Happy Repeal Day – A Time When Federalism WorkedDecember 5, 2008
It’s the day so nice I had to post about it twice!!! Happy 75th anniversary of the 21st Amendment!!! Radley Balko at Reason has an interesting article analogizing Prohibition to the War on Drugs:
Prohibition was the pièce de résistance of the early 20th-century progressives’ grand social engineering agenda. It failed, of course. Miserably.
But there’s one positive thing we can say alcohol prohibition: At least it was constitutional. The prohibitionists built support for their cause by demonizing alcohol from state to state, winning over local legislators one at a time. When they’d built a sufficient national movement, they started the momentum for a constitutional amendment. Congress didn’t pass a blanket federal law, Constitution be damned. They understood that the federal government hasn’t the authority to issue a national ban on booze, so they moved to enact the ban properly.
When America repealed prohibition, we repealed it with a constitutional amendment making explicit that the power to regulate alcohol is reserved for the states. Even today, when Congress wants to pass federal alcohol laws (such as the federal drinking age, or the federal minimum blood-alcohol standard for drunk driving), it can’t simply dictate policy to the states. Instead, it ties the laws to federal highway funding, a blackmail that while distasteful, at least carries the pretense of adherence to the Constitution.
Contrast that to drug prohibition, where Congress (and the Supreme Court, when it upheld it) made no attempt to comply with the Constitution in passing the Controlled Substances Act of 1970 (CSA), the law that gave us the modern drug war.
There’s no question that drug prohibition has been every bit the failure alcohol prohibition was. Nearly 40 years after the CSA passed, we have 400,000 people in prison for nonviolent drug crimes; a domestic police force that often looks and acts like an occupying military force; nearly a trillion dollars spent on enforcement, both here and through aggressive interdiction efforts overseas; and urban areas that can resemble war zones. Yet illicit drugs like cocaine and marijuana are as cheap and abundant as they were in 1970. The street price of both drugs has actually dropped—dramatically—since the government began keeping track in the early 1980s.
Balko makes an excellent point with regard to federalism and the power of the federal government over the states. Way back when, prior to the stuffing of the Commerce Clause, it was only intuitive that a sweeping reform affecting the individual states would have to be put into effect via a Constitutional Amendment. It is pretty much spelled out in the Constitution.
Today, without a doubt, a similar ban would be congressionally enacted under the notion that alcohol is shipped in interstate commerce thus giving Congress the power to regulate it. Once the Court decided that Congress could regulate hote;s far from the Interstate, it was all downhill. We’d see Pete Coors and Cindy McCain testifying on Capitol Hill and an emergent beer lobby would appeear. It’s sad to see that we will never go back to a time when the will of the people of the states would be the deciding factor in enacting laws rather than the will of the representatives of the states.