ASHLAND UNIVERSITY

PROGRESSIVISM AND THE TWO ROADS TO PROHIBITION

A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE ASHBROOK SCHOLARS PROGRAM AND THE DEGREE OF BACHELOR OF ARTS

BY JEREMY HORTON APRIL 29, 2009

DEPARTMENT OF POLITICAL SCIENCE AND HISTORY

The years after the Civil War saw not one but two new beginnings in American politics. The first was to some extent a working and living out of the principles of the Founding, a resumption of old ways now elucidated and ennobled by the tragedy of the War and by the triumph over slavery. But very quickly this perpetuation or rebirth of the old freedom began to give way before the advance of a New. Hope-filled experiments in American politics began to be conducted, whose character was not altogether unlike the epochal experiment dared by her ancestors in the garden, while God was not looking. The same pretension that found its temptation, and purpose, and the liberation of the passions reached out for knowledge of a new kind for the wisdom of history that was at once to completion and nullification of the knowledge of good and evil. The results of that original experiment were not as happy as had been predicted, but whether these latter-day political experiments portend a similar disappointment and alike rebuked? remains to be seen. Already they have proceeded, with occasional interruptions, for more than a century.

-Charles R. Kesler

INTRODUCTION ................................................................................................................................................. 2 A CONSTITUTIONAL DISCREPANCY ........................................................................................................................... 2 THE VARIOUS ROADS TO REFORM ........................................................................................................................... 10 DRUGS, ALCOHOL, AND THE COMMERCE CLAUSE ................................................................ 13 GONZALES V. RAICH AND THE CONTROLLED SUBSTANCES ACT ............................................................... 13 19TH CENTURY LIQUOR COMMERCE AND THE WILSON BILL ..................................................................... 17 THE OLD ORDER CHANGETH ......................................................................................................... 27 TWO CONCEPTS OF CONSTITUTIONALISM ........................................................................................................... 27 THE PURPOSE OF GOVERNMENT .............................................................................................................................. 30 THE PRE-PROGRESSIVE TEMPERANCE MOVEMENT .............................................................. 35 AMERICAS OLDEST REFORM MOVEMENT ........................................................................................................... 35 TEMPERANCE, RELIGION, AND LIBERTY ............................................................................................................... 38 THE GREAT LEGAL FORTRESS OF INTEMPERANCE ....................................................................................... 43 THE WCTUS FIGHT FOR A CLEAR BRAIN ...................................................................................................... 48 TEMPERANCE PROBLEMS IN PRE-PROGRESSIVE AMERICA ............................................................................ 52 THE TEMPERANCE MOVEMENTS PROGRESSIVE TRANSFORMATION ....................... 58 THE PRAGMATISM OF THE ANTI-SALOON LEAGUE ......................................................................................... 58 WEBB-KENYON AND THE EIGHTEENTH AMENDMENT ................................................................................... 61 PROGRESSIVE IDEAS, THE TEMPERANCE MOVEMENT, AND THE ANTI-NARCOTICS MOVEMENT 63 THE ANTI-NARCOTICS MOVEMENT ............................................................................................... 67 THE SPREAD OF DEMOCRACY .................................................................................................................................... 67 THE ONE-MAN REFORM MOVEMENT .................................................................................................................... 72 THE OPIUM EATERS ....................................................................................................................................................... 77 THE BEGINNINGS OF FEDERAL NARCOTICS PROHIBITION ............................................................................ 83 CONCLUSION ............................................................................................................................................... 87

I NTRODUCTION
How strangely will the Tools of a Tyrant pervert the plain Meaning of Words! Samuel Adams, Letter to John Pitts, January 21, 1776

A Constitutional Discrepancy
In September of 2002, Robert C. Luisi was convicted in a federal court for violating the Controlled Substances Act on three separate counts of cocaine possession and distribution.1 Luisi appealed the initial decision to the U.S. District Court of Massachusetts where Judge William Young presided. Luisi had admitted to distributing cocaine, but was basing his appeal on entrapment accusations that he made against the federal agents who arrested him. Not surprisingly, he was found guilty once again.2 The Judge stated, Although Luisis entrapment defense at times lent the proceedings the air of The Godfather, the trial was otherwise unremarkable.3 Except for one incident that occurred, this description was quite accurate.4 Although the case was not noteworthy from anyones perspective other than Mr. Luisis, a confrontation took place during jury deliberations that raised a significant question.

Title 21, section 841 (a) (1) of the U.S. Code states that it is unlawful to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. http://www.usdoj.gov/dea/pubs/Controlled Substances Act/841.htm# 2 U.S. Department of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics Online, http://www.albany.edu/sourcebook/ind/DRUGS.Court_cases,_Federal.Convictions.2.html. From 2001-2004, the percentage of people convicted of a federal drug offense when they were charged was 90.64%. 3 Judge D.J. Young, United States District Court for the District of Massachusetts, United States of America v. Robert C. Luisi Memorandum, July 25, 2008, 1-2; United States v. Luisi, 482 F.3d 43 (1st Cir. 2007), Luisi was an admitted member of the La Cosa Nostra crime family. One of his superiors was working with the FBI and instructed Luisi to purchase and sell the cocaine, which was the basis for his entrapment defense. The U.S. Court of Appeals, First Circuit decided that the original conviction was erroneous because the jury had not been properly instructed on the entrapment defense, http://bulk.resource.org/courts.gov/c/F3/482/482.F3d.43.03-1470.html. 4 According to the Compendium of Federal Justice Statistics, cases involving drugs are extremely prevalent. From 2002 to 2004, 38% of cases heard were drug-related. This means that of the 277,968 cases brought into federal court, 106,554 of them were brought on because of drug charges. Immigration cases are the next most common, but account for only about 24% of the total federal docket, http://www.ojp.usdoj.gov/bjs/pubalp2.htm#cfjs.

The law that Luisi was charged with breaking was the Controlled Substances Act and considering the facts of the case, it should have been fairly easy to get a conviction. One juror, however, made it unusually difficult. On the first day of deliberations, an argument broke out between this juror and the judge. According to Judge Young, the juror refused to accept the legitimacy of the drug laws at issue.5 The dispute began when the judge received a note from the jury that read:
One juror is asking: Whereif two-thirds of both houses of congress voted in 1919 that it was necessary to amend the constitution to give congress the power to ban mere possession of a substance (prohibition of alcohol in that case)is the constitutional grant of authority to ban mere possession of cocaine today?

The judge answered this by saying the jury was not permitted to determine constitutional issues about the law. Thomas Eddlem, the juror who posed the question, found this to be an insufficient response. He continued to protest the validity of the case and would not allow deliberations to go on, even though the judge was adamant that, the laws at issue were constitutional and that those on the jury were not free to substitute their own views.6 Eddlem was not swayed and cited the highest law of the land to make his case. Article I, section 8 of the Constitution gives Congress the power to regulate commerce among the several states, which means that the federal government has no right to prosecute anyone for commerce that takes place within a state, argued Eddlem, including the buying and selling of narcotics. Therefore, Congress did not have constitutional authority to prosecute Mr. Luisi for selling cocaine since he did not cross any state lines to buy or sell it. He offered as further evidence the passage of the Eighteenth Amendment in 1919, which granted Congress the power to prohibit the manufacture and sale of intoxicating beverages within the states. The federal government did not have this authority until one year after ratification of the amendment.7 This amendment initiated national prohibition, as Congress quickly

5 6

Young, 3. The 43-page memorandum was written solely on his handling of this situation. Young, 3. 7 Young, 4.

passed legislation that nearly banned all alcoholic beverages in America.8 Given the legal steps that had to be taken to enact alcohol prohibition, Eddlem wanted to know where Congress found constitutional authority to prohibit narcotics. Since Congress only possesses those powers that are enumerated to it through the Constitution, Eddlem stated, it was never made clear to me where banning the mere possession of drugs is authorized.9 Judge Young told Eddlem that the Supreme Court had interpreted the Commerce Clause, to extend to enacting laws with respect to contraband, including contraband laws.10 The Commerce Clause, according to the court, grants Congress the authorization to enact legislation that regulates narcotics and/or narcotics possession. Eddlem remained unconvinced. Growing impatient, the judge decided that Eddlem was challenging the validity of the Controlled Substances Act for moral reasons and was thus engaged in juror nullification, which gave the Court grounds to dismiss him. Eddlem protested this, saying that he believed the Controlled Substances Act to be invalid not because of his sense of morality, but because of the Constitutiondespite how the Supreme Court had interpreted it. The constitution should not be interpreted, Eddlem said, Interpret is a word I use with reading a foreign language. The Constitutionis written in English.11 He did not object to the claim that Mr. Luisi had dealt drugs, but that the trial was being held in a federal court. This argument did not convince Judge Young, who removed the rogue juror, and replaced him with an alternate.12 The judge claimed that Eddlem was removed for disregarding the courts instructions and attempting to acquit the defendant because of moral opposition to the law in question, which is otherwise known as juror nullification. Eddlem fought to stay on the jury, but the judge believed it was clear that Eddlem, was unable to set aside his personal beliefs
This legislation was the Volstead Act (1919) which defined the intoxicating liquor that Congress had the right to prohibit under the 18th Amendment. While not specifically prohibiting consumption the act outlawed any means by which to obtain it. 9 Young, 4. The precise way that Young quoted Eddlem is that it was never made clear to me where [banning mere possession of drugs] is authorized. 10 Gonzales v. Raich, 545 U.S. 1 (2005); Wickard v. Filburn, 317 U.S. 111 (1942); U.S. v. Lopez, 514 U.S. 549 (1995). 11 Young, 5. 12 Young, 35.
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and apply the law as instructed, which was a kind of juror misconduct that could be classified as nullification.13 Although he insisted that he did opposed the doctrine of jury nullification, Young removed Eddlem for acting as if he did. On the day Eddlem was dismissed, the jury unanimously decided to convict Luisi. The main focus of Youngs post-trial memorandum was jury nullification and the dangers it poses to the jury system, and with it the rule of law and judicial independence.14 Young quotes John Adams in his memorandum, stating that the impropriety of nullification emanates from the notion that ours is a government of laws and not of men.15 He contended that people may work to change the laws if they do not agree with them, but they cannot disregard them.16 Although Young gave an impressive discourse on the importance of the American jury system, he did not actually address the question posed by Eddlem. Eddlem did not give a moral argument against the law that Robert Luisi broke; he gave a legal argument. He did not say that possessing, distributing, or even being
Young, 6. Council for the defense, not surprisingly, argued for Eddlem to remain on the jury since he stated that he did not believe it was at all right to determine guilt based on ones opinion of the law in question. 14 Young, 8. According to the memorandum, Eddlem referred to jury nullification as the philosophy of the fully informed juror. This is a reference to a non-profit organization called the Fully Informed Jury Association (FIJA), which holds the belief that The primary function of the independent juror is not, as many think, to dispense punishment to fellow citizens accused of breaking various laws, but rather to protect fellow citizens from tyrannical abuses of power by government. FIJA believes that it is mans unalienable right to veto or nullify bad and oppressive laws. They even say that men will be morally compelled to acquit defendants who are being tried for violating these kinds of laws. "Fully Informed Jury Association." Fully Informed Jury Association, American Jury Institute. http://www.fija.org/ (accessed August 12, 2008). Judge Young rightly claims that this idea is dangerous, as Eddlem also stated. Acquitting those who have broken the law if one thinks the law unjust, or even if it is unjust, undermines the purpose of the law itself. In theory, if this doctrine were universally accepted, no law would be enforceable. Any defendant could make the case that the law that he is being tried for violating is oppressive or tyrannical, which would mean that they should not be punished; putting the citizen above the law. 15 Young, 30. Judge Young explains that this statement is quoted in many Supreme Court decisions: Zuni Public Schools Dist. No. 89 v. Department of Education; Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc.; and Patterson v. Shumate, but that the reason he uses it is because it is generally attributed to John Adams, the author of the Massachusetts Constitution. 16 Young, 32. In arguing against nullification, the judge acknowledged that there have been isolated instances of benevolent nullification, such as the cases of people being acquitted of violating fugitive slave laws before the passage of the 13th Amendment, but that these few examples from bygone centuries, are exceptions to an otherwise abhorrent string of lawlessness. Jury nullification is no longer justifiable in any case for him. His argument against the practice is convincing, as he clearly makes the case that if it were accepted by the masses as a sound legal philosophy, jury nullification would completely undermine the rule of law and lead the nation towards anarchy. He quotes U.S. v Thomas (2nd Circuit, 1997) in his use of benevolent, and says that the majority opinion added some may regard [this type of nullification] as tolerable.
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addicted to cocaine and selling children as slaves to satiate that addiction was morally defensible. A few months after the incident, he even said, I would not have hesitated to have convicted Luisi in a state court of possession charges, nor in federal court of trafficking charges with sufficient evidence. Even if no drugs had actually been transported across a state line, but there was evidence of a conspiracy to do so, I would have voted to convict Luisi.17 He did not see how the Controlled Substances Act could be upheld by the clause in the Constitution that reads: The Congress shall have power . . . To regulate commerce with foreign nations, and among the several states. If Congresss powers are enumerated by the Constitution, so as to not have the power to do anything outside of those enumerated powers then how does the commerce clause permit the federal government to regulate the possession of drugs in cases such as Luisis? Young argued that if a jury acquitted an accused person due to a personal problem with the law in question would undermine the rule of law completely. However, given the text of the Constitution, Eddlem wanted to know how the statute in question did not undermine the rule of law itself. Why was it necessary to amend the Constitution so Congress would have the power to prohibit the intrastate commerce of a particular substance in 1919 and such an amendment has not been required to for the prohibition of other substances? Why is constitutional authorization not needed for the government to prohibit the intrastate use of other narcotics? Judge Young did not answer these questions other than by saying that the Supreme Court decided that the Commerce Clause had been interpreted to permit Congress to pass laws relating to drugs that did not cross more than two state lines, and that Eddlem had to judge the case according to that interpretation.18 The judge felt that this was the only way a jury could simultaneously exercise its power and preserve the sanctity of the law. According to Eddlem, this had precisely the opposite

Thomas Eddlem. "'Rogues' and Humpty Dumpty Judges." LewRockwell.com. http://www.lewrockwell.com/eddlem/eddlem24.html (accessed September 13, 2008). 18 Young, 6.

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effect, destroying the entire purpose of the law. They both argued that adherence to the law is required for a free government to sustain itself, but they disagreed on how the law should be interpreted. Specifically, they disagreed on how a particular law is determined to be constitutional and what constitutional means. Though not a jurist, Eddlem was technically correct when he said that the Constitution contains nothing that explicitly grants Congress the power to regulate the manufacture, sale, or use of drugs that are not a part of interstate commerce. However, looking at the past century it is clear that this has not caused many judgesespecially federal judgesto question the constitutionality of the federal governments policy of drug prohibition.19 Judge Young defended the federal governments right to regulate narcotics and it is not surprising that he won that particular battle, but the fundamental question remains unsettled. The main issue of the confrontation was constitutional interpretation. Both argued that the law must have more authority than men, but the inherent difficulty with this is that manmade law cannot be separated from language and will therefore always be a matter of interpretation. The judge claimed that the juror was creating his own law while the juror essentially blamed the judge for doing the same thing. In describing the quarrel between himself and the judge, Eddlem used a dialogue from Lewis Carrolls Through the Looking Glass as an analogy:
"When I use the word," Humpty Dumpty said, in a rather scornful tone, "it means just what I chose it to mean neither more nor less." "The question is," said Alice," whether you can make words mean so many different things." "The question is," said Humpty Dumpty, "which is to be the master thats all."20

19

Gonzales v. Raich, 545 U.S. 1 (2005) Clarence Thomas, William Rehnquist, and Sandra Day OConnor

dissented.

Thomas Eddlem. "'Rogues' and Humpty Dumpty Judges." LewRockwell.com. http://www.lewrockwell.com/eddlem/eddlem24.html (accessed September 13, 2008).

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Judge Young instructed Eddlem to judge the defendants guilt only according to his interpretation of the Constitution, citing a Supreme Court ruling to justify his stance.21 Eddlem, on the other hand, cited the Eighteenth Amendment to validate his claim, but the judge did not think it necessary to explain why the prohibition of narcotics was not preceded by a constitutional amendment like the prohibition of alcohol was. It would perhaps be unreasonable to accuse the judge of not fulfilling his duties by failing to answer the question posed to him, but the question, nonetheless, deserves an answer. Why was the Constitution amended to prohibit alcohol but such action was not necessary to prohibit narcotics? In describing how Judge Young would only define the Constitution in such a manner that it supported his own opinion, it is somewhat fitting for Eddlem to have used a passage from Carrolls Through the Looking Glass as an analogy.22 Redefining a word so that it can be reconciled with a particular proposal was a very successful tactic used by the progressives during the early part of the 20th century, with Woodrow Wilson arguably being the most prominent to do so as both a progressive scholar and politician. In his 1913 work, The New Freedom (as opposed to the old freedom), Wilson also used a passage from Lewis Carrolls book, but in this case to explain why he was forced to be a progressive.23 In the passage, the Queen grabs Alices hand and they begin to run incredibly fast. After doing so for about as long as they can, they stop abruptly. Alice looks around and says, Why, we are just where we were when we started! The Queen replies to this by saying, Oh yes, you have to run twice as fast to get anywhere else.24

Young is a Reagan appointed judge and Eddlem described him as doing a better than average job at explaining the law in the case. According to Eddlem, Young even agreed that courts have gone too far in stretching the Commerce Clause to apply to things like firearms, citing the U.S. v. Lopez case.

21

Wilson,Woodrow,The New Freedom, The Essential Political Writings. ed. Ronald J. Pestritto [Lanham: Rowman and Littlefield Publishers, Inc., 2005], 117. Wilson does not quote the book accurately but sufficiently paraphrases it. Lewis Carroll, Through the Looking-Glass and What Alice Found There, University of Virginia Library, Electronic Text Center [1993] 24 Wilson, The New Freedom, The Essential Political Writings, 117.

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Wilson called this, the parable of progress, which expressed his sentiment that the United States was stuck in the past and did not have the political tools necessary to improve. The progress that Wilson and other progressives believed in required an expansion of the governments powers and the government itself. This required that a new notion of governments purpose be adopted. Wilson explains further:
The laws of this country have not kept up with the change of economic circumstances in this country; they have not kept up with the change of political circumstances; and therefore we are not even where we were when we started I am, therefore, forced to be a progressive, if for no other reason, because we have not kept up with our changes of conditions, either in the economic field or in the political field. We have not kept up as well as other nations have. We have not kept our practices adjusted to the facts of the case, and until we do, and unless we do, the facts of the case will always have the better of the argument; because if you do not adjust your laws to the facts, so much the worse for the laws, not for the facts, because law trails along after the facts. Only that law is unsafe which runs ahead of the facts and beckons to it and makes it follow the will-o'-the-wisps of imaginative projects.

In order for the progressives to adjust the law to the facts, the theory of constitutionalism that the American founders had designed the Constitution according to would have to be altered. Such a change would remove the obstacle that the progressives faced in trying to implement their desired reform ideas, but it would have to come slowly. As Wilson himself asserted, Wherever regard for public opinion is a first principle of government, practical reform must be slow and full of compromises.25 The progressive movement caused such a gradual transformation to take place in the theory and practice of American government, which greatly influenced the development of federal policies regulating alcohol and narcotics in the early 20th century.

Woodrow Wilson, The Study of Administration, [November 1, 1886] http://teachingamericanhistory.org/library/index.asp?document=465, (accessed April 3, 2009).

