Wednesday, March 21, 2007

What I've been doing instead of blogging.

Memory and the Twenty-First Amendment
Patrick Baude*

The Twenty-First Amendment (1) repeals Prohibition and (2) allows states to prohibit the transportation or importation of intoxicating liquors. Justice Stevens, dissenting from a recent Supreme Court opinion somewhat limiting state bans on importation, observed that the Court’s decision would “seem strange indeed to the millions of Americans who condemned the use of ‘demon rum.”’ This is a sensible thing to say about Prohibition but quite an odd thing to say about an amendment repealing Prohibition. His comment was especially powerful, however odd, in light of the implication that he had personal memory of this particular bit of legislative history. In fact, one can remember that history as a condemnation of strong drink or as a condemnation of the corruption created by the ban itself. Which memory one privileges is not purely a historical issue.
Two contemporary questions turn in part on the question whether the amendment’s penumbra is “wet” or “dry.” First, the language of section 2 of the amendment prohibits the importation into any state “of intoxicating liquors, in violation of the laws thereof....” This section contains a serious ambiguity. It might, on one hand, be read simply to empower any state to pass a law banning importation. This reading would vindicate complex state regulatory regimes whose main effect is to award monopoly profits to politically favored businesses, especially wholesalers. But it might also be read only as allowing the state to ban the importation of alcohol that was otherwise outlawed – i.e., to go dry in whole or county by county. If Justice Stevens is right that the combined force of the 18th and 21st amendments demonizes rum, exiling it from the constitution, then the first reading seems logical enough and the varying lawsuits challenging the current regimes are doomed. The second contemporary question concerns the general regulation of alcohol in society. A typical narrow question is whether alcohol can be banned from places of sexual entertainment. A broader version of that question is to ask why we, as a society, have followed the supposedly discredited model of the 18th amendment in our marijuana laws, relying on a sweeping prohibition, even in the growing number of states which have themselves recognized medical uses of the drug.
The first version of this history is the story of the “Noble Experiment” – a story popular with viewers of "The Untouchables." Liquor had corrupted the workingman, leading him to spend his wages on drink rather than family support, to spend his time in saloons away from his family, and into a descending spiral of alcoholism and self-indulgence. The commercial alcohol interests fueled this process in the pursuit of profits, developing a system of saloons that particularly seduced immigrants away from efforts to join the American Way. In an age of reform, progressives seeking the same sort of benefit as those sought by wage and labor laws, protected the health and welfare of workers, and the economic and social needs of their families, by protecting them from the attacks by the liquor industry. Unfortunately, organized crime and corrupt politicians conspired to profiteer on the weakness of the flesh. In the end, the wickedness of these criminals could not overcome the good of sobriety and repeal was a necessary evil.
The other version of the history is a story of puritanical subversion of egalitarian democracy. The just-published work, Dry Manhattan, by Michael Lerner, is a gripping portrayal of this point of view. The Anti-Saloon League showed a mastery of single-issue pressure politics, driven substantially by nativism and hostility to Catholic and Jewish immigrants particularly. In the political system of the time, before one person one vote, over-represented rural voters imposed their religious and cultural strictures on the nation as a whole. Dissent, especially from immigrant communities, was silenced by jingoistic attacks on their patriotism. It took years for the actual will of the people to reassert itself through the convoluted amendment process. The difficulties of repeal were so extensive that Texas’s Senator Morris Sheppard observed: “There is as much chance of repealing the Eighteenth Amendment as there is for a hummingbird to fly to the planet Mars with the Washington Monument tied to its tail.”
Both of these mythic versions are partially accurate descriptions of a flawed political process employed to some extent in a search for the public interest. I believe, however, that they both miss a deeper point crucial to the meaning of the constitutional experience. As the historian David Kysig observed in 1985: “[T]he national prohibition was arguably the most radical and significant constitutional reform ever adopted.” Among other things, prohibition for the first time introduced federal agents into the direct regulation of private life, essentially suspended the system of federalism, and thereby altered both the public and private life of the nation.
My point here, however, is to point in a more limited way to radical nature of the 18th amendment, in ways reinforced by both versions of the myth. The point, related to the theme of our panel about food and the law, is that food (and drink) are the essence of identity itself. Without ( I hope) parodying Lévi-Strauss’ Le Cru et le Cuit, it remains that personal identity is connected with food in ways far more intimate than any other form of consumption. Children begin to separate from their parents as they assert autonomy at the feeding table. Many nationalities are identified in slang, at least, by distinctive dietary items – “frogs,” “krauts,” “limeys” and other derogatory epithets. The place that food and wine play in Communion is only the most dramatic illustration of the centrality of this oral consumption to autonomy – indeed, one of the fascinating skirmishes of the prohibition era was the different approach to Jewish and Catholic sacramental wine.
I suggest, in short, that a central fact of Prohibition was that it therefore regulated identity, not behavior. As such, it was an act of cultural violence to the minority rather than an ordinary law regulating behavior. A comparable contemporary act would be an English-only law which made it a crime to speak any other language – a step no nativist organization, so far as I know, has yet even proposed. The prohibition of medical marijuana, by contrast, does not regulate an incident of identity.
If I am right about the centrality of the identity-food-drink connection, the 21st amendment should then be understood as preserving to the states their right to define their own political identity rather than a general enhancement of their police powers because of the potentially harmful effects of alcohol. This would uphold partial or complete prohibition of beverage alcohol but not its economic exploitation or discriminatory regulation.

(This an extended abstract of a presentation for the 2007 Annual Meeting of the Association for the Study of Law, Culture, and the Humanities)

*Ralph F. Fuchs Professor of Law and Public Service, Indiana University, Bloomington.