The Volokh Conspiracy - Happy Repeal Day! The 75th Anniversary of the End of Prohibition:

Radley Balko has an excellent article on tomorrow's upcoming 75th anniversary of the repeal of prohibition by the Twenty-First Amendment. He notes some important parallels between the failures of Prohibition and those of today's very similar War on Drugs. The sobering facts are almost enough to drive me to drink:

It did reduce overall consumption of alcohol in the U.S., but that reduction came largely among those who consumed alcohol responsibly. The actual harm caused by alcohol abuse was made worse, thanks to the economics of prohibitions.

Black market alcohol was of dubious origin, unregulated by market forces. The price premium that attaches to banned substances made the alcohol that made it to consumers more potent and more dangerous. And, of course, organized crime rose and flourished thanks to the new market created by the 18th Amendment and the Volstead Act.

So hospitalizations related to alcohol soared. And so did violent crime. Corruption flourished, as law enforcement officials in charge of enforcing prohibition went on the take, from beat cops all the way up to the office of the United States Attorney General...

There's no question that drug prohibition has been every bit the failure alcohol prohibition was. Nearly 40 years after the [Controlled Substances Act of 1970] passed, we have 400,000 people in prison for nonviolent drug crimes; a domestic police force that often looks and acts like an occupying military force; nearly a trillion dollars spent on enforcement, both here and through aggressive interdiction efforts overseas; and urban areas that can resemble war zones. Yet illicit drugs like cocaine and marijuana are as cheap and abundant as they were in 1970. The street price of both drugs has actually dropped—dramatically—since the government began keeping track in the early 1980s.

The main difference between the two prohibitions is that one was enacted lawfully, and once it became clear that it had failed, we repealed it (and government revenues soared with new alcohol taxes). As the drug war has failed, the government merely claims more powers to fight it more aggressively.

Radley also notes that the one saving grace of Prohibition was that it was clearly constitutional, adopted through the amendment process rather than by dubious overextension of Congress' power to regulate "commerce . . . among the several States" under Article I of the Constitution. When Prohibition was enacted, few jurists or legal scholars doubted that a constitutional amendment was required to give Congress the power to ban all sales of alcohol, including those that occurred within the territory of a single state. That consensus - which traces its origins back to the Founding era - is an important strike against the modern view that Congress has unlimited authority to control anything and everything through the Commerce Clause.

By contrast, the War on Drugs has culminated in decisions such as Gonzales v. Raich, which, as I explained in this article, gives Congress virtually unlimited authority to regulate any activity using its Commerce Clause power, whether the activity has any meaningful connection to interstate commerce or not.

Constitutional federalism is just one of the many casualties of the War on Drugs. Of course it's not as important as the thousands of deaths, hundreds of thousands of broken lives, and tens of billions of wasted dollars. But it's worth noting nonetheless.

	[Ilya Somin, December 4, 2008 at 8:08pm] Trackbacks Happy Repeal Day! The 75th Anniversary of the End of Prohibition: Radley Balko has an excellent article on tomorrow's upcoming 75th anniversary of the repeal of prohibition by the Twenty-First Amendment. He notes some important parallels between the failures of Prohibition and those of today's very similar War on Drugs. The sobering facts are almost enough to drive me to drink: It did reduce overall consumption of alcohol in the U.S., but that reduction came largely among those who consumed alcohol responsibly. The actual harm caused by alcohol abuse was made worse, thanks to the economics of prohibitions. Black market alcohol was of dubious origin, unregulated by market forces. The price premium that attaches to banned substances made the alcohol that made it to consumers more potent and more dangerous. And, of course, organized crime rose and flourished thanks to the new market created by the 18th Amendment and the Volstead Act. So hospitalizations related to alcohol soared. And so did violent crime. Corruption flourished, as law enforcement officials in charge of enforcing prohibition went on the take, from beat cops all the way up to the office of the United States Attorney General... There's no question that drug prohibition has been every bit the failure alcohol prohibition was. Nearly 40 years after the [Controlled Substances Act of 1970] passed, we have 400,000 people in prison for nonviolent drug crimes; a domestic police force that often looks and acts like an occupying military force; nearly a trillion dollars spent on enforcement, both here and through aggressive interdiction efforts overseas; and urban areas that can resemble war zones. Yet illicit drugs like cocaine and marijuana are as cheap and abundant as they were in 1970. The street price of both drugs has actually dropped—dramatically—since the government began keeping track in the early 1980s. The main difference between the two prohibitions is that one was enacted lawfully, and once it became clear that it had failed, we repealed it (and government revenues soared with new alcohol taxes). As the drug war has failed, the government merely claims more powers to fight it more aggressively. Radley also notes that the one saving grace of Prohibition was that it was clearly constitutional, adopted through the amendment process rather than by dubious overextension of Congress' power to regulate "commerce . . . among the several States" under Article I of the Constitution. When Prohibition was enacted, few jurists or legal scholars doubted that a constitutional amendment was required to give Congress the power to ban all sales of alcohol, including those that occurred within the territory of a single state. That consensus - which traces its origins back to the Founding era - is an important strike against the modern view that Congress has unlimited authority to control anything and everything through the Commerce Clause. By contrast, the War on Drugs has culminated in decisions such as Gonzales v. Raich, which, as I explained in this article, gives Congress virtually unlimited authority to regulate any activity using its Commerce Clause power, whether the activity has any meaningful connection to interstate commerce or not. Constitutional federalism is just one of the many casualties of the War on Drugs. Of course it's not as important as the thousands of deaths, hundreds of thousands of broken lives, and tens of billions of wasted dollars. But it's worth noting nonetheless.