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The Various Roads to Reform

The temperance movement began long before the progressive movement emerged in the late 19th century. The anti-narcotics movement was much different in this manner, as it was born in the progressive movement. This was one of the key reasons that the anti-narcotics movement and the temperance movement had such different outcomes regarding the two prohibitory policies of both substances. The temperance movement, which caused the Eighteenth Amendment to be adopted, was completely separate from the movement that resulted in the first federal legislation used to prohibit narcotics.26 The different paths taken by the anti-narcotics movement and the temperance movement, and the reasons why such divergent paths were taken, explains why alcohol prohibition was enshrined in the Constitution but narcotics prohibition was not.27 Both of the movements against narcotics and alcohol fell within the broader progressive movement, which also desired to reform social concerns such as prostitution, child labor, pure food laws, and others. Each of these movements had preferred means of addressing their respective issues, which usually fit into one of three categories: abolition, regulation, or reformation. Movements that wanted to enact reform on the federal level were limited in their options, as they hung their proposals on certain constitutional hooks.28 The Constitution identifies five federal powers that could be used by these reformers: territorial, postal, treaty, taxation, and the commerce power.29 Prostitution-related legislation was first passed in 1910 with the Mann Act. This prevented the interstate trafficking of women for immoral purposes, but after a series of Supreme Court decisions, it was eventually used to regulate prostitution
Deets Pickett; Wilson, Clarence True; Ernest Dailey Smith, Cyclopedia of Temperance, Prohibition, and Public Moral, [New York, The Methodist Book Concern, 1917 ed.], 150. This is not to say that temperance supporters were not antinarcotics reform supporters, but that the legal and social paths of the movements were completely separate, as the Cyclopedia states that Through the efforts of temperance reformers, Congress was induced to pass an antinarcotic bill taking effect March I, 1915. 27 Richard F. Hamm, Shaping the 18th Amendment [Chapel Hill: The University of North Carolina Press, 1995], 135. 28 Hamm, 9. 29 Hamm, 4.
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almost entirely.30 The movement against child labor worked to achieve statewide bans due to its failure to enact federal legislation based on the taxing and commerce power. The Pure Food and Drugs Act was enacted in 1906 as a regulatory measure over adulterated or misbranded or poisonous or deleterious foods, drugs, medicines, and liquors.31 Each reform movement of the progressive era carved out a distinctive niche of interaction within the law as it then existed, according to Hamm.32 This was due to the means used to enact the reform legislation. The different ways in which the antinarcotics and temperance movements interacted with the American regime as it was being transformed by the progressive movement accounts for why alcohol prohibition was preceded by a constitutional amendment and narcotics prohibition was done by statute alone. The anti-narcotics movement caused the passage of legislation that would result in narcotics prohibition to be gradually imposed across the United States. This legislation, the Harrison Anti-Narcotics Act, was passed in 1914.33 It paved the way for the 1970 enactment of the Controlled Substances Act, which was the law that was questioned by Mr. Eddlem, and used to frame this study. As will be seen in the first section of this paper, Congress passed the Controlled Substances Act as an extension of the prohibitory policy that had been in place since the progressive era as a result of the Harrison Anti-Narcotics Act. The modern constitutional defense of the Controlled

Caminetti v. United States, 242 U.S. 470 (1917). While the Mann Act was aimed to prevent white slavery, outlawing the transport of women across state lines for prostitution and human trafficking, this decision now regulated other immoral acts such as debauchery, adultery, and polygamy. This broad intrepretation of statutory power which would further prostitution, in this case, will resemble the understanding of narcotics legislation discussed later in this study. 31 Federal Food and Drug Act of 1906 (The Wiley Act"), 59-384, 34 STAT. 768 (1906), 21 U.S.C. Sec 1-15 (1934). 32 Hamm, 3-4; Kurt Hohenstein, Just What the Doctor Ordered 252. This caused early scholars to try classifying them as autonomous entities, which weakened the notion that there was a singular progressive movement that connected all the reform movements of the era. Theodore Roosevelt termed what all these movements had in common as the gospel of morality and the gospel of efficiency.32 What he meant was that all progressive reformers were trying to improve the nation (gospel of morality) and had to determine the best practical way to do so in consideration of their particular reform goal (gospel of efficiency). . 33 The possible exception to this may have been the Pure Food and Drug Act of 1906, which will be briefly addressed but it is important to observe that although this legislation was the first major federal law addressing narcotics in a certain fashion, the primary purpose of it was not to deter the use of illegal drugs. Its purpose in regulating drugs was to ensure that the consumer was aware of what was in medicines.

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Substances Act, which constitutes the federal governments current narcotics policy, will exhibit the reasons why the progressive era must be investigated in order to determine the reasons why narcotics prohibition exists by statute alone and alcohol prohibition was added into the Constitution. In 2005, the Supreme Court ruled that the Controlled Substances Act was a constitutional exercise of government power in the case of Gonzales v. Raich. It stated in the ruling that the federal government ushered in a new era of federal regulation under the commerce power" at the end of the 19th century and that the Constitution began to be interpreted so that the federal government would have enough power to deal with the nations changing social and economic circumstances.34 The progressive movement, which helped initiate the new era, instigated a political transformation that has been described as being, as radical as the American Revolution.35 It is this transformation that must be examined to explain why the federal government felt that a constitutional amendment was necessary to prohibit alcohol, but not narcotics. By understanding how the fundamental principles of the progressive movement were slowly implemented into the political culture of the United States; how these ideas were the same that provided the theoretical foundation for the movements to prohibit alcohol and narcotics; and that the two movements used divergent means in pursuit of their ultimate goals, it can be determined why narcotics prohibition had a different legal outcome than alcohol prohibition. This will thereby reveal that the political change in America that was caused by the progressive movement indicates that both the judge and the juror were rationally justified in their contrasting views of the constitutionality of narcotics prohibition in effect today.36

Roger Pilon, Chapter 3: The Illegitimate War on Drugs, After Prohibition: An Adult Approach to Drug Policies in the 21st Century, [The Cato Institute, Washington D.C., 2000], 7. There is an answer that could have been given to Eddlem, although the judge could not have given it in the situation, which is that the opinion that the federal government must have specific constitutional authority before doing something is, for the most part, not taken seriously anymore. As Pilon has noted, [T]o listen to recent State of the Union Addresses, one imagines no problem too personal or too trivial not to be a fit subject for federal attention. 35 Thomas West and William Schambra, "The Progressive Movement and the Transformation of American Politics," First Pinciples Series, no. 12 [July 2007], 1. 36 This does not mean, however, that both were right.

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D RUGS , A LCOHOL , AND THE C OMMERCE C LAUSE

Gonzales v. Raich and the Controlled Substances Act
The Harrison Narcotics Act and the Controlled Substances Act were both enacted so that the federal government could regulate certain substances whether or not they directly entered the stream of interstate commerce, or at least whether or not those substances ever crossed a states border. The authority to do this is found in the modern understanding of the Commerce Clause, which has been adopted by Congress and, with few exceptions, the judiciary.37 It contends that Congresss regulating power is not limited to that which takes place among the several states,commerce that crosses state linesbut extends over all commerce that may directly or indirectly affect interstate commerce. This was the interpretation used by the Supreme Court in deciding the 2005 case of Gonzales v. Raich, which was the case referred to by Judge Young in his explanation to Mr. Eddlem that the federal government has determined that it possesses the constitutional power to regulate all narcotics activity within the United States. In the courts decision, the majority stated that the Courts understanding of the reach of the Commerce Clause, as well as Congress assertion of authority thereunder, has evolved over time.38 This statement is of vital importance to this investigation, and the rest of the courts decision will illustrate why

Carter v. Carter Coal Co., 298 U.S. 238 (1936). In one the of few exceptions, this decision limited federal power over the commerce of the coal mining industry. The court ruled that Congress was attempting to regulate the production of coal, through a tax measure, and not affect its commerce. The commerce of coal mining only has the potential to become part of interstate commerce after being mined, but during its production is only subject to local authority. The regulation of coal was key to Franklin Roosevelts New Deal policies and the decision in this case triggered FDR to attempt raise the number of justices on the court to 15 attempting to gain the power to appoint one more justice for each one over 70. His proposal was not enacted and the case stood, its main impact being that the federal government could not regulate local evils (in this case coal mining) but only national evils, as well as being one of the few limits the court rules on Congress commerce power. See also note 49. 38 Gonzales v. Raich (2005).

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progressivism and the progressive era must be focused on to explain why alcohol and narcotics prohibition have been given different constitutional treatments. The defendant in Gonzales v. Raich was arrested for violating the Controlled Substances Act due to possessing medicinal marijuana, which was legal in his home state of California. He argued that the Controlled Substances Act was unconstitutional because the narcotic he possessed had not entered the stream of interstate commerce, as the marijuana had been grown and used within Californias borders. Actually, his marijuana was never even a part of any commercial activityit had not been bought or sold by him. The court, nonetheless, justified its decision finding the defendant guilty with the commerce clause maintaining that, Congress can regulate purely intrastate activity, if the activity has an effect on interstate commerce. In this decision, the Supreme Court upheld the constitutionality of the Controlled Substances Act and the federal policy of drug prohibition, and it admitted to doing this because of how the commerce clause has been interpreted for the past century. The interpretation of the commerce clause that was used for one hundred years after the Constitutions ratification no longer applied, and this began to be recognized at the end of the 19th century. It was at that time, according to the court, that Congress ushered in a new era of federal regulation under the commerce power, laying the groundwork for the modern understanding of constitutional limits on federal power.39 The statements made in the Raich decision concerning the shift that took place around the turn of the 20th century are crucial in order in answering the question posed to Judge Young by Mr. Eddlem. As the court states in Raich, the way the Constitution is to be interpreted has evolved over time, and the modern interpretation is drastically different than the one held more than two centuries ago. The court seems to recognize that there have been two stages in this evolutionary process that stand out in American political history. Both stages ushered in a new era, and there have only been two stages in this evolutionary process that stand out in American political history. The first era began
United States v. Lopez (93-1260), 514 U.S. 549 (1995). William Rehnquist opinion of majority. <http://www.law.cornell.edu/supct/html/93-1260.ZO.html>
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with the Constitutions ratification and ended around the turn of the 20th century, and we are living in the era that succeeded it. As the court makes clear, the main concept separating the eras is the different understandings of the federal governments constitutional limits. Of course, both eras had many disputes over the precise nature of these limits, but in general the federal governments power during the first century of the Republic was limited by the text of the Constitution, while this was not the case in the 20th century. In his dissent of the Raich decision, Clarence Thomas made an argument concerning marijuana similar to Mr. Eddlems argument regarding cocaine, saying that, In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana. Given the rationalization for its decision, it is clear that the majority would not have disagreed with this statement although they undoubtedly disagreed with Thomass view that this should be a significant factor in the decision. To understand the Constitution in this way, wrote Justice Thomas, meant that Congresss power would have no meaningful limits.40 In upholding the Controlled Substances Acts constitutionality in Raich, the court based its decision on case law that had been established during the new era of constitutional interpretation. It claims this new era, which now spans more than a century began as a reaction to rapid industrial development and an increasingly interdependent national economy, that was emerging in the late 19th century.41 Constitutional scholar Christopher Wolfe has dubbed the period lasting from the 1880s until the 1930s as the transitional era, which describes the way in which the commerce clause was beginning to be interpreted during those years. This affirms the courts statement that the manner in which the Constitution was interpreted in the early Republic changed by the 20th century, however, Wolfes use of the term transitional indicates that the break from the old understanding was not as clean as

40

United States v. Lopez (1995). Clarence Thomas, Dissent <http://www.law.cornell.edu/supct/html/03-1454.ZD1.html> 41 The court identified the enactment of the Interstate Commerce Act in 1887 as the exact starting point of this era.

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the court suggested. As he put it, there is no area in which the break with the constitutional interpretationof the traditional era is very sharp.42 This time period, the progressive era, must be investigated in order to determine why narcotics can be prohibited by federal statute while alcohol prohibition required the enactment of a constitutional amendment five years later. This is not only because the constitutional theory used to justify the federal governments current narcotics policy emerged during that era, as the court recognized in Raich, but also because the federal government first began regulating narcotics during that time. The Controlled Substances Act constitutes the nations current narcotics policy but as the court recognized, it was not Congress first attempt to regulate the national market in drugs; it was simply the first campaign of the war on drugs declared by Nixon.43 The court says that the initial efforts at control were labeling regulations stipulated by the Food and Drug Act of 1906, but:
Aside from these labeling restrictions, most domestic drug regulations prior to 1970 generally came in the guise of revenue laws, with the Department of the Treasury serving as the Federal Governments primary enforcer. For example, the primary drug control law, before being repealed by the passage of the CSA, was the Harrison Narcotics Act of 1914.44

Until being repealed in 1970 due to the Controlled Substances Acts passage, the Harrison Act had been the primary drug control law in the United States, which makes it the focus of our question investigation.45 If it was necessary to amend the constitution to give congress the power to ban mere possession of a substance (alcohol) in 1919, Eddlem asked, where is the constitutional grant of authority to ban mere possession of substances classified as narcotics today?46 The Harrison Narcotics Act provided the framework for the federal governments drug control policy until the
Christopher Wolfe, The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law, Revised Ed., [Rowman and Littlefield, 1994], 164. Wolfe asserts that the transitional era began with the passage of the 14th Amendment in 1868 because Certain rights previously left to state protection were brought under the protection of the federal government. Ibid., 124. 43 Gonzales v. Raich (2005). http://www.law.cornell.edu/supct/html/03-1454.ZO.html 44 Ibid. Emphasis added. 45 Gonzales v. Raich (2005). It was not as comprehensive or strict as the Controlled Substances Act, but it was the first time that the federal government attempted to strictly regulate the possession and sale of narcotics. 46 Paraphrased from Eddlems quote in introduction, see page 1.
42

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more comprehensive Controlled Substances Act replaced it over half a century later.47 The specific regulations laid out by the Controlled Substances Act are stricter and more comprehensive than those found in the Harrison Act, but both the same progressive principles can be seen in both. As is evident by the Supreme Courts decision in Raich, the Commerce Clause is currently interpreted in such a way that it restricts all commerce related to narcotics, even when a particular state loosens its own regulations of them.48 The court interpreted the Constitution in the exact opposite way during the 19th century in regards to liquor commerce, which essentially nullified any prohibitory laws that were passed by an individual state. After a series of rulings that invalidated state laws regulating or prohibiting liquor, the movement came to believe the ultimate success of the cause depended on ensuring the eventual adoption of nationwide prohibition. By using the federal commerce power to nullify state prohibition laws before the 20th century, the court set the temperance movement on a course towards a constitutional amendment. Once the new era of federal regulation had begun; Congress, as well as the Supreme Court, aided the temperance movement on its course towards its ultimate goal.

19th Century Liquor Commerce and the Wilson Bill

Since the Commerce Clauses effect on drug policy framed the central question of this investigation, it must be determined how the clause was applied to questions of earlier substance regulation, in this case alcohol regulation leading up to the Eighteenth Amendments passage. As we have seen, the Supreme Court has ruled the Controlled Substances Act to be within Congresss power to regulate

Gonzales v. Raich (2005). The Controlled Substances Act was enacted to consolidate various drug laws on the books into a comprehensive statute, provide meaningful regulation over legitimate sources of drugs to prevent diversion into illegal channels, and strengthen law enforcement tools against the traffic in illicit drugs. 48 Vince Reighard, The Necessary and Proper Clause in Gonzales v. Raich, paper submitted for Constitutional Powers, Ashland University, Spring 2007. Reighard says of the courts ruling, This conclusion which suggests the states are like children who need the supervision of the National Mother Government is repugnant to our federal system of government in which states are given the authority and trust to see their own affairs within their borders.

47

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commerceamong the several states. Because it defines the regulatory power of the federal government, this phrase is traditionally referred to as the Commerce Clause.49 However, it is not the only part of the Constitution that mentions the power to regulate commerce. Rather than restricting the federal governments power as the traditional Commerce Clause does; Article I, section 10 restricts the regulating power possessed by the states, reading: No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws.50 This passage played a major role in the temperance movement during the 19th century. It was applied in such a way that it harmed the temperance movement; at least, in the short term. This was a key factor in making alcohol prohibition a national issue. Before the Civil War, many state laws restricting the use and/or trade of alcohol were challenged on constitutional grounds as violating the federal governments power to regulate interstate commerce. During this era, however, the state laws were held up by the U.S. Supreme Court and Chief Justice Taney, who said that there was nothing in the constitution of the United States to prevent [a state] from regulating and restraining the traffic, or prohibiting alcohol within the borders of that state.51 After the war, the Supreme Court began to interpret the Constitution in favor of the liquor trade and against states trying to restrict it. In the same way that the Commerce Clause is today used to nullify the narcotics policies of individual states which are more lenient than prescribed by the Controlled Substances Act, in the late 19th century; Article I, section 10 was used to essentially nullify any efforts made by individual states to prohibit alcohol. From the point of view of many 19th century temperance reformers, the federal governments policy on liquor commerce asserted that an individuals right to drink took precedent over a states right to regulate its own commerce. Although this

Article 1, section 8. U.S. Constitution art. I, sec. 10. 51 License Cases, 1847. There were six separate opinions upholding the state prohibition laws in Massachusetts, New Hampshire, and Rhode Island; Cyclopedia of Temperance, Prohibition, and Public Morals, 158.
50

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seemingly should have outraged all temperance reformers, and it did for many, many in the movement used it as an opportunity. To the radical prohibitionists, drinking was unquestionably evil and therefore completely unacceptable anywhere in the United States. Allowing it in some states but not others blurred the line between good and evilnational prohibition was the only acceptable policy.52 In addition to their disdain for states having the power to choose between right and wrong, reformers were also not too keen on the varying degrees of regulation that states implemented reform, as not all chose total prohibition, nor were they completely supportive of local option laws, which were state laws that gave towns the power to determine alcohol regulations. The nullification of these laws was a victory for the liquor industry in a sense, but it also caused the temperance movement to raise its sights. In 1890, immediately after the Supreme Court handed down the ruling in Leisy v. Hardin, which was the last to nullify a states alcohol prohibition, one of the leaders of the United States Brewers Association told leading temperance publication, The Voice, its a blessing to you in disguise.53 The journals writers and other radical prohibitionists understood what he meant by this. This ruling helped to fuel a crisis over the Constitution that had long been brewing over the federal governments proper role in controlling the liquor commerce among the states. The precedent that the Court had used to shape liquor laws throughout most of the 20th century was found in John Marshalls ruling of Brown v. Maryland in 1827. The case concerned a tax that the state of Maryland was levying on importers and wholesalers of foreign goods. The court unanimously ruled that Maryland was violating the constitution by doing this, saying that as long as the item remained in its original form or package in which it was imported, it was still federally protected commerce and beyond the regulating powers of the state, until it had been sold once inside the states borders. This became known as the original package doctrine and it helped to shape the federal governments stand on alcohol regulations almost until the

Hamm, 36-38. Hamm, 69. August Thomann, Director of Publication for USBA, in an interview with the Voice, a New York based temperance publication.
53

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20th century. Another precedent set forth by the Supreme Court known as the freedom of commerce doctrine was established nearly fifty years after Brown v. Maryland and was equally important in shaping federal alcohol policy in the midst of the temperance movement. The freedom of commerce doctrine was articulated in the 1876 case Welton v. Missouri, and declared that a state could not impede commerce by imposing taxes or regulations without having express permission from Congress to do so. The specific restriction found unconstitutional in Welton was a Missouri law that taxed merchants who sold goods produced outside of the state. The court cited Brown v. Maryland in its decision, saying that both of the cases contained a similar difficulty in drawing the line of distinction between the restriction upon the power of the States to lay a duty on imports, and their acknowledged power to tax persons and property.54 Also like the Brown decision, the court took the position in Welton that it would be premature to state any rule which would be universal in its application to determine when the commercial power of the Federal Government over a commodity has ceased.55 Though being largely based on the original package doctrine established by Marshall in Brown, the Welton decision rejected the Marshall courts opinion of the dormant commerce clause. Congress had not said anything about the Missouri tax being questioned in Welton, voicing neither disapproval nor support of it. This was a major departure from Marshalls decision in Wilson v. Black Bird Creek Marsh Company, which argued that Congress in deed possessed the power to regulate interstate commerce and that any state regulation conflicting with this federal power was void, but also that if there was no federal act that the state was in conflict with, then Congresss power to regulate was in its dormant state, and any state regulations not affecting interstate commerce were legitimate.56 Missouri had interpreted Congresss silence as

Welton v. Missouri (1876). Majority opinion delivered by Justice Field. Welton v. Missouri (1876). In the Brown decision, John Marshall used fairly vague language, stating that it would be premature to make a ruleuniversal in its apllication. 56 Willson v. Black Bird Creek Marsh Co., 27 U.S. 2 Pet. 245 245 (1829). The Black Bird Creek Marsh Company was incorporated by an act of the Delaware General Assembly and built a dam across a creek adjacent to their land. The commerce conducted by way of the dam was in question but the dam was ruled as not affecting
55

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approval for the enforcement of their tax. The court stated that Missouri would have lost this case anyways due to the original package doctrine, but it went a step further by completely nullifying the tax and declaring it to be unconstitutional. This introduced America to the freedom of commerce doctrine. If Congress did not take any action regarding a regulation that a state imposed on imported goods, it was equivalent to a declaration that inter-State commerce shall be free and untrammeled. The power to regulate interstate commerce was vested in solely the federal government and if it did not regulate commerce in a particular instance, then that commerce was to be free from any interference.57 If Congress did not approve of a specific tax levied by a state on particular imported goods then the Court determined the state to be infringing on the federal governments commerce power. This interpretation of state regulatory power raised questions of how the courts would treat state prohibition laws, and whether or not they would be a viable option for the temperance reformers to pursue. The precedent set by the court in the Welton decision nullified taxes that states imposed on imported alcohol, which did not necessarily mean that state prohibitory laws would also be found unconstitutional.58 The freedom of commerce and original package doctrines applied to the specific situation in the Welton case, but did not establish a hard and fast rule that clearly distinguished between federal and state commerce. The court had stated in both the Brown and Welton decisions that they did not want to establish a universal rule that would be applied in all cases. This gave the liquor industry and law enforcement officials some gray area in which to operate until the court ruled on how these doctrines would apply to state prohibitory laws.
interstate commerce and the court ruled that the incorporation of the company by Delaware was not repugnant to Congress Constitutional authority to regulate commerce between the states because the creek did not flow into or over anything under federal statute. It was therefore a state issue of Delaware and did not fall under federal power to regulate interstate commerce. 57 91 United States Reports (1876) 275. As quoted in Hamm, 61. 58 Hamm, 61. Until the Welton ruling nullified it, Michigan had a law that taxed liquor sellers who imported their liquor from outside the state and had no place of business in the state. The courts during the Reconstruction saw that a Congress that was dormant in commerce did not permit the state to levy taxes on out-ofstate trade, this regulation was still reserved to the federal government. These were viewed as barriers to free commerce and infringements on the federal commerce power. This raised into question the viability of state prohibition laws and how they would be interpreted by the court.

