Eighteenth Amendment and the Volstead Act, long before the corruption of government agents, inadequate funding for enforcement, and expansion of criminal enterprises pushed Americans to insist on its repeal under the Twenty-first Amendment. The Eighteenth Amendment comprised just three provisions containing very deliberate language selected to garner support from both “drys” and “wets.” That’s right – ratification required the support of “wets,” many of whom interpreted the intent of “drys” as destruction of the saloon, not the abolition of all liquor. The names of the two leading organizations – the Anti-Saloon League and the Women’s Christian Temperance Union – advancing Prohibition implied the same idea to many. So did the language in the Eighteenth, which had been written largely by Wayne Wheeler, head of the Anti-Saloon League. The Eighteenth prohibited the “manufacture, sale, or transportation of intoxicating liquors”; it did not prohibit the purchase or consumption of liquor. When Senator Thomas Hardwick submitted a proposal to add “purchase and use” of liquor to the amendment, his colleagues charged him with a cynical attempt to derail the entire amendment even before it was sent to the states for ratification; his proposal received only four votes. Leading Prohibitionists thought it might take as long as a generation to wean Americans from their desire for alcohol. In the interim, otherwise law-abiding citizens should not be made outlaws for taking an occasional drink.

Once ratified by the states, all of which but Connecticut and Rhode Island did, richer Americans began stockpiling as much liquor as possible, taking advantage of the amendment’s provision delaying implementation for one year from ratification. The Yale Club in New York City stashed enough liquor that it still had reserves after Prohibition’s fourteen-year run. Few members of the middle or lower classes could afford to amass large quantities of liquor, but the Volstead Act, which gave form to the Eighteenth Amendment’s mandate, provided a few loopholes as a concession to special interest groups. A provision allowing the use of liquor, usually whiskeys or brandies, for “medicinal” remedies led 15,000 physicians and 57,000 druggists and drug manufacturers to apply for licenses to prescribe liquor within the first weeks of Prohibition. Not surprisingly, the number of “patients” seeking alcoholic remedies grew proportionally. Farmers were allowed to produce 200 gallons (about 1,000 bottles), each year, of “non-intoxicating cider and fruit juice,” but the Volstead Act left the definition of “intoxicating” to be determined by juries, if charges were ever brought. This allowance drove a deeper wedge between rural and urban residents and interests, leading a New York representative to assert that the Volstead Act “preserves their cider and destroys the city worker’s beer.” The act, also, established a system for permitting distilleries to produce alcohol for industrial uses, of which there were many, but provided few restrictions on production or distribution of the products, allowing for rampant abuse. While none of these loopholes constituted a significant volume of liquor consumed during Prohibition when compared to bootlegging and moonshine operations, the allowance for some legal manufacture coupled with the absence of any restrictions on personal consumption, led many people to view the Eighteenth Amendment and the Volstead Act with a great deal of ambiguity, which led to doubt, reassessment, and repeal.

Despite the many faults evident in enforcing Prohibition and the escalating deterioration of public support in the early 1930s, the law’s repeal was not taken for granted. No amendment had ever been repealed and it would not be a simple matter of turning one-fourth of the states (thirteen) who had voted for it against the Eighteenth, but required a new amendment for repeal, needing thirty-six states to achieve success. When deciding how to proceed, anti-Prohibitionists looked to the exacting language of the Eighteenth, again, for their answer. It had required ratification by state legislatures. Repeal advocates feared that state legislators could be overly influenced, even blackmailed, by Prohibition advocates and decided to pursue a previously untried route to repeal — ratification by state conventions, composed of delegates selected in local elections. Those people, for the most part, would not be indebted to national parties or organizations, freeing them to vote their consciences and proclivities without fear of reprisal. The plan worked so well that delegates were elected, conventions organized, and votes held in thirty-six states in only eight months, bringing a swift end to the nearly fourteen-year “noble experiment.” The Twenty-first Amendment remains the only one ratified by use of state conventions.