In the era before the 18th Amendment, the state and federal governments had thus reached a general accommodation on the balance of authority between the state police power and national commerce power. The states had the authority to regulate purely local affairs, such as rules governing the manufacture and consumption of alcohol, especially with respect to bars and saloons, where alcohol was sold and consumed on the premises. The federal government retained complete control over matters involving interstate commerce. Under the Wilson Act and Webb-Kenyon, the federal government assisted the states in the enforcement of their police powers by making alcohol that was shipped in interstate commerce subject to the same rules as locally produced and sold alcohol—no better and no worse.
The ratification of the 18th Amendment and the enactment of the National Prohibition Act upset this balance. Although the 18th Amendment technically gave the state and federal governments concurrent power to regulate the manufacture, sale, and consumption of alcohol, because of the Supremacy Clause, it essentially gave the federal government absolute authority to regulate all aspects of alcohol, including purely local matters traditionally regulated by the states pursuant to their police powers, such as closing times of saloons, conditions of sale of alcohol, and the like. Stated more precisely, the states could impose stricter regulations pertaining to alcohol, but not weaker or different penalties that conflicted with the Volstead Act.
As Sidney Spaeth wrote in the California Law Review, “The enforcement of Prohibition represented the nadir of government regulation of liquor.” 79 Calif. L. Rev. 161, 162 (1991). Local communities that were wet prior to the imposition of Prohibition resisted national efforts to impose Prohibition. As one Congressman noted, “If prohibition can only be enforced by the use of sawed-off shotguns in the hands of irresponsible Government agents, then indeed, we have reached the high tide of fanaticism and bigotry in this matter. We have reached a point where responsible citizens have not only the right but the duty to replace prohibition with some method of Government control under which law and order will prevail.” 71 Cong. Rec. 2671 (1929) (Rep. Pittenger). During the era of Prohibition, the efforts of the federal government to enforce Prohibition where it was not wanted spawned violence, bloodshed, and corruption. This is precisely why police power issues involving moral issues was traditionally held to be a local matter—because of the divergence of views among different communities, it was thought that the exercise of police power authority was uniquely well-suited to state and local governments rather than the federal government. Indeed, the peculiarly local nature of alcohol regulation may be best exemplified by the fact that even in those areas that imposed prohibition, this was usually not even done on a statewide basis, but rather by permitting communities the “local option” to go dry—thus, local prohibition was rooted in truly local morals and authority. As Spaeth writes, “The United States learned a hard lesson from Prohibition.”
The fundamental problem of national Prohibition, therefore, was that it essentially created a new police power for the federal government, one that it specifically lacks in any other area and which it is peculiarly unsuited to exercise, as the Supreme Court noted in the Lopez case. As will be seen, the purpose of the 21st Amendment is to rectify this aspect of Prohbition by removing the federal government from its unwise intervention into local police power regulation and thereby to reestablish the constitutional balance that prevailed prior to the 18th Amendment. The problem of Prohibition, which the 21st Amendment sought to correct, was federal overreaching into local police power matters—and crucially, had nothing whatsoever to do with the states’ inability to regulate interstate commerce, and especially, to erect protectionist barriers to interstate commerce.
The problem with Prohibition was thus federal meddling in state and local affairs. As Secretary of the Treasury Andrew Mellon noted in is annual report for 1926: “The Treasury felt with respect to local law enforcement that too much responsibility had been placed upon the Federal Government. Even in those States which already had satisfactory State laws, and in which local machinery for enforcement had been provided, citizens and officials were looking to the Federal forces for the performance of police duties which were purely local. This misinterpretation of jurisdiction, while perhaps natural and for that reason excusable, proved a serious hindrance to the successful enforcement of the national prohibition law. Were the Federal Government to accept this responsibility, it must organize large police forces in the various communities, and, in addition, must provide adequate judicial machinery for the disposition of the local cases—and interference by the Federal Government with local government which could not be other than obnoxious to every right-thinking citizen.” Quoted in Spaeth at 176.
The failure of Prohibition that prompted its repeal was an improper meddling of the federal government into a matter that traditionally fell under the states’ police power. There is nothing in the history of Prohibition or its repeal to suggest that—after the enactment of the Wilson Act and Webb-Kenyon—the states needed additional interstate commerce powers to effectuate their local prohibition regimes.
As noted previously, one other effect of national prohibition was to cast doubt on the continued legal validity of the Webb-Kenyon Act, which prompted Congress to later reenact Webb-Kenyon after the 21st Amendment to ensure its effectiveness.
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