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Until the court addressed this in 1888, liquor traders largely ignored prohibition laws, using the freedom of commerce and original package doctrines to justify importing their product into the dry states. The merchants used the railroads to ship liquor into the dry portions of the United States and they did it successfully.59 Some law enforcement officials, like the mayor of Atlanta, understood the federal power to regulate interstate commerce as restricting their ability to enforce certain alcohol regulations. Other officials did their best to enforce their states liquor laws. These men did not believe that any doctrine superseding a states police powers was legitimate even if the nations highest court opined that it was. Up until 1888, these vigilante-like officials were engaged in a fierce contest with the liquor merchants. The Supreme Courts decision in the case Bowman v. Chicago and the Northwestern Rail Road was handed down in 1888, siding with the liquor men. Although seemingly helping the alcohol business, it also created a new problem for it by. The Supreme Court makes prohibition a national question, The Voice declared after the 1888 ruling in Bowman v. Chicago and Northwestern Rail Road. The Bowman brothers were brewers based in Iowa, which had laws prohibiting anyone from shipping liquor into the state or within its borders if they did not have the specific authorization to do so.60 These brothers challenged the constitutionality of this regulation on the grounds that it violated their ability to participate in free and unrestricted commerce, and the Supreme Court supported their argument. The court ruled the law unconstitutional despite the fact that they agreed with a major aspect of Iowas argument, opining that the law functioned as an element of a general design of protecting the health and morals of its people, and the peace and good order of the state, against the physical and moral evils resulting from the unrestricted manufacture and saleof intoxicating liquors. However, they ruled that the Iowa law affected commerce of other states and was a barricade to trade that Commerce did not desire.

Ibid., 61. In 1886, the Atlanta Constitution estimated that 20,000 gallons of liquor were imported into the dry counties of Georgia in one month. Atlanta Constitution October 19, 1886 60 Jerry Harrington, Bottled Conflict, Keokuk and the Prohibition Question, 1888-1889, Annals of Iowa 46 (Spring 1983): 596-600. As quoted in Hamm, 63. Professional druggists were the only ones who whe were granted authorization.

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The attorney for the Bowman brothers stated that the effect of this ruling was to render nugatory prohibitory law. Those within the temperance movement agreed with his assessment and intensified their calls for national action. The prohibitionists believed that national prohibition [was] the most direct road to state prohibition since the Supreme Court had invalidated state prohibitory efforts. The federal governments power to nullify state regulatory laws of alcohol was reinforced in the aforementioned ruling in the case Leisy v. Hardin, which flooded the dry states with liquor.61 The Bowman decision ensured that a state could not restrict the importation of liquor across its borders from another state, but it left open the question concerning a states ability to regulate liquor once it had crossed its borders and had been sold, which definitively made it the states commerce.62 The Leisy decision made it so that state laws prohibiting the sale of alcoholic beverages within its own borders were invalid if the alcohol had not yet become a part of the states commerce. These laws had been used in efforts to sidestep the courts ruling in Bowman by making it illegal to sell any liquor that had been legally imported, but these laws were now nearly obsolete. The states could now only regulate liquor that had already been sold within its borders, meaning that it could virtually regulate nothing at all, because it would have most likely been consumed after the first sale. The opinion put forth by the majority in Leisy was initially seen as a serious blow to the temperance cause, but it also provoked it. The court had based its decision on the original package doctrine, saying that the states could not regulate the sale of liquor that had not entered the stream of intrastate commerce without congressional permission. This gave them a plan of action. The use of the phrase, without congressional permission, instilled within the temperance movement a belief that Congress could grant this power to the states and that the court must uphold such authorization.63 In response to the Leisy decision, Congress enacted the Wilson Act,

Hamm, 70. Ernst Freund, The Police Power, Public Policy, and Constitutional Rights, [University of Chicago Press, 1904], http://books.google.com/books?id=6AMKAAAAIAAJ, 217. 63 Hamm, 70.
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which was the first major piece of federal legislation to somewhat restrict the liquor traffic in the history of the United States. The Wilson Act gave states the power to regulate all liquor commerce that took place within their own borders; whether or not the liquor had been imported, become part of the states commerce, or remained in its original package. Though a victory for the temperance groups such as the Womens Christian Temperance Organization and the Prohibition Party, neither of these organizations made an effort to get this law passed because it had been authored by James Wilson, a Republican described as no temperance fanatic, who wrote the bill in the attempt to remove
64

Wilson and the

Republican Party proposed this legislation because it feared the possible consequences of the Leisy ruling, which had been compared to the Dred Scot case by the Union Signal and evoked similar rhetoric by the Washington Post, which stated that if the ruling was not reversed by the Court or nullified by an act of Congress, the battle of states rights will have to be fought over again.65 Most prohibitionists and temperance organizations did not take any significant action to ensure passage of this bill, nor did they rejoice when it was ratified into law. While ensuring that states had the power to regulate liquor, the law also seemed to lessen the need for federal prohibitory legislation in the view of the temperance movement. This was exactly the goal of the Republicans who wanted to confine the prohibition issue to the states and keep it away from the national stage. While the bill was seemingly written to preserve states rights, there were many who saw it as doing the opposite. The legislation caused questions to be raised about the extent of federal power as well as the future of traditional state regulatory power. The progressive movement was in its earliest stages and the federal governments power and scope was just beginning to evolve. Not surprisingly, it was Southerners who protested the loudest over the Wilson Bill, saying that it only appeared to be a measure in favor of states rights but actually granted the federal government additional power. One congressman stated
64 65

Hamm, 79. Washington Post, June 26, 1890; Union Signal, July 31, 1890. Quoted in Hamm, 73.

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that, if passed, the Wilson Bill would infer that Congress had the ability to both limit and expand the powers reserved to the states. Echoing Alexander Hamiltons argument of Federalist #84, Texas Democrat David Culberson declared that the Wilson Bill indicated that Congress assumes to become a grantor of power, rather than a protector of rights.66 Culberson and those like him presented substitute ideas for restoring the states police power to regulate liquor commerce. Those who supported the bill criticized these alternative proposals as well as those excellent gentlemen, who they claimed, always find a constitutional objection in the way of right action.67 Defeating their critics, the Republicans passed the Wilson Act on August 8th, 1890. Thirty years before the Eighteenth Amendments ratification to prohibit liquorrelated commerce within states, the Supreme Court had interpreted the Constitution in such a way that it nullified any laws passed by individual states that prohibited or heavily taxed alcohol imported across their borders. While these rulings initially appeared to be a major setback for the temperance movement, they also helped ensure passage of the Wilson Act, which was enacted so that state prohibitory laws could be enforced. This law set the course for the temperance movement for the next thirty years, as it was the first time that the federal government had acted to support the prohibitory policies of the states.68

Hamilton, Federalist 84, as quoted in Hamm, 84. "For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights. 67 Hamm, 85. 68 Hamm, 90-91; The text of the Wilson Act reads: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that all fermented, distilled, or other intoxicating liquors or liquids transported into any State, or territory or remaining therein for use, consumption, sale or storage therein, shall upon arrival in such State or territory be subject to the operation and effect of the laws of such State or territory enacted and in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors

66

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The Wilson Act was enacted during the first few years of the progressive movement.69 The enactment of the Wilson Act, as well as the Supreme Courts unanimous decision upholding it upon a constitutional challenge, indicated that the progressive movement was beginning to have some effect in America. Congress began to somewhat involve itself in the regulation of commerce by using its powers to aid the states in enforcing their laws. The Wilson Act laid the groundwork for the WebbKenyon Acts passage in 1913, which was followed in 1919 by the enactment of the Eighteenth Amendment. In between the ratification of those two laws, the government had passed the Harrison Narcotics Act and was gradually implementing a policy of narcotics prohibition. All three reflected the principles of progressivism and were a result of the progressive movements success in the early 20th century.70 .

had been produced in such State or territory, and shall not be exempt therefrom by reason of being introduced therein in original, packages or otherwise. 69 The Wilson Act was challenged in the case In Re Rahrer on account of the courts rulings in Leisy and Bowman that the state prohibitory laws were unconstitutional, which meant that there were no state laws prohibiting the sale of alcohol. Rahrer, the defense claimed, had therefore been arrested under a state law enacted by a national Congress. The court dismissed this argument, saying that they had merely ruled that state laws prohibiting alcohol could only be enforced against property strictly within the jurisdiction of the state. 70 James H. Timberlake, Prohibition and the Progressive Movement : 1900-1920 [Cambridge, Massachusetts: Harvard University Press, 1963, 148; Hamm, 122, 263.

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T HE O LD O RDER C HANGETH
Progress! Did you ever reflect that that word is almost a new one? No word comes more often or more naturally to the lips of modern man, as if the thing it stands for were almost synonymous with life itself, and yet men through many thousand years never talked or thought of progress. They thought in the other direction. Their stories of heroisms and glory were tales of the past. The ancestor wore the heavier armor and carried the larger spear. "There were giants in those days." Now all that has altered. We think of the future, not the past, as the more glorious time in comparison with which the present is nothing. Progress, development, those are modern words. The modern idea is to leave the past and press onward to something new.

--Woodrow Wilson
It is often asserted that the world has made a great deal of progress since 1776, that we have had new thoughts and new experiences which have given us a great advance over the people of that day, and that we may therefore very well discard their conclusions for something more modernIf all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions. If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people.

--Calvin Coolidge

Two Concepts of Constitutionalism

In the case earlier discussed, U.S. v. Luisi, the argument between the juror and the judge signifies more than contrasting opinions concerning whether or not the federal government has the constitutional authority to prohibit narcotics. They represent two understandings of the American system of government that are fundamentally opposed to one another, but somehow manage to coexist. The theory espoused by Eddlem was akin to the older understanding of American

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constitutionalism and closely parallels that which was prevalent in the first hundred years of the American republic. Judge Youngs interpretation of the Constitution was representative of the modern notion of constitutionalism, which emerged as a result of the progressive movement in the early 20th century and forever altered the theory and practice of American government. The progressive understanding of the Constitution holds that it is a living document and its meaning is not fixed but evolves with the times. According to Woodrow Wilson, this progressive understanding of constitutionalism juxtaposes the founders understanding, which held that the Constitution had a fixed meaning and was comparable to a machine, not a living organism.71 The dissonance between these two constitutional conceptions is ultimately irreconcilable as both are based on deep-seated premises that go beyond the text of the Constitution. Since the Constitution does not specifically enumerate to Congress the power to prohibit narcotics, and by the fact that alcohol prohibition was preceded by a constitutional amendment, scholars such as Roger Pilon have called narcotics prohibition constitutionally illegitimate. 72 Nothing could convince men like Eddlem or Pilon that narcotics prohibition is a legitimate, constitutional exercise of federal power. The understanding that they have of the Constitution prevents them from accepting federal narcotics prohibition as a constitutionally justifiable policy. Coming to any other conclusion would require them to alter the premise of their argument. The premise of Eddlems argument permitted two responses that the judge could have given: dismiss the case or uphold an unconstitutional law.73 I suspect [Judge Young] didnt make the legal argument, he later said, because there was no legal argument to be made. His argument was based on the notion that the Constitution imposes

Wilson, The New Freedom, The Essential Political Writings, 121. Pilon, The Illegitimate War on Drugs, 23. 73 Eddlem indicated that he would have only accepted this sort of answer by writing a response to a statement that Judge Young made in his memorandum, which read: The Court spent several minutes attempting to explain how Congress had the authority to ban drug possession but continued to receive evasive responses. Eddlem, of course, fervently disagreed with Youngs recollection of the dispute since he did not feel that he was given any argument for the laws legitimacy. http://dangeroustalkblog.blogspot.com/2008/08/judge-for-yourselfjudge-william-g.html
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strict limits on the federal governments power. If one accepts this as true, then it is nearly impossible to dispute Eddlems conclusion that federal narcotics prohibition is unconstitutional. However, Judge Youngs argument is similar to Eddlems in this way; if one accepts his premise to be true, then his conclusion almost certainly follows and the federal government can constitutionally prohibit narcotics. The judges argument was based on the notion that the Constitution does not impose strict limits on the federal governments power, but rather that the Constitution can be broadly interpreted. In their quarrel over the Constitution, these two men illustrated the two concepts of constitutionalism that have shaped, and continue to shape, the theory and practice of American constitutional government. These two opposing concepts are engaged in a battle for America's soul, which was initiated over a century ago, [and] is still raging.74 The founders wrote the Constitution to establish a government that would operate in a mechanized manner and according to the self-evident, immutable truths found in the Declaration of Independence. Wilson said that they, constructed a government as they would have constructed an orrery,to display the laws of nature. Politics in their thought was a variety of mechanics. He dismissed this and criticized it by saying, The trouble with the theory is that government is not a machine, but a living thing. It had to adapt and evolve with the circumstances of modern society. The Constitution was written on the theory of natural rights, which was why Wilson and the other progressives found it to be problematic. The idea of eternal and immutable rights, according to Frank Johnson Goodnow, a contemporary of Wilsons, did not permit of their amendment in view of a change in conditions. The progressives rejected the founders idea of constitutionalism, but did not want to completely rewrite the Constitution. However, they wanted it to be acknowledged that, as Wilson said, Society is a living organism and must obey the laws of life, not of mechanics; it must develop. Furthermore, he said:
Thomas G. West, and Schambra, William, The Progressive Movement and the Transformation of American Politics, http://www.heritage.org/Research/Thought/fp12.cfm.
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All that progressives ask or desire is permissionin an era when "development," "evolution," is the scientific wordto interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.75

The progressives wanted to abandon the fundamental principles that the Constitution was founded on, but this would have to be done gradually. As Wilson recognized, you cannot tear up ancient roots and safely plant the tree of liberty in soil which is not native to it. I believe that the ancient traditions of a people are its ballast; you cannot make a tabula rasa upon which to write a political program. The progressive movement, therefore, had to respect the institutions set up by the Constitution and go very slowly and very carefully about the very dangerous task of altering them.76 Redefining the notion of governments purpose that had been postulated by the American founders was necessary before they could efficiently implement the types of reforms that they felt the circumstances required. According to Frank Johnson Goodnow:
The tremendous changes in political and social conditions due to the adoption of improved means of transportation and to the establishment of the factory system have brought with them problems whose solution seems to be impossible under the principles of law which were regarded as both axiomatic and permanently enduring at the end of the eighteenth century. That law was permeated by the theories of social compact and natural right, which in their turn were based upon the conception that society was static rather than dynamic or progressive in character.77

The Purpose of Government

The founders believed that the purpose of government was to secure mens natural rights of life, liberty, and property. The progressives completely rejected such a notion of rights. John Dewey mocked the idea, saying, Natural rights and natural

75

Woodrow Wilson, The New Freedom [New York: New York and Garden City Doubleday, Page & Co.,

1913], 32.

Wilson, The New Freedom, 30. Frank Johnson Goodnow, Social Reform and the Constitution, [Mcmillan Company, 1911], http://books.google.com/books?id=zgxJAAAAIAAJ&output=text, 1.
77

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liberties exist only in the kingdom of mythological social zoology.78 Governments purpose for the progressives was therefore extraordinarily different from the notion held by the American founders. As Pestritto has written, the founders had posited what they held to be a permanent understanding of just government, and the progressives countered that the ends and scope of government were to be defined anew in each historical epoch.79 In regards to the relatively static idea of constitutional government designed for the purpose of protecting peoples natural rights, Wilson said:
That was the idea that obtained in Jefferson's time. But we are coming now to realize that life is so complicated that we are not dealing with the old conditions, and that the law has to step in and create new conditions under which we may live, the conditions which will make it tolerable for us to live.80

The government that was set up in Jeffersons time had its powers carefully hemmed in due to the fact that the founders had just thrown off tyranny, Wilson argued, and the government that they set up following the Revolution and the failure of the Articles of Confederation only properly fit those circumstances. The founders did not attempt to dictate the aims or objects of any generation but their own, he said. He implored Americans of the 20th century to disregard the doctrines and principles of their nations founding documents: we have come to a new age and a new attitude towards questions of governmentnew definitions of constitutional power, new conceptions of legislative object, new schemes of individual and corporate regulation.81 The progressive movement caused a gradual transformation not only in what the purpose of government was understood to be, but also in the function of American institutions, such as: federalism, checks and balances, and enumerated constitutional

78

John Dewey, Liberalism and Social Action, [Southern Illinois University, 1991], 17.

Wilson, The New Freedom, Ch. 1 Wilson, The Author and Signers of the Declaration of Independence, Woodrow Wilson: The Essential Political Writings,109-111.
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powers. Redefining governments purpose was only the first step in achieving actual policy-related reforms. It took time for the progressive theory of government to alter the structure and practice of constitutional government in America, as Hofstadter noted; the reforms of the Progressive Era established a basis and a precedent for further reforms to be passed when the need for them was felt.82 What did the progressives believe governments purpose was in this new age? According to Theodore Roosevelt, The object of government is the welfare of the people. In order to ensure the welfare of the people in a representative government, according to Roosevelt, the nation must instill the right kind of character and the right type of good citizenship into the people. The development of the individual was crucial for societys development, which is why the progressives thought that government needed to play a bigger role in the citizens life. It must also have the kind of law and the kind of administration of the law which will give to those qualities in the private citizen the best possible chance for development.83 Although Roosevelts political rival, Wilson would have agreed with his opinion here, [T]he individual must be assured the best means, the best and fullest opportunities, for complete self-development: in no other way can society itself gain variety and strength.84 For both Wilson and Roosevelt, society was an organization of individuals who had to cultivate one another, which meant that the citizens would have to direct their actions for the sake of society; not personal desires.85 Richard Hofstadter describes the progressives in this same manner, saying that they believed that the people of the country should be stimulated to bring about social progress.86 The institutions created by the Constitution were a major obstacle to the progressives; for they did not provide the means necessary to ensure that every
Hofstadter, The Progressive Movement 1900-1915, 14-15. Theodore Roosevelt, The New Nationalism, American Progressivism: a reader, 222-223. 84 Woodrow Wilson, The State, 1273, in Woodrow Wilson: The Essential Political Writings, ed. Ronald J. Pestritto [Lanham, MD: Lexington Books, 2005], 65. 85 Ibid., 63-67. 86 Hofstadter, The Progressive Movement: 1900-1915, [He also says that the progressive movement was, an attempt to develop the moral will, the intellectual insight, and the political and administrative agencies to remedy the accumulated evils and negligences of a period of industrial growth, and an attempt to work out strategy for orderly social change.
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citizen attained social and industrial justice.87 Government had to be made more democratic so that the federal government would be given a public mandate to take action in pursuit of universal social justice. They declared that the people had to be given more direct control over the government, and believed that the threats of faction and majority tyranny were threats no longer. Separating politics and administration would make such things idle threats. The state would determine the way in which to stimulate the people to ensure that societys general will was always being adhered to. This ideathe doctrine of directed progresswas universal throughout the various sects of the progressive movement.88 According to progressives like Wilson, Goodnow, and Herbert Croly; the doctrine of directed progress required the adoption of a paradoxical policy. The government had to be controlled by both the people and bureaucratic experts. For Wilson, as well as all who characterize themselves as progressives, this created a fundamental problem that had to be reconciled: What role would public opinion have in the government? Wilson placed a great deal of importance in public opinion, as we have seen, and answered this question by saying it would play the role of authoritative critic by expressing the states general will. Goodnow explained the dichotomy like this:
[T]he study of administration is not taken up exclusively with a consideration of the rules of administrative action; but a large part of the time devoted to this study must be given to the subject of administrative organizationAdministration is the function of execution and administrative authorities.89

Roosevelt, Who is a Progressive? American Progressivism: A Reader, 40. Dennis J. Mahoney, Politics and Progress [Lanham: Lexington Books, 2004], 55. Within the progressive movement were many disagreements over some of the most important political questions of the era. This should not be misconstrued to mean that there was not a common ideology shared by all progressives. Specific policy proposals offered by progressives may have differed, as they often did, but they were all designed for achieving the same end. Ronald Pestritto and William Atto say that the disputes were differences over particular means, not over fundamental ideas of what government is or ought to be, and certainly not over the need with which all progressives identified to revolutionize both the theory and practice of American government. Ronald Pestritto and William Atto, American Progressivism: a reader [Lanham, Lexington Books, 2008], 2. 89 Goodnow, Politics and Administration: A Study in Government, [New York, Russell & Russell, 1967], 18. Quoted in Mahoney, 139.
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These progressive political ideas are manifest in the administrative state of America today. According to Thomas West, the attempt to separate politics and administration that has occurred in America over the last century renders it impossible for the government to act consistently with the rule of law, as opposed to ad hoc rule making, which is the way that government agencies operate. The progressives saw the rule of law as outdated, Goodnow said, The force of the principal active rule of law is also being weakened. With the development of the more complex conditions characteristic of modern life, it has been felt imperitive [sic] to depart at any rate from the strict application of the principle.90 Accountable only to Congresss budgetary powers, administrative agencies carry out a wide number of tasks that the federal government only began taking responsibility for in the last century. Pestritto notes that, while the actual growth of the administrative state can be traced, for the most part, to the New Deal (and subsequent outgrowths of the New Deal like the Great Society), the New Deal merely served as the occasion for implementing the ideas of America's Progressives.91 There were, however, agencies that were established prior to the New Deal as a result of the governments early attempts to prohibit narcotics and alcohol. Prohibition was in many ways the apotheosis of the administrative state, claims Robert Post, for it deployed a vast governmental apparatus to control intimate details of personal consumption.92 The ideas that progressives like Goodnow and Wilson succeeded in implementing in the United States are still being practiced through these agencies. How and why were these ideas put into practice? An examination of the temperance movement will reveal the answer to this question.

