A Brief History of Prohibition

What opponents of abortions and guns don't understand about using the law to stop people from doing things they really want to do

I am a lawyer, not a historian. Indeed, historians will tell you (and in decades of law practice, I have seen a lot of evidence this is true) that lawyers are the worst historians. There’s even a derisive name for deliberately selecting out small nuggets of history for the purpose of winning an argument- “law office history”.

But I do know a little about Prohibition. It was a fascinating time- when society formed such an overwhelming social consensus about something that it actually passed a constitutional amendment to enact a social policy (think about today’s polarized environment and how difficult it would be to pass an amendment on ANYTHING, let alone a groundbreaking social reform) and then only a little more than a decade later, formed such an overwhelming social consensus that the same amendment was repealed.

Prohibition, of course, is fascinating for other reasons as well, such as the strange alliance of the religious right and feminists that helped pass it, the anti-immigrant politics that fed it, the income tax that financed it, the organized crime wave, “celebrity gangsters”, and pre-Code gangster cinema that it produced, the new urban, mixed gender speakeasy drinking culture, the Jazz Age, and all the rest.

But the most important lesson for modern times that Prohibition teaches is about what happens when the government bans something that a lot of Americans really want to do. Which is, while some people do follow the law and some beneficial social effects are achieved, passionate people will massively resist the government and defend their hobby, and criminals will organize to capture the market for the hobby, and then the government will be faced with a choice of either allowing this to go on or engaging in massive civil liberties intrusions to try and stop it.

Sound familiar? It should. This is our gun control problem in a microcosm, and it’s also a big issue with what pro-lifers plan to do to ban abortion after Dobbs. So let’s walk through this.

Prohibition addressed a real problem. Drinking had been out of control, and was associated with a variety of social ills, including ancient ones (such as people unable to do their jobs, and domestic violence) and modern ones (drunkenly operating the new motor vehicles that were taking the nation by storm). The evangelical religious right had always been powerful in America, became more powerful in the age of 19th Century revivals, and had always been a passionate opponent of drinking. They were joined as well by newer religious groups such as the Mormons. On the left, the first wave of American feminists not only sought the right to vote, but also singled out alcohol as being particularly destructive of women and of family life. Finally, there was a lot of ugly, anti-immigrant politics, especially directed at the Irish, Italians, and Germans who were streaming through Ellis Island. And those groups settled in big cities, tended to be Catholic, and brought robust drinking cultures with them to the New World.

So the stage was set. And as Prohibitionists realized the political strength they had, passing state and county-level Prohibition laws with big majorities, they realized that they could enshrine their social policy in the Constitution, where nobody could touch it. So they set their sights on a constitutional amendment. Once the Constitution was amended to allow for an income tax (thereby making excise taxes on alcohol comparatively less important), the 18th amendment passed easily, implementing legislation (the Volstead Act) was passed, and alcohol was banned throughout the United States.

And Prohibition, in a narrow sense, did work. It slowed drinking a lot. We don’t have totally reliable statistics, but the numbers on things like hospitalization for liver disease indicate that a lot less people were drinking a lot less alcohol. Many people do follow the law, either because they feel an obligation to, don’t want to rock the boat, or cannot risk their social standing by breaking it.

But people who are really passionate about something aren’t going to stop doing it just because you make it illegal. And the problem Prohibition faced is that there were a LOT of people who fell into that category. They included all those European immigrants who came from cultures that centered drinking, and also included the burgeoning young urban populations who were going to dance halls to hear the hot new jazz music that was sweeping the nation. So you almost immediately had a big enforcement problem. Organized crime, seeing the chance to make massive profits, expanded to fill the burgeoning demand- many Italian-American gangsters (most famously Al Capone) became household names and even celebrities. There were also German-American, Jewish-American, and Irish-American bootleggers who made their fortunes this way.

And this is where the error inherent in Prohibition really became clear. The federal government, of course, really did crack down on Volstead Act violators. They put a super-competent attorney, Mabel Walker Willebrandt, the Assistant Attorney General, in charge of the effort. They arrested bootleggers and confiscated their stashes. They shut down urban speakeasies. But for every success, new bootleggers and new supply chains and new speakeasies popped up. The demand was insatiable.

