Vol. 30 No. 9 (October 2020) pp. 132 - 134 PROHIBITION, THE CONSTITUTION, AND STATES’ RIGHTS, by Sean Beienburg. Chicago: The University of Chicago Press, 2019. 312pp. Cloth $105.00. ISBN: 9780226631943. Paper $35.00. ISBN 9780226632131. E-Book $10.00 to $35.00. ISBN: 9780226632278.
Reviewed by Paul E. Herron, Department of Political Science, Providence College. Email: pherron@providence.edu.
In PROHIBITION, THE CONSTITUTION, AND STATES’ RIGHTS, Sean Beienburg offers a detailed analysis of the adoption of the Eighteenth Amendment, debates over its enforcement, and ultimately its repeal. This outstanding book is built on an enormous amount of original research into how state-level governments and politicians managed the politics of prohibition. Scholars of American constitutionalism often appear trapped by both federal and judicial supremacy. If the U.S. Constitution is the ultimate expression of the fundamental law and the Supreme Court has the exclusive authority to interpret it, then the study of American constitutionalism is necessarily the study of jurisprudence. The onerous requirements contained in Article V exacerbate the problem because there has been so little textual change to the document. Amy Bridges, John Dinan, Sandy Levinson, Alan Tarr, Robinson Woodward-Burns, Emily Zackin and others (myself included) have turned to state constitutions, where the more flexible amendment procedures reveal an active and ongoing debate over what should be contained in the fundamental law. Beienburg too has done some excellent work on state constitutions, but here he focuses on state and regional debates over a national constitutional issue, which expands the scholarly view of American constitutionalism beyond the courts and Washington, D.C. His account also enriches the study of American political development and reminds us of the many ways in which the principles of federalism, states’ rights, and constitutional theory interact, harmonize, and clash.
The book begins by noting the unexpected constitutional arguments surrounding the contemporary debate over legalization of marijuana, with some conservatives pushing national power and some liberals responding by invoking the Tenth Amendment and states’ rights. This is an effective frame for why national alcohol prohibition is still relevant, but Beienburg’s meticulous examination of state legislative journals and newspapers reveals an overlooked venue of American constitutional debate that is connected to much larger issues in contemporary politics. He notes that prohibition had a far-reaching effect that “altered not only the relationship between the states and federal government but also that between the government and the individual” (p. 3). Investigation into these debates is so fruitful for those seeking to better understand constitutional and political history because, “the constitutional politics of Prohibition were about politics, not just judicial filings and rulings… unlike our current-day politics, in which non-judges cede constitutional argument to courts in a realm of judicial exclusivity and judicial supremacy, noncourt actors took constitutional politics seriously… [and] for all their disagreement, most ‘wets’ resisting Prohibition and ‘drys’ backing it shared a remarkably consistent constitutional vision that enabled such meaningful dialogue” (pp. 4-5). The debates that Beienburg presents are more substantive than the current partisan discourse that relies on the courts to resolve differences. [*133]
Chapters two and three outline the fraught relationship between Chapter 2, “Prohibition and Liberalism” and Chapter 3, “Prohibition and Federalism”. Beienburg argues that the effort to outlaw alcohol “exposed two related fault lines in American political thought: the proper role of individual rights and choice against government regulation, on the one hand, and the proper allocation of state and federal power, on the other” (p. 8). He does an excellent job at setting up the debate that follows and explains how different groups formed sometimes surprising alliances in support of prohibition because they believed it would cure a wide variety of societal ills. Some thought elimination of drunkenness would help minimize poverty and domestic violence. Others argued it would actually increase personal and societal freedom and drive participation in civic and political life. Racists saw an opportunity to exert more control over African Americans and immigrants. At the same time, some Black intellectuals hoped that increased federal capacity might enable actual enforcement of the Reconstruction Amendments. As a scholar of southern politics, I found Beienburg’s account of the South’s “overwhelming embrace of prohibition” to be quite effective in displaying the contradictory interests and the inevitable contests that would follow. If white supremacists and southern Blacks both supported a policy for contradictory reasons, how would implementation ever work? One of the great virtues of these opening chapters is that Beienburg offers a smart and concise introduction to the foundational themes of American political thought that were tested by the realities of criminalizing alcohol.
Chapters 4 and 5 trace the ratification and implementation of the Eighteenth Amendment by region from 1918-1921. Here is where Beienburg begins to put on full display his extensive research in state archives, newspapers, and the papers of political leaders. This part of the account begins by noting the failure of prohibition’s opponents to get the Eighteenth Amendment declared unconstitutional by the Supreme Court. The result was that citizens and government actors across the nation would “wage a war of constitutional politics” (p. 51, emphasis in original). Both sides of the debate argued they were most faithful to the American political tradition. Drys thought that by following the amendment process prescribed by Article V, they were upholding the principles of federalism and a strict reading of national power. Moreover, they argued this process ensured the states had consented to the change (of course unanimous consent is not a requirement for amending the Constitution). Drys also claimed that the wets’ proposal that states use their “sovereign discretion” to resist enforcement would result in an expansion of federal authority and amount to nullification – something both sides agreed was illegitimate. These chapters present the debate over ratification and concurrent enforcement in the South, West, Midwest, and Northeast. In Dixie, only Maryland, which was not even a member of the Confederacy, adhered to states’ rights principles. It was ironically the Northeast that has the most extended debate and largest faction resisting federal power, so much so that the region gets its own chapter.
In Chapter 6, Beienburg follows the continuing regional debates over concurrent legislation and other issues related to enforcement of prohibition, again with unexpected results. In Georgia, white supremacists praise national power, while in New York representatives and citizens argue against coercing the states. A nice feature of Chapter 7 is that the author provides needed national context by [*134] considering how the issues manifested in the presidential election of 1924. In Chapter 8 we see the wets attempt to pass state referenda repealing concurrent enforcement legislation, and again Beienburg includes needed analysis of the effects on national politics and the presidential election of 1928. Chapter 9 chronicles the continued regional debates and examines Hoover’s efforts to justify federal criminal enforcement. Beienburg’s inclusion of the Wickersham Commission brings the national government into conversation with the states over the contentious constitutional issues. The final chapter covers the end of prohibition from the perspectives of the states that the reader has gotten to know so well over the course of the book. The conclusion is an effective summary of the broad-ranging lessons to be drawn from a state-centered account of prohibition, and Beienburg closes with a coda on marijuana and popular constitutionalism that brings those lessons to the most relevant contemporary political issue.
PROHIBITION, THE CONSTITUTION, AND STATES’ RIGHTS is an impressive work of scholarship. After reading any book that covers this much time and space, I’m always left wanting more detail on certain cases, but it would be unfair to criticize on this point. Beienburg has thoughtfully examined a complex and far-reaching national constitutional issue from the point of view of the states. The book certainly adds to the historical literature on prohibition, but its greatest contribution is the way in which the author connects this issue to perhaps the most important themes in American political thought – federalism and liberalism. In doing so, Beienburg offers important insights on the legalization of marijuana, and he shows that the inability to agree on the most basic constitutional principles coupled with almost complete deference to the courts is one of the root problems in modern political discourse. His assessment of the fight over pot tracks the change in the constitutional dialogue and reveals that some partisans continue to take self-contradictory positions on such issues, though Beienburg is careful not to generalize. In fact, his treatment party divisions and alliances around prohibition is thoughtful and nuanced throughout. Anyone interested American political thought or constitutionalism outside the courts should read this book. Ultimately, Beienburg presents a new perspective on prohibition and, in turn, a new perspective on some of the most fundamental features of American political development.
© Copyright 2020 by the author, Paul E. Herron.