Ibid, quoted in Mahoney, Politics and Progress, 94. Pestritto, The Birth of the Administrative State: Where it Came From and What it Means for Limited Government http://www.heritage.org/Research/Thought/fp16.cfm 92 Robert Post, Federalism, Positivism, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era, William and Mary Law Review, [Vol. 48, No. 1, 2006], 18.
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T HE P RE -P ROGRESSIVE T EMPERANCE M OVEMENT

A person does not drink to get drunk. A person drinks to have fun. Richard Nixon

Americas Oldest Reform Movement

Although sometimes thought of as a conservative initiative, prohibition was written into the Constitution as a part of the progressive reform agenda.93 The progressive movement did not begin in America until the late 19th century but was the most important factor in the Eighteenth Amendments passage. However, as David Kyvig has noted, if the temperance movement had not been successful before the progressive movement it is hard to imagine that national prohibition would have ever been adopted as a federal policy.94 The Eighteenth Amendment, he contends was the product of a century-long temperance crusade, the early-twentieth-century progressive environment, and a temporary spirit of wartime sacrifice.95 Investigating the entire history of temperance in America is not necessary for our purposes, but the history of the movement during the 19th century is vital, as it was during this time that it became socially and politically relevant. It can be argued that there were three distinct phases of the temperance movement in America through the progressive era.98 There had been an organized movement for temperance reform in the since the early 19th century but nationwide

Ibid, 2. William Anderson notes that most modern Progressives are not particularly proud of this achievement. Taken from "The Progressive Era, Part 1: The Myth and the Reality," The Future of Freedom Foundation, June 9, 2006, www.fff.org/freedom/Fd0602.asp (accessed August 24, 2008). 94 David Kyvig, Repealing National Prohibition [University of Chicago Press, 1979], Ch. 1. 95 Ibid. He adds that Various historians of the reform have tended to emphasize one or another of these factors. However, it is hard to imagine national prohibition being adopted without all three interacting. 98 Sinclair,

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prohibition was not realized until it became a part of the broader political agenda of the progressive movement in the early 20th century. The movement needed time to gain some political momentum and patience for the proper circumstances to arise to be successful. It was able to take advantage of the social and political circumstances in the first twenty-years of the 20th century because of the momentum it been accumulating since the nations founding. The American Temperance Society was founded in Boston in 1826 and it had 2,200 chapters within five years across the nation.99 Alexis de Tocqueville wrote that such organizations had more than 270,000 members when he visited the United States, and that they were responsible for decreasing the amount of liquor consumed in Pennsylvania alone by 500,000 gallons.100 Many similar organizations soon followed During the 1850s, thirteen states or territories had enacted laws prohibiting the manufacture or sale of alcohol.101 The first call by one of these organizations to write prohibition into the Constitution came in 1856 by the Sons of Temperance. A resolution to adopt alcohol prohibition as a national policy was presented in the U.S. House of Representatives in 1876 for the first time.102 Alcoholic has been a part of America since the Europeans discovered it, and the idea of temperance has been around just as long. Liquor was generally considered to be nutritious in the era following the American Revolution, and it definitely was not considered to be a social ill then like it was a century and a quarter later.103 However,

99

The Oxford Guide to United States History, Paul S. Boyer, ed., [Cambridge,Oxford University Press, 2001],

772.

Alexis de Tocqueville, Democracy in America, translator and ed. Harvey Mansfield [Chicago, University of Chicago Press, 2000], 232 fn 1. 101 Whitebread, 991; Cherrington, 135. These were the Oregon Territory, Maine, Delaware, New Hampshire, Michigan, Indiana, Massachusetts, Illinois, New York, Vermont, and Ohio. Many of the statutes were vetoed, repealed, or found to be unconstitutional by the supreme courts of the states soon after passage. 102 Ernest H. Cherrington, The Evolution of Prohibition in the United States: A Chronological History of the Liquor Problem and the Temperance Reform in the United States from the Earliest Settlements to the Consumation of National Prohibition [Montclair, Patterson Smith, 1969], 317. The Representative who did this was Henry William Blair of New Hampshire, who introduced another prohibition bill as a Senator in 1885. The 1876 bill only would have applied to distilled liquors and would not have taken effect until 1900; Asbury, 90. 103 David Musto, Drugs in America: A Documentary History [New York: NYU Press, 2002], 3; W.J. Rorabaugh, The Alcoholic Republic, [ ], 25. Rorabaugh says, At the beginning of the eighteenth century, tradition taught, and Americans, like Englishman and Europeans, universally believed, that rum, gin, and brandy were nutritous and

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there were some who foreshadowed the temperance movement, including Benjamin Rush, a signer of the Declaration of Independence. One of the first prominent political figures to argue for laws regulating alcohol, he argued for general and state governments to enact legislation limiting the number of taverns permitted to operate, imposing heavy duties on ardent spirits, and inflicting a mark of disgrace, or temporary abridgment of some civil right, upon every man convicted of drunkenness. He also said that when taken moderately, liquor was generally innocent, and often [had] a friendly influence upon health and life, but if not done in moderation, drinking caused poverty and misery, crimes and infamy, diseases and death.104 According to him, these were the societal effects of an individuals excessive indulgence. He based his argument primarily on scientific evidence, telling of the dangers alcohol posed to the human body and as a result, society. Rush and his appeal to science were not the causes of the American temperance movements rise in 19th century.105 As will be seen, many factors influenced the movement, but religion brought it to the forefront of American politics at the turn of the century. The temperance reformers founded their own political party in 1869, although they did not consider it to be a traditional political party since it was only concerned with one issue. Temperance advocate and historian of the movement, Ernest Cherrington said of it, It was not a party; it was a crusade.106 The Prohibition Partys establishment was the first major step taken by the temperance movement on its way to becoming a political force in the 20th century.

healthful. Distilled spirits were viewed as foods that supplemented limited and monotonous diets, as medications that could cure colds, fevers, snakebites, frosted toes, and broken legs. 104 Benjamin Rush, An Inquiry into the Effects of Ardent Spirits upon the Human Body and Mind, 1785. Musto, 27-31. Ardent spirits are meant to include distilled liquor only. He argued that beer and wine were acceptable to imbibe. 105 Timberlake, 39. Timberlake opines that science would eventually have a bigger role than religion in the temperance movement with the onset of the 20th century. 106 Cherrington, 165. State Prohibition parties were first organized in 1837 in Michigan and Illionois, respectively, but neither of them nominated a ticket. 1869 saw the first state Prohibition party to nominate a ticket when the party had its convention in Mansfield, Ohio during July. The national party was also formed in 1869 and the first year it nominated a national ticket was in 1872 when John Black ran as the first presidential candidate for the Prohibition party.

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Temperance, Religion, and Liberty

Many denominations of the Protestant Church had already spent decades fighting for temperance reform by the time the progressive movement had emerged in America in the last two decades of the 20th century. The Methodist, the Presbyterian, and the Baptist churches were the major religious sects that supported prohibition efforts. The Protestant, Episcopal, and Lutheran churches are examples of Protestant denominations that did not aid the temperance campaign. The movement did not receive support from the Roman Catholic Church either.107 Many of these evangelicals believed that intemperance degraded mens souls so greatly that it was nearly impossible for the intemperate to achieve salvation. As the Reverend Lyman Beecher declared, For drunkards no more than murderers shall enter the kingdom of God.108 Beecher made this statement during a religious revival in the early nineteenth century known as the Second Great Awakening, which occurred in the midst of the countrys expansion into the West, and the industrialization of the East. The temperance and religious movements of the early nineteenth century coincided with the larger nationwide reform movements resulting from Americas industrialization and expansion. The rapid growth of the nation was essential to the strength of first temperance movement. Beecher and other preachers gave sermons warning of the dangerous consequences widespread intemperance would have an ever-expanding nation. If those who succumbed to the temptation of liquor were not saved, the nation would suffer as a result.109 Intemperance is a national sin, admonished Beecher, carrying destruction from the centre to every extremity of the empire, and calling upon the nation to array itself, en masse, against it.110 The

Timberlake, 5. Sinclair, 64. Timberlake claims that these denominations of Christianity did not join in the temperance cause because of their greater emphasis on liturgy, confession, creed, and sacraments, rather than traumatic conversion, as the means of grace and salvation. They therefore, tended to frown upon revivalism and were far more lenient in matters of private morality, such as drinking. Sinclair states that other religious groups that supported prohibition were the Disciples of Christ, Christian Scientists, and the Mormons. 108 Lyman Beecher, Six Sermons on the Nature, Occasions, Signs, Evils, and Remedy of Intemperance, [Boston: T.R. Marvin, 1827), 36. Taken from http://books.google.com/books?id=H0FoK5dwhoC&printsec=frontcover&dq=lyman+beecher+six+sermons&lr=#PPA1,M1 109 Timberlake, 13-15. 110 Beecher, 61.

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temperance movement of the pre-Civil War generation began to lose its momentum when the South began to secede, as this event was apparently seen as posing a bigger risk to the Union than drunkenness. Thus ended the first wave of the American temperance movement Sobriety enabled men to accept the Gospel and strengthened their private moral character, but the religious argument was about much more than just the individuals use of alcohol. Such was the case during the temperance movement stifled by the Civil War, and it was the same during Reconstruction when the movement began regaining its momentum. Protestantism tried to initiate a religious revival resembling the one in the early nineteenth century with their renewed temperance efforts in postwar America. They believed that temperance was a prerequisite for such a revival to succeed, and although the results of their religious efforts did not cause a broad revival across the country as it did during the Great Awakening, the churchs spirit of social reform began to spread throughout the different sects of Christianity.111 Many religious leaders saw intemperance as the cause of poverty, which in turn caused crime and suffering. Some argued the reverse, blaming poverty for intemperance. 112 Whether it was intemperance that caused poverty or the opposite is of little consequence here. The two were linked in the minds of the religious reformers who placed the ultimate blame for both on American capitalism. This caused them to preach a new gospel, the Social Gospel, which stressed social improvement alongside of individual salvation since the two went hand in hand. This became a major facet of the Progressive movement in the early 20th century, but before the progressives absorbed the temperance movement, it had to learn how to exercise the political power it possessed. Walter Rauschenbusch was the most influential preacher of social Christianity, which called for American capitalism to be brought in line with the ethical teachings

Timberlake, 18. Sinclair, 64. Sinclair says that the main churches who supported prohibition were the Methodist, the Baptist, the Presbytarian, and the Congregational churches, aided by the smaller disciples of Christ, Christian Science, and the Mormon religious groups. 112 Timberlake, 16, 24, 199 (particularly in the south regarding blacks). They especially placed blame on the liquor industry.

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of Jesus, and he used the liquor trade to illustrate Americas need for widespread reform.113 Alcohol is a spirit born of hell, he said, but he is merely a satellite and tool of a far greater devil, and that is Mammon.114 The liquor industry was too greedy and not concerned with the wellbeing of the consumer. As long as alcohol was generating profits then it would be sold to anyone who wanted to buy it, even those who should not have bought it. Businesses cared about their profits more than they cared about the overall health of the society. The more people that fell into the pit of alcoholism, the better off the liquor business was. For the temperance reformer in America, wealth was achieved through the poisoning of the poor; but it must be done on large scale or it doesnt pay. This was typical business practice in early-20th century America according to Rauschenbusch, which demonstrated that businesses should not be conducted for the sake of profit but should instead be concerned with the welfare of mankind.115 Many people at the time, including those who referred to themselves as Socialists, equated socialism with atheism, but he argues that social Christianity is merely socialism that is found through the teachings of Christ, which makes the Reign of God on earth its object.116 By itself, achieving socialism in America would require a multitude of governmental reforms, but to put socialism in place to achieve such a lofty goal would require a complete political overhaul. This desire to so greatly improve society that suffering and poverty were eliminated was the inspiration for both the prohibitionists and for progressivism. The emerging idea of social Christianity, that Americas moral and legal theories about the rights of the individual in using the resources of nature and in operating his tools to get wealth, are based on the assumption of a sparse population and of simple methods of production

Walter Rauschenbusch, Christianizing the Social Order, [New York, The Macmillan Company, 1914] 209, http://books.google.com/books?id=4nAuAAAAYAAJ; Other preachers of social Christianity and temperance were Josiah Strong, W.D.P. Bliss, and Charles Stelzle; Timberlake, 26-29. 114 Rauschenbusch, 209. In the Bible, Mammon is wealth or greed, and often personified as a deity. 115 Rauschenbusch, 209. 116 Rauschenbusch, 109, 117.

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which we have largely outgrown.117 As one advocate of the social gospel wrote upon ratification of the Eighteenth Amendment:
Personal Liberty is at last an uncrowned, dethroned king, with no one to do him reverence. The social consciousness is so far developed, and is becoming so autocratic, that institutions and governments must give heed to its mandate and shape their life accordingly. We are no longer frightened by that ancient bogypaternalism in government. We affirm boldly, it is the business of government to be just thatpaternal.118

In the minds of the prohibitionists, the right to liberty did not include the right to drink and be a detriment to societal progress.119 This concept of freedom, that one was only free to do whatever was best for society as a whole, was the same as the progressive concept, which Wilson aptly named The New Freedom. In many ways, the progressive concept of liberty was predated by the prohibitionist concept. For the prohibitionists of the 19th century and the progressives of the 20th, the old understanding of liberty that deemed a citizen could basically do anything he wanted so long as he was not depriving any others of their liberty, life, or property was too extreme, permitting too many to suffer. The American founders understanding of liberty was too broad and needed to be restricted if society was to improve. The government needed to be expanded and empowered to ensure this. The early temperance reformers did not necessarily have the same view of governments purpose as the progressives, but they shared the fundamental idea of how the government should restrict liberty so that progress was not impeded. This new freedom justified many progressive actions, including granting the federal government power to regulate substances formerly considered to be matters of the individual states, which resulted in the prohibition of both alcohol and narcotics. In 1842, Abraham Lincoln gave a speech to the Springfield Washington Temperance Society, in which he called the temperance revolution a noble allyto the cause of political freedom. The speech was given at a time when religion,

117 118

Rauschenbusch, 421. Gospel of the Kingdom, I:106, quoted in Timberlake, 27. 119 Hamm, 37.

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particularly Protestantism, was driving the temperance movement. It was only in the previous decade that the movement had become politically important on the state and local level, and while the bulk of his speech was devoted to the political methods used by the Washingtonians and like reformers, he concluded by making a comparison that would be reused by reformers for generations.120 He linked the abuse of alcohol with slavery and called for the eradication of both, saying:
And when the victory shall be completewhen there shall be neither a slave nor a drunkard on the earthhow proud the title of that Land, which may truly claim to be the birthplace and the cradle of both these revolutions, that shall have ended in victory. How nobly distinguished that People, who shall have planted, and nurtured to maturity, both the political and moral freedom of their species.121

The comparison that Lincoln used in this speech became a crucial part of the temperance argument following the Civil War, and continued to be into the 20th century.122 This link between alcoholism and slavery was picked up by the progressive movement thirty-years later and helped them redefine the traditional idea of liberty in America. For obvious reasons, Lincoln did not see what the temperance movement became after the war ended, but he was very familiar with the people who would lead it. The strongest proponents of the temperance cause post-Civil War were the abolitionists who ferociously fought against the enslavement of African Americans prior to the passage of the Thirteenth Amendment in 1865. After the Thirteenth Amendment was ratified, Gerritt Smith, who twice ran for President on the Abolitionist ticket and was friends with John Brown, stated:
Our involuntary slaves are set free, but our millions of voluntary slaves still clang their chains. The lot of a literal slave, of him whom others have enslaved,

Lucas E. Morel, Lincoln Among the Reformers: Tempering the Temperance Movement, Journal of the Abraham Lincoln Association Vol. 20, Issue 1, 3-4. 121 Abraham Lincoln, Temperance Address Delivered Before The Springfield Washington Temperance Society, February 22, 1842; Abraham Lincoln: His Speeches and Writings, 140. 122 Morel, Lincoln Among the Reformers: Tempering the Temperance Movement, 32-34.

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is indeed a hard one; nevertheless it is a paradise with the lot of him who has enslaved himselfespecially of him who has enslaved himself to alcohol.123

The temperance cause provided the abolitionists an opportunity to continue fighting against slavery since many of these reformers viewed alcohol as being a different means to the same ends. Although no war broke out over the alcohol issue, these temperance advocates fought with fervor similar to that of their fight against slavery. As they did in the abolitionist movement, women played a major role in the struggle for temperance reform.

The Great Legal Fortress of Intemperance

In 1888, at its national convention, the Womens Christian Temperance Unionfounded in 1873 in Evanston, Illinoisadopted a resolution to support a federal prohibition law. To this organization, it was evident that all ultimately effective action for suppression of the liquor traffic must come through national legislation.124 The Prohibition Partys nomination for president in 1888, Clinton B. Fisk, expressed the same feeling in saying that prohibition can never be made of local and state limitations again. Congressman Henry W. Blair of New Hampshire had promoted this opinion in the political arena soon after the Civil War ended a decade before. The opinion Blair had of liquor was akin to the opinion that abolitionists like William Garrison had of slavery before the Civil War. Garrison and his followers held that the Constitution was "a Covenant with Death, an Agreement with Hell" because it permitted slavery to exist.125 Though not being so extreme, Blair argued that since the Constitution did not give Congress the ability to outlaw all liquor traffic in the United States, it was a corrupt document because states that had passed prohibitory laws would always be contaminated by the states that had not. In order to prevent such contamination from happening, the Constitution had to be amended to grant the federal government the
Quoted in Sinclair, 86. Hamm, 65. 125 William Lloyd Garrison, A Covenant with Death, and the Agreement with Hell, The Liberator, October 23, 1857.
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power to enact prohibition throughout the nation. As it prevented Congress from having such an extensive power, Blair said the Constitution was the great legal fortress of intemperance in this country.126 It was the particular conception of law, what historian Richard Hamm describes as the mosaic ideal, that helped to revive the temperance movement in America after the Civil War. Their understanding of the law stemmed directly from their religious values, which meant that the law should be used in such a way that it promoted morality and criminalized evil. They believed that this idea of law was rooted in nature and refined by Gods commandments so that it could be emulated in human law.127 Those who favored prohibition for religious reasons believed that the law should be a statement of moral truth, but this is not what made their views extreme. It was the specifics of their moral truth, which conflicted with the American doctrine of individual rights, that some viewed as being too radical. As Hamm says, the prohibitionists saw law as a means to extend morality, by which they meant their morality as they saw it.128 In order to foster the society desired by the prohibitionists, government power would have to be utilized. If this were to happen and governments purpose became the advancement of societys morality and general welfare, then individual liberties would have to be of secondary concern, or not of concern at all. In 1892 at the WCTUs annual convention, Frances Willard publicly stated the prohibitionists rejection of individual rights. The concept of rights that America had had been founded on, life, liberty and the pursuit of happiness, Willard claimed, were set up in the camp of the savage. Understanding rights in this way was merely the first stage in the evolutionary process of rights. There were two more stages that needed to be gone through for society to reach its moral apex. The second stage was when government would legislate on all moral issues by declaring, thou and thou

126

Henry William Blair, The Temperance Movement, Or, The Conflict Between Man and Alcohol, [W.E. Smythe, Richard Hamm, 34. Richard Hamm, 36.

1888], 388.

