Congressional Intoxication

98 years ago today the Eighteenth Amendment to the Constitution was ratified, outlawing alcoholic beverages throughout the United States.  Just under fifteen years later it was repealed by the Twenty-First Amendment.  The story of prohibition is familiar and most frequently employed as a cautionary tale against governmental overreach banning activities that enjoy substantial popularity, like recreational drugs.

I think the more important lesson is to remember a time when the federal government recognized there were limits on its power.  After all, if Congress wanted to put the whole country on the wagon, why not just pass a law?

One hundred years ago Congress still respected the Constitution.  And the American people did too.  Congress was authorized to act in a few areas defined in the Constitution, mostly in Article I, Section 8.  And banning the "manufacture, sale, or transportation" of booze was not among them.  So prohibition required a Constitutional amendment.

About the time that prohibition was being repealed, Franklin Roosevelt and the Democrats were pushing a new view of the Constitution.  They didn't look at it as a law conferring some powers and withholding others.  Rather, it was a malleable instrument that could be bent to justify any power the federal government wished to arrogate to itself.  The favored vehicle was the clause empowering Congress to regulate "commerce among the several states."  The New Dealers argued, and their allies in the Court agreed, that just about any activity could be said to have an impact on interstate commerce and thus came within Congress' jurisdiction.

There is no Constitutional distinction to be made between banning alcohol and banning marijuana.  Yet it goes almost without notice that Congress has done the latter by ordinary legislation, without availing itself of the amendment process to give it that authority.

In 1933 Congress gave the country permission to start drinking again.  Coincidentally, at the same time it began to imbibe the intoxicating brew of limitless authority.  We need to put Congress back on the wagon.