[ctylor]

What precedent or change in legal doctrine allows the US Government to enact a prohibition on narcotics without a constitutional amendment ala the 18th Amendment? Something clearly happened in the legal thinking of the last 90 years to go from thinking the Federal Govt was not authorized to get involved and needing new constitutional powers to it being free to get involved now without any new delegated powers.

[Brion McClanahan]

The prohibition on narcotics predated the 18th Amendment (Harrison Act of 1914). To answer your question simply, the Constitution is dead (as both Dr. Woods and Dr. Gutzman have written about in their book on the topic), and the political class in D.C. has not cared about constitutional restraint because the people that put them in power have not held their feet to the fire, the States have been emasculated (charges of racism), and the State representatives have been afraid to push the issue..

[ctylor]

After mulling your answer over some more, it strikes me that the Federal Govt of the Progressive era didn’t really need a strict Constitutionalist justification for its involvement in anything; they already had precedents and SCOTUS interpretations that were giving them a lot of flexibility even then (albeit with some resistance from the SCOTUS).

So then the question is why in this case was a special amendment utilized? I had originally thought it was from some sort of constitutionalist sensibility that was a ‘check’ on federal imperialism but that doesn’t sound right anymore.

My new understanding is that it is because this was a bottom-up sort of initiative as do-gooder church groups and teetotalers petitioned enough States to get Prohibition of booze accomplished at a state level, then those same groups within the Federal system thought the country could now foist a federation-wide prohibition so that states that allowed liquor (wet states) would not be open-sieves to funnel illegal booze into dry-states. It was somewhat easier to put border control on the Canadian border than on a sister US state. According to Wikipedia, the war with Germany and the political-marginalization of German-Americans really helped remove the forces opposed to Prohibition from the equation.

[Brion McClanahan]

I am sure your last point has some merit. Temperance proponents made quite a push during the War Between the States and never backed off. People like Elizabeth Cady Stanton were disappointed when the Republicans dropped women’s issues, include temperance, from their agenda after the War. They thought the War represented a seismic shift in reform policy and should embrace not only abolition, but all reform movements. Many agreed, including people like Horace Greeley, but the political realities put some of those issues on the shelf until later.

[Author]

Posts