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shalt not over ever matter.129 The third stage was one in which government by law is exchanged for the mightiest of all governmentpublic sentiment. The moral tone of society declared by resistless common consent what the law had previously prohibited and punished.130 When the constitution of the Womens Christian Temperance Union was written, it was thought of as a new Declaration of Independencecreating a higher level of thought for American manhood.131 We believe in the coming of His Kingdom whose service is perfect freedom, declared one reformer, because His laws, written in our members as well as in nature and in grace, are perfect, converting the soul.132 To counter those who asserted the individuals right to drink, the temperance reformers began to publicly target those who sold alcohol and not those who drank it, but the idea that liberty meant society should be free of those who were enslaved by alcoholan underlying theme of the entire temperance movement. As one leader of the WCTU declared:
The slavery of alcohol and other narcotics is the worst of human bondages because it tends to become a willing bondage that enslaves the soul as well as the body of its victim, while it mortgages his children to the enslaver. It must be overthrown if our race is to move on, through generation after generation, up the heights of its utmost possibilities. The popular use of alcohol, usually begun in ignorance of its seductive power, is a menace to that capacity of selfgovernment without which a republic must ultimately perish.133

The temperance movement had some successes from 1869 to 1893, but significant legislative action was not achieved until after this period. The Prohibition Party was established in 1869 and, as Cherrington has noted, not a political party in the common understanding of the term. Unlike most political parties that champion many causes, selected with a view to those most likely to attract the largest number of

Hamm, 43. Quoted in Hamm, 43. Woodrow Wilson had a view of the state and the states power that was comparable to Willards; Pestritto, Woodrow Wilson and the Roots of Modern Liberalism, 78-79, 83. 131 Elizabeth Putnam Gordon, Women Torch-Bearers: The Story of the Womens Christian Temperance Movement [Evanston: National Womens Christian Temperance Movement Union Publishing House, 1924], 15. 132 Gordon, Women Torch-Bearers: The Story of the Womens Christian Temperance Movement, 16. 133 Gordon, Speech given by Mary Hanchett Hunt, 43.
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voters, the Prohibition Party was established to advocate a single issue without considering the political consequences that could result.134 However, this dedication that defined the party did not revolutionize the political ability of the temperance cause. It was not political enough to produce serious change, as Cherrington says, Its leaders never knew the meaning of policy, prudence, or diplomacy.135 Nevertheless, the party did help the temperance movement forge a path for later political activity carried out by the Anti-Saloon League, which was established in 1895. Until then, the Prohibition Party would be assisted by a number of organizations, but there was only one that arguably matched the partys contribution to the temperance cause. The Womens Christian Temperance Union would pave the way for the movements political triumphs in the 20th century and strengthen the temperance movements link with the progressive movement. Sinclair argues that there were three distinct reform movements at the beginning of the twentieth century, rather than just the progressive movement and its subordinates. The three were progressivism, temperance, and womens suffrage.136 Each of them had similar roots and initially shared the same goals, but eventually dissolved their union and deserted each other. He calls them the Trinity of Reform, and says that although they ultimately separated from one another, none of them would have accomplished much without the success of the others. Whether or not these three movements ever completely abandoned each other, as Sinclair asserts, his judgment that each movements success depended on the success of the others is indisputable. This was especially true from the last half of the nineteenth century until 1920 and is exemplified perfectly by the Womans Christian Temperance Union, which fought for all the reforms sought by the Trinity. The WCTU was founded in 1874, four years after the Prohibition Party, and likewise established in Ohio.137 The contributions of the WCTU to the overall

Cherrington, 169. Ibid. 136 Sinclair, 91. 137 Elizabeth Putnam Gordon, Women Torch-Bearers: The Story of the Womens Christian Temperance Movement, [National Womens Christian Temperance Movement Union Publishing House, Evanston, Illinois, 1924], 15.
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temperance cause cannot be overstated. It focused on temperance reform efforts, but also played a crucial role in the fight for womens voting rights. The WCTU pioneered the movement for equal suffrage that would come to be vitally important in local and state prohibition campaigns, and ultimately in the national campaign. It also ensured the passage of many local laws banning saloon operations, which meant that the women had to fight not only the saloons, but also the corrupt politicians.138 In Women Torch-Bearers, the self-published history of the WCTU, a story is told about such a fight over a local option law.139 After a local prohibitory resolution was presented in a town meeting, a man rose to speak against it and allegedly ended the meeting by shouting, We shall win! We have the drinking men on our side, we have the saloons on our side, and we have the money on our sideand money is a power and dont you forget it. Another meeting was held on the next night and the President of the WCTU replied to that statement by declaring, We shall win! We have the women on our side, we have the churches on our side, and we have God on our sideand God is a power and dont you forget it!140 The Christian women of the WCTU stood on moral ground not only to fight against the saloons, but also against impurity and corruption in politics by bringing to bear an organized public sentiment that compelled action.141 The accomplishments in the late-19th century of this womens organization laid the foundation for the temperance movements success in the early-20th century, but they did not come in the form of legal restrictions on liquor.

Cherrington, 170-171. Eliza Thompson, Hillsboro Crusade Sketches, in Drugs in America, 87-94. The organizations establishment in 1874 was the culmination of, what is widely referred to as, the Womans Crusade that began in 1873. The Womans Crusade, Cherrington says, is generally recognized as also beginning in Ohio. A lecture given by Dr. Dioclesian Lewis in Hillsboro, Ohio on December 24, 1873 is what began the campaign, but Cherrington notes that Dr. Lewis made a similar speech in Fredonia, New York on December 14th that prompted hundreds of women to begin a praying crusade outside of the towns saloons. A similar one occurred in Jamestown, New York on December 17th, but what differentiated the Hillsboro crusades from the two in New York was that it had remarkable success. 138 Politicians were viewed as being in the pockets of the liquor industry throughout the Temperence Movement. 139 Timberlake, 145-146. According to Timberlake, There were two main kinds of local option law: special statutes applying to certain designated localities only, and general statutes applicable to all units within a state. 140 Elizabeth Putnam Gordon, Women Torch-Bearers: The Story of the Womens Christian Temperance Movement, [National Womens Christian Temperance Movement Union Publishing House, Evanston, Illinois, 1924], 114. Frances Willard was WCTU president from 1879 until her death in 1898. 141 Cherrington, 175.

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The problem created by the great legal fortress of intemperance, Congressman Blair said, could not be amended unless public opinion is pronounced against it. Law, he said, is the inevitable effect of moral suasion whenever moral suasion is effective.142

The WCTUs Fight for a Clear Brain

Although founded on religion and Puritan notions of morality, the WCTUs most important contribution to the temperance movement was done through scientific education. Appointed to lead the Committee of Scientific Temperance Instruction in 1879, Mary Hanchett Hunt led the campaign to reform the curriculum of American public schools. In 1882, the WCTU helped ensure that Vermont was the first state to enact legislation requiring public schools to instruct students about the physiological effects of alcohol. By 1888, the WCTU had pushed legislation through twenty-eight state legislatures that required scientific temperance to be taught in all state-run schools, and by the turn of the century every state had similar legislation.143 In 1886, the federal government also began requiring scientific temperance education in federally controlled schools such as those in Washington D.C., military academies like West Point and Annapolis, and schools for blacks and Native Americans.144 The women needed the voting majority to win their fight but since they did not have it yet, they had to teach the voting majority of the next generation. The WCTU believed that educating future generations to the truth about alcohols danger was the key for eventually implementing widespread prohibition. People began using alcohol without possessing the knowledge of its addictive nature. If children learned about the dangers it posed to the individual, and in turn to society, then they would be able to evade it and remain sober. As Mary Hunt said:

Blair, 377. Scientific Temperance Instruction in Public Schools, Letter by Frances E. Willard, in Musto, Drugs in America, 104-107; Cherrington, 175; Elizabeth Putnam Gordon, 42-43, 294. 144 Elizabeth Putnam Gordon, 42-43; Scientific Temperance Instruction in Public Schools, Letter by Frances E. Willard, in Musto, Drugs in America, 104-107; Cherrington, 175.
143

142

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If we want the saloon closed, we must teach the majority, the law-making power, that alcohol is by nature and outlaw that should be banished from human habits and traffic. Compulsory scientific temperance instruction in the public schools is one method that reaches the coming majorities. All history is the aggressive advance of the future upon the past, the field of collision being the present. Coming generations with clear brains and untainted blood are aggressively advancing on the alcoholic past of our inheritance.145

Spreading the truth to the masses through the use of modern science would finally destroy the old beliefs about alcohol and show it for the evil it really was. According to the WCTU, this was irrefutably proven by modern science, and any old beliefs about it would succumb because history has shown that in the ultimate contest truth is the strongest of all forces.146 While they may have lacked truth in its purest form, the force that they exerted was very strong. The textbooks placed in schools by the WCTU were not completely devoid of truth, but neither were they jam-packed with unquestionable scientific evidence. In fact, much of their scientific evidence would be refuted within two decades, and disproven by those who even supported the temperance and temperance education.147 One of the textbooks supported by the WCTU included warnings that drinking alcohol makes more people poor and unhappy and wicked than any other cause. The same book asserted that insanity, family discord, murders, pauperism, and misery are some of the results of the action of alcohol on the nervous system. Neither of these statements could have been definitively proven false, and the book accurately stated that alcohol often caused liver diseases, but at the same time it claimed that alcohol was a fiery stimulant, when it had already been determined to be a depressant.148

Gordon, speech given by Mary Hanchett Hunt, 43. Gordon, Speech given by Mary Hanchett Hunt, 44. 147 Timberlake, 48-51. The Committee of Fifty was the organization who objected to [the WCTUs] methods, not its purpose. 148 William Thayer Smith, Primer of Physiology and Hygiene: A Text-book for Primary Classes : with Special Reference to the Effects of Stimulants and Narcotics on the Human System, [Ivison, Blakeman, Taylor & Company, New York, 1885], 73, 90-91; Timberlake, 41. Timberlake states that Professor Emil Kraepelin of the Universities of Heidelberg and Munich had published his discovery that alcohol was a depressant in 1892.
146

145

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The WCTU did not limit itself to school textbooks either, utilizing many vehicles to infuse their arguments into the public. According to Elizabeth Putnam Gordon, the scientific data and appeals that through WCTU publicity molded [sic] public thought, included teachings that the sale of drink is the sale of diseasepovertyinsanitycrimeand death.149 Another piece of evidence that she cited was a phrase of William Gladstones: Drink causes more injury to humanity than war, pestilence, and famine combined. The WCTU and other reformers alleged that these educational efforts were the critical factor in securing the passage of the Eighteenth Amendment in 1919.150 Cherrington notes that instituting these educational requirements resulted in bringing up a generation of men as well as women in the knowledge of the evil effects of alcohol on the human body and mind.151 After the Eighteenth Amendment was ratified in 1919, Anna Gordon, Frances Willards successor, expressed her opinion of the educational campaigns importance by proclaiming:
Tremble, King Alcohol, we shall grow up, shouted the children, and in spirited fashion they sang, Well purify the ballot box, well consecrate the ballot box, well elevate the ballot box when we are twenty-oneThe cry of the children has been heeded by this great nation. Educated by the facts of science, by the precepts of the Bible, and the joy of temperance service, the children have grown to manhood and womanhood and have helped vote out of existence the traffic in alcoholic beverages.152

The educational campaign was a fight for a clear brain, and according to Frances Willard, The fight for a clear brain is a fight for Christianity.153 The inclusion of scientific evidence into the temperance argument greatly helped the movement, but only because the WCTUs political ability ensured that the argument became widespread. For many reasons, the WCTU was essential in the temperance cause as America moved closer to the 20th century and the Progressive Era. The organization was based on a religious opposition to intemperance, but the main reason for its
149 150

Gordon, 53. Gordon attributed this saying to Sir Benjamin Ward Richardson in 1892. Gordon, 43. 151 Cherrington, 175. 152 Sinclair, 109; Speech, Anna Gordon, President of WCTU after Frances Willards death. 153 Gordon, 36.

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success was the utilization of science in the fight against alcohol use. Religion had always been an important factor in this fight but science was used to expand the movements public support. Many temperance reformers had used scientific arguments before, but until the WCTU, religious appeals had always been more successful in securing support. Their success was found in using political means to spread the message of temperance. The WCTUs influence, though great, was delayed for the most part. The organization was spreading its message to children who had no real voice until years after they had been in school and received the scientific temperance instruction of the WCTU.154 The WCTU knew that the success of their cause depended on the children and accepted that their success, though belated, would take years to achieve. They had to depend on the voting majority and since most voters did not yet favor prohibition, they had to depend on the future majority. Education was a major part of ensuring that they would get this, and it was essential if they were going to keep it once achieving their goal. They were limited in their ability to ensure the immediate passage of any prohibitory legislation unless they could do it in their local towns, and while they had some success doing this in certain areas, it was not nearly enough for them to be satisfied. By 1893, to the movements dismay, temperance laws had largely disappeared in the states and there was still no substantial, organized movement for national prohibition. From the 1880s to the 1890s, the temperance reformers had achieved a great deal of success with four states enacting prohibitory laws, joining the previous prohibition states of Maine, Vermont, and New Hampshire. Kansas became dry in 1880, Iowa in 1884, and North and South Dakota in 1889. However, only six states had prohibitory laws in 1893. This was due to state laws either being repealed or being found unconstitutional. The six states remaining either had laws that were written weakly or they did not enforce them well.155 After the Dakota laws were enacted, no

154 155

Cherrington, 175; Gordon, 43; Sinclair, 43. Cherrington, 249. The states were Maine, North Dakota, South Dakota, Nebraska, Kansas, and

Vermont.

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other state would pass prohibitory laws until the 20th century, when the reform spirit of the progressive era spread across the nation. Until then, the prohibitionists had to learn pragmatism and enhance their political savvy.

Temperance Problems in Pre-Progressive America

The movement put most of the blame for its stagnation during the 1890s on the liquor industry and the political influence it had. Add this to the more obvious reason for their disdain of liquor dealers and it is not surprising that the temperance advocates possessed a strong hatred for the industry. If the prohibitionists were going to effectively counter the liquor lobby, they would have to develop their own political machine. Cherrington, who was one of the Anti-Saloon Leagues founding members, wrote that:
[T]he liquor interests had perfected one of the strongest political machines that the country had ever known and had injected its dominating influence into the politics of almost every state and city of the nation, controlling conventions and elections and dictating the acts of legislatures.156

The liquor industry was viewed as evil for the obvious reason; that it profited on the suffering it created through the distribution of alcohol. It stood out as one of the most corrupt and predatory of all economic interests, a major obstacle to political reform, and a prime factor in the breakdown of honest government in the cities. The prohibitionists especially hated the liquor industry the trafficking of demon rum, as in their eyes, these businesses constituted major corporations that were corrupting the government, and were doing so with the money that they made exploiting the poor. 157 The earlier temperance movement did not have to compete with such a strong liquor industry to enact legislative reform; however, the political strength of the industry forced them to transform their tactics as the 20th century approached. Until this time, the temperance movement had been divided over a number of ideological

156 157

Cherrington, 250. Timberlake, 16.

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issues, which had seriously weakened its ability to force any action.158 Add that to the fact that the movement still lacked the organizational structure or ability to do anything on a national level. These problems had to be fixed before they could make a sincere drive at amending the Constitution. The most important temperance organizations from 1869 to 1893 were the Prohibition Party and the Womans Christian Temperance Union, and although they were assisted by a multitude of less powerful groups, the temperance movement was not organized or politically powerful enough to ensure passage of any substantial legislation on the state level after what had already been achieved. They definitely did not have the ability to reform alcohol policy on a federal level.159 While being the biggest components of the dry crusade before the Anti-Saloon League was established, these two organizations also illustrate the dissonance that existed within the movement until the start of the 20th century. As the outbreak of the Civil War caused the end of the first temperance wave in America, dissonance within the movement helped to end the second wave in the early 1890s. The end was marked by the authorization of prohibition in the Dakotas in 1889. No other state would pass a similar amendment for eighteen years.160 Cherrington noted that some temperance organizations in the 1880s, to all appearances, possessed a hatred of other similar organizations stronger by far than their hatred of the saloon.161 The main split in the movement was due to the Prohibition Party, and whether or not it should be supported. Could a third party take on the Democrats and Republicans and achieve the desired goals? The Republicans had the majority of temperance support in comparison to the Democrats and greatly resented the Prohibition Party. Republican loyalists believed that non-

K. Austin Kerr, Organizing for Reform: The Anti-Saloon League and Innovation in Politics, 40. Kerr states, Some advocated total prohibition of the manufacture, sale, and use of all alcoholic beverages, while others sought merely to persuade their fellow citizens to be moderate in their drinking habits. Some wanted to use the power of government to defeat the demon rum, while others engaged in private programs of moral suasionso-called gospel temperanceleaving the matter outside of politics. 159 Cherrington, 182. Kerr, 42. 160 Hamm, 124. 161 Cherrington, History of the Anti-Saloon League, 8.

158

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partisan action would be much more effective in achieving temperance goals. Temperance sentiment would extend itself beyond political affiliations if non-partisan measures were pursued, the dry Republicans argued. This would make it more likely that legislative majorities would arise in support of reform, and it would ensure that other political issues would not divert them from their main goal.162 Those who supported partisan efforts did not believe that any significant reform was possible without something like the Prohibition Party. The flaw in this mode of thinking would become clear when the Eighteenth Amendment was ratified and the Prohibition Party was still insignificant. The Republicans, in wanting support from those on all sides of the temperance issue, did not appear to be the best hope for the reformers though. Many of the radical prohibitionists left the GOP in the 1880s since Republican candidates would not take a hard-line position on temperance. The Republicans did not want to lose votes on either side of the issue by stating any strong opinions about temperance.163 Also, in the states that had enacted prohibition or in the towns that had adopted the local option, nothing was being enforced. The Prohibition Party pointed to this as a reason for temperance supporters to join them because the political parties that were in power did not enforce the few laws that were in effect.164 If elected, the members of the Prohibition Party vowed that they would do the job that the major parties were neglecting so as to not lose votes.165 This caused the Prohibition Party to grow at the expense of the Republicans. The Democrats received the benefit. The controversy surrounding the Prohibition Party, historian Austin Kerr states, was the most bitter

The Prohibition Party had adopted a very progressive political platform making it hard for them to compete with the Republicans and Democrats. In 1888, they advocated things such as; granting the right of suffrage to all citizens, paying men and women equal wages for equal work, labor reforms, as well as prohibition. 163 Woodrow Wilson and Theodore Roosevelt would employ similar strategies in the election of 1912 against one another. 164 Hamm, 125. He cites a March, 1891 report by a committee in the Kansas legislature that every city in the state that had prohibition laws ignored them, and that many cities even taxed the illegal saloons. 165 Hamm, 125. This theme of nonenforcement became central to the Prohibition Party through the next three decades and national prohibition.

162

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division within the temperance movement in the late nineteenth century, but it definitely was not the only one.166 Even the WCTU had conflicts between its members over their organizations partisanship status. It was founded as non-partisan and did not have affiliations with any political party until 1884 when it began to officially support the Prohibition Party. This switch occurred due to the partys official position supporting womens suffrage.167 This rejection of a non-partisan method caused some members to immediately question their leader, Frances Willard, and caused a major philosophical split within the organization. This eventually caused an actual split when the dissenters left the organization in 1889, walking out of the annual WCTU national convention. Led by the president of the WCTU chapter in Iowa, these women founded the Non-Partisan Womens Christian Temperance Union.168 This split in the WCTU reflected the one that existed within the entire movement over the issue of partisanship. They were merely disagreements about proper organizational methods for the movement. Ideological questions worsened the problem of disunity. They did this when temperance was becoming more accepted across the nation, but more importantly they did this when it was becoming accepted across party lines. 169 Their names indicated that their first priority was temperance reform, but from their beginnings both the Prohibition Party and the WCTU fought for a number of other social justice issues. This caused divisions to form within both organizations about issues not related to temperance or partisanship. Considering the splits that were caused by disagreements over the best methods of achieving temperance reform, ideological disagreements within two of the movements most powerful organizations
Kerr, 42. Cherrington, 167. The other parties ignored invitations that the women had given for the parties to attend statewide conventions to discuss prohibition before the nominating conventions. The Prohibition Party agreed to this so the WCTU vociferously supported it until 1901 when it reaffirmed the non-partisan status it had when it was founded. 168 Hamm, 127. 169 Cherrington, 174-175. This became evident to the WCTU when the Republican Party adopted a temperance resolution proposed to it by J. Ellen Foster in 1888. In the same year, Foster introduced a resolution to the WCTU reestablishing its nonpartisanship which failed. Foster and her supporters left the WCTU immediately and formed the Non-Partisan Womans Christian Temperance Organization. This group rejoined the WCTU after it again adopted nonpartisanship and Foster died.
167 166

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just promulgated the movements disunity and futility.170 Other political and economic issues were beginning to overshadow temperance question in the 1890s. Economic issues were forced to the forefront of political debate during the depression of 1893, which led to the rise of a new political party in America. Voters were more concerned with restructuring the nations economy, authorizing the government to control corporations, and changing the monetary system.171 The Populist Party emerged to lead the way on these reforms, actually adopting many of the economic ideas in the Prohibitionist platform, but it was much more successful at doing so. In the election of 1892, they received nearly four times the votes as the Prohibitionists.172 The comparative success of the Populists deepened the preexisting division within the Prohibitionist Party, which was between those who wanted the platform to support many reforms and those who wanted to abandon support for everything other than temperance reform. In 1896, the party adopted a single-issue platform, which caused the broad-gauge faction to desert and form a new party. Thus, partisanship proved to be a major problem for the temperance movement, as is evident by the problems experienced by the political party who was supposed to champion the cause:

If they refused to commit themselves on any issue other than prohibition, they found it impossible to persuade any considerable number of voters to disregard their opinions on all other political issues for the sake of united action against the liquor traffic. But if they took a clean stand on contentious party issues, as they did in 1884 and 1888 on the tariff, they repelled possible converts from the ranks of the Democrats and low-tariff Republicans without securing the support of the high-tariff temperance men who believed the tariff to be a matter of great importance. Or they split their party as they

170 171

See note 158. Hamm, 126. 172 Hamm, 126. The Populist Party got over one-million votes and the Prohibitionists got 264,133.

