Repeal of today's prohibition is past due
by P. C. Roberts - Milwaukee Journal (1/21/95)

This week we marked the 75th anniversary of Prohibition without much fanfare. Yet our current war against drugs has much to learn from the previous war against alcohol.

The push for prohibition began in the 1870s in response to drunkenness in Western saloons. Frances E. Willard founded the Woman's Christian Temperance Union in 1874. The Anti-Saloon League was founded in 1893. The crusade against alcohol gained national publicity with the campaign of Carry Nation, who attacked saloons in Kansas with a hatchet.

By 1917 half of the states banned liquor sales and others allowed counties and towns to do so. Congress passed a constitutional amendment banning the manufacture, sale or transportation of intoxicating beverages throughout the country in 1917. It was quickly ratified, with strong support in the rural South and West, and took effect on Jan. 17, 1920.

Prohibition created a new multimillion-dollar industry: bootlegging.

The Volstead Act defined intoxicating beverages as those containing 0.5% alcohol, effectively ruling out beer, wines and liquor as legal beverages. The first prohibition commissioner announced his desire to insure that alcoholic beverages were "not manufactured, nor sold, nor given away, nor hauled in anything on the surface of the earth or under the earth or in the air."

It didn't work.

The federal government could not patrol 18,000 miles of coastline, guard against the diversion of 57 million gallons of industrial alcohol, oversee hundreds of millions of medical prescriptions, or monitor 20 million homes to prevent the making of home brew, wine or "bathtub gin." Gangsters developed large scale smuggling operations.Al Capone's empire alone grossed $60 million per year.

Although Congress continually stiffened the penalties for violating the Volstead Act, former Attorney General George Wickersham, who chaired a presidential commission to examine its enforcement, declared in 1931 that Prohibition was undereinforced and unenforceable. Americans concluded that Prohibition was not worth its price in lawlessness and higher taxes to enforce it.

In February 1933, Congress approved the 21-st Amendment, repealing prohibition.

The impact of Prohibition on the legal system was enormous. In 1924 alone, there were 22,000 liquor cases in the federal courts, crowding out the attention given to other crimes.

And although Prohibition ended in 1933, the expansion of federal police powers that had been enhanced by Prohibition continued. For example, the debate over the exclusionary rule for illegally obtained evidence in the 1960s grew out of precedents interpreting the Fourth Amendment's requirements for warrants for searches and seizures during Prohibition.

"Probably nothing in the first half of the 20th Century matched Prohibition in expanding the federal crime effort," writes Lawrence Friedman in "Crime and Punishment in American History". "The federal war against demon rum used some newfangled weapons, such as wiretapping; for this and other reasons, many important constitutional cases, on such issues as illegal searches and seizures, came out of a Prohibition background."

In Olmstead vs. U. S. in 1938, the Supreme Court held that wiretapping did not constitute a search or seizure over the dissent of four justices, including Oliver Wendell Holmes Jr., who said that it was "less evil that some criminals should escape than that the Government should play an ignoble part."

E. W. Burgess wrote in the Illinois Crime Survey in 1929 that there was no "blinking the fact that liquor prohibition has introduced the most difficult problems of law enforcement in the field of organized crime. The enormous revenues derived from bootlegging have purchased protection for all forms of criminal activities and have demoralized law enforcing agencies."

Prohibition was based on good motives. During the 1928 presidential election, Herbert Hoover said that Prohibition was an "experiment noble in motive and far-reaching in purpose."

Today many people support the prohibition of drugs for moral reasons. The war against drugs, like yesteryear's war against alcohol, perfectly illustrates the old maxim that "the road to hell is paved with good intentions."

The effort to enforce an unenforceable law results in aggressive enforcement measures that erode Constitutional protections. The arbitrary seizure of property that is part and parcel of the war against drugs is a case in point.

Another casualty is the integrity of the political system. The enormous drug profits, like the bootleg profits, corrupt public officials. Our prisons are filled with petty pushers and petty users, not with the drug lords who organize and direct the traffic.

The war against drugs, like Prohibition, has done great damage to our constitutional protections against abusive law enforcement without having any appreciable effect in curtailing the drug trade. Unless we repeal drug prohibition, law enforcement and politics will become thoroughly corrupted.

Paul Craig Roberts, former assistant secretary of the US Treasury is chairman of the Institute for Political Economy.