And while this was bad enough, things got worse. Urban booze markets were so valuable that gangsters started fighting over territories; cities became hellscapes as gangsters popped out of expensive cars firing machine guns and shooting down their enemies (and any innocent civilians who happened to be in the wrong place at the wrong time).

And most importantly, the government, frustrated by both the failure of enforcement of Prohibition and the urban organized crime wars, cracked down on civil liberties. The federal government deliberately poisoned alcohol so that drinkers would get sick and even die, hoping this would deter drinking. The government instituted broad and aggressive automobile searches looking for evidence of organized crime, which gave rise to the much-abused “automobile exception” to the Fourth Amendment warrant requirement. With the Supreme Court’s blessing, the government used the new technology of warrantless wiretapping to snag bootlegger Roy Olmstead. And, yes, the government passed the first significant federal gun controls in an attempt to get Tommy guns out of the gangsters’ hands.

Eventually, the public had enough of all of this. Stopping people from drinking, it turned out, wasn’t worth all this, and with the Great Depression looming, a new Democratic President elected by a coalition that included many urban dwelling Catholics, and a need for excise taxes to generate revenue for the government, Prohibition was repealed.

So what is the lesson of Prohibition? It is, simply, that if some large critical mass of Americans is really passionate about doing something, the government cannot effectively ban it, and if it tries to, any reduction in the activity will be accompanied massive disobedience of the law, organized criminal activity, and sharp reductions in civil liberties. This isn’t a comment on the rightness of the ban itself, either: to put my own cards on the table, I do not drink except extremely occasionally for social reasons, think alcohol consumption is enormously harmful and wish we did less of it, and generally think that a society that was actually “dry” would be a far better society in a variety of ways. Nonetheless, Prohibition was a failure, and I don’t want to repeat it.

And I don’t want to repeat it in other areas either. It’s pretty clear that the War on Drugs produced many of the same ills as Prohibition- it may slow drug consumption, but at a great cost- it, again, resulted in massive lawbreaking, empowered organized crime, and reduced our civil liberties. And I have grave concerns about attempts to ban abortion or ban guns for the same reasons.

With respect to abortion, we are going to see this play out. When the Supreme Court overturns Roe, GOP-controlled states will rush in to ban abortions. Their residents will travel to blue states to get abortions, or will seek to use medications. And at that point, you will see pro-life governors and legislators crack down. They will try to prevent travel to other jurisdictions, and try to prosecute those who do and those who help them. They will try to interfere with the pharmaceutical distribution system to prevent medication abortions. And there will be resistance in turn, as well as a black market supplied by organized crime. Civil liberties will suffer. It’s going to be horrible, and it will all flow out of the mistaken assumption that you really can use the law to stop women from getting abortions if they really want to have them.

And that pales in comparison to what would happen if we seriously tried to ban guns. I do realize that is not on the table right now, but it’s certainly a policy goal of a number of people on the left. And if we tried it, it would be a disaster. Plenty of gun enthusiasts will not give up their guns- the kind of person who buys an AK-47 in the first place is not the kind of person who is just going to want to give it up when the government asks him to. People will hide their guns from the government, there will be a black market, and the government will resort to searches and mass incarceration to try and break up the black market. Indeed, even now, with gun control laws focused mainly on felons, one of the key causes of mass incarceration is enforcement of our gun laws. These laws carry substantial sentences, and police and prosecutors are constantly searching people, cars, and homes, in an attempt to enforce them. Meanwhile, felons still get guns.

The point of all of this is the law is not some magical device where you can bring the people who do things you don’t like to heel. Rather, people who are passionate about something tend to resist government bans, and if there are enough of them, a ban attempt will carry enormous social costs. The only way to actually get people to stop doing something is to persuade them. Various alcohol treatment programs, from AA to full medical rehab centers like the Betty Ford Center, have succeeded in getting many Americans to quit drinking, without filling the nation’s streets with Tommy guns or lining Al Capone’s pockets. If you don’t want people having abortions or owning guns, there is no legislative substitute for actually trying to persuade them.