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did in 1896, when both silver and gold Prohibitionists put independent presidential candidates in the field.173
The Prohibition Party was never politically effective because of its disunity and the entire movement was seemingly losing its effectiveness for the same reasons. The movements hope for success depended on the eradication of inner discord, though this did not even guarantee success. In 1893, one editorial writer in New York described the situation like this: The condition of the temperance cause has been anything but encouraging the past three or four years, and the outlook is certainly not bright.174 These organizational and ideological disagreements defined the movement at the end of the 1880s. If the movement was going to succeed in the 20th century, it needed an organization that focused solely on temperance as a political issue, and that properly cultivated the pre-existing temperance sentiment. The Anti-Saloon League was founded to do this in 1893; adopting a new approach to temperance reform consisting of organizational restructuring, political pragmatism, and taking advantage of the evolving progressive movement.175 These tactics quickly reaped tremendous rewards for the movement. Big business began the practice of lobbying in America, says Sinclair, but the Anti-Saloon League perfected the techniques.176 It was only able to take advantage of those techniques, however, due to the rise of the progressive movement and the changes taking place in American politics.
[I]t was only when special conditions existed to give the liquor problem unusual urgency that the temperance movement became an object of concern to the public at large. Such conditions arose with particular force during the early years of the nineteenth century and again during the early years of the twentieth century. And in each case the temperance revival coincided with a nation-wide reform movement.177

A.N. Holcombe, The Political Parties of Today [ New York, 1924], 322. Quoted in Peter H. Odegard, Pressure Politics: The Story of the Anti-Saloon League, [Octagon Books, New York, 1966], 79. 174 Quoted in Kerr, 39. 175 Hamm, 124. 176 Sinclair, 107. 177 Timberlake, 13. He claims that the rapid extension of voting rights to the urban laboring classes and western frontiersman coincided with the nineteenth century temperance movement, which was fairly brief.

173

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T HE T EMPERANCE M OVEMENT S P ROGRESSIVE T RANSFORMATION

One thought, sentiment, and purpose animated those saintly praying hands, whose names will never die out from human history: Brothers, we beg of you not to drink and not to sellthis was the single wailing note of these moral Paganinis, playing on one string. It caught the universal ear and set the key of that mighty orchestra, organized with so much toil and hardship, in which mingle the tender and exalted strain of the clanging cornets of science, the deep trombones of legislation, and the thunderous drums of politics and parties.178 Frances Willard

The Pragmatism of the Anti-Saloon League

The American Anti-Saloon League was founded in 1895 in Oberlin, Ohio. The first political lobby of its kind, the League changed the nature of political action in America and played a critical role in the passage of the Eighteenth Amendment.179 Until this organizations founding, the WCTU had publicly led the temperance movement and the Prohibition Party, which were both headed by people who did not want to compromise on the issue of national prohibition. Their inability to achieve this was not due to people being completely unsympathetic to their cause. In fact, a majority of Americans in the late 18th century supported temperance to some degree, which is to say that most thought that it was not good for people to be constantly drunk at a saloon. Most thought temperance was a good thing but not all were ready
178 179

Gordon, 36. Frances Willard. K. Austin Kerr, Organizing for Reform: The Anti-Saloon League and Innovation in Politics, 1.

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to adopt the proposals offered by radical prohibitionists who wanted to use the governments power to ban the immoderate use of alcohol. The most radical members of the temperance movement of the 19th century were ahead of their time in calling for such a broad extension of the governments authority. In fact, the members of the Prohibition Party referred to themselves as the first progressives.180 Though they were ahead of the times in their reform proposals, they were behind the times in their methods. The third temperance wave in America, driven by the Anti-Saloon League, was perfectly in step with the rise of progressivism. It did not get too far ahead of majority opinion like the radical prohibitionists had done, but it also did not abandon the fundamental beliefs of the movement. The Anti-Saloon League was effective because of its pragmatism, political skill, and more importantly, its ability to keep pace with public opinion. The Anti-Saloon League shared the radical prohibitionists aspirations, states Hamm, but went beyond their dogmatic methods.181 The hierarchical design that Howard Hyde Russell, the man who founded the league, came up with was crucial to its success. The WCTU and the Prohibition Party had been designed in a democratic fashion, but the League was designed to be a bureaucracy.182 Russell looked to emulate the structure of the modern business firm. It admired the organizational schemes used in industries that had become astonishingly powerful in the prior decades, and only the organizational schemes. Giant corporations were envied by all for their power and success, but blamed by the progressives causing society to suffer. Russell wanted to use their methods against them. As corporations, trusts and combinations have succeeded by a union of forces in the commercial world, Russell stated, so, it was urged, the powers of righteousness should be mobilized and federated for greater moral victories.183 The national league was at the top, which had power over the state leagues, then the

180 181

That is, before the election of Theodore Roosevelt. Hamm, 159. 182 Kerr, 48. 183 Ibid, 47.

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county leagues, and finally local groups and churches. Within this hierarchy, various departments were established to divide up primary duties: agitation, legislation, and law enforcement.184 Although the organization was divided up into separate regions and divisions, every part was towards the same objective: national prohibition. Unlike the misnomers of the WCTU and Prohibition Party, the Anti-Saloon Leagues name described its one and only objective. It wanted to shut down the saloon and did not publicly fight for any other issue. Everybody within the movement could agree on this objective, which is why the League chose it. It united the temperance forces that had previously been divided over partisanship and ideological differences.185 It did not demand widespread prohibitory legislation, but won widespread support by simply declaring, The Saloon Must Go!186 Focusing on the saloon made temperance a commerce issue, not an issue of individual liberty. Although this altered the temperance movements focus regarding the types of legislation to work with, the moral foundation remained the same. It could not be publicly stated because it would undermine the leagues efforts but national prohibition was clearly its ultimate goal.187 It was not until April of 1917 when they openly called for imposing abstinence on the entire nation.188 Until then, the league relied upon the enactment of new local option laws and the enforcement of existing laws, which were not being enforced, to spread temperance in the United States.189 Success in both of these legal endeavors depended on the sentiment of the

Hamm, 132. Kerr, 47. There was a fourth department; finance, but Hamm, 134. Some radicals initially rejected the League and its ideas, but they came around as soon as they accepted that it was the movements best chance for success. For example, the WCTU refused to send any representatives to the Anti-Saloon Leagues organizing convention in 1895, and the Prohibition Party published articles renouncing the league as an omni-partisan failure. 186 Timberlake, 127. This was the motto that they adopted for their first convention in 1895. 187 Odegard, 79. Timberlake, 147. Hamm, 136. 188 Timberlake, 148. Until 1913, the league did not try to push through national legislation that prohibited the personal use of intoxicating liquor for legal reasons, but even after this they continued to solely concentrate on the saloon. 189 As was mentioned earlier, the prohibition laws during the mid-1890s largely went unenforced, or enforcement was sporadic at best. Because of this, the league put a great amount of effort into ensuring that the any laws on the books would be enforced. If they knew of officials that were not enforcing the local laws or the state
185

184

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public, which they had to arouse. Education, therefore, was the bedrock of temperance reform.190 Like the WCTU, the Anti-Saloon League believed that education would determine the possibility of achieving prohibition in America. Unlike the WCTU though, the league did not focus its efforts on children. As is perhaps indicated by the name of the department responsible for this aspect of the causethe Agitation Divisionthey used education as a political weapon. They distributed pamphlets, journals, leaflets, and many other forms of literature to spread propaganda about the evils of the saloon. The American Issue was the first journal that the league distributed on a national level. It covered all topics related to temperancepolitics, religion, science, and economics. It was first printed in 1907 in Westerville, Ohio, which was where the league soon established its own publishing house, The American Issue Publishing Company. This plant it was putting out more than 40 tons of literature each month by 1912. By 1919, the American Issue had a circulation of about 16 million.191 This massive distribution of literature constituted nearly the entire budget of the league, but it also created the temperance sentiment necessary to be effective in their law enforcement and legislative efforts.192

Webb-Kenyon and the Eighteenth Amendment

Local option laws were the preferred tactic of the Anti-Saloon League for three reasons: it ensured that the public was being educated on the evils of the saloon, it prepared the organization (specifically its lawyers) for more substantial undertakings and success on the local level increased the possibility of enacting national prohibition.193 If there were a few towns within a county that voted against the saloon,

laws then they would bring them to court, usually in the name of the government, not the League. The law enforcement agenda paralleled the leagues preferred political tactic of omni-partisan pressure. Seeon page 56. 190 Hamm, 132. He attributes this quote to the leagues founder, Russell. 191 Timberlake, 139. Odegard, 75. Ernest Cherrington, author of The Evolution of the Temperance Movement in America, was the man who ran this plant. 192 Timberlake, 137. 9/10ths of their budget. 193 Ibid.

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then a law would be fairly easy to pass that prohibited alcohol within that county. If there were a number of dry counties within a state, then the state would likely become dry, which would eventually make national prohibition a consideration. By 1913, local option laws had spread across the nation, with thirty-one states having them in effect.194 The Leagues patience and pragmatism began to payoff. This upsurge of dry sentiment due to the Anti-Saloon Leagues success put the temperance movement in a position to achieve its ultimate goal. Before taking the last step of calling for national prohibition they had to try to build off of the Wilson Act, which was passed in 1890 and the first step that the government took to acknowledge that it might take action against liquor. The movement had been trying to get an interstate commerce law enacted to strengthen the federal governments ability to regulate liquor traffic that it had due to the Wilson Act. However, the temperance movement had been trying to do this since 1898 when the Supreme Court ruled in Rhodes v. Iowa that the Wilson Act enabled a state to prohibit the importation of liquor from another state if it was being imported for purpose of sale, but it could not prevent the importation of such liquor for ones own private possession and use.195 Since the Anti-Saloon League focused its attacks on the liquor traffic in an attempt to sidestep their opponents who claimed that the league opposed personal liberty, they had a hard time drawing up stronger interstate commerce legislation that could not be attacked in such a way to.196 Finally, in 1913 with temperance sentiment spreading across the country, the Webb-Kenyon bill was enacted to prohibit the importation of all intoxicating liquor intended to be received, possessed, or used in violation of the laws that state. The arguments put forth in Congress to ratify this bill convey the progressive ideas behind it:
Each of us is under an imperative duty to enlist in the great work of lifting up the human race to a higher and better life, and nothing, in my judgment, will so

Hamm, 133. Hamm states that the league was actually not the main reason for most of these laws being passed but nonetheless took credit for their passage, which thereby increased their standing in eyes of the public and overall temperance movement. 195 Rhodes v. Iowa, 1898. 196 Timberlake, 147.

194

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promote this work as will the giving of relief from the evils that flow from the whiskey traffic. A republic can be no better than the average of the men and women who give a concrete existence; therefore it is right and proper that we, as legislators should remove as far as we can everything that that basis, demoralizes, and depraves our citizenship.197

President William Howard Taft vetoed the bill on constitutional grounds. The bills critics said that it delegated the power to regulate interstate commerce to each individual state, which they could not alone exercise. Nonetheless, its passage provided the temperance movement with the opportunity to go forward with a constitutional prohibition amendment. Once the United States entered World War I, success of the amendments passage was virtually guaranteed. Andrew Sinclair, British historian of alcohol prohibition in America, opined:
The success of the prohibitionists is, in fact, easier to understand than their defeat would have been. For they had controlled the best part of the communications of the time. They had organization, money, and a purpose. The leaders of opinion were often on their side. Theyd been indoctrinating the young for 30 years in the public schools and through their mothers. History, optimism, and improvement were their supporters. With open sincerity, the prohibitionists looked forward to a world free from alcohol and, by that magic panacea, free also from want and crime and sin, a sort of millennial Kansas to float on the nirvana of pure water.198

Progressive Ideas, the Temperance Movement, and the Anti-Narcotics Movement

Temperance reformers first tried to eliminate the abuse of alcohol by moral suasion. After realizing that this would only achieve so much, they turned to the power of the state in the hopes that it would take some action to help ensure social justice.199 This idea became prevalent in America with progressivism by bringing all the reformers under one political banner. Timberlake asserts that the man most responsible for bringing the temperance movement into the progressive movement

197 198

Congressional Record, 62 Cong., 3rd Session, 4443. Quoted in Timberlake, 160. Sinclair, 4. 199 Hamm, 36.

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was preacher of the social gospel and superintendent of the California Anti-Saloon League, Reverend David M. Gandier, who expressed his progressive sentiment in statements such as this:

The fight is just begun. The selfish forces of the landBig Business and its ally, commercialized viceare preparing for the death struggle. I believe the spirit of our age is against them. Everything which lives by injuring society, or which enriches the few at the expense of the many, is doomed to go. The spirit of brotherhood, which means a square deal for all and that those of superior cunning shall not be allowed to rob their less cunning fellows any more than the physically strong shall rob the weak, is abroad and is going to triumph.200
Woodrow Wilson believed that the founders understanding of liberty as an individuals right against the state was impeding the prospects for the progressive agenda, and he believed liberty to be a collective right of the majority to use governmental power in promotion of their interests.201 The crusade against alcohol stemmed from the progressive idea that the main purpose of the national government was to use its power to shape the individuals moral development in the interest of societys progress.202 The vast expansion of the federal governments power was one result of this, and both policies of prohibition were an important part of this expansion.203

Gilman Marston Ostrander, The Prohibition Movement in California, 1848-1933 [University of California Press, Berkeley, 1957], 104. Quoted in Timberlake, 167. 201 Ronald Pestritto, Woodrow Wilson and the Roots of Modern Liberalism [Lanham: Rowman and Littlefield Publishers, Inc., 2005], 55 202 Timberlake, 2. William Anderson notes that most modern Progressives are not particularly proud of this achievement. Taken from "The Progressive Era, Part 1: The Myth and the Reality," The Future of Freedom Foundation, June 9, 2006, www.fff.org/freedom/Fd0602.asp (accessed August 24, 2008). 203 Robert Post, "Federalism, Positivism, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era." William and Mary Law Review 48, no. 1 (2006): Yale Law School Public Working Paper No. 118.

200

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In 1927, Irving Fisher, a member of the Alcohol Information Committee stated that, The organization of society is now so complex that in many lines of endeavor we carry each others safety in our hands, and none of us is free if another takes the liberty to dull his wits with drink. It seems that the individuals freedom is inferior to the liberty of others according to this statement, but he also said that alcohol causes one to lose the very essence of personal liberty because it limits his ability to reason, and that personal liberty is greatest when one maintains a harmonious relation to the social group in which he lives.204 The idea of progress and human natures malleability initiated the concept of using law to shape men for societys benefit. These new ideas of the nature of freedom and equality that came about during the progressive movement are essential to understanding the root causes of both the temperance and antinarcotics movements. The temperance movement shared its fundamental ideas with progressivism and eventually adopted progressive methods, which was to bring about gradual change in the law. Before the onset of progressivism in the late 19th century, the temperance movement had already established itself as a significant political and social movement in America. In this way, the temperance movement and the antinarcotics movement were extraordinarily different. Unlike alcohol prohibition, narcotics prohibition was not caused by any widespread public pressure or political campaign. Rather, it was the work of government insiders, led by progressive-era professional groups and anti-opium missionaries, with crucial support from President Theodore Roosevelt. The push for national drug legislation was consistent with the broader progressive agenda, which favored strong federal action for societys moral development. Examples of legal action being taken against narcotics can be found in preprogressive America but anything that can be considered significant did not occur until the 20th century. The anti-narcotics movement was a direct result of progressive

204

Irving Fisher, Prohibition at its Worst [New York: The McMillan Company, 1927], 172.

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ideas and the transformation of American politics that those ideas triggered.205 As it shared the same fundamental ideas and utilized progressive methods, the antinarcotics movement was, in essence, merely a derivative of the progressive movement. For this reason, the anti-narcotics policies established during this era should be considered a more successful progressive reform of the era than alcohol prohibition was.

205

West and Schambra,Progressivism and the Transformation of American Politics, 3.

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T HE A NTI -N ARCOTICS M OVEMENT

The Spread of Democracy
Between Theodore Roosevelts term in the White House began in 1901 and Woodrow Wilsons ended in 1919, America had engaged in, what Timberlake calls, two great crusades: one to preserve democracy at home and the other to make the world safe for democracy.206 This time period saw the federal governments most significant actions against both alcohol and narcotics in the nations history. These actions were a direct result of the transformation in the fundamental theory of American constitutional government that had been caused by progressivism. This in turn altered what the federal government was responsible for and how it exercised its power in regards to those responsibilities. The progressive movement had changed the nature of the American polity drastically by asserting that governments purpose consisted of more than what the founders postulated; the securing of rights every human being had by nature, which did not allow for many broad interpretations justifying the expansion of its power. Instead, the progressives theorized, the government must have the power to determine the Law instead of being circumscribed by the Law; and accept complete responsibility for the public welfare.207 This could only be done by instituting a system of government that maintained sensitive touch with public opinion, and an efficient way to respond to that opinion as an instrument of important social purposes.208 However, this had to occur gradually. Alcohol prohibition was achieved by amending the Constitution, which the temperance movement had been pursuing for nearly fifty years. The movement against narcotics began during the progressive era and the action that the federal government took against narcotics coincided more with progressive political ideas
206 207

Timberlake, 1. Croly, Progressive Democracy, Ch. 8; taken from Pestritto, American Progressivism: A Reader, 247. 208 Ibid. 244.

