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Repeal Day Serves as Reminder of the Folly of Our Drug Laws

This Friday, Dec. 5, is the 75th anniversary of Repeal Day, the day America repealed its disastrous alcohol prohibition.

Prohibition was the pièce de résistance of the early 20th-century progressive's grand social engineering agenda. It failed, of course. Miserably.

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. Even the U.S. Senate had a secret, illegal stash of booze for its members and their staffs.

In 1924, the great social critic H.L. Mencken wrote of prohibition:

Five years of Prohibition have had, at least, this one benign effect: they have completely disposed of all the favourite arguments of the Prohibitionists. None of the great boons and usufructs that were to follow the passage of the Eighteenth Amendment has come to pass. There is not less drunkenness in the Republic, but more. There is not less crime, but more. There is not less insanity, but more. The cost of government is not smaller, but vastly greater. Respect for law has not increased, but diminished.

A bill in Congress celebrating the anniversary of Repeal Day echoes Mencken's sentiment. It notes that "throughout American history, alcohol has been consumed by its citizens"; that prohibition resulted in "abuses" and the "irresponsible overconsumption of alcohol"; and that the ban on "'intoxicating liquors' in the United States, resulted in a dramatic increase in illegal activity, including unsafe black market alcohol production, organized crime, and noncompliance with alcohol laws…"

But there's one positive thing we can say alcohol prohibition: At least it was constitutional. The prohibitionists built support for their cause by demonizing alcohol from state to state, winning over local legislators one at a time. When they'd built a sufficient national movement, they started the momentum for a constitutional amendment. Congress didn't pass a blanket federal law, Constitution be damned. They understood that the federal government hasn't the authority to issue a national ban on booze, so they moved to enact the ban properly.

When America repealed prohibition, we repealed it with a constitutional amendment making explicit that the power to regulate alcohol is reserved for the states. Even today, when Congress wants to pass federal alcohol laws (such as the federal drinking age, or the federal minimum blood-alcohol standard for drunk driving), it can't simply dictate policy to the states. Instead, it ties the laws to federal highway funding, a blackmail that while distasteful, at least carries the pretense of adherence to the Constitution.

Contrast that to drug prohibition, where Congress (and the Supreme Court, when it upheld it) made no attempt to comply with the Constitution in passing the Controlled Substances Act of 1970 (CSA), the law that gave us the modern drug war.

There's no question that drug prohibition has been every bit the failure alcohol prohibition was. Nearly 40 years after the CSA 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.

Eliot Ness and his colleagues raided supply lines, manufacturing hubs and warehouses, but alcohol consumption was still legal. You didn't have armed-to-the-teeth cops breaking down the doors of private homes the way they do now for people suspected of consensual drug crimes. During prohibition, doctors could prescribe alcohol as medication. Today, federal SWAT teams storm medical marijuana clinics and terrorize their patients, thanks to the Supreme Court's 2005 decision in Gonzalez v. Raich, which allowed the federal government to prevent a dying woman from possessing medical marijuana, solely for her own use, to treat the symptoms of her illnesses, even though the voters of California had determined that she should be left alone.

When he first visited the United States in 1921, Albert Einstein wrote of America's ban on booze: "The prestige of government has undoubtedly been lowered considerably by the prohibition law ... For nothing is more destructive of respect for the government and the law of the land than passing laws which cannot be enforced."

That's as true today as it was then.


Radley Balko is a senior editor for Reason magazine and publishes a weblog at www.TheAgitator.com.

Email your comments to radley.responses@gmail.com.