Was the Eighteenth Amendment really necessary?

[Really Big Bama Fan]

Was the Eighteenth Amendment really necessary?

The Eighteenth Amendment divided America. Urban culture was pitted against rural culture, Protestants were opposed by Catholics, Conservatives against Liberals, and scofflaws against the law abiding.

Prohibition has been called "the long dark night" in American history. Actually, I think that Prohibition was a shining example of American respect for the Constitution. Consumption of alcoholic beverages was a long established practice in the USA since the Colonial times. Obviously possession and consumption were a reserved power under the Bill of Rights. To outlaw a reserved power required a Constitutional Amendment.

The experiment failed because it is impossible to legislate morality on immoral people, but the Constitutional process was handled correctly.

Contrast that effort with what is happening today concerning the free expression of public religion.

There was a long established practice of public prayer at public events, Christmas decorations in public parks, morning devotionals in public schools, etc. Shouldn't the Bill of Rights be amended to outlaw the free expression of religion before all of these thing can be prohibited? I realize that Congress shall make no law in the area of religion, but to my knowledge, Congress never has! So, like the drinking of alcohol, the historical precedent and established practice should be protected by the Bill of Rights.

Some people say that the post War Between The States amendments gave the Federal Government power to extend equal protection to the citizens of the states, and this grants authority to infringe upon the powers reserved by the people under the Bill of Rights. However, as I read the constitution, Congress has enforcement power through "appropriate legislation." For this section on the Constitution, the Federal Courts can determine if a law passed by Congress was "appropriate" but without legislation from Congress, the Courts have no enforcement power. Only Congress can pass appropriate legislation.

I believe that the Courts have usurped the enforcement power that was specifically given to Congress. Public prayer is legal. It always has been. Public Christmas decorations are legal. Separate public schools for girls and boys are legal. (Female students are Coeds because that is historically a very new thing!) It is legal for Boy Scouts to visit and use public parks despite the fact that the Scouts require Reverence as one of their Scout Laws.

If an ordinary American like me can understand these points from reading the Constitution, why doesn't the Supreme Court?

These days, Prohibition would be much easier, because the liquor might be transported across a state line and so could be easily outlawed as possible interstate commerce! This is not the case in matters of religious faith. Although, I suppose that if the Commerce Clause continues to run amok, that religious literature such as tracts and Bibles could eventually be regulated.

To change the reserved powers established by custom and history requires an Amendment to the Constitution! The old Prohibitionists got it right. That was not "the long dark night" when it comes to respect for the Bill of Rights.

But what do I know? The Small Government and State's Rights forces surrendered at Appomattox Court House. The forces for a powerful central government won.

Check the latest electoral map. The powerful big government boys are the "Blue" states. The more things change, the more they stay the same. Why is the rest of the country "Red?" Seems like CSA "Gray" would be more appropriate!

 

[Tidewater]

Yes, ...

...from a certain perspective.
Consolidationists (those who seek a consolidated unitary system of national government, as opposed to a Federal system of limited powers shared between States and the Federal level) have always been plagued by burden of being virtuous themselves and the need to force others to fit their definition of virtue. Of course, you are correct that each State could outlaw alcohol itself, and the Federal government could "regulate the value of interstate commerce" and prohibit its inter-state trafficking. But that is not enough for Consolidationists. Everyone must be as virtuous as them. Every State must be "dry." In getting this enacted, New England Consolidationists found Southern and western Temperance advocates useful. Of course, the policy was flawed and National Prohibition was a farce, but Consolidationism frequently leads to such "achievements." The work of consolidating the Government goes bravely on.
A friend of min once spent the night in the Pontotoc County jail because he had a beer (unopened) in the cab of his car while passing through Pontotoc.

 

[Really Big Bama Fan]

A friend of min once spent the night in the Pontotoc County jail because he had a beer (unopened) in the cab of his car while passing through Pontotoc.

I think the Founding Fathers who opposed the oppressive government of King George would be appalled at some of the things that happen today. It is enough to turn me into a Libertarian!

 

[Ramah Jamah]

The experiment failed because it is impossible to legislate morality on immoral people, but the Constitutional process was handled correctly.