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than the constitutional action against alcohol did. There were many similarities between the anti-narcotics movement and the temperance movement, but there were also striking differences. Both must be understood in order to understand whyfrom a constitutional standpointthe federal government has treated alcohol differently than drugs. The first narcotic that the federal government became involved with was opium. This was due to the U.S. takeover of the Philippines after the Spanish-American War came to an end in 1898, resulting in the Treaty of Paris of 1898. The concessions of this treaty included the responsibility of the United States over a new territory: the Philippines. While in control for the fifty-years prior, the Spanish had a monopoly over the sale of opium and had only allowed for merchants to sell the drug to the Chinese. The merchants were contracted by the Spanish government and paid taxes on their profits. When the Spanish lost control to the United States, opium imports drastically increased since the merchants no longer had to acquire licenses, pay taxes, or restrict sale to the Chinese. This increased the number of opium users in the Philippines and presented the American government with a situation it had never dealt with before in its history. The Philippine Commission under the authority of the U.S. Department of War had the main responsibility for dealing with this issue. As President Theodore Roosevelt appointed him civil governor of the Philippines, William Howard Taft headed this group and approved the first plan of action presented to him. Roosevelt, however, vetoed this plan in favor of another. The Supreme Court had ruled in 1901 that the doctrine of states rights did not apply to territorial possessions, such as the Philippines, which meant that the Philippine Commission could choose nearly any method when dealing with the opium situation there. The first plan considered was very pragmatic: it was to enact a policy nearly identical to that of the Spanish government. This was nearly put into action until being electrocuted by Presidential lightning, which was the result of Roosevelt listening to the advice of those who opposed such a plan on moral grounds. The lead protestors were the Reverend Wilbur Crafts, who was the leader of the United States International Reform Bureau, and the Bishop Charles Henry Brent, who

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was the first Episcopal bishop in the Philippines.209 Brent was a member of the Philippine Commission and provided it with a moral conscience.210 These two men of the cloth did not want the United States to approve a measure that permitted the use of opium, even if it would be restricted to the Chinese, like the Spanish had done. They did not support immediate prohibition of the narcotic either, as they viewed that as also being an unwise policy. Therefore, Bishop Brent formed another committee to examine the problem and other possible solutions. In June of 1904, nearly a year after the committee was formed; Brents committee submitted a fairly simple proposal based on their findings. The United States would reinstitute a government monopoly, only allowing men above the age of 21 to smoke opium. The amount an individual could purchase would gradually be reduced over the next three years and use would then be completely banned, other than for medicinal reasons. Schools would be required to educate Filipino students about the evils of opium during those three years and after.211 As is indicated by the plan, Brent and his committee did not believe that immediately enacting total prohibition would be prudent, but it should nonetheless be the ultimate goal. Like Roosevelt did, Congress rejected this plan and opted for a quicker route to achieve this goal. In March of the following year, Congress ordered that opium was prohibited for all Filipinos other than for medical reasons. This policy would then extend to all non-Filipinos in three years. The group that this would affect most was the Chinese who were living in the Philippines; this meant that the ethnic distinction made by the Spanish would be reinstituted by the United States. Brent and his committee made no such distinction in their plan, disagreeing with it in the interests of equity and

David Courtwright, Dark Paradise [Boston: Harvard University Press, 2001], 79. Musto, The American Disease, 26. 211 Albert, Dr. Jose, Rev. Charles H Brent, and Major E. C. Carter. Report of the Committee Appointed by the Philippine Commission to Investigate The Use of Opium and the Traffic Therein and the Rules, Ordinances and Laws Regulating such use in Japan, Formosa, Shanghai, Hong Kong, Saigon, Singapore, Burma, Java and the Philippines. [Washington D.C.: Government Printing Office, 1906], 51-53.
210

209

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justice.212 This congressional action marked the first time that the United States directly dealt with narcotics on an international level, but it did not have the effect on U.S. domestic policy like the following episode would. China had been dealing with regulative opium issues since the early 18th century and America became involved as her presence in the Far East increased. 213 Angry at the treatment they received from Americans; Chinese merchants organized a voluntary embargo on American goods in 1905.214 This aggravated American traders, as well as Teddy Roosevelt, who did not appreciate the Chinese trying to push him around. Nevertheless, he knew that military action would not mend trade relations

Report of the Committee Appointed by the Philippine Commission, 53. The Philippine Commission was permitted to institute other provisions that would apply to the Chinese until total prohibition was enacted, so they decided on making the licenses opium dealers had to purchase expensive and forcing the males to register as habitual users. They also gradually decreased the amount allotted to those users until 1908 when the prohibition took effect. 213 In 1729, when the foreign import was 200 chests, the Emperor Yung Ching issued the first anti-opium edict, enacting severe penalties on the sale of opium and the opening of opium-smoking divans. <www.druglibrary.org/schaffer/history/om/om15.htm> V The anger of China toward America and other western countries was rooted in the concessions it was forced to make in the treaties after the Opium Wars, which lasted from a round 1839-1860, the anger stems more specifically from the treaty after the First Opium War that ended in 1842. The concessions made after the First Opium War included the opening of certain ports to Great Britain, America, and France, the payment of three million ounces of silver to Great Britain and two million ounces to France, as well as allowing Americans to learn Chinese. The Chinese government was angry at the concessions as well as the Wests treatment of China. The British government was engaged in the trade of opium to China, before the First Opium War, using opium as capital to slow the outflow of silver into China in the early 18th century. Because of mass addiction, the Chinese governor of the major port of Canton, Lin Zexu, confiscated and destroyed a cargo load of opium in an attempt to stop the opium trade. The destroying of the 20,000 chests (each weighed roughly 120 pounds) caused tension between the two nations; the vandalizing of a Chinese ship and killing of a man, by drunken British sailors, then escalated this tension. Britain refused to allow China, who wished to put them on trial in China, access to the sailors. Britain felt that the Chinese government was barbaric and did not give up the sailors, though the Chinese felt that those who broke Chinese law were to be tried and punished by China. Lin wrote a letter asking Britain to stop the trade of opium, but Britain refused and war broke out between them in November of 1839. The war ended in 1842, Britain overpowering the technologically inadequate Chinese forces. In the treaty negotiations China was forced to open five ports to Britain, allow Britain completely free trade with China, and had to grant Britain the same privileges that any other country may have access to. Within two years China would be forced to sign very similar treaties with France and the United States. In the 1850s China would become angry again, this time at the exploitation of Chinese labor in the Western Hemisphere, and would again lose the confrontation with the United States. In the Treaty of Tianjin China is forced to pay France and Great Britain the concessions mentioned above, ten Chinese port cities are created, and Christian missionaries are given complete freedom to travel China and spread their religion. Richard Hooker, "The Opium Wars". Washington State University.
<http://wsu.edu/~dee/CHING/OPIUM.HTM>.
214

212

Musto, The American Disease, 38-39.

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between the nations and that he needed to adopt a more diplomatic approach.215 The opportunity to do this presented itself in 1906, when Bishop Brent requested that the President join in an international meeting about the opium problem in China. Brent believed that unified international action was the only thing that could stop the opium traffic going into China and make the upcoming opium prohibition in the Philippines effective. Two and a half weeks before this meeting was to take place, the United States Congress passed legislation that showed support and sympathy for opium issues in China. On February 9, 1909, the Opium Exclusion Act was passed. This legislation prohibited the importation of Chinese smoking opium only, leaving the medicinal opium that was used in many American households entirely untouched.216 This legislation passed hastily through congress, based on the timing and the fact that opium use had been steadily decreasing since the turn of the century, it was enacted purely as a means to open trade relations with China at the forthcoming international meeting. 217 The consequences of this legislation, on the domestic soil of the United States, would be felt soon after the commission in Shanghai, and is the passing of this legislation was beginning of what will eventually become modern narcotics reform. Roosevelt knew that offering such assistance to China would help the United States trade relationship with it, and so an American delegation was sent to Shanghai to meet with twelve other countries during late February of 1909 at the International Opium Commission.218

Patricia Ebrey, Modern East Asia: A Cultural, Social, and Political History [Florence: Wadsworth, 2006]. In 1905, the Shanghai Chamber of Commerce organized a private boycott against the United States, the result of the Chinese citizens being unhappy with the American-Chinese relationship. This was partly because of the United States restrictions on Chinese immigration, the quick use of violence by American gunboats that patrolled Chinese waters, and their feelings on the treatment of their people during the mid to late 19th century when constructing the railroads. This boycott developed into an entire Chinese embarg severely hurting the American economy. In response to this Theodore Roosevelt sent an American naval fleet to China and warned their government that they would be personally responsible for any harm to American business done by the embargo. 216 United States Department of the State, Papers Relating to Foreign Relations of the United States [Washington: Government Printing Office, 1919]. 217 Dale Gieringer, The Opium Exclusion Act of 1909, CounterPunch [February 2009]. This was the first federal measure to actually restrict the importation of opium, before this act opium had been taxed, since 1883, at a price from $6 to $300 a pound. 218 Musto, The American Disease, 30.

215

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This commission adopted resolutions pertaining to the problems facing China, but they did not amount to anything binding. Though the American delegation originally sought for the meeting to have the designation of a convention (rather than commission), which would allow it to adopt binding resolutions with the attending nations, they were unsuccessful and the commission met without obligatory pledges. This means they did not constitute an international treaty and therefore America was not required to adopt any of the recommended policies. Brent was the chairman of the entire meeting and knew that it was only considered to be a fact-finding body that could only make policy suggestions. Though there was no legal obligation for America or any of the other nations to abide by these proposals, and Brent along with the other two American delegates believed that America had a moral commitment to act in accordance with the resolutions that the commission agreed to. This helped inaugurate an American tradition in narcotics controlenactment of strict domestic legislation in the United States as an example to other nations.219 The man who drafted the legislation that would bring America in line with the Shanghai recommendations if Congress ratified it was one of Brents co-delegates.220 A scientist in the State Department, Hamilton Wright soon became the most important person in the history of American narcotics policy.

The One-Man Reform Movement

The movement against narcotics use did not have strong public opinion on its side like the temperance movement had with organizations such as the WCTU and the Anti-Saloon League, although many of these organizations did speak against substances like opium. What it had was Hamilton Wright, who was the equivalent of

Courtwright, 81 The author claims that the United States could not go to Shanghai, urging twelve of the most powerful countries in the world to regulate and put restrictions on opium, when it had no legislation acting on their argument in place. The U.S. could not assume the leadership role against the easts opium until it took the lead against its opium issues. The U.S. was gathering large revenues off the taxing of opium, if it were to urge the other countries to disavow revenue off of opium she must first legislate on the moral grounds they were attempting to argue. Wright would have liked to see a much stronger regulation than the one set out in the Opium Exclusion Act, but due to the short amount of time before the International Opium Commission was to meet. 220 The third delegate was Charles C. Tenney.

219

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the Anti-Saloon League in the campaign to eradicate non-medicinal drug use in America. Public opinion had a part in shaping the governments narcotics policy, but in a much different way than it did in shaping alcohol policies. The public was not aware of it due to the simple fact that drug use was not nearly as prevalent as drinking was in early-20th century America. Wright felt that drugs could become a serious problem and therefore needed to be handled sooner rather than later. As soon as he learned of his appointment to the international delegation, Wright sent a memorandum giving his opinion of the opium problem to President Roosevelt. Wright wanted the United States to set an example for the international community before the Shanghai meeting by passing a strict federal law against opium. David Musto says that this action reflected Wrights view of his role in the government. He did not have a significant amount of real political power in his State Department position, but was a distinguished scientist trying to accomplish quickly and efficiently an important political assignment.221 This reflected more than just Wrights opinion of his role in government; it reflected his view of the federal governments role in America. It also reflected the progressives view of the separation of politics and administration. In 1886, Wilson wrote, The idea of the state and the consequent ideal of its duty are undergoing noteworthy change; and the idea of the state is the conscience of administration. Seeing every day new things which the state ought to do, the next thing is to see clearly how it ought to do them.222 If America was to lead the international effort against narcotics then Wright believed it had to enact a national policy that regulated the importation, use, sale, and manufacture of opium, opiates, coca leaves, and other similar substances. He understood that such an extensive law would only be enforceable by a national police force, which was impossible under the Constitution, but he also did not feel that the other nations would understand the complexities of American federalism and

Musto, The American Disease, 32. Wilson, The Study of Administration. He also said that as the people got more control over government, Those views are steadily widening to new conceptions of state duty; so that, at the same time that the functions of government are everyday becoming more complex and difficult, they are also vastly multiplying in number. Administration is everywhere putting its hands to new undertakings.
222

221

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therefore not understand why such a law had not been passed by the nation who was supposed to lead and set an example for the commission. Part of his desire was filled with the passing of the Opium Exclusion Act, but this only regulated the importation of smoking opium from China: it was intended to enhance foreign relations with China more than to be the icon of the beginnings of strict international limits on opium. While thirteen nations were present at the discussions [T]he Commission was far from international. The focus was on Chinas opium problems-five of the nine resolutions mentioned China by name and the United States and Britain dominated the discussions.223 Wright and the rest of the American delegation wanted to add a resolution requiring all nations at the International Opium Commission to take action ensuring that no opium was shipped from any port of a signatory nation. The delegation got the other eleven nations to agree to this, and Wright later explained how they did so:
This resolution we had a great deal of difficulty in getting through, but we strongly urged upon the commission the fact that we had in our national pure food laws the same penalties on the shipment of deleterious articles to foreign countries as on the shipment of the same articles in our interstate commerce. I stated that we had done this not as result of pressure from foreign ports, but as a matter of international courtesy, and that the American delegation felt that it was time that the principle of do unto others as you would be done by was recognized in regards to such matters and especially in regard to the opium traffic.224

Wright used the policy of Americas pure food laws to get the delegation that if they were going to enact these resolutions domestically, they should follow American example, and they should adhere to them internationally as well. The pure food and drug laws in the United States were enacted in 1906, and though they primarily dealt proper labeling, it marked the beginning of federal regulation of goods and substances. This act required that goods be clearly marked with their ingredients, eventually requiring the amounts of each ingredient, and began a movement to disband

223 224

Ch. 19- The International Legal Environment The 1909 Shanghai Conference <www.druglibrary.org> Proceedings of the American Society of International Law at its Third Annual MeetingApril 23rd and

24th, 1909.

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ineffective so-called patent medicines. This act is important to the history of narcotics legislation because it also required substances that contained opiates to state so on the label, this does not yet restrict their use, but is the beginning of federal opiate regulation. In the same year as the Pure Food and Drug Act, Congress passes the APHA Pharmacy Bill. The American Pharmaceutical Association, in 1903, proposed a bill that restricted cocaine, opiates, and chloral hydrate to be distributed only by prescription to addicts. In 1906, this bill was adopted by the United States Congress as the policy of Washington D.C., continuing the tradition of federal regulation of narcotics in a territory, also seen in the Philippines. Soon after this becomes the policy of Washington D.C., other states in the union subscribed to this procedure. California was one of these states and had a long history of regulating narcotics that stretched back since before the beginning of the progressive era.225
225

Yun Quong, a Chinese immigrant, who asserted that this legislation was a violation of his

individual, natural rights to liberty and property, challenged this law. The decision that the California Supreme Court handed down upheld the constitutionality of the opium ban, claiming that it fell under the policing power of the state legislature. Declaring [I]t is the functionality of positive law to see that this constitutional guaranty is so applied. This guaranty was, the court states, that these rights be applied to individuals in light of their relationship to others, and not as rights that an individual would possess were he a law unto himself. While, perhaps, this legislation was under the scope of the policing power of a state legislature, the theory put forth by the court demonstrates, on a state level that predates most federal decisions based on a similar creed, the shift in ideology during the early years of the progressive era. This theory, seen in later federal narcotics legislation, was that positive law, where the originator of rights is the government, is seen in this decision as beginning to overtake natural law in the dawn of the progressive era. This new theory of law, seen in the judgment of Quongs case that was ruled in 1911, differs greatly with the pre-progressive eras understanding of law, an older interpretation it adheres closely to the founders understanding of natural law. It is seen in the California Supreme Court, in 1887, the court ruled on an opium case that asked a basic question similar to Quongs. The judge ruled [T]o prohibit vice is not ordinarily considered within the police power of the

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California had been the first state in the nation where an anti-drug law was passed when, in November of 1875, San Francisco passed a statute closing public opium dens. Following the enactment of this law many other cities in California, most with high Chinese populations, passed similar legislation to prohibit the public use of Chinese smoking opium. In the spirit of the Pure Food and Drug Act, in 1907, Californias state legislature voted to amend the California Pharmacy and Poison Act to state that it was illegal to sell opiates without a prescription. The Poison Act was made trivial in 1909, when California passed a law that banned the mere possession of opium, and soon after passed a ban on opium paraphernalia of any kind. According to drug policy historian Dale Gieringer, this created a new class of criminal that had not previously existed: the illegal drug consumer.226 Throughout the early progressive era California would stay ahead of the regulatory curve, banning all narcotics with the passage of the Poison Act of 1913. So, while regulative narcotics legislation in California was successful during the early 20th century, it was not always as effective in creating less as it supporters hoped or thought that it would be. California proved to be a test case, only in the amount of majority support the country showed, the issue with which Wright struggled, was that he must garner support from Congress fervently enough that they felt compelled to vote in a way that expanded their power further than it had ever reached before in the

state, the object of police power is to protect rights from the assaults of others, not to banish sin from the world or make men moral. This is an example of natural law, where men are born with certain rights, no matter where they are born, or in instance of the ruling court, even if they are born alone.
Throughout California, agents raided densely packed Chinese communities and burned private opium dens, incinerating the illegal opium and paraphernalia. This was seen as devastating policy toward Chinese immigrants because, as the LA Times reported on August 17 of 1909, "dozens of them are dying monthly because forced to abstain from the 'dream pipe'." While the delegates to the California legislature felt they were ridding their state of the evils of opium, they were causing the opium-addicted Chinese inhabitants to involuntarily quit using the drug cold turkey. Due to the circumstances that surrounded the suffering Chinese, as well as a general demand for the previously legal substance, it was apparent that the drug was not less commonly used but merely an object now made available for its patrons on the black market of California. 226 Gieringer, The Opium Exclusion Act of 1909.

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history of the United States, a power some were not sure the federal government even possessed.

The Opium Eaters

In order to get Congress to agree to the legislation that Wright desired, he needed to accentuate just how dangerous opium was, and so he embarked on a nationwide study of the use of opium in America to convince it.227 In an interview with the New York Times in 1911, Wright publicized some of his findings, saying:
Opium, the most pernicious drug known to humanity, is surrounded, in this country, with far fewer safeguards than any other nation in Europe fences it with. China now guards it with much greater care than we do; Japan preserves her people from it far more intelligently than we do ours, who can buy it, in almost any form, in every tenth one of our drug stores. Our physicians use it recklessly in remedies and thus become responsible for making numberless 'dope fiends,' and in uncounted nostrums offered everywhere for sale it figures, in habit-forming quantities without restrictionThe contrast between European and American professional ethics in this matter is deplorable, and the dark side of the picture is America's. A proportion of our doctors and a much larger ratio of our druggists regard their liberty to prescribe and sell as a license to advise and furnish to its victims the narcotic curse on demand.228

Wright went on, describing the effects that those addicts have had on the nation, Our prisons and our hospitals are full of victims of it, it has robbed ten thousand business men of moral sense. This statement reflected the progressive sentiment regarding business at the time; it had gone unguarded and uncontrolled by the Nation, the Progressive Party inserted into its platform one year after Wrights interview. Wright went on to say that opium, just like unregulated business, made people into beasts who prey upon their fellows.229 Our people through these facts, and carelessness, ignorance, and want of foresight by the Federal Government, he affirmed. We (citizens of the

Musto, 127. Edward Marshall, Uncle Sam is the Worlds Worse Opium Fiend, New York Times, March 12, 1911, http://www.druglibrary.org/schaffer/History/e1910/worstfiend.htm 229 Ibid., He also said that unidentified it has become one of the most fertile causes of unhappiness and sin in the United States, if not the cause which can be charged with more of both than any other.
228

227

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United States) are literally the world's opium eaters, he said, encouraging the United States to take the lead in the world on the narcotics issue, which it soon would. Much like the radical prohibitionists of the temperance movement in the 19th century, Wright did not want to accept the passage of any type of law that seemed to compromise with the problem of opium or that made the United States seem deceitful or weak, as America had signed and ratified an international treaty in 1913 promising that federal legislation would be passed to regulate opium. This treaty came out of this first International Opium Convention, which took place at The Hague in the Netherlands in 1911-12. Brent and Wright were once again appointed as the American delegates, and this time they were joined by the engineer of the California antinarcotic movement. Henry Finger was a member of the California Board of Pharmacy, and the most influential person in that state associated with narcotics reform: it is his voice at the Hague Convention that first proposed the regulation of cannabis, a reform that had not been brought up in any previous international discussions. California was subject to a large influx of Hindoos that, as Finger believed, initiated whites into the habit.230 The representatives of the United States, including

230

David Musto. "The History of the Marihuana Tax Act of 1937". Arch. Gen. Psychiat. February,

1972. The rise of industrialization in America at the turn of the century caused two trends that would have a major impact on America in the 20th century: immigration and urbanization. All three were crucial in creating an opportunity for progressivisms entrance into American politics and in formulating certain arguments for the reformation of substance legislation, alcohol and other narcotics. Individuals who succumbed to the temptation of alcohol were seen as destroying not only themselves but were also contributing to societys ruin. As Americas economy became more industrialized, there was a massive influx of immigrants into the port cities searching for the newly created jobs. Many of the reformers believed that these immigrants worsened the alcohol problem in America, further impairing societys potential progress. Although mainly used in the south, race had always been somewhat a part of the temperance argument, but the increasing immigrant population in the north amplified the rhetoric of reform and was came to be utilized by the entire movement. Narcotics were used by a much smaller percentage of the population in the early 20th century comparatively and so the reformers had to anticipate the social problems it would cause. Narcotics like opium and cocaine were thought to be limited to certain parts of the population: African Americans, and immigrants from

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Hamilton Wright who was the leader of the U.S. delegation, fully supported this but it lacked support from the rest of the Convention. As a consolation, the nations agreed to investigate whether the drug warranted regulation.231 They worked with the eleven other nations, missing only Austria-Hungary from the previous International Opium Commission of three years earlier, toward an agreement that would require the signatory nations take measures to prohibit, as regards their internal trade, the delivery of morphine, cocaine, and their respective salts to any unauthorized persons.232 The Convention designation of the meeting, as well the treaty agreed to by the attending nations, meant that domestic legislation would have to be passed to comply with the treatys terms and since it had to then be ratified by the Senate, Wright felt that the United States would be legally bound to enact some sort of federal law to regulate narcotics. The agreement at the Shanghai meeting was not a treaty and therefore did not command enough respect by Congress to actually force any federal legislative action. The Hague Treaty was put into effect on the last day of 1914, the requirements of the treaty combined with the fact that the United States had actually ratified it, played a major role in shaping the Harrison Narcotics Act, which Wright helped to ensure passage of one year after ratification of the Hague treaty.233 Hamm states that reformers during the progressive era who desired federal action to be taken on their behalf hung their proposals on certain constitutional hooks, which meant that the federal government was just beginning the transition from essentially decentralized system to one in which real power was centralized in the national government. Reformers, of which Wright can be considered, could

Mexico and Asia. Immigrants and racial tensions were major aspects of the rhetoric used to drive both movements. Nearly the same rhetoric was used in the call for narcotics policy reform. Musto, The History of the Marihuana Tax Act of 1937 Musto, 52. 233 The Cyclopedia of Temperance, Prohibition, and Morals mistakenly predicts that the enactment of the antidrug law by the federal government taking effect March 1, 1915, seems to be at least the beginning of the end of the use of opium in America
232 231

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utilize five federal powers prescribed by the Constitution to achieve federal reform legislation. Hamm stated that the federal tax power was the one primarily used by the anti-narcotics movement in the early 20th century to pass the Harrison Act, but the treaty power also was a major factor.234 In an attempt to achieve this federal reform, and evading the constraints of the Constitution in the process, Wright decided to draft his anti-narcotics bill as a tax law. He had enjoyed little success when he argued that the agreements of the Hague Convention prescribed that federal regulations must be placed on narcotics in order for the treaty to be fulfilled. The Supreme Court, in 1916, ruled that federal regulation was not required to fulfill the treaty.235 At that point, it was inconsequential whether federal regulation was required, because Wright had used the taxing power of Congress two years prior to the ruling as his final solution. The Harrison act was sponsored by Representative Francis Burton Harrison from New York, and Representative James R. Mann from Illinois. William Jennings Bryan was also one of its main proponents Representative Mann had gained notoriety for sponsoring and passing the White Slave Act in 1910. This bill was an omnibus federal anti-prostitution measure that was rested its constitutionality on treaty and commerce power. The United States ratified the White Slave Treaty in 1908, which required Congress to enact domestic legislation to fulfill its requirements. The way in which the Mann Act pushed through Congress, and the constitutional arguments that were made for it, closely paralleled the efforts made for the Harrison Acts passage.236 All involved in the debate recognize the potential unconstitutionality of such a law under the Commerce Clause.

Hamm, 9 n.12, tax power; Kurt Hohenstein, Just What the Doctor Ordered, 236, Treaty The actual banning of all narcotics was ruled as not within the scope of Congress Constitutional power, so though a treaty had been signed its language could not over rule the constraints of Constitutional power, the Harrison Acts enforcement would be done by the Department of the Treasury, they would act on the legislation of Congress who levied a tax on narcotics. The trivial goal which gave it Constitutionality was the revenue it would raise, the larger goal was to limit the access to narcotics by requiring registrations, taxes, prescriptions, licenses, etc. 236 Hamm, 196; Musto, 63.
235

234

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During the debates, Representative Harrison cited the Supreme Courts ruling in Champion v. Ames, which granted Congress wide latitude to regulate commerce between the states and could be construed to prohibit commerce in certain cases.237 After citing this precedent in defense of the act, one congressman stood up and asked Mann the following question:
Does the gentleman believe that the Constitution construed as a whole ever contemplated that Congress would exercise either of those powers in the exercise of a police power? The purpose of this billand we are all in sympathy with itEast to prevent the use of opium in United States, destructive as it is of human happiness and human life; but the question now is whether or not the purpose you desire to breach is a purpose that would be permitted under any clause of the Constitution.238

Mann and other supporters of the Harrison Act defended it as a way to organize and tax commerce related to narcotics. Its title was:
"An Act to provide for the registration of, with collectors of internal revenue, and to impose a special tax upon all persons who produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away opium or coca leaves, their salts, derivatives, or preparations, and for other purposes."

This required that all parties including the druggist, physician, doctor, manufacturer, and importer of the drug be licensed to engage in their role, by paying a tax enforced by the Department of the Treasury. Manufacturers of patent medicines were exempt from the licensure and the tax, so long as they sold preparations and remedies which do not contain more than two grains of opium, or more than onefourth of a grain of morphine, or more than one-eighth of a grain of heroin in one avoirdupois ounce."239 It was unlawful for anyone else that did not pay the tax to, produce, import, manufacture, compound, deal in, dispense, sell, distribute, any of the aforesaid drugs if they did not pay the tax and register themselves with the government.240

Hohenstein, 237. U.S. Congressional Record 63, Session 1, June 26, 1913, 2193; quoted in Hohenstein, 237 239 Harrison Narcotics Tax Act of 1914, 17 December 1914 240 That the Harrison Narcotics Act was drafted as a revenue tax makes it similar to alcohol legilsation in the 1840s, while prohibition was still over fifty years down the road. In the License Cases mentioned on p. 17, the
238

237

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The act was defended as a law that did not regulate the sale of small quantities of a substance, but was a way for large quantities of a now regulated narcotic substance to be taxed and kept track of, but was careful to make exception doctors prescription rights and the supplier to the doctor.241 Wilson signed the Harrison Narcotics Bill into law on December 17, 1914. At the time, it may not have appeared that this act had nearly enough regulatory power to be the foundation to the all out prohibition of narcotics, but with the a few important Supreme Court decisions that was exactly what happened. In the beginning of the Harrison Acts enforcement, most physicians were unclear about the requirements asked of them and their patients in legally prescribing these regulated narcotics. In 1916, Dr. Jin Fuey Moy had registered under the provisions of the act and prescribed his patient, Willie Martin, who had not registered under the act, opium for his own use. The question brought to the Supreme Court by the state was, Is receiving and using a prescription an action defined under the commerce stipulations of the act, and does a patient receiving a prescription engage in the commerce of the narcotic? The Chief Justice, Oliver Wendell Holmes, wrote the majority opinion that being in being prescribed a narcotic one does not produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away that said narcotic, but merely possesses and uses it. This strict reading of the language of the act was not well received by the Bureau of Narcotics, the agency given the task of enforcing adherence to the act.242 The head of the Treasury Department said of it:

prohibition laws were upheld and compared to taxes by the Supreme Court. According to Clement Sites: Under a taxing system on the other hand the position of the commonwealth government toward a town which votes local prohibition is more nearly analogous to that of the United States government toward a prohibition commonwealth In the decision in the License Tax Cases which arose out of the collection of United States internal revenue taxes from liquor dealers when the traffic was prohibited in Massachusetts Chief Justice Chase said There is nothing hostile or contradictory therefore in the acts of Congress to the legislation of the State What the latter prohibits the former if the business is found existing notwithstanding the prohibition discourages by taxation The two lines of legislation proceed in the same direction and tend to the same result." Sites, Clement Moore Lacey. Centralized Administration of Liquor Laws in the American Commonwealths . New York: Methodist Pub. House, 1899. 241 Musto, 129. 242 Musto, 129; Hohenstein, 243. The Treasury was the agency actually regulating it and the Bureau of Narcotics was .

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This decision makes it practically impossible to control the illicit traffic in narcotic drugs by unregistered persons, as the mere possession of any quantity of drugs is not evidence of violation, and therefore the government is forced to prove in every case, even where the circumstances indicate say on dispensing, actual sales by this class of offenders which it has been found difficult to do.243

The strict interpretation of the Harrison Act that the court had used in 1916 evolved within the next few years, and it eventually became the federal governments policy to eliminate the nonmedical use of all narcotics.

The Beginnings of Federal Narcotics Prohibition

The two cases of note following the Jin Fuey Moy ruling were United States v. Doremus and Webb v. United States. Each of these cases paved the way to give sweeping power to Congress, and in the second ruling Congress gained a place inside the physicians office as well as a voice in the treatment of patients. Doremus was a physician charged with breaking the Harrison Narcotics Act for selling five hundred one-sixth grain pills without a written order on a form issued on the blank authorizing the sale of them from the Collector of Internal Revenue. He was also charged with giving five hundred one-sixth grain heroin tablets to a patient who was commonly known as a dope fiend, without obtaining a form from the Collector of Internal Revenue, because though he was a registered doctor under the act the amount he prescribed to Ameris was enough that they believed that Ameris could sell the extra thereby withholding revenue from the government. So, although Doremus had paid the tax and was registered with the government as a doctor, the court judged that the amount he prescribed allowed for it to be sold by an unregistered dealer to an unregistered buyer. The most important constitutional question that the case raised was, Does section twowhich restricts the sale and commerce of drugs to the dealers,

243

W.C. Fitts, Assitant Attorney General to Senator William Calder, Nov. 2, 1917. Quoted in Musto, 131.

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doctors, and patients given prescriptions by a doctor in his professional practiceaim to raise revenue by imposing all of these restrictions? 244 The stringent restrictions were defended as a means of raising revenue because the court felt that these professions tend to not attempt to hide their business from the government as much as unauthorized dealers who under this policy are thought to have less of an opportunity to sell drugs and hide income. Now, Doremus had come to the Supreme Court after his District Court had ruled the Harrison Act unconstitutional. In a 5-4 split, while the Chief Justice was in dissent because he believed that the act federally violated the states right to policing power, the small majority of the court upheld the constitutionality of the Harrison Act by a slim margin. This decision was made on March 3, 1919 and later that same day a similar case would be decided, but the ruling would expand federal power even further than the ruling in Doremus. The case of Webb v. United States had come to the Supreme Court from the Sixth Circuit Court of Appeals for the Sixth Circuit, meaning this case originated in the Western District of Tennessee. The two defendants, Webb and Goldbaum, a doctor and druggist respectively, had been using the order blanks system though the Controller of Internal Revenue. Webb would prescribe the narcotic to an addicted user upon the first prescription and then, ignoring the common practice of re-evaluation and a lower dosage prescribed, furnish the same prescriptions to the addict. Goldbaum, who was accustomed to this procedure, filled the prescriptions of Webbs patients in a manner to furnish the addiction, while those without the physicians prescription would be given an amount aiming to cure the addiction. The Circuit Court asked three questions to the Supreme Court, but the third question, because of its negative answer, is the only question material to the case. The Circuit Court asked the high court:
If a practicing and registered physician issues an order for morphine to an habitual user thereof, the order not being issued by him in the course of

Decisions of United States Supreme Court Construing Harrison Narcotic Act Source: Public Health Reports (1896-1970), Vol. 37, No. 32 (Aug. 11, 1922), pp. 1950-1954 Association of Schools of Public Health,: http://www.jstor.org/stable/4576476.

244

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professional treatment in the attempted cure of the habit, but being issued for the purpose of providing the user with morphine sufficient to keep him comfortable by maintaining his customary use, is such order a physician's prescription under exception (b) of section 2?'

In the same fashion as the decision of Doremus, the court felt that the answer to this question was negative and this resulted in a 5-4 split decision in favor of the Harrison Act. The Chief Justice of the Supreme Court was again in the minority, claiming that for the same reasons he was in the dissent in Doremus case he must also be in the dissent for this case involving Webb and Goldbaum. The courts decision in the Webb case did two things; it established a precedent that would be applied in future cases concerning the reach of the federal police power, and it granted Congress the power to regulate procedures inside the doctors office as well as what was prescribed in good faith. Six years after the Harrison Act became law, and one year after the Eighteenth Amendment became effective, the Supreme Court clarified what exactly the federal governments power was with regards to the enforcement of narcotics regulations. In Whipple v. Martinson, the justices declared:
"There can be no question of the authority of the State in the exercise of its police power to regulate the administration, sale, prescription, and use of dangerous and habit-forming drugs.... The right to exercise this power is so manifest in the interest of public health and welfare, that it is unnecessary to enter upon a discussion of it beyond saying that it is too firmly established to be successfully called in question.

As one scholar has put it, In 1914, trading in and using drugs was a right. In 1915, limited federal drug controls were a constitutionally questionable tax revenue measure. By 1921, the federal government had gained not only complete control over so-called dangerous drugs, but also a quasi-papal immunity to legal challenge of its authority.245 The Harrison Act was becoming interpreted to include powers that cannot be found in its textas if it were a living, evolving document.

245

Thomas Szasz,

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C ONCLUSION
Why was it necessary to amend the Constitution so Congress would have the power to prohibit the intrastate commerce of a particular substance in 1919 and such an amendment was not required for the prohibition of other substances? This was the question that prompted our investigation of the origins of federal alcohol and narcotics regulations. It was raised by a juror during a trial concerning the Controlled Substances Act and answered by a judge who said the Supreme Court had interpreted the Commerce Clause, to extend to enacting laws with respect to contraband, including contraband laws.246 The courts decision in the case to which he was referring, Raich v. Gonzalez, revealed two points of importance that had to be dealt with in answering such a question. First, the court recognized that after the first century of our historyin response to rapid industrial development and an increasingly interdependent national economy, Congress ushered in a new era of federal regulation under the commerce power. [O]ur understanding of the reach of the Commerce Clause, the court states, as well as Congress assertion of authority thereunder, has evolved over time. Second, it recognized that the Controlled Substances Act was not Congress first attempt to regulate the national market in drugs.247 The federal governments policy of regulating narcotics to the extent of prohibition began with the Harrison Narcotics Act, which began at the same time that the Eighteenth Amendment was in effect. Although not written as prohibitory legislation, the Harrison Act was used to prohibit opiates and cocaine in a way analogous to how alcohol was prohibited in the 1920s, but why was it understood to be constitutional? The simplest explanation seems to be that there was not the controversy surrounding Congresss regulation of narcotics like there was around alcohol. Many

246

Gonzales v. Raich, 545 U.S. 1 (2005); Wickard v. Filburn, 317 U.S. 111 (1942); U.S. v. Lopez, 514 U.S. 549 Gonzales v. Raich (2005). http://www.law.cornell.edu/supct/html/03-1454.ZO.html

(1995).

247

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believe this to be the main reason that the court never found the Harrison Narcotics Act unconstitutional, as Musto says, in the case of narcotics the consensus was almost absolute; everyone appeared to agree on the evils of these drugs. For alcohol, there was no such agreement.248 Although true, this explanation is incomplete. Congress acknowledged that it needed the constitutional authority to prohibit alcohol but allowed narcotics to be regulated in virtually the same way, but it acknowledged the constitutional problems of doing this during debates over the bill249 The main difference between the antinarcotics and anti-alcohol legislation enacted during that time (besides the different substances they were to regulate) was the way in which they were enacted. The Eighteenth Amendment and the Harrison Narcotics Act were both made into law according to progressive political theory, but the paths taken to achieve passage of both were very different. It was how those two distinct paths interacted with the progressive transformation that was taking place in the American constitutional system that accounted for the different outcomes. The temperance movement had a long history before the progressive movement of the late 19th century paved the way for the 18th Amendments passage. The temperance movement operated during that time with an understanding that the Constitution would need to be amended if their goal of nationwide prohibition was to be realized. In the 1890s, the Anti-Saloon League adopted more pragmatic methods of promoting temperance than had been used by its predecessors; the Womens Christian Temperance Union and the Prohibition Party. This coincided with the rise of the progressive movement and the gradual progression towards a new understanding of law and government. The ideas of the progressives emphasized the use of positive law and government to promote the welfare of society.250 The progressive movement

Musto, The American Disease, 297. Hohenstein, 248. The same agency in the Treasury Department was used to enforce the Harrison Act as was used for alcohol prohibition. 250 This shift is seen visibly in the two California Supreme Court decisions on opium cases. One case occurs during the pre-progressive era, in 1887, and the other during the progressive era, in 1911. In this 24 year period the Supreme Court of California has shifted its entire understanding of governments purpose. In 1887, it sees the policing power of the states as something used to protect the rights of one person from being taken away by another, not a power used to rid the world of sin. In 1911 when judging Yun Quong, the ruling judge is so busy protecting
249

248

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worked towards changing the practices of government, while the temperance movement was working towards the eventual implementation of prohibition. They both were willing to compromise in pursuit of their goals. The progressive movement knew that small reforms would eventually swell into a complete alteration of American government, while the temperance movement realized that small legislative reforms could eventually swell into the complete prohibition of alcohol. These small reforms achieved by the temperance movement were the Wilson Law, and more importantly the Webb-Canyon Act. The Supreme Court, until the end of the 19th century, had nullified any prohibition laws that states placed on themselves. These decisions were the necessary steps towards amending the Constitution to granting Congress the legal right to regulate the possession of alcohol within the states, a right that they did not previously have. These measures culminated in the passage of the 18th Amendment when the temperance movement reached the pinnacle of its third wave in American history. The progressives had gained enough power to pass the amendment allowing them to ban the possession of alcohol, a goal the temperance movement had since the 1870s. Alcohol prohibitionists had desired a Constitutional amendment in order to work within the confines of the original constraints the Constitution put on federal power. While they compromised this thinking in the early 1900s, it was merely done to further their advance towards their end goal; it was not a surrender of their old reform ideas that were bound to the constraints of the Constitution. Henry William Blair expressed the sentiment that was held by the temperance movement through the Eighteenth Amendments passage when, in 1888, he wrote in regards to the Supreme Courts nullification of state prohibition laws:
[S]o long as the constitution and laws of the United States guarantee the safe importation and transportation of alcoholic beverages in the original packages through the ports and over the avenues of interstate commerce of this country the extinction or substantial restraint of the evil is impossible If the demand did not already exist local laws and public opinion might perhaps suffice but not
Quong from opium, and making sure everyone feels equal in relation to everyone else, that in the end of his argument he seems to conclude that an individual, by himself, possesses no rights at all.

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now when every hamlet and some inmate of almost every house in the whole land is cursed by unnatural desireThere will never be any substantial and permanent temperance reform in this country so far as the same is dependent upon law until the sporadic efforts of States and sections are made to converge upon the real citadel of the rum curse which is the national constitution.251

While temperance became a progressive issue and was driven by a progressive theory of governments purpose, it remained attached to pre-progressive methods of implementing its reform goals. The progressive movement not only provided the theory behind narcotics prohibition, but it provided the means for which it could be enacted. It was not merely that regulating narcotics was much less controversial than regulating alcohol, although this was important. On the surface, the swift enactment of narcotics-related reforms seemed to show that using statutory methods was much more effective and efficient; this claim is almost surely true. Narcotics reform did have the benefit of being in its infancy at the same time as progressivism; its development was beginning at the turn of the 20th century and progressivism would spread throughout the United States within a decade. As progressivism gained power, both the temperance and narcotics movements used the progressive constituency to further their reform goals. It is possible that the federal government could have implemented the statutory prohibition of alcohol if the temperance movement had not taken such quick advantage of the circumstances presented to it in 1919. The progressives did not see amending the Constitution as necessary in their push to enact their reform agenda. They would use a constitutional amendment, but only if doing so was absolutely necessary. The temperance movement believed that it was necessary, while it was not necessary for antinarcotics legislation. If the United States was as far behind as progressives believed she was, then they must attempt to work in the most politically pragmatic ways in order to realize all the reforms that they wished for. As Wilson said, we have not kept up with our changes of conditions, either in the economic field or in the political field. We have not kept up as well as

251

Blair, 379.

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other nations have. We have not kept our practices adjusted to the facts of the case.252 Progressives like him and Theodore Roosevelt could not be limited to the powers enumerated by the Constitution if they were to implement such changes. In 1914, the commerce, taxation, and treaty powers were used to justify the Harrison Acts passage, which evolved into narcotics prohibition today. The fact that it was written as a tax law illustrates that Congress did not necessarily believe they possessed the power to regulate or prohibit narcotics, as it did not think it had this power over alcohol without a constitutional amendment. It was written as a tax measure to avoid potential constitutional conflict.253 The understanding of American constitutional government was just beginning to emerge, which means, according to Hamm, that the reformers faced a polity with rules that often proscribed their actions but that had enough flexibility to allow them to achieve their ends.254 Thus, the Harrison Narcotics Act was written so as not to unabashedly violate the Constitution. However, the Treasury Department enforced it to its extreme limits and the Supreme Court upheld this level of enforcement. The Harrison Narcotics Act was designed by progressive reformers, such as Hamilton Wright, who intended for it to become a moral prescription that would increasingly limit and eradicate the drug curse that they envisioned as the root of many social ills.255 The political transformation initiated by the progressive movement was gradual in changing how Americans understood the federal government and the federal governments power. The abandonment of the political philosophy upon which constitutionalism rested, states John Marini, could not have but a profound effect upon the structure and functioning of the institutions in a regime which is derived from it.256 The temperance movement culminated early in that transformation,

Some of the other reforms Wilson desired: to create the Federal Reserve, deal with corporate anti-trust, tariff policy, promote labor policy, take over the railroads, pass a Sedition Act, institute the first conscription legislation, and pass the first regulatory narcotics bill. 253 Hohenstein, 232. 254 Hamm, 6. 255 Hohenstein, 253. 256 John Mirani and Ken Masugi, The Progressive Revolution in Politics and Political Science: Transforming the American Regime [Lanham: Rowman and Littlefield Publishers, Inc., 2005], 3.

252

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using its political power to take an advantage of the situation, and passed the Eighteenth Amendment in 1919. The temperance movement had centuries of history and reached its apex during the beginnings of progressive thought, while the antinarcotics movement began during the progressive transformation and evolved alongside progressive reform. Progressivism always targeted gradual reform and aimed to use these changes as a way to alter how government was thought of in the United States. The main reason for the different legal treatments of alcohol and narcotics was this transformation of American government and its purpose. The ways in which the Harrison Narcotics Act and the 18th amendment were enacted differed greatly, but the theory behind them was the same. The progressive movement inserted an idea into the American system that was completely contrary to that which the nation was founded upon. The governments structure laid out by the Constitution, however, remained the same as the transformation was happening. The change came very gradually. In fact, it is still taking place, as American government does not operate according to the principles of the founders or the progressivisms. It has been described as an incoherent blend of both. This observation may help us understand why alcohol prohibition and narcotics prohibition cannot be fully in regards to the constitutional validity of the two policies. When it comes to theory or science, incoherence is always a vice, West says, But in practical affairs, incoherence has its virtues.257

Thomas West, Progressivism and the Transformation of American Government, Progressive Revolution23

257

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