I am not going to comment on your whole article there, but I did find this sentence odd. As you mentioned consuming alcohol was a long established practice in the US. But it was a long established practice in the entire Western world. It wasn't that they were legislating morality on "immoral" people it was that they were legislating customs on usually moral people. The people who obeyed the law were mostly moral people, but so were some of the ones who broke the law. What was amazing about prohibition is it was the first time in American history that a lot of people who would never think of breaking the law did.

 

[Nate Harris]

I'm going to start out by making a few observations about the temperance movement and then look at the prayer angle in a separate post.

A lot of my ancestors were temperance activists so talk about the movement's history always interests me. There's one very critical thing about it that almost always gets overlooked today. It was a womens' and childrens' rights movement. It was born out of a recognition that married women had no chance to get jobs and support their children if their husbands became heavy drinkers and stopped supporting their families. From what I've read, heavy drinking was far more prevalent in 19th century America than it is today, and women with no way out of a marriage dominated by an irresponsible alcoholic husband were often falling into prostitution while their children became street criminals.

It's also worth remembering that when the 18th Amendment was passed it was in the era when we were first beginning to ban drugs of all kinds like cocaine, heroin, marijuana, and other drugs. Before the early part of the 20th century they had all been completely legal for everybody. I suppose it made sense to the people of the time to ban booze just like they were banning cocaine and heroin. It had never been done before in America so nobody really understood the consequences of what would happen. All those other drugs are still illegal. Booze is the only exception.

I like a good beer every now and then, but I can still understand why these people did it. Their intentions were good. They just couldn't foresee everything that the ban would lead to. It had never been done before. A lot of that seem obvious to us today weren't so obvious back then. A lot of times we're the beneficiaries of 20/20 hindsight when other generations screw it up.

 

[Nate Harris]

There was a long established practice of public prayer at public events, Christmas decorations in public parks, morning devotionals in public schools, etc. Shouldn't the Bill of Rights be amended to outlaw the free expression of religion before all of these thing can be prohibited? I realize that Congress shall make no law in the area of religion, but to my knowledge, Congress never has! So, like the drinking of alcohol, the historical precedent and established practice should be protected by the Bill of Rights.

Some people say that the post War Between The States amendments gave the Federal Government power to extend equal protection to the citizens of the states, and this grants authority to infringe upon the powers reserved by the people under the Bill of Rights. However, as I read the constitution, Congress has enforcement power through "appropriate legislation." For this section on the Constitution, the Federal Courts can determine if a law passed by Congress was "appropriate" but without legislation from Congress, the Courts have no enforcement power. Only Congress can pass appropriate legislation.

I believe that the Courts have usurped the enforcement power that was specifically given to Congress. Public prayer is legal. It always has been. Public Christmas decorations are legal. Separate public schools for girls and boys are legal. (Female students are Coeds because that is historically a very new thing!) It is legal for Boy Scouts to visit and use public parks despite the fact that the Scouts require Reverence as one of their Scout Laws.

If an ordinary American like me can understand these points from reading the Constitution, why doesn't the Supreme Court?

I had the good fortune to take a Constitutional Law class from a professor who is something of a rarity in today's academia. He's a solid conservative. He would regularly denounce all sorts of Supreme Court decisions for their judicial activism, however, on this point he would disagree with you.

One day we had a discussion about the phrase "Congress shall have power to enforce this article by appropriate legislation" which appears in several Constitutional amendments. Although it had never occurred to me before, he pointed out that while this language specifically gives Congress the power to act in this area it does NOT prohibit other branches of government from also taking action. What if the Supreme Court decided that your religious freedoms had been violated and they wanted to hand down a decision protecting those freedoms. Under your interpretation they would have no power to do so.

The Supreme Court doctrine on school prayer is found in Lemon v. Kurtzman (1971).

In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: "sponsorship, financial support, and active involvement of the sovereign in religious activity."

Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, finally, the statute must not foster "an excessive government entanglement with religion."

http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0403_0602_ZO.html

Organized prayer in public schools violates the 1st Amendment because it advances a particular religion. The fact that the law orders children to attend school is the catch here. If you're going to order impressionable children to be there then you cannot order them to be present for a religious activity that advances a particular religion. The fact that a prayer may be your form a religious expression does not give anyone the right to order all children in the school district to be present for it, so says the Supreme Court. I suspect you would hold the same view if some school district ordered your child to be present for a non-Christian prayer.